2.Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 24 July 2015, and in their place order that the appeal be dismissed with costs.
On appeal from the Supreme Court of Tasmania
Representation
J Ruskin QC with S B McElwaine SC for the appellants (instructed by Shaun McElwaine Barrister & Solicitor)
K N Wilson QC with S S Monks for the respondent (instructed by Shine Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Badenach v Calvert
Negligence – Duty of care – Scope of duty of care – Where solicitor received instructions from testator to prepare a will – Where entirety of testator's estate was to pass to respondent – Where testator's daughter brought successful proceedings under Testator's Family Maintenance Act1912 (Tas) ("TFM Act") for provision out of testator's estate – Whether duty of care owed by solicitor to testator extended to advising testator of possible steps to avoid exposing testator's estate to a claim under TFM Act.
Negligence – Duty of care – Existence of duty of care – Whether solicitor owed duty of care to intended beneficiary under testator's will – Whether Hill v Van Erp (1997) 188 CLR 159 applied – Whether interests of testator coincident with interests of intended beneficiary.
Negligence – Causation – Whether, but for solicitor's failure to give advice, respondent would have received entirety of testator's estate – Whether relevant loss is a loss of chance.
Words and phrases – "coincident", "duty of care", "interests of the intended beneficiary", "interests of the testator", "loss of a chance", "testamentary intention".
FRENCH CJ, KIEFEL AND KEANE JJ. The first appellant ("the solicitor") is a legal practitioner and was at all material times a partner of the second appellant, a law firm. The solicitor received instructions from Mr Jeffrey Doddridge ("the client") to prepare his will, by which the entirety of his estate was to pass to the respondent, Mr Roger Calvert. The respondent was not the client's son, but was treated by him as such. The respondent's mother had been the client's de facto partner for many years until her death. The client's principal assets were two properties which he owned as a tenant in common in equal shares with the respondent.
The client was 77 years old at the time he gave the instructions to draft the will described above, and he was terminally ill. He died later in the same year having executed a will drawn in accordance with his instructions. However, because of events which took place following the client's death, his testamentary…
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.
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Details
AGLC
Badenach v Calvert [2016] HCA 18
Case
[2016] HCA 18
Decision Date
CaseChat Overview and Summary
The case involved a dispute between Mr Calvert, the intended beneficiary of a will, and Mr Badenach, the solicitor who prepared the will for the testator, Mr Doddridge. Mr Doddridge had instructed Mr Badenach to prepare a will leaving his entire estate to Mr Calvert. After Mr Doddridge's death, his daughter successfully brought proceedings under the *Testator's Family Maintenance Act 1912* (Tas) for provision out of the estate. Mr Calvert then sued Mr Badenach, alleging negligence. The primary judge found that the solicitor breached his duty of care to the testator but not to Mr Calvert. The Full Court of the Supreme Court of Tasmania disagreed, finding that the solicitor breached his duty of care to both the testator and Mr Calvert, and that Mr Calvert suffered loss due to a lost chance that the testator might have taken steps to avoid the claim. The matter proceeded to the High Court of Australia.
The High Court was required to determine whether the solicitor's duty of care to the testator extended to advising the testator on steps to avoid his estate being subject to a claim under the *Testator's Family Maintenance Act*. It also had to consider whether the solicitor owed a duty of care to the intended beneficiary, Mr Calvert, and if so, whether the circumstances of the retainer supported such a duty, particularly in light of the decision in *Hill v Van Erp*. Finally, the court needed to assess whether, assuming a breach of duty, causation was established, and if the relevant loss was a loss of a chance.
The High Court allowed the appeal, finding that the solicitor's duty of care was confined to his client, the testator, and did not extend to the intended beneficiary, Mr Calvert. The court distinguished the present case from *Hill v Van Erp*, noting that the specific circumstances supporting a duty of care to a third party in that case were absent here. The retainer was limited to preparing a will as instructed, and the solicitor was not retained for general estate planning advice or to advise on avoiding claims under the *Testator's Family Maintenance Act*. The court held that the solicitor did not owe a duty to Mr Calvert to advise the testator on how to prevent his estate from being subject to a statutory claim.
Consequently, the High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Supreme Court of Tasmania. In their place, the High Court ordered that the appeal from the decision of the primary judge be dismissed with costs, effectively reinstating the primary judge's finding that Mr Calvert's action in tort should be dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 24 July 2015, and in their place order that the appeal be dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, KIEFEL AND KEANE JJ
GAGELER J
GORDON J
So understood, the duty owed by the solicitor to the client is not different from that to which Brennan CJ referred in Hill v Van Erp. It is the duty generally understood to be owed by a solicitor solely to his or her client. Hill v Van Erp recognised circumstances in which the duty of care to a third party could and did arise. The circumstances which supported the existence of that duty of care are not present in this case.Conclusion and orders The appeal should be allowed with costs and the orders of the Full Court set aside. In lieu thereof it should be ordered that the appeal from the decision of Blow CJ be dismissed with costs. The facts and procedural history are within a narrow compass. It is convenient to focus immediately on their most salient features. Mr Doddridge, the Testator, did not retain Mr Badenach, the Solicitor, to give general estate planning advice. The Testator retained the Solicitor specifically to prepare a will giving the whole of his estate to Mr Calvert. The Solicitor in fact prepared a will, and the will he prepared was effective in law to do just that: to give the whole of the Testator's estate to Mr Calvert. For preparing the will, the Solicitor charged the Testator the appropriately modest sum of $440. When taking instructions from the Testator for the preparation of the will, the Solicitor did not ask whether the Testator had family and, not learning from asking that question that the Testator had a daughter, did not warn the Testator of the risk that his daughter might make a statutory claim for maintenance against his estate. The primary judge held that those omissions amounted to a breach of the duty of care which the Solicitor owed in contract and in tort to the Testator in the performance of the retainer to prepare the will. The primary judge held that neither of those omissions amounted to a breach of the duty of care which the Solicitor owed in tort to Mr Calvert as the Testator's intended beneficiary. The Full Court disagreed. The Full Court held that the Solicitor breached the duty of care which the Solicitor owed to the Testator not only by omitting to warn the Testator of the risk that his daughter might make a statutory claim for maintenance against the estate but also by omitting to go on to advise the Testator that he could transfer some or all of his property during his lifetime so as to avoid exposing his estate to such a claim. Those same omissions, the Full Court held, also breached the duty of care which the Solicitor owed to Mr Calvert. Mr Calvert's compensable damage, according to the Full Court, was his loss of the chance that the Testator (properly advised) might have chosen to transfer some or all of his property during his lifetime in order to avoid exposing his estate to the statutory claim for maintenance which (as events transpired) his daughter did end up making after his death. Together with other members of this Court, I would allow the appeal from the judgment of the Full Court and would make consequential orders having the effect of reinstating the primary judge's dismissal of Mr Calvert's action in tort.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL AND KEANE JJ,
GAGELER J,
GORDON J