Talbot v Talbot - [2017] NZHC 257

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2015-476-000037 [2017] NZHC 257

UNDER the Family Protection Act 1955

BETWEEN

JILLIAN KATE TALBOT Plaintiff

AND

GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF EDWIN KELLAND TALBOT) First Defendant

AND

GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF PAMELA LISBETH TALBOT) Second Defendant

Hearing: Dealt with on the papers

Counsel:

E J Horner and L D Tidey for Plaintiff
A J Shaw for First and Second Defendants

J Ormsby and H T Shaw for GEL Talbot (in his personal capacity)

RLD Paul for R L Cashin

Judgment:

23 February 2017

JUDGMENT OF GENDALL J As to Costs

Introduction

[1] In a judgment I issued in this proceeding on 6 October 2016 (the substantive judgment) I dismissed an application by the plaintiff Jillian Kate Talbot (Jillian) for further provision under the Family Protection Act 1955 (the Act) from the estates of her late parents. This was on the basis that I was not persuaded by Jillian that there
had been any breach of moral duty on the part of her parents towards her.

TALBOT v TALBOT [2017] NZHC 257 [23 February 2017]

[2] In giving this decision I reserved costs as counsel indicated they wished to make further submissions on that issue.

[3] And at para [87] of the substantive judgment I noted:

[87] In the event that counsel are unable to agree between themselves on the issue of costs, then they may file memoranda (sequentially) and in the absence of any party indicating they wish to be heard further on the question of costs, I will decide that issue based upon the material then before the Court.

[4] The parties in this proceeding who were successful in opposing Jillian’s applications all seek costs against her personally with respect to the proceeding. Memoranda have now been filed as follows:

(a) Memorandum dated 16 December 2016 from Mr Shaw, counsel for the first and second defendant, Graham Edwin Lawrence Talbot (Graham) the brother of Jillian, in his capacity as executor for the wills of his late parents.

(b) Memorandum dated 9 December 2016 from Mr Ormsby, counsel for

Graham in his capacity as a beneficiary in his parents’ estate.

(c) Memorandum dated 19 December 2016 from Ms Paul, counsel for Rachel Louise Cashin (Mrs Cashin) the sister of Jillian and Graham who was joined to this proceeding as an affected party.

(d) Memorandum dated 23 December 2016 from Ms Horner, counsel for

Jillian.

(e) Memorandum dated 25 January 2017 from Mr Ormsby for Graham, in his capacity as beneficiary, in reply.

[5] Counsel and the parties have been unable to agree between themselves on the question of costs. I am now to decide that issue based upon the memoranda and all other material before the Court. No counsel have indicated that they wish to be heard further on the issue.

[6] I now give my decision on this costs question.

Parties’ position

[7] The positions taken by each of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Talbot v Talbot

Details

AGLC: Talbot v Talbot [2017] NZHC 257
Case: [2017] NZHC 257
Decision Date: 23 February 2017

CaseChat Overview and Summary

The case of Talbot v Talbot involved a dispute over costs in a family protection matter in New Zealand. The plaintiff, Jillian Kate Talbot, had brought an unsuccessful application under the Family Protection Act 1955 for further provision from the estates of her late parents. The defendants were her brother, Graham Edwin Lawrence Talbot, as executor of her parents' wills, and her sister, Rachel Louise Cashin. The court had to decide on the issue of costs following Jillian's unsuccessful application.

The legal issues in the case involved the principles and guidelines for determining costs in family protection proceedings under the High Court Rules. The court had to consider whether costs should follow the event, be borne by the estate, or left to lie where they fall. The court also had to consider the relevance of "Calderbank Offers" in determining costs and the impact of the conduct of the parties on the costs order.

The court held that costs in family protection proceedings should follow the event, with the unsuccessful party bearing the costs of the successful party. The court found that Jillian's claim was unmeritorious and that the settlement offers made to her were realistic. The court also found that Rachel, as an innocent party, should not bear any of the costs of the estates. The court ordered Jillian to pay the reasonable costs and disbursements of the estates, her brother as a beneficiary, and her sister relating to the proceedings. The quantum of these costs was to be determined based on further submissions from the parties.

Orders