Evans v Braddock (No 2)

1. [1]

   HIS HONOUR: These reasons follow the delivery of reasons for judgement in this matter, the medium neutral citation of which is Evans v Braddock [2015] NSWSC 249, in which the court ordered that the Plaintiffs’ further amended Statement of Claim be dismissed and that any argument on the issue of costs be stood over to a suitable date unless the parties were able to reach agreement on how the costs of the proceedings were to be borne. Unsurprisingly, no agreement was reached by the parties on the issue of costs. Events and people are referred to in these reasons in the same way as they were in the principal reasons for judgment. The reasons for judgment should be read together.

2. [2]

   In accordance with directions made at the time of the delivery of the reasons for judgment, each of the parties filed written submissions on the issue of costs. The Defendants forwarded amended written submissions on the afternoon of 27 April 2015. I heard short oral argument on 29 April 2015.

3. [3]

   In broad summary, the Plaintiffs submitted that “the appropriate order in relation to the costs of the proceedings (aside from costs covered by existing costs orders) is that the plaintiffs pay the defendants’ costs on the ordinary basis”.

4. [4]

   The Defendants sought orders, in the alternative, namely that:

5. [5]

   I shall return to the submissions, in more detail, later in these reasons.

Procedural Matters

1. [6]

   The Plaintiffs relied upon an affidavit sworn 2 April 2015 of their solicitor, Marcus William Conomos. The Defendants relied on two affidavits of their solicitor, Michael Scott Rogers, one sworn 1 April 2015 and the other sworn 8 April 2015. Neither of the deponents was cross-examined.

2. [7]

   The following facts, taken from the affidavits to which reference is made, were really not in dispute.

3. [8]

   The proceedings were commenced in August 2012 by Timothy only. The Summons and subsequent Statement of Claim filed by him in January 2013, sought orders entitling him to a one-third share of the net proceeds of sale of the Collaroy property, or alternatively a family provision order. The proceedings were initially listed in the Family Provision List.

4. [9]

   The Defendants filed a composite Defence to the Statement of Claim in February 2013. Orders were then made for the filing and service of each party’s evidence. Ultimately, the evidence relied upon at the hearing was not filed until late in 2014.

5. [10]

   In May 2013, the parties engaged in mediation. That mediation was unsuccessful.

6. [11]

   The matter, in the events that happened (which are unnecessary to repeat), was listed for hearing before Rein J for 3 days’ hearing commencing 2 December 2013. Before that hearing date, Timothy filed a notice of motion seeking orders that the hearing be adjourned, that the hearing date be vacated, and that he be given leave to file an Amended Statement of Claim. This motion was heard by me on 18 October 2013, at which time I made the following orders:

7. [12]

   On 29 November 2013, the Defendants were served with a proposed Amended Statement of Claim, which Timothy indicated he would seek leave to file at the commencement of the hearing on 2 December 2013 in the event that the hearing was not adjourned.

8. [13]

   Ultimately, the Defendants consented to Timothy’s adjournment application, and Rein J made orders, by consent, on 2 December 2013, the first day of the hearing. One of the orders his Honour made, was that “any costs thrown away by today be costs in the cause”. His Honour also granted leave to the Plaintiff to file an amended Statement of Claim on or before 16 December 2014.

9. [14]

   Timothy did not comply with any of the orders made by Rein J on 2 December 2013. In particular, pursuant to Rein J’s orders, an Amended Statement of Claim was to be filed by him by 16 December 2013. However, on 16 December 2013, Timothy’s solicitor informed the Defendants that: “In the process of preparing the Amended Statement of Claim it has become apparent that Mount Mill Pty Limited should be included as a second plaintiff in the proceedings.” No explanation was given for the need to join Mount Mill in the proceedings, nor why it became apparent to Timothy’s lawyers, at such a late stage, that Mount Mill should be joined as a second plaintiff. A draft Amended Statement of Claim was served but not filed.

10. [15]

    On 11 February 2014, leave was granted to Timothy to join Mount Mill to the proceedings and to file the Amended Statement of Claim. The Defendants were awarded costs thrown away by reason of the joinder and the filing of the Amended Statement of Claim. I also made other orders to progress the matter, including for the filing, by the Plaintiffs, of any further evidence upon which they intended to rely, by Friday 14 March 2014. The Plaintiffs did not comply with any of those orders.

