Baker v Sheridan - [2005] NSWSC 89

No judgment structure available for this case.

Reported Decision:
(2005) Aust Torts Reports 81-788

New South Wales

Supreme Court

CITATION:
Baker v Sheridan [2005] NSWSC 89

HEARING DATE(S): 26/05/04-28/05/04, 31/05/04, 01/06/04-04/06/04, 23/08/04-26/08/04, 30/08/04, 01/09/04-03/09/04, 08/09/04-09/09/04, 06/12/04-7/12/04, 9/12/04-10/12/04

JUDGMENT DATE :

24 February 2005

JUDGMENT OF:
James J at 1

DECISION:
Verdicts for the First Defendants, Second Defendant and Third Defendant

CATCHWORDS:
LEGAL PRACTITIONERS - Solicitors - tort of negligence - contract - alleged breach of duty of care - first defendant was acting as solicitor for the plaintiff - scope of solicitor's duty - whether the duty extended to matters outside the terms of the retainer - unsought advice on the wisdom of the proposed transaction - independent legal advice - whether there had been breaches of solicitor's obligation - whether any such breaches had caused damage to the plaintiff - plaintiff transferred various parcels of land to son and nephew - solicitor acted for all parties to the transaction - UNDUE INFLUENCE - UNCONSCIONABLE CONDUCT - whether plaintiff induced to enter into the transaction by alleged undue influence and/or unconscionable conduct of the second defendant

CASES CITED:
Blomley v Ryan (1956) 99 CLR 362
Clark Boyce v Mouat [1994] 1 AC 428
Citicorp Australia Limited v O'Brien (1996) 40 NSWLR 398
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Dominelli Ford (Hurstville) Pty Limited v Karmot Auto Spares Pty Limited (1992) 38 FCR 471
Gould v Vaggelas (1985) 157 CLR 215
Hawkins v Clayton (1988) 164 CLR 539
Johnson v Buttress (1936) 56 CLR 113
Louth v Diprose (1992) 175 CLR 621
Nikolic v Nikolic [2002] NSWCA 248
Waimond Pty Limited v Byrne (1989) 18 NSWLR 642

PARTIES:
Dawn Marie Baker v Paul Sheridan & Ors

FILE NUMBER(S):
SC 20124/01

COUNSEL:
SC Campbell SC/CP Taylor - Plaintiff
G Curtin - 1st Defendant
TGR Parker - 2nd Defendant

SOLICITORS:
Paul Stubbs Law Office
Colin Biggers & Paisley
Maurice Blackburn Cashman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Thursday 24 February 2005

20124/01 Dawn Marie BAKER v Paul SHERIDAN & Ors
JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff Dawn Marie Baker sued the three defendants, that is (1) the first defendants Paul Sheridan, Chris Cooney and Phillip Harvey being the partners in a firm of solicitors (2) the second defendant Stephen James Rigg, a nephew of Mrs Baker being a son of Mrs Baker’s sister Mrs Hazel Rigg (3) the third defendant Trevor William Baker, who is Mrs Baker’s son. The second defendant Stephen James Rigg brought a cross-claim against the first defendants and the third defendant.

UNDISPUTED OR CLEARLY ESTABLISHED FACTS

2 A number of facts were not disputed or were clearly established by the evidence and it is convenient to set out some of these facts as a framework in which the issues between the parties, the evidence and the submissions of the parties can be considered.

3 Mrs Baker is the widow of the late Kenneth William Baker of Upper Belmore River on the mid north coast of New South Wales near Kempsey. The plaintiff and Mr Baker were married in 1961. They had two adopted children Trevor Baker and a daughter Cathy Maree Alexander, who herself had a daughter Emma.

4 At his death Mr Baker owned a number of parcels of real estate in the area of the Right Bank Road, Belmont River. These parcels were:-

5 (i) Lot 2 in deposited plan 181210 being the whole of the land in identifier 2/181210 together with the house and outbuildings erected thereon. In these proceedings this parcel of land was often referred to as “the homestead”. For many years down to Mr Baker’s death Mr and Mrs Baker lived in the house on the homestead as their home.

6 (ii) Lot 11 in deposited plan 554777. This parcel of land adjoins the homestead. In these proceedings this parcel of land was often referred to as “Lot 11”.

7 (iii) Lot 86, part of Lot 73 and part of Lot 74 in deposited plan 754400, all being parts of the land in certificate of title volume 4473 folio 99. In these proceedings these parcels of land were often referred to as “the Loftus Road properties”. These parcels adjoined each other but were separated by a short distance from the homestead and Lot 11.

8 (iv) Lot 2 in deposited plan 513573. In these proceedings this parcel of land was often referred to as “the Quarry”. Between 1993 and 1999 Trevor Baker carried on quarrying operations on the Quarry in partnership with a man named Marriott.

9 (v) Lot 32 in deposited plan 754400. In these proceedings this parcel of land was often referred to as “the Quarry Stockpile”. The Quarry and the Quarry stockpile adjoined each other and also the Loftus Road properties.

10 The various parcels of land are shown in a map, a copy of which became exhibit B.

11 Mr Baker had once owned land on the left bank of the Belmont River close to the land owned by him on the right bank of the Belmont River but in 1995 he had transferred this land to his son Trevor Baker. This land on the left bank of the Belmont River was often referred to in the proceedings as “Syd’s property”.

12 For many years down to his death Mr Baker had carried on cattle grazing activities on his land and on Syd’s property.

13 Apart from his cattle grazing activities, Mr Baker was a partner with Stephen Rigg in a car retailing and car repair business in Kempsey known as Kempsey Kar Kare.

14 Mr Baker died suddenly on 25 April 1996. He left a will dated 17 March 1971 which had been drawn by the defendant Mr Sheridan, whereby he appointed his wife his executrix and left all of his property to her.

15 Mrs Baker retained Mr Sheridan to act for her as executrix of her husband’s will and also in her personal capacity.

16 It is clear from Mr Sheridan’s contemporaneous records that Mrs Baker had meetings with Mr Sheridan at his office in Kempsey on 7 May 1996, 30 May 1996, 18 July 1996, 18 October 1996 and 25 November 1996.

17 At the meeting on 18 October 1996 Mrs Baker swore an affidavit of executor in her late husband’s estate. In this affidavit the parcels of real estate which had been owned by Mr Baker were shown as assets of his estate and were shown as having the following values.

18 It was not accepted by the second defendant that the values shown in the affidavit of executor were the true values of the parcels of real estate.

19 Other assets in the estate shown in the affidavit of executor were two life assurance policies worth $13,529.08 and $12,065.27 respectively; various items of plant and equipment valued at $55,000; 287 head of cattle valued at $75,000; and various other, relatively minor, assets.

20 In the affidavit of executor the value of the deceased’s interest in the partnership of Kempsey Kar Kare was shown, in accordance with a letter from the partnership’s accountants, as being nil.

21 The total value of the gross assets of the estate was shown in the affidavit as being $959,680.13.

22 In the affidavit of the executor the principal liabilities of the estate were shown as being:-

(i) The deceased’s half share in the balance of an overdrawn account with the Commonwealth Bank in the joint names of the deceased and Stephen Rigg trading as Kempsey Kar Kare, being $3,295.50 and in a fixed rate term advance from the Commonwealth Bank in the joint names of the deceased and Stephen Rigg trading as Kempsey Kar Kare, amounting to $74,610. These liabilities to the Commonwealth Bank were sometimes referred to in the proceedings as “the Kempsey Kar Kare debts”. The Kempsey Kar Kare debts were secured by a mortgage to the Commonwealth Bank over Lot 11, the Loftus Road properties and the Quarry stockpile.

(ii) The balance of an overdrawn account with the State Bank being $32,173.31 and the balance of a variable rate term loan being $46,331.30. These liabilities were sometimes referred to in the proceedings as “the personal debts”. The personal debts were secured by a mortgage over the homestead.

23 In the affidavit of executor the total liabilities of the estate were stated to be $220,495.89 and $7,389.97.

24 In par 14 of the affidavit it was stated that “the estate has a gross value of $959,680.03 and a nett value of $731,794.17”.

25 On 28 October 1996 probate of the will of Mr Baker was granted to Mrs Baker.

26 On 25 November 1996 at the office of Mr Sheridan Mrs Baker, Trevor Baker and Stephen Rigg executed a deed which had been drawn by Mr Sheridan. This deed was often referred to in the proceedings as “the deed of transfer”.

27 By the deed of transfer the parties (that is Mrs Baker, Trevor Baker and Stephen Rigg) agreed that title to the Quarry should be transferred to Trevor Baker, title to the Quarry stockpile should be transferred to Trevor Baker and Stephen Rigg in equal shares, title to the homestead, Lot 11 and the Loftus Road properties should be transferred to Stephen Rigg, title to the plant and equipment owned by the deceased should be transferred to Trevor Baker and Stephen Rigg in equal shares and title to the cattle owned by the deceased should be transferred to Stephen Rigg.

