Talbot v Boyd Legal[2021] QSC 157

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   Mr Ken Talbot was a wealthy coal miner who died in a plane crash in the Republic of Congo in June 2010.  He was married to the plaintiff from April 1995 until the time of his death, and there were two children of this marriage, Alexandra and Claudia.  Mr Talbot also had two children from a previous marriage, Liam and Courtney.
2. [2]
   Mr Boyd is a legal practitioner practising in Queensland.  From March 2007, he practised as a solicitor under the name of the first defendant, Boyd Legal.  He had earlier been a member of other firms.  Mr Boyd was retained by Mr Talbot from about 1995 until the date of his death in various capacities, including for the purposes of preparing a will in 2002.   The 2002 will appointed Mr Bret, an American living in Texas, as Mr Talbot’s sole executor and trustee.  The plaintiff and Mr Talbot’s four children are beneficiaries under the 2002 will.  No subsequent testamentary instrument was executed by Mr Talbot before his death.
3. [3]
   After Mr Talbot’s death, Mr Bret became the sole executor and trustee of the estate, pursuant to the appointment under the 2002 will.  He was subsequently removed, and from 29 June 2012, Mr Boyd was appointed as the administrator of the estate.  In September 2019 a second administrator, Mr Vincent was appointed, jointly with Mr Boyd.
4. [4]
   The plaintiff’s claims in this proceeding fall into two categories:  one, as a disappointed beneficiary, seeking to recover damages for breach of a duty alleged to be owed to her by the first defendant, by Mr Boyd, coextensive with the duty said to have been owed to Mr Talbot, as the client, in respect of a retainer to prepare a new will; the other, to recover damages for breach of a duty alleged to be owed to her as the client pursuant to subsequent retainers by her of the first defendant, by Mr Boyd and, later, the second defendant.  Intertwined in these claims are claims alleged to have arisen under earlier retainers by Mr Talbot of Mr Boyd, when he was a member of other firms, in relation to the preparation of the 2002 will and to provide continuing advice after the 2002 will was prepared.  As explained by senior counsel for the plaintiff,^[1] her “real complaint” is that, upon Mr Boyd’s appointment as administrator, he did not act as a competent administrator would have – in particular, by realising certain assets in a timely way.  But somewhat confusingly, the proceeding is not a claim against Mr Boyd in his capacity as administrator.  The negligence claim against each of the first defendant and the second defendant is premised on a failure to inform the plaintiff of various things of which, she says, if she had been aware, she would not have agreed to, or would actively have opposed, the appointment of Mr Boyd as administrator, and someone else would have been appointed, who would have acted competently, by selling the assets without delay.
5. [5]
   As Applegarth J said in a decision dealing with an earlier interlocutory application, “this complex cases bristles with issues”.^[2]  
6. [6]
   Before me for determination are three applications:

   1. (a)
      two applications, by each of the first defendant and the second defendant, to strike out certain paragraphs of the second further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld); and/or for summary judgment in favour of the defendants in respect of parts of the plaintiff’s claim pursuant to r 293 of the UCPR; and
   2. (b)
      a cross-application by the plaintiff for leave to amend her claim; and for summary judgment in favour of the plaintiff, in respect of parts of her claim, or alternatively, an order striking out parts of the defences of the first and second defendants.
7. [7]
   The relevant principles which apply are not controversial.  I apply (without setting out here) the principles summarised in Equititrust Ltd v Tucker &Ors (No 2) [2019] QSC 248 at [8]-[11], [13]-[16] and in Santos Limited v Fluor Australia Pty Ltd & Anor (No 1) [2020] QSC 372 at [18]-[28] – noting, in particular, the cautious approach which is required before summarily dismissing part of a claim (or defence).
8. [8]
   The issues raised by the applications are largely common to both defendants’ applications and the plaintiff’s cross-application.  I propose to deal with the applications together, by reference to the issues raised.

Representative proceeding issue

9. [9]
   The second further amended statement of claim was filed on 14 October 2020 (SFASOC).  The amendments included amendments purporting to reconstitute the plaintiff’s proceeding as a representative proceeding under r 75 UCPR by the plaintiff on behalf of her two daughters, Alexandra and Claudia.
10. [10]
    Both the first defendant and the second defendant apply to strike out these amendments (relevantly, paragraph 7A(g) and references throughout the document to the plaintiff’s daughters) on the basis that the amendments do not comply with the UCPR, in particular r 18 (requiring a plaintiff suing in a representative capacity to state the representative capacity on the originating process), r 75 and r 377 (requiring leave to amend an originating process).
11. [11]
    The issue raised by reference to rr 18 and 377 is sought to be addressed by the plaintiff’s cross-application, for leave to amend the claim.
12. [12]
    In terms of the substance of the complaint, r 75 provides:

“75 Representative party

A proceeding may be started and continued by or against 1 or more persons who have the same interest in the subject matter of the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding.” [underlining added]

13. [13]
    Unconventionally, an explanation for the representative proceeding amendment is set out in the SFASOC, at paragraph 7A(e) to (g), as follows:

“7A Since the commencement of this proceeding:

 …

Assertion in Correspondence that Mrs Talbot Cannot Maintain a Claim of 52% or 56%

5. (e)
   Further, by correspondence dated 2 July, 2020 solicitors for the defendants raised for the first time an alternative construction of the 2002 Will regarding the gifts that were intended for Mrs Talbot and her infant children, Alexandra and Claudia;

6. (f)
   Mrs Talbot’s primary position is that the true and proper construction of the 2002 Will remains as pleaded by her in the Further Amended Statement of Claim filed 29 November 2019;

7. (g)
   However in order to avoid the necessity of having that issue determined in this proceeding, in the absence of the Administrators and other beneficiaries who may be interested in the outcome of that dispute, where relevant and to the extent it is necessary to do so, Mrs Talbot brings this proceeding in the alternative, on a representative basis pursuant to UCPR 75 for and on behalf of:

1. (a)
   Herself;

2. (b)
   Alexandra; and

3. (c)
   Claudia.”

14. [14]
    Paragraph 7A is one of the paragraphs sought to be struck out.  The plaintiff does not oppose that.
15. [15]
    To understand what appears in the part of [7A] set out above, it is necessary to refer to parts of the 2002 will.
16. [16]
    By clause 7, the beneficiaries are defined as the plaintiff and each of Mr Talbot’s four children.
17. [17]
    Clause 11.1 provides for specific gifts of certain real and personal property.  Clause 11.2 then provides:

“11.2 The balance of my estate is to be distributed as follows:

1. (a)
   70% is to be held by my Trustee on the terms of the Talbot Estate Trust established by clause 15.  I have allocated the beneficiaries’ interests in the Talbot Estate Trust proportionally in the expectation that Amanda Dianne Talbot, as the mother of Alexandra Cecile Talbot and Claudia Elisabeth Talbot, will make provision for them within her Will, as well as for her family.  This is why I have allocated a combined 52% to Amanda Dianne Talbot, Alexandra Cecile Talbot and Claudia Elisabeth Talbot and 24% each to Liam Anthony Talbot and Courtney Erin Talbot;
2. (b)
   30% is to be held by the Talbot Foundation, as to which … [this clause is not relevant to the question presently before the court].”

18. [18]
    Clause 15 establishes the Talbot Estate Trust.  Relevantly, clause 15.3 provides:

“15.3 Interests in the Trust Fund

The proportion of each Beneficiary’s entitlement to the income and capital of the Trust Fund will be as follows:

1. (a)
   Amanda Dianne Talbot - 18%

2. (b)
   Liam Anthony Talbot – 24%

3. (c)
   Courtney Erin Talbot – 24%

4. (d)
   Alexandra Cecile Talbot – 17%

5. (e)
   Claudia Elisabeth Talbot – 17%.”

