This is the Court's second judgment in these proceedings. In the Court's principal judgment, Manning v Matsen [2015] NSWSC 1801, the Court declined to make a family provision order under Succession Act, Pt 3.2. The Court held in the principal judgment that such an order would lack utility because of the insufficiency of funds in the estate and because no order for notional estate could be made.
The parties have today argued about questions of costs. The plaintiff rightly concedes that it follows from the Court's judgment that the plaintiff should pay the defendant's costs of the proceedings on the ordinary basis. But the defendant contends that the plaintiff should pay the defendant's costs on the indemnity basis, an argument grounded upon two Calderbank letters that the defendant served on the plaintiff before trial: the first on 23 December 2013 and the second on 9 May 2014.
In the first Calderbank letter the defendant offered that he would pay his own costs of the proceedings up to and including 7 February 2014, if the proceedings were withdrawn by the plaintiff before that date. It is clear from the first Calderbank letter that the plaintiff was expected to pay her own costs of the proceedings, if the proceedings were withdrawn.
The second Calderbank letter offers that the defendant should pay the plaintiff to end the proceedings a sum of $20,000 plus the indemnity for legal costs up to a figure of $20,000 including GST, disbursements and counsel's fees incurred by the plaintiff. No time limit was placed upon the acceptance of the offer in this second letter, so it can be assumed that the offer so made was open for a reasonable time.
The plaintiff says that her rejection of the Calderbank offers was not unreasonable.. There is no issue that the December 2013 and the May 2014 letters were structurally sufficient to qualify as Calderbank letters. The present question between the parties is whether or not it was unreasonable of the plaintiff in the circumstances not to have accepted the letters and whether they contained an offer that embodied a compromise: see Jones v Bradley (No. 2) [2003] NSWCA 258 and Leichhardt Municipal Council v Green [2004] NSWCA 341.
Mr Gruzman, who continues to appear for the plaintiff, puts three main arguments to support the contention that it was not unreasonable for the plaintiff to decline to accept the offers: first that there was always at stake a difficult point of law, namely, the construction of the notional estate provisions of the Succession Act, Part 3.2; second, that neither of the offers contained a genuine offer of compromise; and third, that given the state of the evidence served at the time that the Calderbank letters were sent, that it was not unreasonable for the plaintiff to decline to accept them.
Looking at the December 2013 Calderbank offer first, I agree with Mr Gruzman's submission that at the time this letter was served that the defendant had served none of his evidence in the proceedings. It would have been very difficult for the plaintiff to evaluate the defendant's case at that time. In particular, it would have been difficult to evaluate whether or not it could genuinely be said that the defendant and his wife had a 50% interest in the property before the transfer of the remaining 50% to them, subject to the deceased's right of residence in the July 2009 deed, which was in contention at the proceedings.
The first Calderbank letter would therefore not qualify the defendant for an award of indemnity costs. But the position is otherwise with respect to the May 2014 Calderbank letter.
Ms Hartstein, who appears on this occasion for the defendant, argued that it was unreasonable of the plaintiff not to accept the May 2014 offer. I agree with her submission. Mr Gruzman's three arguments do not answer Ms Hartstein's contentions.
First, it is true that there was a difficult point of law involved in this case. But there is every reason to uphold Calderbank letters even when difficult points of law are involved, so that the parties can avoid the cost, inconvenience and court time of arguing such points. It is not an answer on public policy grounds to a Calderbank offer for one party to say it was not unreasonable to refuse the offer, because there was a public interest in deciding an undecided difficult point of law. The public interest in upholding Calderbank letters is no less potent.
Mr Gruzman's second argument is that the May 2014 Calderbank letter did not contain a genuine compromise. In my view, it did. Mr Gruzman says that it has not been established that the plaintiff's legal costs were less than $40,000 at that time and so the plaintiff might be left in a position where she would have had to bear some of her own legal costs. But even if that were so, the offer contained a genuine compromise, when it is compared with the result of the proceedings. Mr Gruzman has properly conceded that his side should, pay the defendant's costs, as a result of the court's principal judgment. Even if the Calderbank letter of May 2014 had offered that each party bear his and her own costs to end the proceedings, it would have contained a genuine compromise. Merely because it is not clear how much, if any, of the plaintiff's own legal costs she would have to bear as a result of this offer, does not make it any less genuine a compromise. She would have been better off accepting this offer than the result she achieved in the proceedings which involved her having to pay the defendant's costs. The result of the proceedings was no more favourable than the terms of the offer: Singleton v Macquarie Broadcasting Holdings Pty Limited (1991) 24 NSWLR 103, at 108.
Finally, the plaintiff says that it was not unreasonable for her to decline to accept the offer at that stage, because not all the defendant's evidence had then been filed. However, an important affidavit of the defendant had been filed, Mr Wayne Matsen's affidavit of 19 March 2014. This affidavit gives a substantial profile of the defendant's case, explaining the nature of the transaction the defendant entered into and the work that he had done on the property, justifying his 50 per cent interest in the property before entry into the deed of July 2009. There was a sufficient picture of the defendant's case communicated to the plaintiff by this affidavit. It was enough, together with the issue of statutory construction, which should have been anticipated by both parties, for the plaintiff to be in a position to decide whether or not to accept this Calderbank offer.
Although in my view Mr Gruzman has put every argument that could possibly be put on the plaintiff's behalf to contend for the opposite result, I am nevertheless persuaded by Ms Hartstein's submissions that I should make the indemnity costs order in this case, and I do. Ordinarily with Calderbank letters, one gives a party some reaction time to consider the offer that has been made. In this case, because of the complexity of the underlying legal issues here, I would allow the plaintiff one month to consider the Calderbank letter before she should be bound by the effect of it, so that the indemnity costs order will operate from 9 June. The orders of the court will be that the proceedings are dismissed and the plaintiff will pay the defendant's costs of the proceedings on the indemnity basis after 9 June 2014.
[2]
Conclusions and Orders
Accordingly, the Court makes the following orders and directions:
1. The plaintiff's Summons is dismissed.
2. The plaintiff will pay the defendant's costs on the ordinary basis up to and including 9 June 2014.
3. The plaintiff will pay the defendant's costs on the indemnity basis after 9 June 2014.
4. That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 February 2016