28 On 25 November 1996 Mrs Baker signed a transmission application for all the parcels of real estate and also, in accordance with the provisions of the deed of transfer, signed transfers of the various parcels of land to Trevor Baker, Stephen Rigg or both of them.

29 Shortly after 25 November 1996 Mrs Baker, Trevor Baker and Stephen Rigg executed another deed which was often referred to in the proceedings as “the deed of residence”. In the deed of residence Mrs Baker was described as “the transferor” and Trevor Baker and Stephen Rigg were described as “the transferees”.

30 It was provided by cl 1 of the deed of residence that Mrs Baker, her daughter Cathy Maree Alexander and her granddaughter Emma Lee Alexander should continue to reside in the house on the homestead “rent free and without being liable for costs such as rates, insurance and maintenance at any time”. Clauses 4 and 5 of the deed of residence were in the following terms:-

“4. The said Transferees will at their own expense continue to maintain the subject house property and ensure that it at all times habitable to the said Transferor, her said daughter and her said grand-daughter.

5. The said Transferees will in addition to maintaining the property pay all Council rates, Water rates, Land Tax and insurance and other charges associated with the said building”.

31 Subsequently, the transmission application and the transfers which had been signed by Mrs Baker were registered. No document relating to the rights conferred on Mrs Baker by the deed of residence was registered. Mrs Baker continued to reside in the house on the homestead and Stephen Rigg or Trevor Baker paid the charges and outgoings on the house.

32 In about March 1997 the debt to the State Bank was paid and the mortgage to the State Bank discharged and Stephen Rigg borrowed a larger sum from the Commonwealth Bank, which was secured by, inter alia, a mortgage from Mr Rigg to the Commonwealth Bank over the homestead.

33 From about 1999 onwards Stephen Rigg defaulted in repaying amounts borrowed from the Commonwealth Bank the repayment of which had been secured by certain mortgages including a mortgage over the homestead.

34 In proceeding in this Court (Common Law Division No 13225/01) brought by the Commonwealth Bank against Stephen Rigg (“the possession proceedings”) the Commonwealth Bank claimed judgment for possession of the properties which had been mortgaged, including the homestead. A notice of the Bank’s claim for possession was served on Mrs Baker as the occupier of the homestead. On 1 August 2003 an order was made that Mrs Baker be added as a defendant in the possession proceedings, upon terms that she did not assert any defence to the Commonwealth Bank’s claim for possession of the homestead and was to be a party only for the limited purpose of applying for a stay of the enforcement of any judgment for possession. On 5 August 2003 the Commonwealth Bank obtained judgment for possession of the lands claimed by it, including the homestead. On 7 August 2003 an order was made that execution on the judgment for possession of the homestead be stayed until 30 April 2004. There has been no further order for a stay of execution of the judgment for possession of the homestead but the Commonwealth Bank has up to the present voluntarily refrained from taking any step to enforce the judgment for possession against Mrs Baker, who has continued to reside in the house on the homestead. It has been accepted by Mrs Baker’s legal representatives that she does not have any right to possession of the homestead which could prevail against the Commonwealth Bank.

THE PLEADINGS

35 The final form of the statement of claim, subject to certain amendments made in the course of the hearing, was an amended statement of claim filed on 17 September 2003. A number of the allegations made in the amended statement of claim were not pressed, or were only faintly pressed, by counsel for the plaintiff in final submissions.

36 In par 8 of the amended statement of claim it was alleged that the plaintiff had retained the first defendants to act as her solicitors as executor of the will of the deceased and in her personal capacity.

37 In pars 9, 10 and 11 of the amended statement of claim under the heading “The Firm’s duty of care regarding the estate generally” it was alleged (in par 9) that the first defendants had been under a duty to advise the plaintiff about certain matters and (in pars 10, 11 and 12) that the first defendants, in breach of their duty, had failed to advise her of any of these matters. Although these claims were not abandoned, ultimately none of them were really pressed by counsel for the plaintiff.

38 In par 15 of the amended statement of claim it was alleged that at no stage had the plaintiff instructed the first defendants to prepare the deed of transfer. This claim was not pressed by counsel for the plaintiff in final submissions.

39 In pars 18-20 of the amended statement of claim under the heading “Duty of Care in relation to the deed” (that is the deed of transfer) it was alleged that the first defendants had been under a duty to advise the plaintiff of certain matters, before the deed of transfer was executed, and that the first defendants had failed to advise her of any of these matters. The matters of which, it was alleged, the plaintiff should have been advised and was not advised, were:-

“(a) that it would not be in her best interests to sign the deed;

(b) as to her personal liabilities to the second and third defendants;

(c) again as to the extent to which the estate was in fact liable to either or both of the second and third defendants in any respect, including liabilities associated with the partnership;

(d) as to the practical legal effect of the deed;

(e) as to the alternatives to signing the deed;

(f) as to either the practical or legal necessity for the plaintiff either personally or as executor of the estate to sign the deed;

(g) that by signing the deed she, as sole beneficiary of the estate, was foregoing the right to enjoy the vast bulk of the assets that she and the deceased had acquired during their marriage;

(h) that she was free to reject the deed;

(i) again, of any conflict of interest on a part the firm in relation to the interests of the plaintiff and the second and third defendants”.

40 It was these allegations which formed the basis of the claims made by the plaintiff against the first defendants which were pressed in counsel for the plaintiff’s final submissions.

41 A claim made in par 21 of the amended statement of claim that the deed of transfer was an unjust contract within the Contracts Review Act was not pressed at the hearing.

42 A claim made in par 22 of the amended statement of claim against the first defendants, that the first defendants, in breach of a duty owed to the plaintiff, had failed to ensure that the interest created in favour of the plaintiff by the deed of residency was legally protected, was not the subject of any submissions in counsel for the plaintiff’s final submissions.

43 In par 23 of the amended statement of claim the matters on which the plaintiff had relied in earlier paragraphs of the amended statement of claim as giving rise to claims against the first defendants in tort were relied on as being breaches of an implied term of an agreement between the plaintiff and the first defendants that the first defendants would exercise reasonable care, skill and diligence in providing legal services for the plaintiff.

44 A claim made in par 24 of the amended statement of claim for “rectification” of the deed of transfer was not pressed in counsel for the plaintiff’s final submissions.

45 A claim made in par 25 of the amended statement of claim that the second defendant and the third defendant had procured the execution of the deed of transfer by the plaintiff by engaging in unconscionable conduct was pressed and was strongly pressed, particularly against the second defendant.

46 In amendments to the amended statement of claim which were made in the course of the hearing the plaintiff alleged that she had been induced to execute the deed of transfer, the deed of residency and the transfers of the real estate by undue influence exerted by the second defendant, without having any separate or independent advice, without due consideration of the reasons for or the effect of what she was doing and at a gross undervalue. Particulars of the alleged undue influence by the second defendant were provided, including:-

(a) Using his position as her nephew, neighbour and business partner of her late husband, to assume a position of ascendency over the plaintiff;

(b) Because of her emotional state the plaintiff took a position of dependence relative to the second defendant in relation to financial matters;

(c) Using his ascendancy to unduly gain the trust and reliance of the plaintiff;

(d) Using his position aforesaid to misrepresent or failing to explain fully the financial position of the husband’s estate;

(e) Failing to disclose his interest or motive in and for the proposed transaction

47 Further particulars of these particulars were provided. These further particulars were:-

“1. As to paragraphs (a) and (b) of the particulars the respective positions of ascendency and dependency commenced in the period after the death of Kenneth Baker and prior to 24 May 1996 and it enured until 1999.

2. As to paragraph (d) of the particulars the misrepresentation was express and implied:

i. In so far as it was express it was oral;

ii. The oral misrepresentation was made by the second defendant on an occasion between May and July 1996;

iii. The oral misrepresentation was such that the second defendant told the plaintiff that Kenneth Baker was in debt;

iv. The expression ‘in debt’ implied that the debts were of such magnitude to require the disposal of the real and personal property comprising the estate;

v. Further, on the occasion referred to in sub-par ‘ii’ above, the second defendant told the plaintiff that she would lose everything. The implication was as in sub-par ’iv’;

vi. Alternatively, the second defendant at paragraph 40 of his affidavit sworn 5 August 2003 implied:

a) That it was his option to sell up the deceased’s property to pay out the debts of Kempsey Kar Kare (the business);

vii. Alternatively, the second defendant’s statement, inter alia, that the properties will have to stay with the partnership as they run with the debts of Kenneth Baker was a misrepresentation of his right and entitlement as a surviving partner, and of the legal position;

viii. The second defendant failed to inform the plaintiff of the true position namely that the deceased’s interests in the partnership on a winding up was a considerably lesser debt than his share of the liabilities of the partnership per se and that the deceased’s personal property including but not limited to the cattle was likely to be, on the administration of the estate, sufficient.

