Talbot v Talbot

[2016] NZHC 759

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2015-476-000037 [2016] NZHC 759

BETWEEN

JILLIAN KATE TALBOT

Plaintiff

AND

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

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

Hearing:	19 April 2016 (by way of telephone conference)
Appearances:	E Horner and Ms Tidey for Plaintiffs A J Shaw for First Defendant J Ormsby and H Shaw for Second Defendant RLD Paul for R L Cashin
Ruling:	20 April 2016

RULING OF GENDALL J

[1]      The  Timaru  law  firm  Timpany  Walton  of  which  counsel  for  the  first defendant  Graham  Talbot  in  his  capacity  as  executor  of  the  will  of  the  late Edwin Talbot  is  a  partner,  acted  for  the  late  Mr  Edwin  Talbot  and  his  wife Mrs P L Talbot during their lifetimes and has been acting in the administration of their estates.  I understand the partner in the firm of Timpany Walton who acted for the  late  Mr  and  Mrs  Talbot  Senior  (and  also  for  Mr  Graham  Talbot)  was

Mr Richard Walton.

TALBOT v TALBOT [2016] NZHC 759 [20 April 2016]

[2]      Mr Walton has filed affidavits as to assets and liabilities of the estate in his capacity acting in the administration of the estates and has also filed an affidavit as to the instructions he received at the time he completed wills for the deceased.

[3]      The firm Timpany Walton and one of its partners, Mr Shaw, filed a pro-forma defence in these proceedings on behalf of Mr Graham Talbot in his capacity as executor of both estates.  Mr Graham Talbot in his personal capacity as beneficiary in the estates is represented by Mr Ormsby of Wynn Williams.

[4]      Counsel for the plaintiff has now asserted that the evidence of Mr Walton in this case is contentious and that r 13.5.2 of the Lawyers and Conveyancers Act (Lawyers:  Conduct and Client Care) Rules 2008 applies here.  That rule provides that:

If,  after  a  lawyer  has  commenced  acting  in  a  proceeding,  it  becomes apparent that the lawyer or a member of the lawyer’s practice is to give evidence of a contentious nature, the lawyer must immediately inform the Court and, unless the Court directs otherwise, cease acting.

[5]      Ms Horner, counsel for the plaintiff, contends that as the evidence provided by Mr Richard Walton will be contentious in nature and cross-examination will be required, it is appropriate that current counsel for the executors of the estate should, unless the Court directs otherwise, cease acting in this case.

[6]      This   contention   is   opposed   by   counsel   for   the   estate,   counsel   for

Mr Graham Talbot in his personal capacity, and also Ms Cashin.

[7]      The contention is raised that the executors of the estate, in that capacity, will simply  abide  the  decision  of  the  Court  here  and  take  no  further  part  in  this proceeding, that Mr Walton’s evidence here, even if contentious in part, will not result in any cross-examination of him on behalf of the estate administrators and there is simply no mischief here in Timpany Walton continuing to act with Mr Shaw instructed as solicitors and counsel for the estate administrators.   Issues have also been raised about the costs which are being incurred by the estate which will fall at least in part upon Ms Cashin as a residuary beneficiary in the estate.  Her counsel contends that there is no real issue of significant concern here and the additional cost

at this late stage of instructing alternative solicitors and counsel to act for the estate administrators (bearing in mind that they have confirmed they will simply abide the decision of the Court) should be avoided.  It is also suggested that this issue has been raised by the plaintiff only reasonably late in the piece, although from Ms Horner it seems it may have been first raised in February 2016 when initial discovery was completed.

[8]      Weighing  up  all  these  matters  and  the  submissions  advanced  to  me  by counsel for the parties I am satisfied here that this is an appropriate case for the Court to grant leave for Timpany Walton as solicitors and Mr R A Shaw as counsel to continue to act for the defendant Graham Talbot in his capacity as executor of the estates.     Mr  Graham  Talbot  is  separately  and  independently  represented  by Mr Ormsby in his private capacity and the estate administrators have confirmed that they will simply abide the decision in this case and will effectively take no further part.  Even if the evidence of Mr Walton proves to be contentious no involvement or cross-examination of him will be undertaken on behalf of the estate administrators and this has been confirmed.

[9]      Further, an amended statement of defence from the estate’s administrators is to be filed (which I directed yesterday, 19 April 2016) which will confirm that the administrators’ position is simply to abide the decision of the Court here.

[10]     Overall I am satisfied that no difficulties with Timpany Walton continuing to act as pro forma solicitors for the estate administrators are likely to arise in this case and for the reasons I have outlined and costs consideration at this late stage of the proceeding, leave should be granted in terms of r 13.5.2 of the Lawyers and Conveyancers Act (Lawyers:  Conduct and Client Care) Rules 2008 for this to occur.

[11]     Leave is granted accordingly.

...................................................

Gendall J

Solicitors:

Mahony Burrowes Horner, Wellington

Timpany Walton, Timaru
Wynn Williams, Christchurch

Lana Paul, Christchurch