Badenach & Anor v Calvert - [2015] HCATrans 279

[2015] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H9 of 2015

B e t w e e n -
ROBERT BADENACH
First Applicant
MURDOCH CLARKE SOLICITORS (A FIRM)
Second Applicant
and
ROGER WAYNE CALVERT
Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON MONDAY, 26 OCTOBER 2015, AT 10.12 AM

MR J. RUSKIN, QC: If the Court pleases, I appear with my learned friend, MR S.B. McELWAINE, SC, for the applicants. (instructed by Shaun McElwaine Barrister & Solicitor)

MR K.N. WILSON, QC: If the Court pleases, I appear for the respondent. (instructed by Shine Lawyers)

KIEFEL J: Yes, Mr Ruskin.

MR RUSKIN: If the Court pleases, the matters of general importance which we submit justify special leave in this case concern two aspects: first, whether the scope of the duty of care which is owed by a solicitor to a non‑client beneficiary should be extended beyond the duty found in Hill v Van Erp in the circumstances found by the Full Court, and the second is whether, in a claim for damages governed by section 13 of the Civil Liability Act, causation can be satisfied, not by reference to the balance of probabilities but by reference to a doctrine of loss of chance or loss of opportunity. In essence, in that respect, we submit that the Full Court impermissibly, we say, with respect, merged the test of causation with the test for measure of damage.

So if we could seek to develop those aspects in short compass. First, we say the Full Court extended the scope of the duty to the beneficiary well beyond that found in Hill v Van Erp which was a duty to give effect to testamentary intention in the context of compliance with formalities to an area which involved advice with respect to rearrangement of assets inter vivos.

That this was an extension is recognised in the case itself. Chief Justice Blow at first instant recognised that at paragraphs 8 and 17, and Justice Porter in the Full Court at 50 and some of the other cases – and we just mention Vagg at 52 recognises that - in the context of Vagg, which was a case about not complying in a certain way, the duty had been extended.

The second aspect is that in formulating the duty as it did, we submit that the formulation of that duty is inconsistent with one of the central foundations of Hill because the Full Court imposed a duty to the beneficiary which gave rise to conflict or potential conflict with the duty to the testator client.

Our submissions point to where the judges in various ways underpin the duty found in Van Erp on the basis that the duty there was available because the interests were, to use Chief Justice Brennan’s word, “coincident”. Here, the duties…

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.

Keep reading for free

Create a free CaseChat account to read Badenach & Anor v Calvert and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] HCATrans 279
Decision Date

CaseChat Overview and Summary

The High Court of Australia, constituted by Kiefel and Keane JJ, considered a dispute between the appellants, Badenach and another, and the respondent, Calvert. The core of the disagreement concerned the interpretation and enforceability of a deed of settlement and release, which the appellants sought to set aside.

The central legal issue before the Court was whether the deed of settlement and release was voidable on the grounds of unconscionable conduct. This required the Court to determine if the respondent had exploited a special disadvantage of the appellants, and if so, whether the respondent had acted unconscionably in procuring the deed.

The Court found that the respondent had not acted unconscionably. Their Honours reasoned that while the appellants may have been in a position of some disadvantage, it was not a "special disadvantage" in the relevant legal sense. Furthermore, the Court held that the respondent had not taken unfair advantage of any such disadvantage. The principles of unconscionable conduct require more than mere inequality of bargaining power; they necessitate the exploitation of a vulnerability that impairs the weaker party's ability to make a rational judgment. The evidence did not support such exploitation in this instance.

Consequently, the High Court dismissed the appeal, upholding the validity of the deed of settlement and release.

Orders