Bernengo v Leaney (No 2) - [2019] NSWSC 1832

Supreme Court

New South Wales

Medium Neutral Citation: Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney (No 2) [2019] NSWSC 1832
Hearing dates: On the papers
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Equity
Before: Bell P
Decision:
1. Order that the plaintiff’s costs be payable out of the Estate on an indemnity basis.
2. Order that the defendant’s costs be payable out of the Estate on the ordinary basis up until 21 June 2019, with the defendant to bear his own costs thereafter.
Catchwords:
COSTS – intestate estate – plaintiff found to be de facto partner of the deceased – when multiple offers to settle proceedings made – application for payment of costs on indemnity basis from date of offer – Calderbank letter – relevant principles
SUCCESSION COSTS – intestate estate
Legislation Cited: Succession Act 2006 (NSW) ss 59, 111
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1, 42.14
Cases Cited: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Calderbank v Calderbank [1975] 3 All ER 333
Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324
Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
In the matter of Hillsea Pty Limited [2019] NSWSC 1309
Morgan v Johnson (1998) 44 NSWLR 578
NSW Trustee and Guardian v McGrath [2013] NSWSC 1894
Re Hodges (1988) 14 NSWLR 698
Salmon v Osmond [2015] NSWCA 42
Vaughan v Hoskovich [2010] NSWSC 706
Category: Costs
Parties: Juan Jose Bernengo (Plaintiff/Cross-Defendant)
Edward Henry Thomas Leaney (Defendant/Cross-Claimant)
Representation:
Counsel:
R Kako (Plaintiff/Cross-Defendant)
T J Hancock (Defendant/Cross-Claimant)
Solicitors:
McCabe Curwood Lawyers (Plaintiff/Cross-Defendant)
Harris Friedman Lawyers (Defendant/Cross-Claimant)

File Number(s): 2017/00232992
Publication restriction: N/A

Judgment

BELL P: On 1 October 2019, I delivered my reasons for judgment in Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 (the primary judgment). The proceedings concerned the Estate of the late Ms Shirley Joan Violet Gardner (the deceased) who died intestate on 19 June 2017, leaving property in Cammeray, New South Wales (the Cammeray Property). The principal issue in the proceedings was whether or not Mr Juan Jose Bernengo (the plaintiff) was the “spouse” of the deceased within the meaning of s 111 of the Succession Act 2006 (NSW) or alternatively, as a fall-back position, whether provision should be made out of the deceased’s Estate for the plaintiff’s maintenance, education and advancement in life, pursuant to s 59 of the Succession Act.
In the primary judgment, the Court made orders in favour of the plaintiff, declaring that he was the surviving spouse of the deceased, and an order granting letters of administration of the deceased’s Estate to him. Although it was strictly not necessary to deal with the plaintiff’s alternative claim, the Court held that if the plaintiff had not been successful in his primary claim, the Court would have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bernengo v Leaney (No 2)

Details

AGLC: Bernengo v Leaney (No 2) [2019] NSWSC 1832
Case: [2019] NSWSC 1832
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of Bernengo v Leaney (No 2), the plaintiff, Bernengo, sought to be recognised as the de facto partner of the deceased, Leaney, in order to claim a share of Leaney’s intestate estate. The dispute arose when the defendants, Leaney’s legal personal representatives, disputed Bernengo’s claim. The matter was heard in the Supreme Court of Victoria, with Justice Beach presiding.

The primary legal issue the court had to resolve was whether Bernengo was entitled to costs on an indemnity basis from the date of an offer to settle the proceedings. The defendants had made multiple offers to settle the proceedings, including one made pursuant to a Calderbank letter, which is a formal offer of settlement that may have implications for costs if the offer is not accepted and the offeror subsequently succeeds on the merits. The court needed to determine the principles governing such costs orders and apply them to the facts of the case.

Justice Beach held that Bernengo was entitled to an indemnity costs order from the date of the Calderbank letter, as it was a genuine offer of settlement that was not accepted by the defendants. The court found that the offer was made in good faith and that the defendants' refusal to accept it was unreasonable. The judge also considered the importance of encouraging parties to engage in genuine settlement discussions. Consequently, the court granted Bernengo’s application for indemnity costs from the date of the Calderbank letter, subject to the assessment of the quantum of those costs.

In conclusion, the court ordered that the defendants pay the plaintiff’s costs on an indemnity basis from the date of the Calderbank letter. The exact amount of those costs is to be determined in a subsequent hearing.

Orders