11. [16]

    On 7 March 2014, the Plaintiffs sought leave to withdraw Timothy’s claim for a family provision order. Accordingly, without opposition, I ordered that Timothy’s claim for a family provision order be dismissed upon the basis that he was prevented from bringing fresh proceedings or claiming the same relief in fresh proceedings: s 91(1) Civil Procedure Act 2005 (NSW). By reason of Uniform Civil Procedure Rules (“UCPR”), rule 42.20(1), the Defendants became entitled to costs payable by Timothy upon dismissal of his claim for a family provision order.

12. [17]

    Following the making of the order dismissing that part of Timothy’s claim, the proceedings were transferred to the General Equity List.

13. [18]

    The Defendants filed a Defence to the Amended Statement of Claim. The Defendants then filed an Amended Defence to the Amended Statement of Claim (pursuant to leave granted by me on 20 May 2014). On that date, I also ordered that the Defendants were to pay the Plaintiffs’ costs thrown away (if any) by reason of the filing of the Amended Defence to the Amended Statement of Claim.

14. [19]

    The Plaintiffs were directed to file any Reply to the Amended Defence by 31 May 2014. They did not do so.

15. [20]

    The proceedings were next listed before the Equity Registrar on 19 June 2014. At that directions hearing, the Plaintiffs foreshadowed that they would bring a notice of motion seeking leave to file and serve a Further Amended Statement of Claim.

16. [21]

    On 9 July 2014, the Plaintiffs filed a notice of motion seeking leave to file and serve a Further Amended Statement of Claim. This was opposed by the Defendants. The Plaintiffs’ notice of motion was heard by Registrar Musgrave on 13 August 2014. The Registrar granted the Plaintiffs leave to file a Further Amended Statement of Claim. The Registrar ordered that the Plaintiffs pay the Defendants’ costs thrown away by reason of the amendment. The Registrar ordered the Defendants to pay the Plaintiffs’ costs of the motion (calculated on the ordinary basis).

17. [22]

    The matter was set down, for final hearing, before me, and ultimately was heard over four days, from 9 to 12 February 2015. At the hearing, both the Plaintiffs and the Defendants were represented by senior and junior counsel. I delivered the reasons for judgment on 19 March 2013.

18. [23]

    So far as I can tell, other than the orders for costs identified above, there were no specific orders for costs made. The parties agree that all other costs would form part of the costs in the cause to be paid by the party ordered to pay the costs of the proceedings.

Offers of Settlement

1. [24]

   By letter dated 22 July 2013, sent from the Defendants’ solicitors to the solicitors acting for Timothy (who at that time was the only Plaintiff), the Defendants offered to settle the proceedings (as then constituted). The letter was headed “WITHOUT PREJUDICE SAVE AS TO COST (sic)” and specifically stated in the body of the letter that “This offer is made in accordance with the principles expressed in Calderbank v Calderbank.” (I shall hereafter refer to this offer as “the Calderbank offer”.)

2. [25]

   The Calderbank offer, which was stated to expire 21 days (being 12 August 2013) after the date of the letter, was made in the alternative, leaving it up to the First Plaintiff to choose the most advantageous offer to accept. The terms of alternatives were that:

3. [26]

   Timothy did not accept the Calderbank offer before it expired.

4. [27]

   By letter dated 14 November 2013, Timothy offered to settle the proceedings upon the basis that he be paid $325,000 plus “costs as agreed or assessed”. The letter was headed “WITHOUT PREJUDICE SAVE AS TO COSTS” and specifically stated in the body of the letter that “[t]his offer is made in accordance with the principals (sic) expressed in Calderbank v Calderbank.”

5. [28]

   The Defendants did not accept the offer contained in the letter from Timothy’s solicitors. The terms of the offer made are not relevant to the costs argument, other than, perhaps, to demonstrate Timothy’s then belief as to the strength of his case.

