(a) so far as the plaintiff's summons is concerned, the Court found that, even on his own case, the defendant had distributed to himself $6,431.91 more than his entitlement, had failed to account to his fellow beneficiaries despite four written requests to do so, and had eventually prepared verified accounts only pursuant to directions made in the course of the proceedings. Therefore, the plaintiff's case in chief had already been won by the time the case came on for hearing. There was no explanation for the over-distribution, the delay in accounting and the continued resistance to the plaintiff's claim;
(b) if properly advised the defendant should have known that his cross-claim had no chance of success given that:
(i) the cross-claim for a declaration of an implied term was only abandoned after the close of evidence;
(ii) my findings disclose a fundamental misunderstanding between the defendant and his counsel during the course of negotiations leading to the settlement of the Family Provision Act 1982 proceedings, that misunderstanding having continued into the present litigation, and in this context the unexplained withdrawal of the defendant's solicitor as a witness is profound;
(iii) the defendant's failure to distinguish the character of the short minutes of order of 15 March 2007 as a judgment of the Court as opposed to merely an agreement between contracting parties rendered the implied term and rectification claims hopeless from the outset. At its most hopeful, the defendant could only have set the groundwork for a further application in the former proceedings for an order setting aside the disputed orders;
(iv) the failure to cross-examine any of the plaintiff's advisers doomed the rectification case to fail;
(v) an ulterior purpose or a fundamental misconception in prosecuting the cross-claim is suggested by the defendant's election not to cross-examine and the decision to adduce evidence from the defendant's common intention witnesses.
8 The defendant emphasises that the summons sought the replacement of the defendant as trustee of the estate of the deceased and that it was not until the plaintiff opened its case at trial that the plaintiff informed the defendant that it was seeking an order that the defendant pay the plaintiff a sum of money. The defendant submits that:
(a) as the Court was not required to consider whether it should exercise its discretion to remove the defendant as trustee, the result should not be equated with victory for the plaintiff on his case as stated in the summons;
(b) the consequence of the plaintiff's choice at trial of seeking something far more direct, an order that the defendant pay the plaintiff money, was that the field of battle shifted entirely to the defendant's cross-claim;
(c) the outcome of that battle determined the quantum of money that would be ordered in favour of the plaintiff if he was successful - ie $6,431.91 or $62,409.33 plus interest;
(d) the fact that the real field of battle was the defendant's cross-claim tends significantly against an award of indemnity costs for the whole of the proceedings because the $6,431.91 was "won" on the plaintiff's summons before a shot was fired;
(e) an indemnity costs order for the whole of the proceedings cannot be sustained simply because the defendant did not press at the hearing the claim for relief for an implied term;
(f) the rectification claim failed but it was far from unarguable or doomed to failure and indemnity costs would not be warranted simply by forensic decisions not to cross-examine the plaintiff's legal advisers on their uncommunicated belief or not to adduce evidence from the defendant's solicitor;
(g) the defendant's failure to seek relief in the original Family Provision Act proceedings may have presented a procedural obstacle in setting aside the orders made in those proceedings but that obstacle did not render the cross-claim hopeless from the outset.
9 Although the plaintiff succeeded before trial on his claim for an accounting, it goes too far to say that the plaintiff's case had already been won by the time of the trial for there was still a live issue whether the defendant should be removed as trustee. However, that became an alternative, secondary issue because of the more direct monetary relief sought by the plaintiff at trial.
10 In my view, the defendant's construction case was weak; the implied term case had no real prospect of success and was properly abandoned at trial; the rectification common intention case presented substantial difficulties and could turn on the unpredictable outcome of cross-examination; and there was a procedural obstacle to setting aside the Family Provision Act orders because they had been made in other proceedings. On the other hand, the defendant sought to support its rectification case by reference to objective circumstances from which an inference of common intention might be drawn, in particular, events on 30 November 2006. Although it was unsuccessful in that regard, I am not prepared to go so far as to say that it was unarguable. The decision not to cross-examine the plaintiff's common intention witnesses did not render the rectification claim hopeless from the outset and, of course, any such cross-examination may well not have had any effect. The admission obtained from the defendant in cross-examination as to his state of mind proved to be determinative. On balance, I am not persuaded that the defendant, properly advised, should have known that he had no prospect of success.
THE SECOND BASIS
11 The second basis is that the defendant acted unreasonably in not accepting any of the three Calderbank letters from the plaintiff's solicitors to the defendant's solicitors dated 17 March, 1 April and 8 April 2010 offering to dispose of the proceedings by compromise.