3. As to paragraph (e) of the particulars the second defendant’s interest and motive was greed, ambition and the desire to obtain an advantage to which he was not entitled, namely virtually the whole of the deceased’s estate for his own ends including his continuation as a sole trader of the business”.

48 The first defendants and the second defendant filed defences traversing many of the allegations in the amended statement of claim. The third defendant Mrs Baker’s son Trevor Baker did not file any defence and submitted to whatever order the Court might make.

49 In his cross-claim against the first defendants Stephen Rigg alleged that Mrs Baker, Stephen Rigg and Trevor Baker had informally agreed (“the transfer agreement”) that the properties which had been owned by the deceased would be transferred to Stephen Rigg and/or Trevor Baker, that Stephen Rigg would continue to operate the businesses of cattle raising and of Kempsey Kar Kare and would assume sole liability for the obligations of the businesses, that Stephen Rigg would assume liability for certain of the personal debts of the deceased and that Stephen Rigg and Trevor Baker would at their own expense permit Mrs Baker her daughter and her granddaughter to continue to reside in the former matrimonial home; and that Mrs Baker, Stephen Rigg and Trevor Baker had retained the first defendants to prepare the necessary documents and take the necessary legal steps to have the transfer agreement put into legal effect. Paragraph 7 of the amended cross-claim was in the following terms:-

“In carrying out the retainer the solicitors acted for Rigg and consequently:

(a) the solicitors owed to Rigg a fiduciary duty to act in his interests and not to assume obligations to other persons which would or might conflict with the discharge of that duty;

(b) the solicitors owed to Rigg a duty of care and a contractual obligation to use reasonable skill and diligence in acting for him in connection with the retainer and in particular to use reasonable skill and diligence to ensure that any document prepared by them to give effect to the transfer agreement would be legally effective”.

50 It was then alleged, in effect, that, if Mrs Baker succeeded in her claims against Mr Rigg, then the first defendants had breached their fiduciary duty alleged in pars 7(a) of the amended cross-claim and had breached the duty of care and the contractual obligation alleged in par 7(b) of the amended cross-claim.

51 In the cross-claim by Mr Rigg against Trevor Baker Mr Rigg claimed contribution from Trevor Baker in respect of outgoings for the house on the homestead which Mr Rigg had paid.

SURVEY OF PARTS OF THE AFFIDAVIT EVIDENCE

52 I will now survey parts of the affidavit evidence. I will confine the survey to the affidavits of Mrs Baker, Trevor Baker, Mr Sheridan (strictly, the statement of Mr Sheridan) and Stephen Rigg, which are the important affidavits on the issues of liability. I will not refer to parts of these affidavits which establish facts which I have included in my statement of facts which were not disputed or which were clearly established by the evidence. Even apart from this qualification, there are many parts of these affidavits which I have taken into account but which I will not refer to in this survey.

Mrs Baker’s Affidavit

53 In her affidavit Mrs Baker said that as a child she had lived in an isolated country area, that she had left school at the age of fourteen and that after leaving school she had worked as a cleaner and a waitress.

54 During their marriage all decisions about farming activities and the acquisition of properties had been made by Mr Baker.

55 In about 1988 Mr Baker had told Mrs Baker that he, Stephen Rigg and Mr Baker’s brother Roger were going to buy the business which became Kempsey Kar Kare. So far as Mrs Baker was aware, Mr Baker did not play any active part in the conduct of the business of Kempsey Kar Kare.

56 In par 16 of her affidavit Mrs Baker said:-

“Following my husband’s death, I was extremely distraught and on many occasions I cried so continuously and heavily that I was unable to speak. This situation continued for several months”.

57 In par 18 of her affidavit Mrs Baker said:-

“Approximately six weeks after the death of my husband I was contacted by Rigg. At this stage there had been no contact as far as I can recall between myself and Mr Sheridan. I remember that Rigg said to me ‘I have made an appointment with Paul Sheridan. We have to go in today for the reading of the will’. Rigg then said ‘You’ve got to do something about Ken’s estate because his properties are mortgaged. If you don’t do something you will lose the lot.’”

58 In par 19 of her affidavit Mrs Baker said that she recalled attending Mr Sheridan’s office with Stephen Rigg and Trevor Baker. Mr Sheridan gave all three of them a copy of Mr Baker’s will. Mrs Baker did not recall what Mr Sheridan said on this occasion.

59 In par 20 of her affidavit Mrs Baker said:-

“I think I next saw Rigg approximately two weeks after I had first seen Mr Sheridan. Mr Rigg took me for a drive around ‘The Hill Paddock’ which was one of my late husband’s properties. Rigg said to me ‘You’re going to have to transfer all the lands to me because of Kenny’s mortgages.’ I said ‘What do you mean, what is all this about?’ Rigg replied ‘Well Ken was in debt at the time of his death. If the properties are not transferred to me they will be taken by the Bank.’ I did not know what Rigg was referring to. I was aware that at some stage my husband had transferred an account from the State Bank to the Commonwealth Bank. This was the extent of my knowledge relating to banking matters. So far as I can recall, I said to Rigg ‘How much is owing and how did all this happen?’ Rigg replied ‘You don’t have to worry, I’ll look after everything.’”

60 So far as Mrs Baker could recall, any dealings about her husband’s estate were carried out directly between Stephen Rigg and Mr Sheridan.

61 In par 22 of her affidavit Mrs Baker said:-

“I think that we may have seen Mr Sheridan thereafter on about two or three occasions. I recall that Mr Sheridan was polite to me but I do not recall anything that he said that was a cause of concern to me. I was still very upset at this time. So far as I can recall, Mr Sheridan never said anything to me at this time which related to the transfer of assets from the estate to Rigg”.

62 In par 23 of her affidavit Mrs Baker said that she was certain that she gave no instructions for the deed of transfer to drawn. She admitted that a signature on the deed of transfer appeared to be her signature but she could not recall the occasion on which the document had been signed by her. She did not recall Mr Sheridan explaining any document to her. She was certain that, if the deed of transfer had been presented to her for her signature, she would have signed the document, without having read it.

63 In par 24 of her affidavit Mrs Baker said that she had not become aware that she had transferred all the assets in her husband’s estate to Stephen Rigg and Trevor Baker, until she had a conversation with Stephen Rigg in 1999 in which Stephen Rigg told her that he would have to sell Mrs Baker’s home.

64 In par 25 of her affidavit Mrs Baker said that she had never personally given Mr Sheridan any instructions in connection with the administration of her husband’s estate and that she had never authorised Stephen Rigg to give Mr Sheridan any instructions on her behalf.

Trevor Baker’s Affidavit

65 In his affidavit Trevor Baker said that his mother was extremely upset when Mr Baker died and that she continued to grieve for about eighteen months.

66 During the marriage Mr Baker had always been “the financial manager” and Mrs Baker had had nothing to do with financial matters.

67 In par 12 of his affidavit Trevor Baker said that about two or three months after his father’s death Stephen Rigg had said to him:- “Your old man has left a fair bit of debt behind. Your mother’s going to have to sign her place over to me or otherwise the bank is gunna sell it. If your mother doesn’t sign it over she will lose the lot. It’s all mortgaged”. Trevor Baker said in par 12 of his affidavit that he was surprised by what Stephen Rigg said to him, because he had always believed that his father had been a successful grazier.

68 In par 13 of his affidavit Trevor Baker said that in another conversation Stephen Rigg had said that Mr Baker had had a debt “tied up with Kempsey Kar Kare” and “all of Kenny’s property is going to have to be transferred to me or it will be lost”. Mr Rigg said to Trevor Baker that he did not want Trevor Baker to have anything to do with Kempsey Kar Kare but “you can take half of your father’s personal debt. That is about eighty grand”.

69 In par 15 of his affidavit Trevor Baker said that Stephen Rigg had told him that he and his mother would have to go to Mr Sheridan’s office to sign some papers.

70 In par 16 of his affidavit Trevor Baker said:-

“I do recall attending upon Mr Sheridan’s office with my mother on that occasion. This was after my father’s death. It would have been within about six months. I cannot otherwise recall the date of the occasion. My best recollection is that Rigg was already at Mr Sheridan’s office. Rigg met us outside the office in the street. We all went into the office together. My mother was very upset. She was crying. We were not kept waiting and we were shown into Mr Sheridan’s office. I was sitting on one side of my mother and Rigg on the other. Mr Sheridan did not say very much at all. Mr Sheridan produced a document for us all to sign. There was only one copy of the document. Mr Sheridan did not read the document to us. Mr Sheridan said something to the following effect ‘Well this is the document, do you want me to read it all to you?’ My mother was visibly upset. I do not recall her saying anything at all. I do not recall asking for the document to be read to me. Mr Sheridan pointed at the document and said words to the effect ‘You sign here and here’. My mother signed the document first. I was of the understanding that the document had to be signed to transfer all of the properties to Rigg otherwise the properties would be lost. I was of this understanding as a result of the conversations that I had with Rigg, to which I have referred in this affidavit. I do not recall Mr Sheridan providing any legal advice on this occasion”.