6. [29]

   Subsequently, the Defendants served an Offer of Compromise dated 18 December 2014 (by which time Mount Mill had been joined as the second Plaintiff), the terms of which were as follows:

7. [30]

   The Plaintiffs did not accept the offer contained in the Offer of Compromise during the period in which the offer was open or at all. Indeed, on 22 December 2014, the Plaintiffs served on the Defendants an Offer of Compromise, on the terms that the Defendants pay the Plaintiffs the sum of $350,000, plus the Plaintiffs’ costs as agreed or assessed. Again, the terms of the offer made perhaps demonstrate Timothy’s continued belief as to the strength of the Plaintiffs’ case.

8. [31]

   Needless to say, the Defendants did not accept the offer made by the Plaintiffs in their Offer of Compromise.

The Submissions

1. [32]

   The Plaintiffs, in their written submissions, conceded that the Calderbank offer was a genuine offer and that it demonstrated compromise, determined objectively and according to the circumstances of the case at the time the offer was made. It was submitted by Timothy, however, that, in all of the circumstances, his non-acceptance of that offer was not “unreasonable” such that the Court would make a special costs order.

2. [33]

   The reasons for this submission were:

3. [34]

   In addition, the Plaintiffs submitted that the matter was complex, both factually and legally; that the offer was expressed (effectively) to be inclusive of costs; that it was only open for acceptance for 21 days from the date it was made; and that “…in the exercise of its discretion, the Court would also have regard to the fact that, although the plaintiffs were unsuccessful, there was no finding of any lack of bona fides in respect of either the plaintiffs’ preparation of their evidence or the manner in which they conducted their case”.

4. [35]

   In his oral submissions, junior counsel referred the court to NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480; (2001) 187 ALR 654 at [87]–[88]:

5. [36]

   In addition, he relied upon Technology Leasing Ltd v Lennmar Pty Ltd (No 2) [2012] FCA 1216, in which Cowdroy J had written, at [24]–[25]:

6. [37]

   As will be shown later, there is other authority which states the principle less rigidly and makes the question whether there is a need for the offeror to descend to specificity of the reasons why the offer should be accepted dependent upon a consideration of all of the circumstances existing at the time of the offer.

7. [38]

   In relation to the Offer of Compromise, the Plaintiffs only submitted that it was “simply an invitation to capitulate and, as such, did not constitute a genuine offer of compromise”.

8. [39]

   The Defendants, in their submissions, pointed out that the Plaintiffs had not achieved a result better than the Calderbank offer. They had recovered nothing from the proceedings, the Further Amended Statement of Claim being dismissed.

9. [40]

   In response to the Plaintiffs’ submissions on the Calderbank offer, they submitted that it had been unreasonable to not accept the offer, asserting:

10. [41]

    It was submitted, for these reasons, the Court could be satisfied, in the circumstances of this case, that it had been unreasonable for Timothy to reject the Calderbank offer. It followed that the Plaintiffs (or at least Timothy) should be ordered to pay the Defendants’ costs on an indemnity basis on and from 12 August 2013.

11. [42]

    In relation to the Offer of Compromise, it was submitted that as a result of the Plaintiffs’ failure to accept the Offer of Compromise, the Defendants should obtain an order against the Plaintiffs for costs to be calculated on the ordinary basis, up to and including 18 December 2014, and on the indemnity basis on and from 19 December 2014, pursuant to UCPR rule 42.15A.

12. [43]

    The Defendants then asserted that there could be no dispute that the Defendants had “bettered” their offer at trial, since the Plaintiffs’ claims had been dismissed. They disputed the Plaintiffs’ submission that the offer made in the Offer of Compromise was not a genuine compromise, putting that, at the date it was made, the Defendants already had a costs order in their favour for their costs thrown away by reason of the Plaintiffs filing an Amended Statement of Claim; a costs order in their favour for their costs thrown away by reason of the Plaintiffs filing a Further Amended Statement of Claim; and a costs order in their favour for their costs incurred defending Timothy’s claim for a family provision order, which had been dismissed.

13. [44]

    In addition, it was submitted that the Plaintiffs must have been aware that the Defendants had incurred their own significant legal fees in preparing for the hearing of the Plaintiffs’ claim, which was then due to be heard in February 2015.

14. [45]

    Therefore, by agreeing to bear their own costs, the Defendants were making a significant compromise, which not only related to costs orders in their favour that had already been made, but also losing the opportunity to obtain costs orders that could be made if, as it turned out to be, the Plaintiffs failed completely in their claims.