19. [19]
    Clause 15.4(b) provides that “[t]he overall entitlement of each Beneficiary to the income and capital of the Trust Fund is set out in clause 15.3”, before going on to make provision for a Beneficiary to request a particular item of property from the Trust Fund to be allocated as part of his or her ultimate entitlement.
20. [20]
    The plaintiff’s primary argument is that, on the proper construction of the 2002 will, she is entitled to 52% of the 70% balance of the estate.   The quantification of her alleged loss in this proceeding proceeds on this basis.^[3]  This is on the basis of what appears in clause 11.2(a) of the 2002 will.  But, as explained in paragraph 7A of the SFASOC, in case the 2002 will is construed otherwise, in terms of clause 15.3, such that she is only entitled to 18% [which is the defendants’ construction], she proposes to bring the proceeding in the alternative, on a representative basis, for herself and Alexandra and Claudia.
21. [21]
    The first and second defendants submit that the plaintiff’s proposed representative claim is untenable because the plaintiff and her daughters do not satisfy the threshold test of having the “same interest” in the subject matter of the proceeding.^[4] 
22. [22]
    I accept the defendants’ submission in this respect.  Although there were a number of arguments advanced in support of this, the short point is that the plaintiff and her daughters plainly do not have the “same interest” in the subject matter because the plaintiff’s primary claim, and her purported representative claim, are alternatives.  In simple terms, if the plaintiff wins on her primary argument the daughters lose.^[5]   That is entirely at odds with the concept of parties having the “same interest” in the subject matter, such as to give effect to the purpose of a provision such as r 75 which is to enable parties having the same interest to secure a determination in one action rather than in separate actions.
23. [23]
    This is not a case of quantitative differences in terms of the relief claimed.^[6]  The claims are, as submitted by the second defendant, directly competing and contrary.
24. [24]
    Because of the view I have formed about this issue, I have found it unnecessary to deal with the issue as to whether it is possible to reconstitute a proceeding as a representative proceeding after its commencement; or whether a representative proceeding can only properly be commenced as such.   It may be accepted, as Callinan and Heydon JJ said in Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at [215], that “the same interest” must actually have existed when the proceedings began.  But assuming that to be the case, it is an open question whether r 75 permits a proceeding which has been started by one person, on their own behalf, to be continued by that person, as the representative of others who have [and had, at the time the proceeding was commenced] the same interest and who could have been joined as parties in the proceeding.
25. [25]
    The timing question is moot in this case because I am not satisfied that the plaintiff and her two daughters have (or had, at the time the proceeding was commenced) “the same interest”, for the reason already articulated.
26. [26]
    I reject the further argument advanced by the plaintiff, that each of the first and second defendants have admitted the plaintiff’s pleaded construction of the will.   In the plaintiff’s written submissions at [7] it is submitted the plaintiff’s primary construction of the 2002 will as to her 52% entitlement is pleaded in various paragraphs of the statement of claim, including [12(f)], and that this paragraph has been admitted by the defendants.   Paragraph 12(f) simply sets out the terms of clause 11 of the 2002 will, as opposed to pleading a particular construction of it.  To that extent, the paragraph is admitted.  But that does not amount to an admission of the construction contended for by the plaintiff.  And in fact the first defendant, at [12(b) and (c)] of its defence, also expressly pleads the effect of its construction.   In oral submissions, senior counsel for the plaintiff drew attention to [49(d)] of the SFASOC which does, in the context of a plea of loss, refer to a “combined 52%” under the 2002 will (and a “combined 56%” under the proposed new will).  But I do not accept the submission that this paragraph has been admitted by the first defendant, having regard to [49] of its defence (although it appears there may be typographical errors in some or all of [49], [43]-[47] of the first defendant’s defence, in so far as there are references “subparagraph 49(d)”, because there is some ambiguity as to what is being referred (and cross-referred) to).  Paragraph 49(d) is expressly denied by the second defendant.
27. [27]
    In addition to the diametric opposition between the plaintiff’s primary case, and her alternative case, there is another difficulty with the purported reconstitution of the proceeding as a representative proceeding, in so far as the plaintiff’s claim is based on the retainer by her of the first defendant (see paragraphs 51 and 51A of the SFASOC) and of the second defendant (see paragraph 57 of the SFASOC).  The amendments purport to expand these claims to incorporate a claim by the plaintiff on behalf of her two daughters, without pleading facts from which it may be found that Mr Boyd and/or the second defendant owed a duty to the two daughters, coextensive with the duty alleged to be owed to the plaintiff under the terms of the pleaded retainers.^[7]    The device of simply adding reference to “Alexandria and Claudia” in paragraphs pleading the retainer by the plaintiff of the first defendant and the second defendant, respectively, or the duty alleged to have been owed, is inadequate.
28. [28]
    I accept the defendants’ submission that the requirements of r 75 are not met.  The amendments to the SFASOC purporting to advance a claim on behalf of the plaintiff’s daughters, in a representative capacity, will be struck out.  The parties will be directed to provide a draft order which identifies the paragraphs of the SFASOC to which this applies.
29. [29]
    I note that each of the daughters have previously commenced, and now discontinued, their own claims.  In the course of the hearing, I raised the question why the plaintiff had taken the course of purporting to reconstitute the proceeding as a representative proceeding, and whether there was any reason why the daughters could not be joined as parties to the proceeding in their own right.  Senior counsel for the plaintiff said that it was thought to be “more expedient” to take the course of trying to reconstitute the proceeding as a representative proceeding, but there was no reason from the plaintiff’s perspective why the two daughters could not be joined as parties in their own right.  In response to my enquiry, during the hearing, whether their joinder could be dealt with in the context of the present application, each of the first and second defendants submitted that they would wish to reserve their position on any joinder until seeing how the daughters’ claims would be pleaded.
30. [30]
    After the hearing was concluded, and judgment reserved, the plaintiff requested the matter be listed for mention.  That occurred, on 24 May 2021.  It emerged that the purpose of the mention was to seek leave to file a further amended application, seeking orders for the joinder of the daughters as parties.  Further amendments to the statement of claim had been drafted.   Senior counsel for the plaintiff proposed that this amended application be filed, the defendants given the opportunity to make written submissions about it, and that this would obviate the need for the court to determine the representative proceeding point (and the plaintiff’s related point about deemed admissions).  This was opposed by the defendants, for a number of reasons, including that it was not part of the original application, the hearing of which was concluded and judgment reserved; that the issues to be addressed by the court in dealing with the existing applications would be relevant to the scope of any potential claim by the daughters; and that there is a question as to the standing of the daughters to maintain any claims as “disappointed beneficiaries” given that under the 2002 will, as the defendants contend it should be construed, they do not achieve any vested interest in the estate until they reach the age of 30 (which neither of them have).  I declined to permit this amended application to be filed.   In light of the foreshadowed opposition, if there is to be a joinder application, it should be heard properly on its merits, rather than in this short-hand manner, after judgment has been reserved in respect of the three applications already before the court. 