71 In par 17 of his affidavit Trevor Baker asserted that at the time of signing the deed of transfer he was not aware that the deed dealt (inter alia) with Mr Baker’s farming equipment and cattle.

72 In par 19 of his affidavit Trevor Baker said that Mr Sheridan did not ask Trevor Baker, Mrs Baker or Stephen Rigg what any of them wanted to do in relation to the administration of Mr Baker’s estate.

73 In par 23 of his affidavit Trevor Baker said that he had been unaware of his father’s financial position, that he had accepted that Mr Rigg was telling the truth about his father’s financial position and that he had not himself made any enquiries about his father’s true financial position.

74 In further parts of his affidavit Mr Baker gave evidence about his experience with respect to the grazing of cattle but I rejected evidence of an opinion by him about the number of cattle that could be agisted on the combined lands which had been owned by Mr Baker, on the grounds that Trevor Baker was not qualified to express such an opinion.

75 In par 35 of his affidavit Trevor Baker said that, after his father’s death, he had paid Mr Sheridan’s costs for acting on the transfer of Syd’s property from his father to Trevor Baker.

76 In parts of the affidavit (for example pars 32, 34 and 36) Trevor Baker gave some evidence relevant to the cross-claim by Stephen Rigg against himself.

77 In further paragraphs of the affidavit Trevor Baker referred to a suggestion by Stephen Rigg that Stephen Rigg and Trevor Baker should each pay half of Mr Baker’s personal debts. Trevor Baker ultimately decline to pay half of Mr Baker’s personal debts, on the grounds that Mr Baker had been a grazier and Stephen Rigg had received all of Mr Baker’s cattle.

78 In answer to parts of Mr Sheridan’s Trevor Baker said that he did not recall going to Mr Sheridan’s office on 7 May 1996, when, according to Mr Sheridan’s statement, Mr Baker’s will was read, nor did he recall attending a conference at Mr Sheridan’s office on 26 July 1996 with Stephen Rigg, although having read Mr Sheridan’s statement “it’s sounds familiar”.

79 In his affidavit Trevor Baker said that he did not recall what Mr Sheridan asserted in his statement had been said on 25 November 1996 at the conference when the deed of transfer was signed.

80 In the remaining parts of his affidavit Trevor Baker disputed parts of Stephen Rigg’s affidavit of 5 August 2003.

Mr Sheridan’s Statement

81 In his statement Mr Sheridan said that he had been admitted as a solicitor in February 1966. He had acted as Mr Baker’s solicitor for many years.

82 In par 22 of his statement Mr Sheridan said that on 26 April 1996 he had received a telephone call from Stephen Rigg, who had told him that Mr Baker had died, and he told Stephen Rigg that Mr Baker had made a will in which Mrs Baker was the executrix and the sole beneficiary. In the telephone conversation arrangements were made for a conference at Mr Sheridan’s office on 7 May 1996.

83 Par 2.5 of Mr Sheridan’s statement was in the following terms:-

“On 7 May 1996 I conferred with the plaintiff, Dawn Marie Baker (hereafter ‘Dawn Baker’), Steve Rigg and Trevor Baker. Annexed and marked ‘PWS3’ is a copy of my contemporaneous note of that conference. At the conference one of either Dawn Baker, Trevor Baker or Steve Rigg said to me words to the following effect: ‘Ken Baker’s date of death was 25 April 1996. He was born on 15 March 1936’. One of the three people referred to above and I believe it was Steve Rigg, said to me words to the effect: ‘Scott & Finlay were the accountants for the business’. I took the reference to ‘the business” to be Kempsey Kar Kare. To the best of my recollection Dawn Baker said to me words to the effect: ‘The title deeds for Ken’s properties are held by the bank. There are bank accounts at the State Bank in Ken’s name’. I do not now recollect whether it was Dawn Baker. It may have been Steven Rigg. I do not think it was Trevor Baker. I believe Steven Rigg said to me words to the effect: ‘The business banked through the Commonwealth Bank.’ I asked all three what were the other assets and liabilities of Mr Baker. I believe it was Dawn Baker who said words to the effect: ‘Ken Baker had life insurance and superannuation.’ I think Dawn Baker or Trevor Baker also said words to the effect that the deceased also had stock, plant and equipment. I said to all three words to the effect: ‘you will need valuations for that stock, plant and equipment’. One of the three people also said to me but I do not now remember which it was: ‘Ken may have held shares in an abattoir at Casino and maybe a company known as Midcoast Co-operative Meat Society at Macksville’. I said to them words to the effect: ‘We will find out about those shares, for the probate’”.

84 Mr Sheridan’s contemporaneous note (annexure PWS3) does not indicate which of the three persons at the conference supplied the various pieces of information. Nothing was said at the conference on 7 May 1996 about any arrangement between Mrs Baker, Stephen Rigg and Trevor Baker.

85 After the conference on 7 May 1996 Mr Sheridan took various routine steps as a solicitor acting in an estate matter and he had some telephone conversations with Stephen Rigg about the estate. On 27 June 1996 he received a telephone call from Stephen Rigg. In the ensuing conversation Mr Rigg asked “Can Dawn Baker transfer the property?” and Mr Sheridan replied “Yes (subject to certain formalities)”.

86 Par 2.23 of Mr Sheridan’s statement was in the following terms:-

“On 18 July 1996 I had a conference with Dawn Baker and Mrs Rigg, Steve’s mother. Steve Rigg was not present at the conference. During the course of the conference Dawn Baker said to me words to the following effect: ‘I want the properties previously owned by Ken to be transferred to Trevor (Baker) and Steve (Rigg). The boys will take over the debts that Ken Baker owed to the State Bank and the Commonwealth Bank as part of the arrangement for the properties being transferred to them’. I assumed that ‘the boys’ meant Trevor Baker and Steve Rigg. Dawn Baker then said to me words similar to ‘The other part of the deal will be that I will be able to live in the home with Cathy and Cathy’s daughter Emma. The stock and the plant will be transferred to Steve and to Trevor’. By that conversation I understood that Dawn Baker would live in the former matrimonial home with her daughter and grand-daughter and that ‘Steve’ meant Steven Rigg and ‘Trevor’ meant Trevor Baker. I asked Dawn Baker: ‘How will that work?’ She said words to me to be similar to ‘I, Cathy and Emma will live in the house rent free. I have had heart problems over the years and I don’t want to have to worry about farm work or looking after the property. I just want out of it. I am going to go onto the pension’.

I had been aware from things previously said to me that Steve Rigg, apart from being Ken Baker’s former business partner, would also help Ken in his farm duties before Ken’s death. Dawn Baker had said to me words to the effect: ‘Steve had helped Ken on the farm before he died’. From that conversation or otherwise I believed that Ken and Dawn felt a sense of obligation towards Steve. I had a number of professional and informal discussions with the deceased prior to his death. At some of those discussions Steve Rigg was present. The deceased had said to me words to the effect: ‘I have done a deal of farm work with Steve. Trevor has also done a lot of farm work with me. I consider them to be my ‘right hand men’. If I hadn’t had their assistance, and especially Steve’s advice, I would have found it very difficult to continue farming’. At the conference on 18 July 1996 Dawn Baker said to me something similar to: ‘I realise I can’t continue to run Ken’s farming properties, nor his business. I am more than happy to transfer what I am going to get in those properties and in the business to Trevor (Baker) and Steve (Rigg). Those transfers are because of the help both Trevor and Steve have given Ken over many years. She also said words to the effect: ‘As long as I have a house for myself, Kate and Emma to live in and get the pension, I won’t need any more and I can look after myself’”.

87 Annexure “PWS 32” to Mr Sheridan’s statement was his contemporaneous notes of the conference on 18 July 1996, which read:-

“ ‘PWS 32’

18/7/96

Tfrs to Trevor property

F/id 1/602 556 )
2/602 556 )

NML $13529.02
Col. 12065.27

Midco Shares?

Wants property transferred to Trevor and Steven Rigg.

Boys take over the debts to State Bank and C’th Bank and Dawn will live in the house (Cathy & Emma)

+ take Stock & Plant.