15. [46]

    Furthermore, it was submitted that, as at 18 December 2014, the Plaintiffs could not have been in any doubt about the defences and evidence with which they were to be faced at trial: a Defence to the Further Amended Statement of Claim had been filed several months’ earlier, and all the Defendants’ evidence had been served. The Plaintiffs ought to have been in the position to assess the parties’ cases and to compare the terms of the offer made with the assessment of the likely result of the proceedings in the event that the proceedings were litigated to conclusion.

16. [47]

    For these reasons, the Defendants submitted that there were no grounds in this case for the Court to “order otherwise” and that the Court should order that the Plaintiffs pay the Defendants’ costs of the proceedings on an indemnity basis on and from 19 December 2014.

The Law

1. [48]

   There was really no dispute on the principles that apply. Before dealing with the principles, I should mention UCPR rule 42.20(1) which provides that if the court makes an order for the dismissal of proceedings, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.

2. [49]

   I dealt with the principles in Walsh v Walsh (No 2) [2013] NSWSC 1281, so far as they relate to costs generally (at [23]–[29], and specifically in relation to a Calderbank offer, at [39]–[56]), as follows:

3. [50]

   To these principles, I should add that service of a Calderbank offer serves a number of purposes, including to promote settlement and also to give the offeror cost protection in the event of an unreasonable refusal by the offeree. Furthermore, “to some extent any offer of compromise or Calderbank offer is necessarily a tactical weapon. At the heart of a Calderbank offer are two factors – settlement of the case and protection on costs if the offer is ultimately regarded as reasonable. Characterisation as a tactical weapon does not necessarily defeat the efficacy or the genuineness of the offer”: Zealley v Liquorland (Australia) Pty Ltd & Anor (Costs Ruling) [2015] VSC 133, per J Forrest J, at [18] and [24].

4. [51]

   In relation to the oral submissions made by junior counsel for the Plaintiffs, in addition to what I have written above, I note that in Stewart v Atco Controls Pty Ltd (in liq) (No 2) [2014] HCA 31; (2014) 252 CLR 331, the appellants, who were successful in the High Court, had made a Calderbank offer before the hearing of the appeal (to which they were, at that stage, the respondents) in the intermediate appellate court. The High Court, at [4], observed:

5. [52]

   In Craigcare Group Pty Ltd v Superkite Pty Ltd (No 2) [2014] NSWSC 467, at [42]–[50], [63]–[67] and [83]–[84], I dealt with the principles that apply in relation to an offer of compromise as follows:

6. [53]

   In Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109, McColl JA said, at [34]–[35]:

7. [54]

   A “walk-away” offer is one “where the offeror expresses its willingness to settle on the ground that each party bears its own costs” (G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis at [13.9])). Such an offer is usually made by a defendant to a plaintiff, and comprises an offer to the plaintiff to abandon the claim or claims without any penalty for the defendant’s costs.

8. [55]

   As will be apparent, UCPR rule 20.26(3)(a)(i) enables a “walk-away” offer to be made in an offer of compromise: Schepis v Commonwealth of Australia [2013] NSWCA 354, at [33], per Leeming JA (Beazley P agreeing); Taheri v Vitek (No 2) [2014] NSWCA 344, at [8] where the court (Bathurst CJ, Emmett and Leeming JJA) observed that “it has long been open for a defendant (or respondent to appeal) to engage the rules by an offer that there be a verdict in its favour with no order as to costs”; and Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, per McColl JA (with whom Gleeson JA and Sackville AJA agreed), at [50].

9. [56]

   If such an offer is made, and a plaintiff loses the case, an application may be made under rule UCPR r 42.15A for appropriate costs orders. That rule provides:

10. [57]

    Whilst it is sometimes difficult to evaluate the genuineness of a “walk-away” offer, there is little doubt that a “walk-away” offer, in a particular case, can be a “genuine offer of compromise”: Melchior v Sydney Adventist Hospital Limited (No. 2) [2009] NSWSC 65, at [8]; Hearse v Staunton [2011] NSWSC 1065.