Assets held by corporate entities and as trust property

31. [31]
    The next complaint concerns the plaintiff’s claim for losses associated with what are described in the pleading as the Karoon Shares and the Non-Karoon Shares and Assets.  To understand the arguments raised, it is necessary to outline the plaintiff’s claims in a little detail. 
32. [32]
    There are three retainers of Mr Boyd (by the firm(s) he was at various times a member of) by Mr Talbot relied upon by the plaintiff:

    1. (a)
       the retainer to prepare the 2002 will (paragraphs 8-10 of the SFASOC);
    2. (b)
       a retainer, between November 2002 and November 2007, to provide ongoing legal advice, including in relation to the appropriateness of the 2002 will (paragraph 18 of the SFASOC); and
    3. (c)
       a retainer, from November 2007, of the first defendant, by Mr Boyd, to prepare a new will (paragraphs 22-25 of the SFASOC).
33. [33]
    In relation to the first of these, the 2002 will retainer, the plaintiff alleges that Mr Boyd’s then firm (HBB), by Mr Boyd, owed a duty of care to her, as a beneficiary under the 2002 will, to exercise reasonable care, diligence and skill in performing the 2002 will retainer (paragraph 14-15 of the SFASOC).  The plaintiff alleges, at paragraphs 16 and 17, that HBB and Mr Boyd breached that duty by failing to advise Mr Talbot, essentially, to draft the 2002 will differently – inter alia, in relation to the (undesirability of the) appointment of a sole executor and trustee.  Paragraph 17A alleges that, if Mr Talbot had received the advice it is alleged Mr Boyd should have given, he would have acted on it and the will would have been drafted differently.
34. [34]
    In relation to the second, the continuing advice retainer, the plaintiff alleges Mr Boyd’s then firms, HBB and HBBCL, by Mr Boyd, owed a duty of care to the plaintiff, as a beneficiary under the 2002 will, consistent with the contractual duty alleged to be owed to Mr Talbot (paragraph 19).   The plaintiff alleges that HBB and HBBCL, by Mr Boyd, breached the duties owed to Mr Talbot and the plaintiff, as a beneficiary, by failing to advise him of various things, once again in relation to how Mr Talbot’s will should be drafted, and, further, as to the need to prepare a “more complete” will than the 2002 will (paragraph 20).
35. [35]
    In relation to the third, the new will retainer, the plaintiff alleges the first defendant, by Mr Boyd, owed a duty of care to the plaintiff, again as a beneficiary of Mr Talbot’s will (paragraphs 42-43).  The plaintiff alleges that the first defendant, by Mr Boyd, breached that duty of care by, inter alia, failing to prepare a new will and have Mr Talbot execute it, or alternatively prepare a codicil to deal with the alleged shortcomings of the 2002 will and have Mr Talbot execute it (paragraphs 46-47).
36. [36]
    Part N (paragraphs 48, 48A and 49) pleads the plaintiff’s claim in so far as it said to be a claim for loss as a disappointed beneficiary.  There are three aspects to this.  Paraphrased, they are as follows:

    1. (a)
       In paragraph 48 it is pleaded that by reason of the breach of duty of the first defendant, by Mr Boyd, alleged in parts E (paragraphs 16-17A) and H (paragraphs 20-20B) (the 2002 will retainer and the continuing advice retainer) of the SFASOC, the plaintiff has suffered loss and damage.  I pause there to note that parts E and H do not plead allegations against the first defendant (rather, the earlier firms of which Mr Boyd was a member, HBB and HBBCL).   So the starting premise of this paragraph appears to be incorrect.
    2. (b)
       Nevertheless, the loss and damage alleged to have been suffered is said to be:

       1. the cost and expense associated with the appointment and removal of Mr Bret as sole executor and trustee – [48(a)];
       2. the reduction in the amount the plaintiff would otherwise have received as a distribution from the estate of Mr Talbot, as a result of the failure by the administrator of the estate – presumably, in this respect, Mr Bret – to sell certain shares said to form part of the estate, referred to as the Karoon Shares, in circumstances where a “competent” administrator would have done so earlier – [48(b)-(ha)]; and
       3. the reduction in the amount the plaintiff would otherwise have received as a distribution from the estate of Mr Talbot, as a result of the failure by the administrator of the estate – again, presumably, in this context, Mr Bret – to sell certain other shares and assets said to form part of the estate, referred to as the Non-Karoon Shares and Assets, in circumstances where a “competent” administrator would have done so earlier (by at least 30 November 2012) – [48(i)-(k)].
    3. (c)
       Paragraph 48A contains a similar pleading, arising from the breach of duty alleged in “paragraphs 18-20B above” (which includes parts F, G and H – the continuing advice retainer),^[8] of loss as a consequence of Mr Bret becoming the sole executor and trustee, and his failure to realise the Karoon Shares and the Non-Karoon Shares and Assets, in circumstances where a competent executor or trustee would have done so (again, by at least 30 November 2012).
    4. (d)
       Paragraph 49 alleges that the plaintiff has suffered loss and damage by reason of the breach of duty of the first defendant by Mr Boyd alleged in part M (paragraphs 46-47A, the new will retainer), which comprises:

       1. being deprived of certain particular assets which, it is alleged, Mr Talbot intended to devise to her under the proposed new will, including the Villa Calvi; and
       2. by paragraph 49(d), the loss of a greater distribution to her under the “new will”, which is pleaded as a combined 56% of the estate, than her distribution under the 2002 will, which is pleaded as a combined 52% of the estate – which is sought to be quantified by reference to the losses associated with the sale of the Karoon Shares and the Non-Karoon Shares and Assets.
37. [37]
    Separately from those pleaded claims as a disappointed beneficiary, the plaintiff relies upon two further retainers by her of the first defendant, by Mr Boyd, and the second defendant, respectively:

    1. (a)
       as to the first, it is pleaded that from the date of Mr Talbot’s death to about June 2012 the plaintiff retained the first defendant, by Mr Boyd, to act as her solicitor generally in relation to issues arising from Mr Talbot’s death (paragraphs 51-51A); and
    2. (b)
       as to the second, it is pleaded that between August 2010 and November 2015 the plaintiff retained the second defendant as her solicitor, to provide advice in relation to the estate of Mr Talbot (paragraph 57).
38. [38]
    The plaintiff alleges that the first defendant, by Mr Boyd, breached the duty of care, and fiduciary duty, owed to the plaintiff, by (inter alia) failing to inform her of the matters set out in parts E, H and M of the SFASOC, failing to inform her that she had a claim or potential claim for damages against Mr Boyd (and the firms he was previously a member of) and the first defendant, and failed to refer her to independent legal advice (paragraph 54).   The plaintiff alleges that, but for the breach, she would not have retained the first defendant by Mr Boyd as her solicitor, would have obtained independent legal advice and would not have agreed to the appointment of Mr Boyd as administrator of the estate, in place of Mr Bret (paragraph 55).  The loss alleged to have been suffered as a consequence of the breach is pleaded in paragraph 56, and includes:

    1. (a)
       being deprived of the opportunity of commencing proceedings against the first defendant, HBB and HBBCL as a disappointed beneficiary as alleged in parts E, H and M, for the loss suffered as alleged in part N; and
    2. (b)
       the reduction in the amount she would otherwise have received as a distribution from the estate, but for the failure of the administrator – in this context, Mr Boyd – to realise the Karoon Shares and Non-Karoon Shares and Assets earlier (by no later than 31 August 2014), in circumstances where a competent administrator would have done so (paragraph 56(f), which links back to paragraph 48).
39. [39]
    In relation to the plaintiff’s retainer of the second defendant, part T of the SFASOC (including paragraphs 60-64) alleges various things the second defendant knew, or ought to have known.  The plaintiff pleads that the second defendant breached the duty of care owed to her, by failing to inform her of those things – including that she had a cause of action against Mr Boyd, HBB and HBBCL concerning the obligations under the 2002 will and the continuing advice retainers, that a limitation period applied, and the various matters alleged in relation to the new will retainer (paragraph 65).  In paragraph 66 the loss alleged to have been suffered as a consequence of that breach includes:

    1. (a)
       approving the appointment of Mr Boyd as administrator (in substitution for Mr Bret), without knowledge of the matters pleaded in part T, and being deprived of the opportunity of obtaining advice based on those matters, which it is alleged would have been to oppose the appointment of Mr Boyd;
    2. (b)
       being deprived of the opportunity of commencing proceedings against Mr Boyd, HBB and HBBCL concerning the 2002 will and against the first defendant in respect of the new will; and
    3. (c)
       the reduction in the amount she would otherwise have received as a distribution from the estate, in respect of the sale of the Karoon Shares and Non-Karoon Shares and Assets (paragraph 66(g)(i), which links back to paragraph 48).
40. [40]
    The first and second defendants submit that the allegations of loss – arising from what is pleaded in paragraph 48 – are incompetent and misconceived because, at the time of Mr Talbot’s death, the subject assets were held by separate corporate entities and, in relation to the Karoon Shares, were trust property held upon the terms of a non-exhaustive discretionary trust.
41. [41]
    The facts in relation to how the Karoon Shares and Non-Karoon Shares and Assets were held are not controversial, as I understand it, although the issue as to whether Mr Talbot was the controlling mind of any of the various entities may be.  The Karoon Shares are shares in a company called Karoon Gas Australia Ltd.  At the time of Mr Talbot’s death, and until they were sold, some of the Karoon Shares were held by Talbot Group Investments Pty Ltd (TGI) and some were held by Talbot Group Holdings Pty Ltd (TGH) as trustee for the Talbot Equities Trust.^[9]  The “Non-Karoon Shares and Assets” are shares in various entities (see paragraph 48(i) of the SFASOC), held either by TGI or by TGH as trustee for the Talbot Equities Trust.  At the time of his death, Mr Talbot was the sole shareholder of both TGI and TGH and the appointor of the Talbot Equities Trust.
42. [42]
    The point raised by the defendants is that as the shares were legally owned by corporate entities (either absolutely, or on trust) the decision whether to hold or realise them, and when any such realisation ought to occur, were matters for the directors from time to time of those companies, acting conformably with their duties and obligations under the Corporations Act and the company’s constitution.   Accordingly, the plaintiff’s claim in so far as it relies upon a failure by the administrator to realise the assets earlier is said to be incompetent and misconceived.
43. [43]
    In the context of these strike out applications, I am not persuaded that is the case, such as to justify summarily dismissing this aspect of the plaintiff’s claim.  The authorities relied upon by the plaintiff – including Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256 at 266-267, Re Bowcock; Box v Bowcock [1968] 2 NSWR 697 at 699, Re O'Callaghan [1972] VR 248 at 256, Ireland v Retallack (2012) 6 ASTLR 585 at [16] and Public Trustee v Smith (2008) 1 ASTLR 488 at [9], [140]-[143] –  support the conclusion that this is an issue appropriately left for determination at trial. Those cases stand as authority for the proposition that, where a testator arms an executor (or administrator) with control of entities that hold property, then the executor ought to use that control to give effect to a gift of property where that property does not prima facie form part of the estate, but is held by the entity. 
44. [44]
    The determination of this issue at trial will depend, in part, upon the construction of the terms of the 2002 will.  As these authorities make clear, identifying and giving effect to the manifest intention of the testator is at the heart of the administrator’s obligation.  It suffices for present purposes to say that I accept there is a good argument that Mr Talbot held many of his assets via corporate and trust entities, and that he intended assets of this kind to be dealt with in accordance with his will, which is supported by clauses 9, 10, 13 and 14 of the 2002 will.
45. [45]
    To the extent that paragraph 49(d) of the SFASOC, referring to the Villa Calvi, is also sought to be struck out on this basis, the same conclusion applies.
46. [46]
    Separately, the first and second defendants submit that the pleading is deficient in that it fails to adequately articulate important links in the chain of causation relied upon to support the plaintiff’s claim: the manifest intention of Mr Talbot, based upon construction of the 2002 will; the basis on which it is contended the Karoon Shares and the Non-Karoon Shares and Assets were intended to be dealt with by the estate; the steps which it is alleged the administrator ought to have taken, but did not (or took, but should not have) to acquire control of those assets and, then, to realise them – that is, how that ought to have been effected; and to deal explicitly with what is at present only implicit, which is the allegation of incompetence on the part of Mr Bret and, subsequently, Mr Boyd.  To some extent, the defendants’ arguments in this respect are inextricably linked with their submissions on the point of principle dealt with above, but in others they are not.  I will deal with this under the “causation” heading below. 
47. [47]
    In light of the conclusion I have reached on the basis of the legal principle, it is not necessary to deal with the plaintiff’s alternative arguments as to issue estoppel or the effect of what is referred to as “the Bret agreement”.
48. [48]
    The plaintiff brought a complementary application, initially for summary judgment, but amended during the course of the hearing to seek orders striking out parts of the defences, essentially to prevent the defendants relying upon this aspect of their defences at the trial.  I reject the submission that summary judgment was an appropriate option in the circumstances, because this is not a case in which the consequence of striking out this aspect of the defences, had I been persuaded that was appropriate, would have entitled the plaintiff to judgment on her claim (or part of it).  It would remain necessary for the plaintiff to prove her claim, and address other matters raised by way of defence. 
49. [49]
    In any event, subject to what appears in paragraph [51] below, I am not persuaded the parts of the first and second defendants’ defences which are the subject of the plaintiff’s cross-application^[10] are unsustainable, such that they should be struck out.   The conclusion I have reached on the question of principle above leaves for debate and determination a number of issues, including the proper construction of the will; whether Mr Talbot, by his will, did arm the administrator with control over the particular assets concerned; and then the practical issues of what should or should not have been done in relation to those assets.  These are matters to be determined at trial, and I am not persuaded that on either side of the debate, any party should be prevented from advancing such arguments as they see fit in relation to it. 
50. [50]
    In relation to the first defendant’s defence, the paragraphs sought to be struck out are:

    1. (a)
       paragraph 4A(b)(i) – which pleads, in response to [4A(b)] of the SFASOC that Mr Talbot was only one of the beneficiaries of the discretionary trusts;
    2. (b)
       paragraph 4A(b)(ii) – which pleads a non-admission of the allegation that Mr Talbot was the controlling mind of the corporations and trusts they controlled, as alleged in [4A(b)] of the SFASOC, on the basis that in the absence of identification of which corporations and trusts are referred to, Mr Boyd does not know whether the allegation is true or not.  This seems, with respect, an entirely fair response to a very broad and unparticularised allegation; and
    3. (c)
       paragraph 4A(d) – which pleads, in response to [4(d)] of the SFASOC, a fairly detailed response in respect of advice given by Mr Boyd to Mr Talbot.

Each of these are factual matters, which remain relevant notwithstanding the view I have formed about the point of principle argued on these applications.

51. [51]
    In relation to the challenged paragraphs of the second defendant’s defence, the same conclusion follows in relation to paragraphs 4A(a), 4A(b), 21 (parts of which are in any event admitted by the plaintiff), 21A, 48(i)(i) (which is admitted by the plaintiff), 48(i)(iii)(C), 48A(b)(i) and (ii), most of 56(d) (which is also admitted by the plaintiff), 56(f), 59(a)(ii), 75(d)(i) and (ii), 76(b)(i) and (ii).   Paragraphs 4A(e), 48(k)(iii), 48(l)(iv), 48A(b)(iii) and (iv), 49(a)(ii), 56(d)(iii) and (vi), 56(e)(ii)(C) and 66(c)(iv) and (v) are perhaps different because, to varying extents, in these paragraphs the point of principle I have addressed above is pleaded in a manner which I consider is inconsistent with the authorities addressed above.  For completeness, I note that paragraph 56(e) of the second defendant’s defence responds to paragraph 56(f)(ii) of the statement of claim, which no longer appears in the SFASOC, so presumably will be removed when the defence is further amended.   However, in terms of the relief sought by the plaintiff, there seems little point in striking out these paragraphs.  This is because, as a consequence of the conclusions I have reached on other parts of the defendants’ applications – in particular, the complaints about deficiency in the pleading of causation – there will be further amendments to the statement of claim required, addressing this particular issue.  Presumably, the defendants will then amend their defences.  It is in that context that I would think it appropriate for the second defendant to rethink the articulation of some of its points of defence.