C can live in the house whilever she maintains the standards

Emma (11 years old)
No rent payable
No rent payable
Insce policy proceeds to go to the Bank.
What debt proportion.
Cth Bank $175,000 Business
State $80,000 Personal
G Trott -

88 Paragraph 2.28 of Mr Sheridan’s statement was in the following terms:-

“On 26 July 1996 I conferred with Steve Rigg and TV. One of them, whom I believe was Steven Rigg, said to me; ‘Ken and Roger own a block near the floodgate. I think it may be a lease’. Steve Rigg then said to me ‘ the responsibility for payment of the Commonwealth Bank debt should go to me’. I then said to both of them: ‘What about the other debts?’ One of them and I believe it was Trevor Baker said to me ‘I’ll look after half of Dad’s personal debt’. I took that to mean the debt to the State Bank. I then discussed the other properties with the two of them. One of them and I think it was Steven Rigg said ‘Lot 2 in DP513573 is the quarry. It’s 78 acres that’s about 31 hectares. That’s to go to Trevor’. I then said something like ‘What about the remaining properties’. One of them and I again think it was Steven Rigg: ‘Lot 2 in DP181210 is the house and that’s going into my name and we’ll get the debt on it split evenly’. I understood ‘the house’ to mean the former matrimonial home in which Dawn and Ken Baker lived. Steve Rigg then said ‘the insurance monies will come off the debt’. One of them then said words to the effect: ‘Steve will service the debt on the cattle and Trevor will service the debt on the quarry’. We then further discussed other property. One of them said and I again think it was Steve Rigg: ‘Lot 11 in Dp554777 will go to me as it is the one which adjoins the house paddock which is number 2. Rodger (Baker) owns Lot 1’. ‘There is another piece of land which is the land in volume 4473 folio 99 and that’s also to go to Steven’. One of either Steven Rigg or Trevor Baker said to me ‘The other land, lot 32, is going to be in both our names and the mortgage on that has got to be discharged. That’s the land which is next to Trevor’s quarry’. Annexed hereto and marked PWS36 is a copy of my contemporaneous note of that conference”.

89 Annexure PWS 36 to Mr Sheridan’s statement was his contemporaneous notes of the conference on 26 July 1996, which read:-

(Attg S Rigg & T Baker)

Ken & Roger own a Block near the floodgate near Crescent Head. – Lease?? – C’th Bank debt goes to Steve).

Re: Debts

Lot 2 in 181210 is House

Lot 11 in DP 554 777 goes to Steve R adjoins House paddock Lot 2 (Rodger is Lot 1)/

C/T Vol 4473 Folio 99 goes to Steve R.

Ident 32/754400 to be in Both Names and Mortgage Discharged. (Next to Trevor’s Quarry)

Other Lot (Crown) to be transferred to Joint Names of Steve & Trevor.

Machinery – evenly divided.

Anything that C’th Bank has mortgage over is Steve’s.

Dawn & Cathy live in the House

Put 2500 X 2 (S&T) away for Emma in a Trust fund until she is 21 – when it will be $50,000/

90 In par 2.33 of his statement Mr Sheridan said that on 28 August 1996 he contacted an officer of the Office of State Revenue and made enquiries as to whether the “rules and regulations” providing for intergenerational transfers of property to be exempt from stamp duty extended to nephews and to plant and equipment.

91 Par 2.43 of Mr Sheridan’s statement provided in part as follows:-

“On 18 October 1996 Dawn Baker swore in my presence and affidavit of Executor, a copy of which (with the annexures referred to in the affidavit) is annexed and marked ‘PWS 52’.

Before Mrs Baker signed this affidavit, I placed it in front of her. Sitting opposite her at the desk in my office, I read, in full, the affidavit to Mrs Baker from my file copy affidavit. As was my normal practice when documents of this nature were signed by clients/executors and those documents/affidavits referred to further documents as annexures, I got up from my seat at the desk and went around to that side of the desk on which the client/deponent was seated. When an annexure letter appeared, I turned the pages specifically to the relevant annexure and showed or read its contents in full to Mrs Baker and assured myself, by asking her whether she was aware of the nature, content and meaning of the documents being read and perused. I said to her: ‘Do you realise that these documents I have just read through with you and to you are the documents which, when signed by you, will be sent to the Probate Office in Sydney so that we can obtain a Grant of Probate of Ken’s will?’ Mrs Baker replied: ‘I understand that’. I said: ‘You understand what information the documents contain as to the value of Ken’s assets and debts and that such information was obtained by me in the normal course of compiling and preparing such documents to get Probate granted’. Mrs Baker replied: ‘I do’. I understood from her replies that she knew what she was signing and what the effect of those documents was.

I then, at that time, also told Mrs Dawn Baker: ‘The signed documents and these annexures will be sent to the Probate Office in the Supreme Court in Sydney. Provided the documents are in order, the Court will make a Grant of Probate. That confirms that your husband was the owner of the assets which are referred to in these documents, that he was liable for the debts which we have also referred to in the documents and that his will was validly made. It also means that the will had the effect of the wording contained in it and as well that you will be the executrix. You have agreed to be executrix by signing these documents. The will makes you the sole beneficiary named in the will’.

I then asked Mrs Baker: ‘Do you have other questions you want to ask? Are there any other matters you want to discuss or is there something you didn’t understand about this process?’ She replied: ‘No, please show me where to sign’. She then signed all the relevant documents in my presence which I dated and witnessed. I then said to Mrs Baker: ‘These documents will be sent to the Probate Registry by Document Exchange mail and Probate of your late husband’s will should be granted within the next week to fortnight’. Mrs Baker said: ‘That’s good, we can then get on with the transfers to Trevor and Stephen’”.

92 In a telephone conversation on 7 November 1996, after probate of Mr Baker’s will had been granted on 28 October 1996, Mr Sheridan said to Stephen Rigg:-

“We will need to prepare the necessary documentation to give effect to this arrangement which you have reached between yourself, Dawn Baker and Trevor Baker as a deed of family arrangement. We will also need to prepare and execute a trust agreement providing for Dawn’s granddaughter Emma”.

93 Mr Sheridan proceeded to prepare various documents to give effect to the agreement which he said had been reached between Mrs Baker, Stephen Rigg and Trevor Baker. Mr Sheridan forwarded copies of the deeds he had drafted with a letter of 19 November 1996 addressed to the three parties C/- of Kempsey Kar Kare.

94 On 25 November 1996 Mrs Baker, Stephen Rigg and Trevor Baker attended at Mr Sheridan’s office. On 25 November 1996 Mrs Baker signed a transmission application and transfers of the homestead, Lot 11, the Loftus Road properties, the Quarry and the Quarry stockpile and also signed the deed of transfer and two statutory declarations. The purpose of the two statutory declarations was to support the claim for exemption from stamp duty. In the statutory declarations Mrs Baker said inter alia that her intention in effecting the transfers of the real estate was that the transferee or transferees should take total legal and equitable ownership of the land being transferred.

95 In par 2.56 of his statement Mr Sheridan said:-

“Dawn Baker, Trevor Baker and Steve Rigg attended my office on 25 November 1996 prior to signing the documents referred to in the preceding paragraph. I explained the nature and effect of the documents to Trevor, Dawn and Steve by saying ‘Dawn, do you realise that by signing these documents you are transferring to Trevor and Steve all assets Ken left to you in his will, that is, the whole of his estate?’ Mrs Baker replied: ‘I know that and I’m happy to let the transfers proceed as we have all discussed’. I said to Trevor and Steve: ‘You each realise what assets you are getting and what responsibilities for mortgages and debts you are taking on?’ Each indicated to me they understood by replying: ‘Yes’. I read out aloud the deed and the statutory declarations. Following my doing so, and prior to the documents being executed, I said to Dawn Baker words to the effect of: ‘Are you happy to proceed?’ Dawn responded: ‘Yes’.

I asked Dawn ‘Do you have any questions about the documents or anything else?’ I also asked her ‘Do you want to talk to anybody else before you sign the documents or to seek any other advice?’ She responded with words to the effect: ‘I want to proceed now and I want to have the transfers finalised as soon as possible’”.

96 In part of par 2.59 of his statement Mr Sheridan said:-

“When the parties called on 25 November 1996 to sign documents relating to the transfer of the deceased’s properties and assets to RB and Steve Rigg, discussion took place between them and myself as to a residency agreement. I recall Mr Rigg saying: ‘The agreement to allow Dawn, her daughter Cathy and granddaughter Emma Lee, is to provide for them to live in the deceased’s farm house property rent free while ever they wish. Trevor and I will maintain the house at our expense and we will pay all rates and insurance levied on the property’. I said to Mrs Dawn Baker: ‘Are you happy with this arrangement? Are there no other monies payable? She replied: ‘I am happy and there are no other payments required. The boys (Trevor and Steve) have relieved me of any debt worries and any worries about running the properties. As far as I am concerned, that’s all I want to be sure of’”.

