Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney (No 2) [2019] NSWSC 1832

Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney (No 2) [2019] NSWSC 1832

The first and second offers were not given significance for the reasons advanced by the defendant, but the third Calderbank offer involved a genuine compromise and, by that time, the evidence on which the plaintiff succeeded at trial, including subpoenaed material, was available and could have been interrogated to assess the plaintiff's movements and time spent with the deceased. Although succession costs considerations could apply, they did not exclude the operation of offer-of-compromise and Calderbank principles. A just outcome was for the plaintiff's costs to be paid from the Estate on an indemnity basis and for the defendant's costs to be paid from the Estate on the ordinary basis...

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Costs in Intestate Estate Proceedings / Determination on the Papers Following Primary Judgment
Outcome
Costs orders made in favour of the plaintiff in part; defendant's costs limited after non-acceptance of the third offer.
Legal Topics
['intestate Estate' 'de Facto Partner' 'surviving Spouse' 'family Provision' 'letters of Administration' 'calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'costs Out of Estate']
['costs' 'succession' 'equity'] ['intestate Estate' 'de Facto Partner' 'surviving Spouse' 'family Provision' 'letters of Administration' 'calderbank Offer' 'offer of Compromise' 'indemnity Costs' 'costs Out of Estate']

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Procedural Posture

Costs in Intestate Estate Proceedings / Determination on the Papers Following Primary Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's costs should be payable on an indemnity basis because the defendant did not accept offers of settlement." "Whether the defendant's costs should be paid out of the Estate, and if so on what basis and for what period." 'Whether succession or probate costs principles displaced or modified the consequences of non-acceptance of offers of compromise or Calderbank offers.']

Ratio Decidendi

The first and second offers were not given significance for the reasons advanced by the defendant, but the third Calderbank offer involved a genuine compromise and, by that time, the evidence on which the plaintiff succeeded at trial, including subpoenaed material, was available and could have been interrogated to assess the plaintiff's movements and time spent with the deceased. Although succession costs considerations could apply, they did not exclude the operation of offer-of-compromise and Calderbank principles. A just outcome was for the plaintiff's costs to be paid from the Estate on an indemnity basis and for the defendant's costs to be paid from the Estate on the ordinary basis...

Court Disposition

Costs orders made in favour of the plaintiff in part; defendant's costs limited after non-acceptance of the third offer.

Orders

  • ["Order that the plaintiff's costs be payable out of the Estate on an indemnity basis." "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."]