Not disappointed beneficiary claims

52. [52]
    As an alternative argument, the first and second defendants contend that paragraphs 14, 15, 19(d), 48, 48A, 60 (in particular (c) to (i)), 65(a) and (b), 66(d) and (e), 66A(a) and (b)^[11] should be struck out, or summary judgment entered for the defendants, on the basis that any claims for loss or damage relating to the (delay in selling the) Karoon Shares and the Non-Karoon Shares and Assets are properly causes of action of the estate of Mr Talbot, not disappointed beneficiary claims.  Accordingly, they submit, the plaintiff does not have standing to maintain those claims (or claims which depend upon them).
53. [53]
    The central point contended for by the first and second defendants is that, in the circumstances as they are alleged in the SFASOC, as a matter of law, Mr Boyd did not owe the plaintiff (or, for that matter, her children) a duty of care.  In the relevant respect, the claim against the second defendant depends upon there being such a claim against Mr Boyd.  The defendants rely, in this regard, on Hill v Van Erp (1997) 188 CLR 159 and Badenach v Calvert (2016) 257 CLR 440.
54. [54]
    Relevantly, the case sought to be made against Mr Boyd is of a negligent failure to advise Mr Talbot – essentially, that his 2002 will should be drafted differently, in particular, not to provide for the appointment of Mr Bret as a sole executor.  The alleged loss is a diminution of the estate by reason of alleged delays, costs and expenses arising from incompetent administration. 
55. [55]
    The plaintiff alleges that Mr Boyd, as the solicitor for Mr Talbot, owed her a duty, as a beneficiary under the 2002 will, to provide advice to Mr Talbot that his will ought to be drafted differently, so as to avoid Mr Talbot’s estate incurring costs and expenses associated with delay in administration, disputes and litigation, and loss of the estate at the hands of an incompetent sole administrator.
56. [56]
    This is not a case, such as Hill v Van Erp (and Ross v Caunters [1980] Ch 297 and White v Jones [1995] 2 AC 207 before it) in which the alleged loss is of some specific bequest intended for a beneficiary.  In Hill v Van Erp, the solicitor, Mrs Hill, had in accordance with her client’s (the testatrix) instructions, prepared a will by which the testatrix’s house property and contents were to be given to her son and to her friend, Mrs Van Erp, as tenants in common in equal shares.  However, when the will came to be signed and witnessed, the solicitor asked Mrs Van Erp’s husband to sign as the second attesting witness.  As a consequence, the disposition of property to Mrs Van Erp was rendered void by reason of s 15(1) of the Succession Act 1981 (Qld) (as it then provided).  As French CJ, Kiefel and Keane JJ said, in Badenach v Calvert at [18]:

“It must be conceded, as the appellants point out in the present proceedings, that the approaches taken by members of the majority [in Hill v Van Erp] to the question of whether a duty existed differed in some respects.  Nevertheless it may be seen from most of the judgments that the duty found to be owed by the solicitor to Mrs Van Erp as the intended beneficiary had its source in the solicitor’s obligations arising from the retainer between the solicitor and her client. The solicitor was obliged to exercise care and skill in giving effect to her client’s testamentary intentions. The interests of the testatrix and the intended beneficiary in those intentions being carried into effect were relevantly the same. Recognising a duty to the intended beneficiary would not involve any conflict with the duties owed by the solicitor to her client, the testatrix.” [underlining added]

57. [57]
    The extension of the law, to recognise a duty of care owed by a solicitor to an intended beneficiary in such circumstances, developed, as a matter of policy, on the basis, as explained by Lord Goff in White v Jones at 268:

“… that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.”

58. [58]
    In the present case, there was no specific bequest which failed because of the alleged want of due care on the part of Mr Boyd.
59. [59]
    The present case is more like Badenach v Calvert, in which the High Court found no duty was owed by the solicitor to the beneficiary.  In that case, like the present, the beneficiary’s case was one of a failure to advise the client (the testator).   The solicitor, Mr Badenach, received instructions to prepare the will of the client, under which the whole of his estate was to pass to Mr Calvert (the son of the testator’s de facto partner, since deceased).  The client’s main assets were two properties which he owned as a tenant in common in equal shares with Mr Calvert.   The client died later in the year after executing the will, which was drawn in accordance with his instructions.  However, because of events which took place following the client’s death, his testamentary intentions could not be carried out.  The client had previously been married and there was a daughter of that marriage for whom he had made no provision in his will.  Following his death, his daughter commenced proceedings and was successful in obtaining an order that provision be made for her out of the client’s estate.  The combined effect of that order, and the order for costs associated with the proceeding to be paid out of the estate, substantially depleted the estate.  Mr Calvert brought proceedings against the solicitor and his firm claiming that the solicitor had been negligent in failing to advise the client of the possibility that his daughter might make a claim under the relevant testator’s family maintenance legislation and the options available to him to reduce or extinguish his estate so as to avoid such a claim (by undertaking certain inter vivos transactions).  Mr Calvert alleged that these acts of negligence were breaches of the duty that the solicitor owed to him as the intended beneficiary of the client’s estate.
60. [60]
    The determination of the question whether the solicitor owed the intended beneficiary a duty of care turned on the scope of the original retainer of the solicitor by the client.^[12]   The potential for extension of a duty owed to a third party, such as an intended beneficiary, is not a duty which is co-extensive with the duty owed to the client, but rather a more limited and confined duty, to take reasonable care to give effect to the testator’s intention to benefit the intended beneficiary in the manner and to the extent defined by the testator’s instructions.^[13] 
61. [61]
    Mr Calvert’s case was defeated on the basis that no duty of the kind he contended for was owed by the solicitor to the client (and therefore none could be owed to him, as an intended beneficiary).  In addition, it was observed that Mr Calvert’s case also faced another hurdle – causation – because even it had been accepted that the solicitor came under  a duty to advise the client in the terms alleged, it could not be concluded, on the balance of probabilities, what course of action the client would then have taken (at [34]).^[14]
62. [62]
    Vagg v McPhee (2013) 85 NSWLR 154 is another case in which a failure to advise was asserted, but no duty was found to be owed.  In distinguishing the circumstances of that case from, for example, White v Jones and Hill v Van Erp, Basten JA observed:

“[11] The present case differed in three significant respects from these authorities.  First, there was in the present case no specific bequest or devise which failed because of the want of due care on the part of the solicitors in having the will properly executed.  Secondly, far from indicating an intention that a particular item of property should go to a nominated beneficiary, the present will reflected an understanding of the current ownership of the Winmalee property and a correct legal understanding that the interest of the testatrix would not form part of her estate.  Those matters were reflected in the ‘request’ in cl 11.

[12] Thirdly, the case did not fulfil the analysis succinctly stated by Megarry VC in Ross v Caunters and relied on in White v Jones and Hill v Van Erp, namely that the person to whom the duty was owed (the testator and thus the estate) had no claim for more than nominal damages for its breach.  By contrast, in a case where the failure on the part of the solicitor is, in effect, to bring some asset within the residuary estate, the estate itself suffers a loss.  In such a case, the justification for finding a duty in favour of the beneficiaries lies outside the rationale of the extension in Hill v Van Erp.”