97 In par 2.59 of his statement Mr Sheridan said that on 26 November 1996 he had caused a draft deed of residence to be forwarded to the parties. The deed, signed by all the parties, had subsequently been returned to him.

98 Mr Sheridan proceeded to cause the transmission application and the transfers to be registered.

99 In his statement Mr Sheridan denied allegations by Mrs Baker in her affidavit which were inconsistent with assertions which Mr Sheridan had made in his statement. In particular, he denied assertions by Mrs Baker that she had not given any instructions for the deed of transfer to be prepared, that Mr Sheridan had not explained to Mrs Baker the documents which she had signed and that Mrs Baker had not been aware that she had transferred all the assets in her husband’s estate to Stephen Rigg and Trevor Baker.

Stephen Rigg’s Affidavits

100 Mr Rigg said that he had been born on 13 November 1962. After leaving school he had taken up an apprenticeship as a panel beater and he had worked as a panel beater until 1985. He had then worked as a truck driver.

101 In this affidavit Mr Rigg said that he had known Mr Ken Baker since he was a child. In par 6 of the affidavit he said that he and Mr Baker had carried on together a business of buying, fattening and selling cattle.

102 In 1988 Mr Rigg, Mr Baker and Roger Baker had purchased a motor vehicle business in Kempsey and renamed it Kempsey Kar Kare. They had then carried on the business in partnership. In about 1993 Roger Baker left the partnership. In 1994 Mr Trott lent money to the partnership, which was still outstanding at the time of Mr Baker’s death.

103 In February 1996, not long before Mr Baker’s death, the partners obtained overdraft accommodation with the Commonwealth Bank in the amount of $100,000 and also obtained a fixed rate term loan of $150,000 to refinance an existing loan from the State Bank.

104 In pars 26 and 27 of the affidavit Mr Rigg said that after 25 November 1996 he had taken over the sole responsibility for the debts of Kempsey Kar Kare (the overdraft debt and the fixed rate term loan).

105 In par 27 of the affidavit Mr Rigg said in part:-

“Under the deed, Trevor Baker was supposed to take over half of Kenny’s debt. Trevor, however, did not, to my knowledge, take over any debts of Kenny’s. This meant that I had to take over Kenny’s total debts”.

106 In his affidavit Mr Rigg then gave evidence about his financial affairs from 1997 onwards.

107 In par 40 of the affidavit, in answer to par 18 of Mrs Baker’s affidavit, Mr Rigg said:-

“In relation to paragraph 18 of the affidavit, I recall having a conversation with Mrs Baker approximately two to three weeks after Kenny passed away. I said words to the following effect:

‘There is a partnership agreement between Ken and I relating to the Kempsey Kar Kare business. Ken has mortgaged some of his properties to the Commonwealth Bank of Australia as security for loans for the business. We’ll have to make some decisions as to what to do about the situation. I can either wind up the business and pay out the bank, which will include selling up some of the properties, or you and Trevor [Baker] can run Ken’s half, or I can continue the business by myself and things will run in the same way as they had always run when Ken was alive. If I continue the business, however, the properties will have to stay with the partnership as they run with his debts’

Mrs Baker said words to the following effect:

’I don’t want any part of the debt and I don’t want you selling up any of the properties.

I then said words to the following effect:

‘Then you’ll have to transfer the mortgage properties to me so that I can keep running the business and pay the loans’.

Mrs Baker said words to the following effect:

‘That’s fine, you can work it out with Trevor’.

I understood her reference to Trevor to be a reference to Trevor William Baker, the third defendant, who is her son.

I said words to the following effect:

‘I’ll talk to Trevor and ask Paul Sheridan to take care of the transfer’.

We then terminated the conversation shortly thereafter.

I deny saying that Mrs Baker ‘will lose the lot”.

108 In par 41 of the affidavit, in answer to par 20 of Mrs Baker’s affidavit, Mr Rigg said inter alia:-

“I deny saying that ‘if the properties are not transferred to me they will be taken by the bank’, however, I do recall saying on several occasions that ‘if the partnership is wound up then some of the properties will need to be sold to pay out Kenny’s debt to the bank under the partnership.’”

109 Paragraphs 42, 43, 45, 46 and 47 of Mr Rigg’s affidavit were as follows:-

“42. On or about 10 May 1996, or in any event after the will of Kenny Baker had been read, I visited 1415 Right Bank, the property Mrs Baker was staying on, and had the following discussion:

I said words to the following effect:

‘Have you decided what you want to do with Ken’s farms?’

Mrs Baker said words to the following effect:

‘You and Trevor can sort things out and run them together. I don’t want to sell the farms up. I want to keep the farms together. I don’t want to sell them up to the bank. You and Trevor can run the cattle together as well’.

43. On or about 11 May 1996 while fixing a tractor with Trevor Baker on property 1420 Left Bank Road, Trevor and I had the following discussion:

I said words to the following effect:

‘What do you want to do about your father’s debt under the partnership?’

Trevor said words to the following effect:

‘I don’t want to have anything to do with the business or the cattle’.

I said words to the following effect:

‘What do you want to do with the debt over your father’s properties? If I take over your father’s debts, his properties mortgaged to the bank will have to stay with the business and be transferred to me so that the loans can be transferred’.

Trevor said words to the following effect:

‘That’s fine, I only want the quarry’.

By reference to the quarry I understood Trevor to be referring to Lot 25/13573.

45. On or about 20 November 1996 I received a telephone call from Trevor Baker and we had the following conversation:

Trevor said words to the following effect:

‘I don’t want to have anything to do with the cattle or the mortgage over Mum’s house. I can’t refinance the house’.

I said words to the following effect:

So how is Dawn going to keep the house?

Trevor said words to the following effect:

‘Can you run the cattle on dad’s property and pay the mortgage for the house like dad did?’

I was aware that Kenny had been making an approximate profit of $16,286.34 each year from running the cattle. Annexed hereto and marked with the letter “L” is a document entitled ‘Ken Baker Livestock Dealer’, which Kenny had submitted as part of the loan application referred to in paragraph 22 above. I relied partly on the amount Kenny was earning from running cattle on Kenny’s farm in ultimately agreeing to sign the deed referred to in paragraph 26 below. I then said words to the following effect:

‘If refinance it, I’ll take over the responsibility, but I will also have to have the property transferred into my name. You mum can keep living there of course’.

Trevor Baker said words to the following effect:

‘That’s fine, but just so long as we are clear that if you take the cattle and mum’s house as well, you’ll have to take over all of dad’s debts’.

I said words to the following effect:

‘Okay’.

47. In relation to paragraph 23 of the affidavit, I recall that Mr Sheridan read through the entire deed during this meeting and asked whether anyone had any questions. I do not recall anyone asking any questions. It was my understanding that the deed was necessary to sign in order to effect the transfer of properties mortgaged to the CBA as well as to the State Bank in exchange for me assuming Mr Baker’s debts under the partnership as well as his personal debts, and to otherwise reflect the agreement reached between Trevor Baker, Mrs Baker and myself. I deny playing any role in administering the estate. My involvement in relation to any assets of the estate were purely related to assuming the business and personal debts of Kenny Baker as a consequence of the discussions referred to in paragraphs 40, 41, 43, 45 and 46 above”.

110 In par 48 of his affidavit Mr Rigg said that in 1999 Trevor Baker had told him to take his cattle off Trevor Baker’s property (Syd’s property), which Mr Rigg had been using for grazing his cattle. Mr Rigg said that, having taken his cattle off Trevor Baker’s property, he was obliged to sell the cattle and was thereby deprived of a continuing income and was unable to meet his commitments to the Commonwealth Bank, including payments under the mortgage over the homestead.

111 In par 55 of the affidavit Mr Rigg said:-

“At all times, I looked to Mr Sheridan to look after the interests of Dawn Baker, Trevor Baker and myself in relation to the estate. At no stage did Mr Sheridan tell me that there was any difficulty with him looking after our interests together. He never told me that there was a risk that Dawn Baker might be able to have the deed and the transfers under the deed unwound”.

112 In pars 56 to 58 of the affidavit Mr Rigg gave evidence about expenditure by him on the house on the homestead in support of his cross-claim against Trevor Baker.

113 In this affidavit Mr Rigg gave evidence of further expenditure by him in support of his cross-claim against Trevor Baker. He also gave evidence about a costs order made in his favour against Mrs Baker in proceedings in which Mrs Baker had lodged a caveat.