11. [58]

    In Leichhardt Municipal Council v Green [2004] NSWCA 341, Santow JA (with whom Bryson and Stein JJA agreed), at [25]–[26], stated:

12. [59]

    Similarly, a “walk-away” offer may be genuine where the offer involves the sacrifice of substantial recoverable costs. In Clark v Commissioner of Taxation [2010] FCA 415, at [90], for example, the costs that would have been sacrificed if the offer was accepted, totalled between $123,000 and $184,000.

13. [60]

    A “walk-away” offer made late in proceedings, say, just before trial, is more likely to be considered reasonable because both parties will be fully aware of the strengths and weaknesses of their cases: Eric Preston Pty Ltd v Euroz Securities Ltd (No 2) [2010] FCA 1068, at [16] and [19]; Commonwealth Bank of Australia v Dalle Cort [2015] QSC 41, at [8].

14. [61]

    I have also borne in mind that it has been suggested that a “walk-away” offer can successfully trigger the indemnity costs mechanisms under the rules, but “the claim or defence would have to approach something of the character of being frivolous or vexatious for that to be the case”: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368, per Spigelman CJ; Beazley and McColl JJA, at [31].

15. [62]

    In relation to the Calderbank Offer, in determining whether Timothy acted unreasonably in rejecting it, one must remember the context in, and the time at which, it was made. Timothy does not dispute that the Calderbank offer was more favourable to him than the terms of the judgment.

16. [63]

    As at 22 July 2013, the date of the Calderbank offer, Timothy was the only Plaintiff and his claim was as disclosed in the Statement of Claim filed on 18 January 2013. In that Statement of Claim, he sought a declaration that the Defendants held an amount equivalent to one-third of the net proceeds of sale of the Collaroy property on trust for the Plaintiff; or an order that he receive equitable compensation equivalent to one-third of the net proceeds of sale of the Collaroy property; interest; and further or in the alternative, a family provision order. He also sought costs.

17. [64]

    In Paragraph 26 of the Statement of Claim, Timothy asserted that the Collaroy property had been sold for $1,550,000 (which was its gross sale price). It follows that, at the most (excluding any interest), Timothy’s principal claim was for $516,666. (Of course, he must have appreciated that there would have been costs and expenses of sale, including agents’ commission and legal costs.)

18. [65]

    In my reasons for judgment, at [51], I found that each of Kerry and Gae received $709,679, which means that the net proceeds of sale were $1,419,358. Accordingly, Timothy’s principal claim would have been for about $473,000.

19. [66]

    Timothy’s principal claim was based upon the facts that he had several conversations with Robert, in the presence of Sheelagh, which conversations amounted to a promise or assurance that the Collaroy property “will be left to you and Gael and Kerry one-third each”.

20. [67]

    Timothy’s claim for a family provision order was, undoubtedly, based upon his assertion that the provision made for him in the Will of Sheelagh was not adequate or proper in all the circumstances. It will be remembered that under her Will, Sheelagh had explained, in Clause 7, why she had made her Will in the terms that she had.

21. [68]

    In respect of each of his claims, the evidence upon which Timothy was to rely was, primarily, his own evidence, firstly as to the conversations he had with Robert and/or Sheelagh, and then as to his financial resources and “needs”.

22. [69]

    As was pointed out by counsel for the Defendants, it had not been suggested, at least in regard to the first matter, that any of the Defendants had been a party to the conversations upon which Timothy intended to rely. In relation to the second claim, neither Kerry nor Gae would have been aware of Timothy’s precise financial resources. The only issue about which each could give evidence in relation to his claim for a family provision order was in relation to her financial and material circumstances and the other circumstances giving rise to the claim upon Sheelagh’s bounty. That evidence would be unlikely to advance the claim for a financial provision order that Timothy was seeking.

23. [70]

    Be that as it may, Timothy would have appreciated, on his claim for a family provision order, that the court may have taken into account that he had received from Robert and Sheelagh, their shares in Mount Mill, which shares provided to him the whole of the beneficial interest in “Coomber” and the other parcels of land owned by Mount Mill.

24. [71]

    It is important to note the terms of the Calderbank offer, which was to provide the amount of $200,000, inclusive of costs, or $165,000, plus costs of $35,000. In each case, as conceded by the Plaintiffs, the Calderbank offer made was a genuine one. This was an appropriate concession to make.

