Talbot v Boyd Legal (A Firm) (No 2)

[2023] QSC 39

SUPREME COURT OF QUEENSLAND

CITATION:

Talbot & Ors v Boyd Legal (A Firm) & Ors (No 2) [2023] QSC 39

PARTIES:

AMANDA DIANNE TALBOT
(first plaintiff)
ALEXANDRA CECILE TALBOT
(second plaintiff)
CLAUDIA ELISABETH TALBOT
(third plaintiff)
BLEVIO PTY LTD (AS TRUSTEE)
(fourth plaintiff)
COLLETTE CRAMER PTY LTD (AS TRUSTEE)
(fifth plaintiff)
v
BOYD LEGAL (A FIRM)
(first defendant)
ARNOLD BLOCH LEIBLER (A FIRM)
(second defendant)
PAUL JAMES VINCENT AND WILLIAM FRANCIS BOYD (AS ADMINISTRATORS AND TRUSTEES OF THE ESTATE AND WILL TRUST OF KENNETH TALBOT, DECEASED)
(third defendant)
BRIAN DAVID BARTLEY
(first third party)
PAUL WILLIAM GLEESON
(second third party)
WILLIAM FRANCIS BOYD AS ADMINISTRATOR OF THE ESTATE OF KENNETH TALBOT
(third third party)

FILE NO:

BS 641 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

17 February 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2023

JUDGE:

Boddice J

ORDER:

1.   The plaintiffs’ claim against the first defendant be dismissed, and judgment entered for the first defendant.

2.   The plaintiffs’ claim against the second defendant be dismissed, and judgment entered for the second defendant.

3.   The second defendant’s third party claim against the first third party be dismissed, and judgment entered for the first third party, with no order as to costs.

4.   The second defendant’s third party claim against the second third party be dismissed, and judgment entered for the second third party, with no order as to costs.

5.   The second defendant’s third party claim against the third third party be dismissed, and judgment entered for the third third party.

6.   The plaintiffs pay:

(a)     the first defendant’s and third third party’s costs of the proceeding up to and including 10 June 2022 on the standard basis, and thereafter on the indemnity basis, to be agreed or assessed;

(b)     the second defendant’s costs of the proceeding up to and including 14 June 2022 on the standard basis, and thereafter on the indemnity basis, to be agreed or assessed;

(c)     the third defendants’ costs of the proceeding on the indemnity basis.

7.   The third defendants be indemnified against their costs of the proceeding out of the interests of Amanda Talbot, Alexandra Talbot, and Claudia Talbot in the Talbot Estate Trust.

8.   On the proper construction of clauses 11.2(a) and 15 of the will dated 29 November 2002 of Kenneth Talbot, deceased, the interests of Amanda Talbot, Alexandra Talbot and Claudia Talbot in the income and capital of the Talbot Estate Trust are as follows:

(a)     Amanda Talbot 18%;

(b)     Alexandra Talbot 17%;

(c)     Claudia Talbot 17%.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiffs’ claims, and third party proceedings, were dismissed at trial – where the first, second and third defendants and third third party sought costs to be assessed on an indemnity basis – where the first defendant alleged the proceedings were initiated for an improper purpose – where the second defendant alleged the plaintiffs prolonged proceedings with unreasonably groundless contentions – where the third defendant became a party to the proceedings by reason of correspondence entered into between the parties – where the third defendant, as administrators of the estate, sought their costs be met by the plaintiff beneficiaries rather than other beneficiaries – where the first and second defendants each made a Calderbank offer of settlement – whether the defendants and third parties should be awarded costs on the indemnity basis

COUNSEL: 

P Dunning KC and P Telford for the plaintiffs
G A Thompson KC and A Nicholas for the first
defendant and third third party 
S McCarthy for the second defendant
D O’Brien KC for the third defendant

SOLICITORS:

Everingham Lawyers for the plaintiffs
Hall & Wilcox for the first defendant
K&L Gates for the second defendant
HopgoodGanim Lawyers for the third defendant
HopgoodGanim Lawyers for the third third party

1. On 3 February 2023, reasons were delivered for a determination that the plaintiffs’ claims against the defendants should be dismissed, and that the third party proceedings, as a consequence, should also be dismissed.  At that time, the parties were invited to make further submissions in relation to the form of orders and costs.  The parties each provided detailed submissions in respect of costs and the nature of the orders to be made as a consequence of the reasons.  The parties added to those written reasons in oral submissions today. 