114 In paragraphs 2 to 6 of this affidavit Mr Rigg gave evidence of what he said had been his experience in cattle grazing and in par 7 to 17 of the affidavit he expressed opinions about the suitability for cattle grazing of the various parcels of land which had been owned by Mr Baker. In par 17 of this affidavit he said:-

“In my opinion, if the properties the subject of these proceedings were to be let out for agistment purposes, they would result in a return based on 60 to 80 head on a per year basis. This is essentially the carrying capacity of the front country on the Homestead lot. Although, depending on the season, the other land could support some temporary additional grazing of maybe 30 to 40 head, it could not do so consistently throughout the year and for the reasons that I have given I do not believe it would be capable of producing a regular or reliable agistment income”.

115 In paragraphs 30 to 32 of the affidavit Mr Rigg said that, while Mrs Baker had been very upset when her husband died, she had started going out again a few weeks after his death and when Mrs Baker called in at the premises of Kempsey Kar Kare she seemed to Mr Rigg to be “functioning quite normally”. Shortly after Mr Baker’s death Mrs Baker had spoken to Mr Rigg about a diesel fuel rebate form which had not been sent in by Mr Baker and an insurance renewal form.

116 In pars 33 and 34 of his affidavit Mr Rigg said that soon after Mr Baker’s death Mr Bowden of the Commonwealth Bank had begun pressing Mr Rigg about what was to happen to Kempsey Kar Kare. Mr Bowden said:-

“You are going to have to let me know whether the partnership is going to be wound up or whether you are going to trade on as a sole trader or whether you are going to get another partner”.

117 Mr Rigg then realised that something had to be done “to fix up Kempsey Kar Kare”.

118 In pars 36, 37 and 38 of this affidavit were in the following terms:-

“36. At the time it was my belief that if KKK shut down there would be a shortfall because I believed that if there was a forced sale of the assets of KKK that they would make less than the amount of the debts. There would also be further liabilities generated because it would be necessary to pay out the leases, staff entitlements and other debts of KKK that would become due if KKK were shut down. My belief at the time was that the shortfall would have exceeded $100,000. I knew that Kenny had given security over Lot 11, Lot 32 and the Loftus Road properties for the KKK debt and I believed that if KKK was shut down, some or all of those properties would need to be sold to meet the shortfall.

37. No one else that I was aware of was prepared to purchase KKK.

38. At that time I knew that if I was to take on the KKK debt personally I needed to take some of Ken’s properties as security for the KKK debt”.

119 In pars 39 to 49 of this affidavit Mr Rigg gave evidence, in support of some of his assertions in par 36 of the affidavit, about accrued annual leave and long service leave entitlements of employees of Kempsey Kar Kare and about payments due under leases by Kempsey Kar Kare.

120 In pars 50 and 51 of this affidavit Mr Rigg said that the order of some of the conversations he had deposed to was a conversation with Mr Bowden (pars 33 and 34 of his affidavit of 8 September 2004), then the conversation with Mrs Baker (par 40 of his first affidavit) and then the conversation with Trevor Baker (par 43 of his first affidavit).

121 In par 53 of this affidavit Mr Rigg said with respect to the conference Mrs Baker had with Mr Sheridan on18 July 1996:-

“I recall ringing Mr Sheridan’s office in about July 1996 to make an appointment for Dawn to see him. I did this because Dawn asked me to make the appointment. To the best of my recollection, I never intended to attend at that meeting and in fact I did not do so”.

122 In pars 54, 55 and 56 of this affidavit Mr Rigg said:-

54. After arranging the appointment for Dawn to see Mr Sheridan, I recall that Trevor and I attended a meeting with Mr Sheridan. Before that meeting Trevor and I had had a discussion about how to deal with the assets and debts of the estate. In the course of that meeting discussions took place in words to the following effect:

I said: ‘You can take over your father’s share of Kempsey Kar Kare if you want. You can also take over his cattle business if you want’.

He said: ’I don’t want to have anything to do with the cattle or the business. I just want the quarry’.

I said: ‘Well I’ll take the business and the cattle but we will need to do something about the debts. I’ll take over the business debts. What about your father’s debt to the State Bank?’

He said: Can we go halves in that?’

I said: ‘Okay, but we will need security to service the debts. In order to raise the money I will need the homestead’.

He said: ‘That’s fine, but I want Lot 32’.

I said: Lot 32 is already mortgaged to the Commonwealth Bank as security for Kempsey Kar Kare debts and I will need some high country if I am going to take over the cattle in case I need to move them there in a flood’.

He said: ‘I have to have Lot 32 for the quarry. If you’re getting the homestead can’t you use it as security instead of Lot 32 and discharge the mortgage? Then we can go halves in Lot 32. I can use it for the quarry and you can use it for the cattle’.

I said: ‘That should be okay. What about the truck and the equipment?

He said: ‘We will both need to use it on both our places. We should go halves in it’.

During that conversation I also said words to the effect that:

SJR: ‘I know that Kenny would have looked after Emma’.

This conversation took place prior to seeing Mr Sheridan with Trevor on 26 July 1996. I remember there was some discussion about Emma Alexander. However, I do not now recall specifically what was said.

I later had a conversation with Dawn in which I told her what Trevor and I had agreed. She said words to the effect:

DMB: ‘I’ll leave it up to you and Trevor’.

56. The possibility of selling some or all of the plant & equipment, the cattle and the land other than the homestead and for Dawn to live on the homestead and agist cattle did not occur to me in 1996. This possibility was not suggested to me by Dawn or Trevor or Paul Sheridan or Barry Bowden or any other person in 1996”.

123 In par 57 of this affidavit Mr Rigg said that he recalled that on or about 26 July 1996 he had had a meeting with Mr Sheridan and Trevor Baker about the arrangements that had been discussed between Trevor Baker, Mrs Baker and himself.

124 In pars 58 to 62 of this affidavit Mr Rigg gave evidence about the probate valuations. He said that he had arranged for the valuations to be made, after Mr Sheridan had advised that they should be obtained, but “I was not particularly interested in what the valuations were”. He had left it to a Mr Bradley, a consultant working for Kempsey Kar Kare, to arrange for the valuations to be obtained and for accounts of Kempsey Kar Kare to be prepared.

125 In pars 63 to 65 of this affidavit Mr Rigg gave evidence about the estate bank account with the Commonwealth Bank. He said that he had not attended at the bank when the estate account was opened. Mrs Baker had provided Mr Rigg with a cheque book for the estate account. A procedure developed whereby Mrs Baker, having received bills payable by the estate, would deliver the bills to Mr Rigg, Mr Rigg or his wife would write out cheques in payment of the bills and then take the cheques to Mrs Baker for her signature.

126 In par 66 of this affidavit Mr Rigg said that before 25 November 1996 Trevor Baker told him that he had not been able to obtain finance to pay half of the State Bank debts which he had agreed to pay.

127 In par 68 of the affidavit Mr Rigg said that he had had a telephone conversation with Mr Sheridan in November 1996 in which Mr Sheridan told Mr Rigg that Trevor Baker had changed his mind about the amount of the yearly payments he could afford to make to the proposed trust fund for Emma, Mrs Baker’s granddaughter.

128 In par 70 of this affidavit Mr Rigg said that he now believed that in pars 45 and 46 of his first affidavit he had run together parts of conversations which had taken place in July 1996 and November 1996.

129 In par 71 of this affidavit Mr Rigg said that after November 1996 Trevor Baker had proposed a boundary change for the Quarry and the quarry stockpile so as to include the access road to the quarry, which was in Lot 32, in Lot 2 and in consideration for this boundary change Trevor Baker would give up his half share in what was left of Lot 32. Mr Rigg did not agree to the proposed boundary change.

SURVEY OF PARTS OF THE ORAL EVIDENCE

130 I have taken into account all of the oral evidence, which covers several hundred pages of transcript, but will refer to only some parts of it in this survey.

Mrs Baker

131 Mrs Baker gave evidence that after her husband’s death she had no desire herself to take over his interest in the partnership of Kempsey Kar Kare. She had not had any involvement in her husband’s business as a grazier and after his death she had no desire to become a grazier. She knew that she was not capable of doing that.

132 Mrs Baker did not remember saying to Mr Sheridan at the conference on 18 July 1996 “I want the properties previously owned by Ken to be transferred to Trevor and Stephen”. She said “I only did that (transfer the properties) because of the mortgage”. When asked what she meant by this evidence, she said that she had transferred the farm to save her home. That was an idea she had after talking to Mr Rigg.

133 Mrs Baker did not remember saying at the conference on 18 July 1996 that “the boys will take over the debts”. She denied that before going to Mr Sheridan’s office on 18 July 1996 she had had a conversation with anyone about “the boys” taking over the debts.

134 When asked whether Stephen Rigg had helped her husband on the farm she said “he (Stephen Rigg) was always around”. She denied that she had felt any sort of obligation to Stephen Rigg.

135 Mrs Baker asserted that she had had nothing to do with a bank account which had been opened in the name of the estate of her husband.

