Fernandez v Perez (No 2)

Fernandez v Perez (No 2) involved the second plaintiff seeking indemnity costs against the defendants following the dismissal of their claims. The legal dispute was centred on whether the defendants had acted unreasonably in rejecting settlement offers made by the plaintiffs, and if the second plaintiff's claim was untenable to the point that it warranted the award of indemnity costs. The case was heard and determined in the Supreme Court of Victoria.

The central legal issues before the court were whether the defendants' refusal to accept the plaintiffs' settlement offers was unreasonable, and if the second plaintiff's claim was so lacking in substance that the defendants' refusal to accept the offers was justified. Additionally, the court had to consider the appropriate costs orders in relation to the motion for summary judgment filed by the second plaintiff. The court needed to balance the principles of the Calderbank offer with the overarching objective of the Uniform Civil Procedure Rules to achieve just, quick, and cheap resolution of the real issues in the proceedings.

The court examined the content and timing of the Calderbank letters and the merits of the claims. It found that the defendants' refusal to accept the settlement offers was not unreasonable, as the offers were made after the defendants had succeeded in their motion for summary judgment. Furthermore, the court determined that the second plaintiff's claim was not untenable, as it had not been dismissed on the basis of its merits but rather on procedural grounds. Consequently, the court found that it was not appropriate to award indemnity costs to the plaintiffs. Instead, the court ordered the plaintiffs to pay the defendants' costs of the motion for summary judgment.