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

The plaintiffs, Amanda Talbot, Alexandra Talbot and Claudia Talbot, initiated proceedings against the first defendant, Boyd Legal (A Firm), in relation to the administration of the estate of their late father, Kenneth Talbot. The plaintiffs also brought third-party proceedings against the administrators of the estate. The first and second defendants and the third parties sought indemnity costs following the dismissal of all claims. The first defendant argued the proceedings were commenced for an improper purpose, while the second defendant claimed the plaintiffs had unreasonably prolonged the proceedings. The third defendants, who became parties due to correspondence between the parties, sought their costs to be paid by the plaintiff beneficiaries rather than other beneficiaries. The first and second defendants had each made a Calderbank offer of settlement.

The court examined the relevant considerations for awarding indemnity costs, including whether the proceedings were brought or continued for an improper purpose, and whether the losing party had acted unreasonably. The court found that the first defendant's allegation of an improper purpose was not established. However, the court found that the second defendant's contention that the plaintiffs unreasonably prolonged the proceedings was made out. The court also found that the third defendants' costs should be paid by the plaintiff beneficiaries rather than other beneficiaries. The court concluded that the defendants and third parties were entitled to indemnity costs.

The court ordered that the plaintiffs' claims against the first and second defendants be dismissed, and that judgment be entered in their favour. The second defendant's third-party claims were also dismissed, with judgment entered in favour of the first and second third parties, and no order as to costs. The second defendant's third-party claim against the third third party was dismissed, and judgment entered in their favour. The plaintiffs were ordered to pay the first defendant's and third third party's costs up to and including 10 June 2022 on the standard basis, and thereafter on the indemnity basis. The plaintiffs were also ordered to pay the second defendant's costs up to and including 14 June 2022 on the standard basis, and thereafter on the indemnity basis. The third defendants were ordered to 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. Finally, the court construed clauses 11.2(a) and 15 of the will dated 29 November 2002 of Kenneth Talbot, deceased, and determined the interests of Amanda Talbot, Alexandra Talbot and Claudia Talbot in the income and capital of the Talbot Estate Trust.