2. There is no doubt that as the plaintiffs lost completely in respect of the claims, costs orders ought to be made in favour of the defendants for the payment of the costs on a standard basis.  It is, however, submitted by the first, second and third defendants that, as a consequence of a number of issues, costs ought to be assessed on an indemnity basis. 

3. In respect of the first defendant, it is submitted that indemnity costs ought to follow for primarily two reasons.  First, the claim was initiated against the first defendant for an improper purpose, and, in those circumstances, it is appropriate that costs be awarded on an indemnity basis for the whole of the proceeding.  Second, there was an offer made, in the nature of a Calderbank offer, on 27 May 2022, and having regard to the terms of that offer and the accompanying reasons provided for why that offer ought to be accepted by the plaintiffs, it was unreasonable or imprudent for the plaintiffs to reject that offer.  Accordingly, it is submitted that indemnity costs ought to be awarded, at least from the time of that offer.

4. The first defendant also submits that there were aspects of the claim which are relevant when an assessment is made of whether it is appropriate to assess costs on an indemnity basis. 

5. In respect of the second defendant, it is submitted that costs ought to be ordered on an indemnity basis, having regard to the fact that the second defendant made an offer of settlement on 1 June 2022, pursuant to what is known as a Calderbank offer, which was subsequently confirmed, pursuant to an offer made in accordance with the Rules. 

6. It is submitted by the second defendant that it was unreasonable and imprudent for the plaintiffs to have not accepted that offer.  The second defendant also submits that an order for indemnity costs would arise having regard to the fact that the plaintiffs maintained unreasonably groundless contentions in respect of the proceeding, which prolonged those proceedings. 

7. In respect of the third defendant, it is submitted that an order for costs ought to be made on an indemnity basis because the third defendant reasonably became a party to the proceedings, essentially at the instigation of the plaintiffs, by reason of correspondence that had been entered into between the parties.  Further, in circumstances where the third defendant was joined as administrators of the estate and would be entitled to indemnity for costs from the estate, it is appropriate that the costs be met by the unsuccessful plaintiffs rather than other beneficiaries within the estate. 

8. It is submitted that would appropriately be met by the ordering of costs on an indemnity basis.  Alternatively, an order could be made that the costs that are to be the subject of indemnification by the estate be paid out of the share of the plaintiff beneficiaries.

9. Finally, there were third party proceedings commenced by the second defendant. 

10. In respect of the first third party and the second third party, those proceedings were the subject of a compromise.  It is sought that orders be made that those proceedings be dismissed, with no order as to costs. 

11. In respect of the third third party, it is submitted that the second defendant acted reasonably in instituting those proceedings, based on the nature of the plaintiffs’ claims and, in particular, the applicable law in respect of that claim.  It is submitted it would be unjust to burden the second defendant with those costs when the second defendant was wholly successful, and when the proceedings ought to have been compromised at an earlier time.  Accordingly, it is submitted those costs ought to be paid by the plaintiffs, on an indemnity basis.

12. Having considered the material, I am not satisfied that it would be appropriate to order costs on an indemnity basis on the grounds of an improper commencement of the proceedings.  Whilst there is clear evidence that the first plaintiff wished to destroy the first defendant and specifically referred to the fact that she would sue him as part of that process, a consideration of all of the circumstances satisfies me that it is not appropriate to conclude that the proceeding was improperly brought by the plaintiffs.  It may well be that there was a motivation associated with why the proceeding was commenced at a particular time, but I am not satisfied it was improperly brought.

13. I am, however, satisfied that in respect of both the first and second defendants, the plaintiffs unreasonably and imprudently rejected those offers of settlement.  It is important to note when the offers of settlement were made. 

