Bernengo v Leaney (No 2)

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.