25. [72]

    I have not omitted from my considerations the fact that, as at the date of the Calderbank offer, none of the Defendants had put on any evidence, ultimately, relied upon at the hearing. It was, of course, possible that one, or more, of them might have given evidence of a conversation, or conversations, with Robert and/or Sheelagh, which corroborated what Timothy had asserted. The credibility of the Defendants might have been a relevant factor on this topic.

26. [73]

    However, I do not accept the Plaintiffs’ submission that the Defence that had been filed at the time of the Calderbank letter essentially put Timothy to proof in relation to the key elements of the claim and did not convey to him why, or how, the Defendants contended Timothy’s claim would not, or ought not, succeed. The Defence filed made it clear that the Defendants denied that Timothy was entitled to any relief and that it would be for him to establish the facts upon which he relied in the pleadings.

27. [74]

    Furthermore, in circumstances where it was not alleged that any of the Defendants were parties to the conversations relied upon, the prospects of any of the Defendants giving evidence supporting Timothy’s case, in the context of the Defence filed, were not very strong. Timothy had to decide upon the strength of his own case, rather than rely upon the evidence the Defendants would serve.

28. [75]

    Without any corroborative evidence, and none was asserted, Timothy must have been well aware from the commencement of the proceedings, that he would face the difficulties associated with the court accepting evidence of conversations with a person or persons who were deceased at the date of the hearing. I dealt with those difficulties at [65] to [79] of the reasons for judgment. If he did not, this involved a disregard of the serious problems confronting him in establishing his case.

29. [76]

    Nor do I accept the submission that the Calderbank offer did not attempt to explain why Timothy ought to accept an offer equivalent to a relatively small fraction of the monetary relief sought by him in the proceedings. Firstly, there was no obligation upon the Defendants to do so, and secondly, the amount offered, in my view, was not “a relatively small fraction of the monetary relief sought”. The offer of $165,000 (exclusive of costs) amounted to almost 35 per cent of the one-third share of the gross sale price of the Collaroy property ($473,000).

30. [77]

    In this regard, it is useful to note that in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workplace Authority (No 2) [2008] VSCA 298; (2005) 13 VR 435, the Court of Appeal, at [27], rejected the notion that the maker of a Calderbank offer should not be entitled to costs unless the offer set out, with some specificity, the basis for his, or her, contentions that the compromise should be accepted. The Victorian Court of Appeal stated that it is “neither necessary nor desirable to lay down any general rule in this regard”.

31. [78]

    Certainly, making the Calderbank offer after the exchange of evidence would have allowed Timothy to assess his position more fully. But for reasons I am about to give, I do not think that makes a material difference here.

32. [79]

    Importantly, as was submitted, the Defendants were entitled to put Timothy to proof on his assertions. He had not asserted that any of the Defendants were present at the time of the conversations upon which he relied.

33. [80]

    Secondly, there was no suggestion by Timothy, or subsequently, by Mount Mill, that any of the Defendants knew, or was likely to have known, about what occurred in 1996 and 1997 in relation to the application by Mount Mill for drought assistance; or that they knew about the Statutory Declarations made by Robert and Sheelagh upon which Mount Mill had relied; or of the other documents under the hand of Timothy, which formed part of the Plaintiffs’ case at the hearing.

34. [81]

    I dealt with those events in the reasons for judgment at [130]–[144].

35. [82]

    Whilst Timothy asserted that he had not remembered those events, what had occurred ought to have been recollected by him personally, and in his capacity as a director of Mount Mill, in 2013. In any event, the documents relevant to that issue were part of an affidavit made by Stephen in November 2014. Presumably, the documents had been considered well before the affidavit was sworn. If they were not, they ought to have been bearing in mind the significance of the documents. Again, this demonstrates a disregard of another serious problem confronting Timothy in establishing his case.

36. [83]

    It was those events, and documents, that played an important role in not accepting some of Timothy’s evidence and in dismissing his proceedings based upon proprietary estoppel. At the time of the Calderbank offer, he was, or ought to have been, well-equipped to determine the strength of his own case.