14. In the case of the first defendant, it was 27 May 2022.  By that stage, the plaintiffs were well aware of the evidence, including the conversation of 5 May 2010 as it expressly is referred to in that offer.  In those circumstances, the plaintiffs were in a position to be able to assess the likelihood of success.  If they had done so appropriately, they would have or should have assessed a very substantial offer of $1.5 million as being a reasonable offer, having regard to the likelihood of success.  The fact that it was an all up offer does not mean it was not properly to be considered, having regard to the magnitude of that offer and the likelihood that the plaintiffs would fail completely.

15. In those circumstances, I am satisfied it is appropriate to order that the plaintiffs pay the first defendant’s costs, from what ought to have been the date of acceptance of that offer, on an indemnity basis.  I am not satisfied it would be just, in the circumstances, to order, as a consequence of that offer, that the first defendant’s cost of the whole of the proceeding be assessed on the indemnity basis. 

16. In respect of the second defendant, I am satisfied it was unreasonable and imprudent to reject the second defendant’s offer.  As the offer under the Rules was in the same terms as the Calderbank offer, it is appropriate that the costs be assessed on an indemnity basis, from the time of what ought to have been a reasonable acceptance of the Calderbank offer.  If it was reasonable to accept that offer, there is no reason why the costs should be deferred for that additional period. 

17. I am satisfied it was reasonable to accept that offer, and that reasonable plaintiffs would have accepted that offer. 

18. Again, it was an offer made at a time when the plaintiffs had access to the relevant information in order to make a proper assessment of the likelihood of success.  The plaintiffs were wholly unsuccessful in the claims. In those circumstances, an order for costs, on an indemnity basis, ought to be made from the date of that offer. 

19. For similar reasons, in respect of the first defendant, I am satisfied it would not be just to order that those costs be assessed on an indemnity basis for the whole of the proceeding.  It is appropriate that it be from the date of reasonable acceptance of that offer. 

20. In respect of the costs of the third defendant, having regard to the circumstances of the correspondence which had been entered into, in relation to a requirement that the estate agree to be bound by the terms of the claim, I am satisfied it was reasonable for the third defendant to seek to be joined in the proceeding.  Having regard to what might have been the consequences that would flow from such a finding, it was in the interests of the estate that the third defendant be heard in relation to the basis upon which the estate had been administered to that date.

21. I am also satisfied it is appropriate, in those circumstances, to order that those costs be assessed on an indemnity basis.  It is significant to note that the first plaintiff, whilst making that claim, entered into a Deed, which effectively would have given the other plaintiffs their entitlements in any event.  It was, therefore, an issue which, in truth, was not going to alter matters between the plaintiffs.  In those circumstances, it is an improper use of the proceedings to pursue such a claim and suggest that the estate should be bound by it.  It was proper for the third defendant to defend the proceeding.

22. I am also satisfied that, having considered the terms of what was the argument, there was no reasonable prospects of success, and a reasonable plaintiff would have formed that view.  Accordingly, on that basis, I also would order that those costs be assessed on an indemnity basis. 

23. Those costs should be paid by the plaintiffs. It would be unjust that any other beneficiary be liable for those costs.  The third defendant would be entitled to the indemnity from the estate for those costs. 

24. Finally, in relation to the third third party proceedings, I am satisfied it was reasonable for the second defendant to institute those proceedings, based on the nature of the plaintiffs’ claim and the jurisdiction under which it was made.  I am satisfied it would be unjust to burden the second defendant with those costs in circumstances where the plaintiffs were wholly unsuccessful.  It is appropriate to order that the plaintiffs pay those costs. 

25. In circumstances where the plaintiffs ought to have reasonably accepted offers of settlement, I am satisfied it is appropriate that those costs also be assessed on the indemnity basis, from the date of what would have been that offer, and otherwise to be assessed on the standard basis. 

26. I am satisfied it is appropriate to order that the claims in respect of the first and second third parties, be dismissed with no order as to costs.

27. Otherwise, the claims will be dismissed, with judgment being entered in respect of the first and second defendants.