Marquis v McNamara (No 2) [2024] NSWSC 1390

Supreme Court New South Wales

Medium Neutral Citation: Marquis v McNamara (No 2) [2024] NSWSC 1390 Hearing dates: 31 October 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Equity Before: Kunc J Decision: Plaintiff's costs to be paid from estate on ordinary basis; defendant's costs to be paid from estate on indemnity basis Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether Court can retrospectively vary time for acceptance of offer of compromise — UCPR Pt 1 r 1.12, Pt 20 r 20.26(5)(a) SUCCESSION — Family provision — Nature of orders — Whether order expressed as percentage of estate can be made — Succession Act 2006 (NSW), ss 59(2), 65(2) Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Pt 1, r 1.12; Pt 20, r 20.6 Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586 Commonwealth of Australia v Gretton [2008] NSWCA 117 Curtis v Curtis [2024] NSWCA 136 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 Category: Costs Parties: Craig Marquis (Plaintiff) Philip McNamara (Defendant) Representation: Counsel: C P Locke (Plaintiff) P R Glissan (Defendant)

Solicitors: AE Dunne Solicitor (Plaintiff) McNamara & Associates (Defendant) File Number(s): 2023/324779

ex tempore JUDGMENT (revised)

Summary 1. The Court delivered its principal judgment in these proceedings on 11 October 2024: Marquis v McNamara [2024] NSWSC 1276. These reasons should be read, and assume familiarity, with the principal judgment. Defined terms in the principal judgment have the same meaning in these reasons. 2. The outcome of the principal judgment was an order for further provision in favour of Craig but in a lesser amount than that for which he had contended (principal judgment [45]). The parties agree on the orders to give effect to the principal judgment with the exception of costs. This judgment deals with that outstanding issue. 3. The Court has had the advantage of written and oral submissions for Craig from Mr C P Locke of Counsel, and for Mr McNamara from Mr P R Glissan of Counsel. 4. Mr Locke contended for what I will refer to as the usual order, namely that Craig's costs be paid out of the estate on the ordinary basis and Mr McNamara's costs be paid out of the estate on the indemnity basis. Mr Glissan sought alternative special costs orders relying on Craig's rejection of what was said to be an offer of compromise under the UCPR Part 20 r 20.26 (first offer) and a later open offer (second offer), either special costs order being to the effect that Craig pay Mr McNamara's costs from the date of the relevant offer on the indemnity basis. A further possible special costs order was not pressed in argument. Mr Glissan accepted that neither offer was a Calderbank offer in accordance with the principles in Calderbank v Calderbank [1975] 3 WLR 586. 5. The Court will make the usual order for the reasons set out below and which can be summarised as: 1. Both offers are uncertain because they offer a percentage of the estate in circumstances where the principal asset of the estate was the property, which would have to be sold. Whatever might otherwise be the status of the offers, that is a sufficient reason upon which the Court would conclude that rejection was not unreasonable and exercise its discretion to make the usual order rather than either special order contended for by Mr Glissan. 2. The first offer did not comply with the UCPR because it was expressed to be open for less than 28 days. It is therefore of no effect under the UCPR. 3. Assuming that the Court could abridge the time stipulated by the UCPR in relation to the first offer so as to rectify the non-compliance as to the time for which it was open (which I doubt), in exercise of the Court's discretion it would not do so because it would be inimical to the certainty of outcome which is an essential element of the offer of compromise scheme. 4. As to the second offer, quite apart from the difficulty of it being expressed in terms of a percentage of the estate, its terms are vague and ambiguous, in particular about the fate of a specific legacy in favour of Deborah and what was meant by the "net estate". For these additional reasons, rejection was not unreasonable. 5. In any event, this is a case where the usual costs outcome was taken into account by the Court in making an award of modest additional provision in a small estate. It would undermine the effect of the order for provision if either special costs order were made.