37. [84]

    Furthermore, in 2013, the events that occurred in relation to the transfer of the Collaroy property to Robert and Sheelagh, also, ought to have been known to Timothy. There was available documentary evidence, which clearly demonstrated the circumstances of the transfer, including the consideration given. Furthermore, there were Mount Mill’s financial records, subsequently prepared, that demonstrated how the purchase price had been treated by Mount Mill and by Robert.

38. [85]

    Indeed, it must not be forgotten that, to the exclusion of Robert, Sheelagh and each of Gae and Kerry, Timothy had been in control of Mount Mill from about 1997. The financial records of Mount Mill ought to have been available to him at all times thereafter. (It is also not to be forgotten that he was a director of Mount Mill at the time of the transfer of the Collaroy property.)

39. [86]

    In regard to his family provision claim it is to be noted that, ultimately, the proceedings were dismissed by consent. This is hardly surprising bearing in mind the size of Sheelagh’s estate, the competing claims of Gae and Kerry upon Sheelagh’s bounty, and the financial resources available to Timothy. In my view, that claim was unlikely to succeed, a matter about which he ought to have been fully aware and bearing in mind the dismissal of that part of the proceedings, was fully aware.

40. [87]

    I also bear in mind my conclusions about Timothy’s evidence at [101]–[130] of my earlier reasons for judgment.

41. [88]

    I am satisfied that the time for considering the Calderbank offer (21 days after it was made) was sufficient in all the circumstances. The proceedings had been on foot for about 12 months; an unsuccessful mediation had occurred; and the terms of the offer made were clear and unambiguous. Timothy should have been well able to determine whether to accept or reject it.

42. [89]

    On balance, I am satisfied, having considered all of the evidence and the submissions, that it was unreasonable for Timothy not to have accepted the Calderbank offer made by the Defendants. He had more than enough information, documentary and otherwise, available to him, whether or not he considered that information, to realise the difficulties that confronted him in obtaining a successful outcome on his case seeking equitable relief. He would have been well aware of the prospects of success of his claim for a family provision order. To not accept the Calderbank offer at the time it was made, in my view, was unreasonable.

43. [90]

    (I note, in passing, that even after the receipt of all of the Defendants’ evidence, and having served Stephen’s affidavit, the offer of compromise served by the Plaintiffs was for more than the offer that had been made by Timothy in his Calderbank offer of November 2013.)

44. [91]

    It follows that I am satisfied that Timothy should pay the Defendants’ costs and disbursements of the proceedings, calculated on the indemnity basis, from 13 August 2013. Prior to that date, Timothy should pay the Defendants’ costs and disbursements calculated on the ordinary basis. I do not include in this order, other costs orders already made.

45. [92]

    In case I am wrong, I next deal with the Offer of Compromise which was made on 18 December 2014.

46. [93]

    I respectfully agree with the submissions of the Defendants that bearing in mind the procedural history outlined above, even though the offer made was a “walk-away” offer, it must have been obvious to the Plaintiffs that the Defendants had incurred significant costs in the proceedings by the date of the Offer of Compromise, some of which costs they were entitled to by orders of the court. The proceedings, by that time had been on foot for over 2 years and there had been many appearances and a number of interlocutory skirmishes. The Defendants were offering to give up recovery of all of the costs that had been incurred by them. At that stage, much of the substantive work of preparing the case for hearing must have been undertaken bearing in mind the date fixed for hearing and the interposition of the long vacation.

47. [94]

    In addition, by the date of the Offer of Compromise, all of the matters identified above, but including the evidence of each of the Defendants, was available to both Plaintiffs. The Plaintiffs also had available the contents of the affidavit sworn by Stephen.

48. [95]

    In my view, no reasons have been advanced for avoiding the consequences of the UCPR in relation to the service of an offer of compromise. I am satisfied that the Plaintiffs have not demonstrated any reasons why the Court should “order otherwise”. I do not accept that it was simply a demand to capitulate which ought not provide the basis for an order for the payment of indemnity costs. Nor do I accept that it was not a genuine offer.

49. [96]

    In the event that I am wrong in regard to the earlier order, I would order the Plaintiffs to pay the Defendants’ costs and disbursements of the proceedings on the ordinary basis up to and including 18 December 2014, and on and from 19 December 2014, those costs to be calculated on the indemnity basis. In the light of the earlier conclusion, it is unnecessary to make this order.

50. [97]

    The court orders: