An offer is an offer, no matter how small?: Costs in FPA after parentage test negative. Dismiss/Discontinue?

time-is-moneyRecently, the Supreme Court of New South Wales  was tasked with determining whether the Court should dismiss or discontinue proceedings following the plaintiff’s parentage testing resulting in him not being the deceased’s child and therefore not an eligible person to make a claim.

In the matter of Patterson v Scott [2016] NSWSC 1477 the Court heard that the plaintiff had commenced a family provision claim as a child of the deceased.   Following the results of a paternity test stating that the plaintiff was not in fact a child of the deceased, the plaintiff’s claim was frustrated as he was not an ‘eligible person’ to bring such a claim.

What was particularly interesting was that the family had, at least to some extent, considered the Plaintiff was a child; the executor had herself, as the informant, had the Plaintiff noted on the deceased’s death certificate as a child of the deceased.

The matter then was for determination as to whether the claim should be dismissed or discontinued and who should pay the costs of the proceedings in the unusual circumstances of the case.

The Court determined that the proceeding should be discontinued. In respect of costs, no order was made in relation to either party, save as to one important exception.  On 13 September 2016, the Defendant had issued a “without prejudice” letter to the Plaintiff  proposing that the Plaintiff discontinue proceedings and that each party pay their own costs.  The Court was satisfied that the Plaintiff clearly regard it as a Calderbank offer.

At paragraph 94, the Court succinctly said:

It seems to me that, at the time, knowing that he could not proceed with his claim, it was both imprudent and unreasonable for the Plaintiff to not accept the Defendant’s offer to resolve the issue of the costs of the proceedings.

Accordingly, the Court ordered the Plaintiff to pay the Defendant’s costs from 14 September.

You can read the case here.

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