63. [63]
    Basten JA referred, at [14]-[17], to an English case of Carr-Glynn v Frearsons [1999] Ch 326, in which the extension of the remedy available to a disappointed beneficiary, even where the estate does have a remedy, was considered.   Relevantly, the extension was justified in circumstances where the remedy available to the estate would be of no advantage to the beneficiary(ies).  That was contrasted with the situation where the remedy available to the estate would advantage the beneficiary(ies), for example, because the damages recoverable by the estate would fall into the residue, in which the beneficiary(ies) have an interest.  As the first and second defendants submit, the latter appears to be the case here.
64. [64]
    In addition, the first defendant relies upon the statement of principle in Maguire v Makaronis (1997) 188 CLR 449 at 473 that:

“… where a trust is created by will or settlement in traditional form, the trustee holds title to property on behalf of beneficiaries or for charitable purposes.  If the trust be still subsisting, the objective of an action to recover loss upon breach of trust is the restoration of the trust fund.  The right of the beneficiaries is to have the trust fund reconstituted and duly administered, rather than to recover a specific sum for the sole use and benefit of any beneficiary.  Indeed, no one particular beneficiary may have sustained a present and individual loss.  This may be so if the trust is a discretionary trust or no interest vests, either in interest or possession, before the termination of a prior interest.”

65. [65]
    In short, the challenge to this part of the plaintiff’s pleaded case is that, firstly, as a matter of law no duty was owed by the solicitor to the plaintiff, as an intended beneficiary and, further, that any cause of action which may lie is at the suit of the estate only, and not the plaintiff as a beneficiary.
66. [66]
    The authorities just referred to raise serious questions as to the viability of the plaintiff’s claim against Mr Boyd (and, in turn, the second defendant), in so far as the claim arises out of, or depends upon, allegations of a breach of the duty Mr Boyd is said to have owed to the plaintiff as an intended beneficiary under Mr Talbot’s 2002 will – inter alia, in terms of the fundamental question as to the scope of the retainer(s) by Mr Talbot of Mr Boyd, whether there was any breach of the duty owed by Mr Boyd to Mr Talbot arising out of that retainer(s), whether a duty is appropriately extended to the intended beneficiaries in the circumstances of this case, whether any claim that may be available is on behalf of the estate only, and whether causation could ever be established (for similar reasons to those identified in Badenach v Calvert).  The issues may be somewhat different in so far as the claim relates to the “new will retainer”.^[15]
67. [67]
    However, I am ultimately not persuaded that it is appropriate to summarily dismiss this part of the plaintiff’s claim, because of the overarching requirement for a cautious approach to be adopted before doing so, generally,^[16] but in particular in the context of a question whether a duty of care is owed.^[17]  The application of the established legal principles, and any possible extension of them, will necessarily depend upon findings of fact in respect of a number of issues, made on the basis of the evidence led at trial.  One unusual factor in the present case is that the solicitor against whom negligence is alleged – by failing to advise Mr Talbot to draft his will differently, in particular, to avoid having a sole executor – was also the sole administrator of the estate, after Mr Bret, whose actions are said to have caused loss to the estate.  To the extent it might be concluded that the estate did have a remedy, a question may arise as to how that may have been exercised when the administrator of the estate is the person against whom the remedy is said to lie.   Another question that may arise, as identified by senior counsel for the plaintiff, is whether, if the allegedly negligent failure to advise concerned the structure of the estate itself, “the estate” would have a cause of action.  Whilst I acknowledge the force of the defendants’ submissions, as to the absence of a duty owed to the plaintiff, there are sufficient factual and legal issues underpinning this particular aspect of the plaintiff’s case to persuade me to the view that it is a matter that ought to be determined, on the merits, at trial.
68. [68]
    Senior counsel for the first defendant acknowledged that the potential for extension of a duty of care, beyond what has been accepted to date, might give the court pause before granting summary judgment in favour of the defendants, but suggested the considerations were different as far as striking out these parts of the pleading were concerned.^[18]  I cannot see how that can be so, since the strike out of these parts of the pleading was pressed on the basis that there would be no leave to replead.

Deficiency in the pleading of causation

69. [69]
    That brings me to the last of the issues.  The first defendant contends the plaintiff’s pleading of causation in paragraphs 48, 49(d) and 56(f)(i) of the SFASOC is defective in a number of respects.  To these, the second defendant adds paragraph 66(g)(i) and (ii).
70. [70]
    In part, the complaint about the deficiency in the pleading of causation in these paragraphs is on the basis of the issue already addressed above, regarding ownership of the Karoon Shares and the Non-Karoon Shares and assets.  It is unnecessary to say anything further about that. 
71. [71]
    But, as noted at paragraph [46] above, the complaint is broader than that, extending to a contention that the pleading is deficient in that it fails to adequately articulate important links in the chain of causation relied upon to support the plaintiff’s claim:  the manifest intention of Mr Talbot, based upon construction of the 2002 will; the basis on which it is contended the Karoon Shares and the Non-Karoon Shares and Assets were intended to be dealt with by the estate; the steps which it is alleged the administrator ought to have taken, but did not (or took, but should not have) to acquire control of those assets and, then, to realise them – that is, how that ought to have been effected; and the failure to deal explicitly with the implicit allegation of incompetence on the part of Mr Bret and, subsequently, Mr Boyd. 
72. [72]
    In terms of the pleading requirements, it was uncontroversial that the relevant principles are as summarised by Bond J in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 7) [2019] QSC 241 at [16]-[21].  As Bond J said, at [17], the defendants are entitled to a direct and unambiguous identification of the material facts relied on to establish the causal link between the conduct which the plaintiff impugns and the loss she alleged suffered, which identification at least arguably establishes that link.  In an earlier decision, Lee v Abedian [2017] 1 Qd R 549 at [81] Bond J put this in terms that “the defendants are entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity and which, at least arguably, establishes the requisite causal connection”.  It is well-established that a plaintiff must plead a relevant counterfactual scenario to establish the alleged causal link between, as here, negligence and the loss claimed.
73. [73]
    Applying those principles, in my view the plaintiff’s pleading is deficient in the manner contended for by the defendants.
74. [74]
    As a starting proposition, in my view paragraph 48 of the SFASOC (set out in the schedule to these reasons) is poorly drafted in that the subparagraphs are not able to be read logically or narratively with the chapeau of the paragraph.  It screams of a paragraph amended out of narrative sense.  As I have earlier observed, it begins by erroneously referring to the breach of duty of the first defendant “alleged in parts E and H above”, but those parts plead breach of duty of HBB and HBBCL.  But even apart from this, it is difficult to read the paragraph in a way which makes sense.
75. [75]
    Paragraph 48 should be wholly redrafted, but in doing so the draftspersons ought to address (whether in that, or other paragraphs) the matters referred to in paragraphs [46], [49] and [71] above, the absence of which from the pleading renders it deficient because it does not identify each of the links in the chain of causation, directly, precisely and unambiguously.
76. [76]
    On my reading of the SFASOC, the only paragraph which addresses the inclusion of assets legally owned by other entities forming part of Mr Talbot’s estate to be dealt with in terms of the 2002 will is paragraph 4A.  That is a general paragraph, included as part of the “introduction”, amongst paragraphs pleading who the various parties are.  There is no clear pleading of the material facts necessary to establish – by reference to the authorities referred to in paragraph [43] – that Mr Talbot manifestly intended, by the 2002 will, to arm the administrator of his estate with control of entities that hold property which he intended to devise or bequeath under the terms of his will.  In so far as this involves a pleading of intention or state of mind, UCPR r 150(1)(k) and (2) apply.  I reject the contention that the pleading of, for example, the manifest intention of Mr Talbot is a matter for reply.  It is an essential aspect of the plaintiff’s causation argument.
77. [77]
    It follows that it is also necessary to clearly plead, as part of the counterfactual scenario relied upon, the steps which it is alleged the administrator should have taken to acquire control of the relevant assets and then to realise them.
78. [78]
    In addition, I accept the force of the first defendant’s submission that it is insufficient for the plaintiff to plead “incompetence”, of the administrators (first, Mr Bret, then Mr Boyd) inferentially, as opposed to directly, precisely and unambiguously.
79. [79]
    There is no doubt that it is the plaintiff’s case that Mr Bret and, later, Mr Boyd did not act competently as administrator in particular by failing to deal with assets alleged to be in their control, including the Karoon Shares and the Non-Karoon Shares and Assets.^[19]  But nowhere in the pleading does an express allegation to that effect appear.    The reader is left to infer, from paragraphs 48(b), (c), (k), 48A(c), 56(f) and 66(g)(i), that the plaintiff contends Mr Bret and Mr Boyd did not act competently – from the pleading of what a competent executor or trustee would have done.  That is not sufficient.  This is a serious allegation, an essential part of the plaintiff’s case in terms of causation – and yet it is left to inference in the present form of the pleading; not even as an inference from facts which are pleaded; but as an inference from an allegation that a competent executor or trustee would have done certain things.   As submitted by senior counsel for the first defendant, where serious allegations of this kind are made, they are required to be pleaded clearly and directly, as an aspect of the obligation to afford procedural fairness, but also because there may be matters available to plead by way of defence, inter alia, relying upon the express terms of the will, in response to an allegation expressly pleaded.   
80. [80]
    In my view, there is a deal of confusion generated by the manner in which the plaintiff’s claim is framed – not as a claim against the administrator(s) for maladministration, but as claims for damages for negligence against solicitors, on the basis of actions or omissions that are said to have led to incompetent administrators being appointed.  However, the (implicit) allegation of incompetence is an essential fact in the chain of causation and should be properly pleaded, not simply by the use of the word, but by a direct and unambiguous pleading of the material facts relied upon to invite that conclusion.
81. [81]
    Lastly, I also accept the submissions on behalf of the first and second defendants as to the other deficiencies in the plaintiff’s counterfactual causation pleading, namely:

    1. (a)
       whilst I have rejected the defendants’ contention the allegations are simply unsustainable because the assets (Karoon Shares and Non-Karoon Shares and Assets) were not legally owned by Mr Talbot, I accept, as already discussed, that it is necessary for the plaintiff to plead the material facts relied upon to establish that Mr Talbot intended assets of this kind to be dealt with by his will, and to arm his executor with control of the entities which do own the assets;
    2. (b)
       further, that it is necessary for the plaintiff to plead what the “necessary steps” were, for the administrator to acquire control, and then to effect the sale, of the assets;
    3. (c)
       the relevance of the time frames pleaded in paragraphs 48(h) and (k), 48A(c), 56(f) and 66(g) is not clear from the pleading, and ought to be;
    4. (d)
       related to that issue of timing is the point made by the first defendant, that the pleading of causation, in so far as Mr Bret is concerned, is deficient, because there is no pleading as to why losses claimed in respect of the sale of the shares which occurred many years later (2019) would have been influenced in any way by the appointment of Mr Bret, who was removed by June 2012; and
    5. (e)
       also related to that issue is the further point, in relation to paragraph 48(b), that it is not apparent why the matters alleged in (i), (ii), (iii) and (iv) compelled the administrator, whether Mr Bret or Mr Boyd to realise the assets at the particular times alleged.  In addition, it is difficult to see the relevance of what is pleaded in paragraph 48(b)(i)(iii) as to the opinion of Mr Fisher held in 2015 – which post-dates even the timeframes alleged in paragraph 66(g).
82. [82]
    To the extent that the defendants contend these paragraphs are objectionable because they rely upon a construction of the will that is said to be unsustainable (including the plaintiff’s contention that she is entitled to 52% under the 2002 will, and allegations regarding distributions which the defendants say could not have occurred), that is not a matter which in my view supports striking out the relevant part of the pleading.  These are matters open to the defendants to plead by way of defence, and the question of construction of the 2002 will is a substantive matter for determination at trial.
83. [83]
    A similar complaint is made in relation to the pleading regarding the Villa Calvi, in paragraph 49(a), in terms of a deficiency in the pleading, as to causation, by reason of the failure to identify how Mr Boyd ought to have transferred or otherwise dealt with this asset.  The points already made, in relation to the need to plead the material facts necessary to establish the intention of Mr Talbot to arm his administrator with control of the entity that held/holds that property, and how the administrator would have achieved that, apply with equal force here.  But the causation argument in this respect is slightly different – it is that the plaintiff has been deprived of this asset, which she says Mr Talbot intended to devise to her under the terms of the new will, by reason of the failure of Mr Boyd to arrange for the new will to be prepared and executed.  So the question marks in relation to the steps required to actually realise this asset do not arise.   On its own, paragraph 49(a) is not deficient in my view; although it requires additional matters to be pleaded in order to be sustainable.
84. [84]
    In the result, paragraphs 48, 48A(c), 56(f), 66(g)(i) and (ii) will be struck out, with leave to replead.   Although paragraph 48A was not expressly included in this part of the defendants’ applications (although was included in other parts), it is attended by the same deficiencies and so is included here.

Orders

85. [85]
    In so far as the first defendant’s and second defendant’s applications are concerned, they have succeeded in striking out the amendments purporting to reconstitute the proceeding as a representative proceeding, and the paragraphs just referred to.  However, because it is somewhat unclear exactly which paragraphs are affected by my ruling on the applications, I will direct the parties to provide a form of order which reflects these reasons.  If agreement cannot be reached, I will consider the competing versions and make a determination.  The plaintiff’s cross-application will be dismissed.

Costs

86. [86]
    Each of the defendants has had partial success on their applications.  The plaintiff has successfully opposed other parts but failed on her cross-application.   Balancing the successes and failures, I am inclined to the view that, subject to the next paragraph, the most appropriate order is that the costs of all three applications be costs in the proceeding. 
87. [87]
    The exception to that is the costs of the mention on 24 May 2021.  In my view, the plaintiff should pay the defendants’ costs of that.  Expanding the scope of an application after judgment has been reserved is an unusual course, not likely to be entertained by the court where that is actively opposed on substantive grounds by the other parties, as in this case. 
88. [88]
    However, in all respects, in case the parties wish to be heard further in relation to costs, I will make provision for this to occur.

Schedule – paragraph 48 of the SFASOC^[20]

“48. By reason of the breach of duty of the first defendant by Mr Boyd alleged in Parts E and H above, Mrs Talbot, Alexandra and Claudia has have suffered the following loss and damage:

1. (a)
   the estate of Mr Talbot has suffered delay in its administration, and incurred cost and expense associated with:

1. (i)
   the appointment of Mr Bret as sole executor and trustee;

2. (ii)
   the removal of Mr Bret as sole executor and trustee, including the payment to Mr Bret of A$10 million in order to effect his resignation as executor and trustee in or about June 2012, of which sum Mrs Talbot’s loss is the A$3 million that each of the then adult beneficiaries agreed to contribute from their interest in the estate, and her the share of Mrs Talbot, Alexandra and Claudia in the A$1 million that was to come from the estate generally being the sum of $369,000.00;

Karoon Shares

2. (b)
   the costs and expenses incurred by the estate will adversely affect the distribution which Mrs Talbot, would otherwise have expected to receive under the 2002 Will, once administration of the estate is complete.  Mrs Talbot, cannot further particularise her their own loss and damage until disclosure has occurred and expert reports have been obtained, beyond the fact that it is significantly greater than the amount of approximately A$3.5 million representing her contribution to the payment to effect Mr Bret’s resignation A competent administrator would not have held either the Karoon Shares or the Non-Karoon Shares and Assets because:

i. The shares were associated with highly volatile assets;

ii. The monetary value of the share was likely to fluctuate significantly;

iii. The shares were acquired directly or indirectly by Mr Talbot who was uniquely placed to manage them;

iv. In the case of the Karoon shares, which represented a significant portion of the estate:

i. They produced no income and had no foreseeable prospect of producing income;

ii. Whereas their highest trading price was approximately $1 per share in 2009, their price had since continued to trend downwards;

iii. Shortly after his appointment in 2015 as sole director of TGH the corporate trustee which held the shares, Mr Peter Fisher, considered:

1. Them to be a risky investment and that their share price was highly volatile;

2. That it would be prudent to sell the Karoon shares and invest the proceeds in terms deposits, professionally managed funds or other investments that were likely to provide a reasonable return without unduly risking the capital value of the investment;

3. (c)
   the estate and Mrs Talbot, have each incurred costs in and about Mr Boyd’s application for Judicial Advice and directions of the Court in relation to the role and powers of the International Friends.  Mrs Talbot, cannot presently particularise her own loss and damage until disclosure has occurred and expert reports have been obtained In the premises alleged in the preceding subparagraph, a competent Administrator would have taken all necessary steps to effect a sale of the Karoon Shares and the Non-Karoon Shares and Assets as quickly as reasonably possible so as to minimise or avoid the risk of loss of their value and distributed their value to the beneficiaries;

(d)  the estate of Mr Talbot has suffered delay in its administration, and incurred cost and expense associated with the Paris Apartment.  The costs and expenses incurred by the estate will adversely affect the distribution which Mrs Talbot, would otherwise have expected to receive under the 2002 Will.  Mrs Talbot, cannot further particularise her loss and damage until disclosure has occurred and expert reports have been obtained;

5. (e)
   Mrs Talbot, Alexandra and Claudia, has have suffered loss and damage by way of a reduction in the amount she they would otherwise have received as a distribution from the estate of Mr Talbot, calculated during the period between when a competent executor and trustee ought to have realised and distributed those assets and the date of trial, or such other period as the court determines.  In respect of those claims which she is presently able to quantify, she they say as follows:

Karoon Shares

6. (f)
   As at the date of this amended pleading,

i. Mr Boyd has not realised the Karoon shares or made a distribution to Mrs Talbot in respect of same The Karoon shares (26,317,356 in total) were sold in four tranches between 5 November 2019 and 23 December 2019 for an average price of $0.99 per share, yielding a total net income of $25,805,099 after brokerage expenses of $168,831;

ii. The Karoon shares have a current quoted share price of approximately $0.96 52% of the net income was then distributed to Mrs Talbot, Alexandra and Claudia in the total amount of approximately $8,529,057 on or about 25 November, 2019 and 07 February, 2020;

7. (g)
   Had the 2002 Will been drafted in accordance with the allegations in paragraph 16 or alternatively, had HBB by Mr Boyd not acted in breach of the duty as alleged in paragraph 17:

i. Mr Bret would not have been the sole executor and trustee and instead at least two executors and trustees would have been appointed under the 2002 Will and a grant of probate made in their favour on or about 20 August 2010;

ii In the alternative to the preceding subparagraph, Mr Bret who was given a grant of probate on 20 August 2010, would have been removed and replaced by an alternative trustee (or trustees) prior to 1 December 2010, or alternatively by such other date as determined by the Court;

8. (h)
   In either scenario alleged in the preceding subparagraph, in the premises alleged in paragraphs 48(b) and 48(c), a competent executor or trustee would have:

i. Realised the Karoon shares on or about the following dates:

1. 12 months from 1 December 2010, being 30 November 2011; or alternatively

2. 18 months from 1 December 2010, being 31 May 2012; or alternatively

3. 24 months from 1 December 2010, being 30 November 2012;

ii. Made a distribution to Mrs Talbot, or alternatively made collective distributions to Mrs Talbot, Alexandra and Claudia, on or about those respective dates in the following approximate amounts:

1. $45.6million; or alternatively
2. $44.9million; or alternatively
3. $42.5million;.

(ha)  Following the actual sale of the Karoon Shares in 2019 and by reference to the respective dates pleaded in the preceding subparagraph, the combined loss to Mrs Talbot or alternatively the collective losses to Mrs Talbot, Alexandra and Claudia, are in the following approximate amounts:

1. $44.7million; or alternatively

2. $44.0million; or alternatively

3. $41.6million

(collectively “Mrs Talbot’s Karoon Share Loss Arising from the 2002 Will Claim.” …Particulars of this loss are contained in paragraphs 36 and 188 – 219 of the Report of Mr Tony Samuel dated 22 May 2019 and the supplementary report of Mr Samuel dated 6 August 2020.)

Other Shares and Assets

1. (i)
   Prior to 30 November 2011, the estate of Mr Talbot included the following shares and other assets:

1. 20,000,000 shares in Bellzone;
2. 4,000,000 shares in Brazlrone;
3. 12,456,816 shares in Goldminex;
4. 666,667 shares in Reliance Resources;
5. 9,833,153 shares in Robust Resources;
6. 25,060,322 shares in Southern Uranium;
7. 42,171,121 shares in Site Group;
8. 865,834 shares in Golden Touch;
9. 3,000,000 shares in Xanadu;
10. 8,492,244 shares in Careers Australia;
11. 100,000 shares in Village;
12. 1,140,236 units in the Wilson Growth Fund

(collectively the Non-Karoon Shares and Assets)

10. (j)
    Had the 2002 Will been drafted in accordance with the allegations contained in paragraph 16 or alternatively, had HBB by Mr Boyd not acted in breach of the duty as alleged in paragraph 17 above:

i. Mr Bret would not have been the sole executor and trustee and instead at least two executors and trustees would have been appointed under the 2002 Will and a grant of probate made in their favour on or about 20 August 2010;

ii. In the alternative to the preceding subparagraph, Mr Bret who was given a grant of probate on 20 August 2010, would have been removed and replaced by an alternative trustee (or trustees) prior to 1 December 2010, or alternatively by such other date as determined by the Court;

10. (k)
    In either scenario alleged in the preceding subparagraph, and in the premises alleged in paragraphs 48(b) and 48(c), a competent executor or trustee would have:

i. Realised the Non-Karoon Shares and Assets on or about the following dates:

1. 12 months from 1 December 2010, being 30 November 2011; or alternatively

2. 18 months from 1 December 2010, being 31 May 2012; or alternatively

3. 24 months from 1 December 2010, being 30 November 2012;

ii. Made a combined distribution to Mrs Talbot or alternatively made collective distributions to Mrs Talbot, Alexandra and Claudia, on or about those respective dates in the following approximate amounts:

4.  $10.4million; or alternatively

5.  $10.6million; or alternatively

6.  $8.9million

10. (l)
    Following the actual sale of the Non-Karoon Shares after 30 November 2011 and by reference to the respective dates pleaded in the preceding subparagraph, the combined loss to Mrs Talbot or alternatively the collectively losses to Mrs Talbot, Alexandra and Claudia, are in the following approximate amounts:

1. $10.4million; or alternatively

2. $10.6million; or alternatively

3.  $8.9million

(collectively “Mrs Talbot’s Non-Karoon Share and Asset Loss Arising from the 2002 Will Claim.”  Particulars of this loss are contained in paragraphs 36 and 224 – 395 of the Report of Mr Tony Samuel dated 22 May 2109.)”