136 Mrs Baker accepted that she had signed the affidavit of executor but she could not recall signing it.

137 Mrs Baker accepted that she had signed the deed of transfer in Mr Sheridan’s office. When asked whether Mr Sheridan had told her anything about the deed of transfer before she signed it, she said “Not that I can remember, I think we just signed”.

138 The following questions and answers occurred at transcript p 50 line 38 to page 51 line 30.

139 Mrs Baker did not remember or denied what Mr Sheridan had said in pars 2.56 and 2.59 of his statement about what had happened at the conference on 25 November 1996.

140 At no time between May 1996 and November 1996 had Mr Sheridan talked to Mrs Baker on her own, with no one else being present.

141 Mr Sheridan had never told Mrs Baker that she had a choice about whether to enter into the arrangement with Stephen Rigg and Trevor Baker.

142 In July 1996 she had gone to an office of Centrelink and applied for an aged pension. She had gone to Centrelink with Mrs Rigg. She said that “at the time I was really upset and Hazel was sort of talking for me”.

143 The following questions and answers occurred at transcript p 64 lines 7 to 16:-

144 Mrs Baker said that during his lifetime her husband had sometimes agisted other peoples’ cattle on his land. She did not know what her husband had received for agisting other peoples’ cattle and she had never thought of agisting other peoples’ cattle.

145 Mrs Baker had no recollection of anything Mr Sheridan had said to her on any of the occasions that she attended his office.

146 Mrs Baker agreed that, after the deeds were signed, she had continued to live in her home and had had no worries, until Stephen Rigg told her that the property would have to be sold. She denied that she was happy with the arrangement, because “I didn’t like to lose everything” but then said that she did not know that she had lost everything until Mr Rigg had told her (some years later) that the bank wanted to sell the property.

147 Mrs Baker agreed that before her husband’s death his cattle were grazing partly on the lands owned by him at his death and partly on Syd’s property.

148 When cross-examined about the affidavit of executor Mrs Baker said that she thought that she had been asked to read it before she signed it and that “I would have read it”. She said “I don’t honestly remember seeing those figures (in the affidavit of executor) … I’m not a business person. I just wouldn’t have read it… I couldn’t have took any notice to the figures”. However, she said that she knew enough to have been able to understand what was in paragraph 14 of the affidavit of executor, if she had read it.

149 When her husband died she was aware that he owed money to at least one bank and it occurred to her that something would have to be done to pay the bank. She herself would not be returning to work. She knew that she could not continue her husband’s cattle grazing activities.

150 Mrs Baker agreed that “your dearest wish soon after your husband passed away was to be able to live in your home”. She had strong emotional ties to the home in which she and her husband had lived for thirty-five years.

151 Mrs Baker agreed that a suggestion was made that Stephen Rigg and Trevor Baker might take care of the debts owed by Mr Baker to the bank. She did not expect Stephen Rigg and Trevor Baker to pay those debts out of her own funds.

152 Mrs Baker could not remember speaking to Mr Rigg about the transfer of the properties before 18 July 1996. She denied that she had discussed with Mr Sheridan why she had wanted the properties to be transferred.

153 On 19 July 1996 Mrs Baker went with Mrs Rigg to an office of Centrelink to apply for an age pension. At the office at Centrelink Mrs Baker signed two Department of Social Security forms, an “asset details” form (which became exhibit 1D1) and a “pension claim” form (which became exhibit 1D2). Both forms were standard printed forms on which handwritten entries had been made. Both forms were signed by Mrs Baker.

154 Mrs Baker gave evidence that the handwriting on the forms was not hers and she thought it might be Mrs Rigg’s. She could not remember whether the two forms had been filled in by an officer at Centrelink. She recalled having a meeting with someone at Centrelink, being asked questions and answering those questions.

155 Although I have not had the advantage of seeing any undoubted specimens of Mrs Rigg’s handwriting, the handwriting on the two forms is a business like, literate style of handwriting (quite unlike Mrs Baker’s signature) and I am satisfied that I should infer that the handwriting on the forms was written by an officer of Centrelink and not by Mrs Baker or Mrs Rigg. Part 12 of the pension claim form, which was to be filled in “if a friend or relative helped you with your claim” was left blank.

156 Mrs Baker gave evidence that on 19 July both she and Mrs Rigg had answered questions. She had agreed with the accuracy of any answers given by Mrs Rigg and Mrs Rigg had not exerted any pressure on her. In 1996 she and Mrs Rigg had been “very close”.

157 In Part 9 of the pension claim form, in answer to a question “do you or will you get money from a life interest?” the words “home only” were handwritten. In answer to a question “are you the owner or part owner of a farm?” the answer “no” was ticked. In answer to a question “do you own or have an interest in any real estate in Australia or overseas?” the answer “No” was ticked. In answer to a question “do you own your own home?” the answer “No” was ticked. In answer to a question “do you have an interest in your home?” the answer “Yes” was ticked. In answer to a question “do you get free accommodation?” the answer “Yes” was ticked.

158 Mrs Baker agreed that “by 19 July 1996, when you attended Centrelink… you had made a decision … to transfer the properties to Mr Rigg and your son” and “you’d come to an agreement with (Mr Rigg) by 19 July 1996 that you would live in the house free of charge until you passed away”. However, she said that she could not remember whether she had made the decision to transfer the properties, before she saw Mr Sheridan on 18 July 1996.

159 As to whether Mrs Baker knew that she had a choice, the following questions and answers occurred at transcript p 92 lines 15 – 35:-

160 Mrs Baker was cross-examined about what she would have done, if she had received advice from another solicitor in 1996. She said “I would have took notice, I guess. I would have took notice to what he told me”. I disallowed a question asked by counsel for the first defendants, asking what advice Mrs Baker thought she would have been given by another solicitor. As to whether Mrs Baker would have gone to see another solicitor or an accountant, the following questions and answers occurred at transcript p 111 line 28 to p 112 line 3:-

Q. You have got no idea if you had gone to see an accountant what they might have told you?

A. I’ve got no idea.

Q. And you’ve got no idea whether you would have acted any differently to the way you did if you’d spoken to an accountant?

A. Well, I don’t know because I never went.

383 Kirby P then referred to what Deane J had said in Hawkins v Clayton (1988) 164 CLR 539 at 579 that, depending upon the circumstances of the particular case, a solicitor’s duty may require the taking of positive steps “beyond the specifically agreed professional task or function, where these are necessary to avoid a real and foreseeable risk of economic loss being sustained by the client”. See also the judgment of Hope AJA in Waimond especially at p 665.

384 As regards sub-pars 18(a) and 18(g), it was submitted that there was a real and foreseeable risk of economic loss to Mrs Baker, that Mr Sheridan should at least have asked Mrs Baker why she wanted to transfer away all the assets and that, if he had done so, Mrs Baker would have given an answer which would have revealed to Mr Sheridan that Mrs Baker was acting out of a sense of crisis induced in her by Mr Rigg.

385 As regards sub-par 18(d) of the amended statement of claim, it was pointed out by counsel that Mr Sheridan had admitted in cross-examination that he had not advised Mrs Baker that a practical implication of the proposed transaction was that, if Mr Rigg defaulted under an existing or a future mortgage over the homestead, Mrs Baker could lose her home.

386 As regards sub-par 18(h) of the amended statement of claim, it was pointed out by counsel that Mr Sheridan had admitted that he had not advised Mrs Baker that she had freedom of choice whether to enter into the proposed transaction. It was submitted that there were alternatives to entering into the deed of transfer, which would have been open to Mrs Baker and about which Mr Sheridan should have advised Mrs Baker.

387 As regards sub-par 18(i) of the amended statement of claim, it was submitted that there was a clear conflict between the interests of Mrs Baker on the one hand and of Stephen Rigg and Trevor Baker on the other hand and that, consequently, Mr Sheridan should not have acted for Mrs Baker, without obtaining her informed consent, and Mr Sheridan had failed to obtain Mrs Baker’s informed consent.

388 On the issue of causation it was submitted that it was not essential for Mrs Baker to have given direct evidence, for example about what she would have done, if advice which had not in fact been given had been given. Counsel referred to Gould v Vaggelas (1985) 157 CLR 215 at 235 per Wilson J; Dominelli Ford (Hurstville) Pty Limited v Karmot Auto Spares Pty Limited (1992) 38 FCR 471. It was submitted that Mrs Baker had, in fact, given some evidence relevant to causation and, in particular, some evidence which would support a finding that she would have adopted an alternative course, if she had been advised about the alternative course, and that, if she had been advised to see another solicitor, she would have done do. It was submitted that the causation issue should be resolved in favour of the plaintiff, on the basis that no reasonable person, if properly advised, would have assented to divesting herself of the whole of her property in the circumstances of the present case.

389 It was submitted by counsel for the first defendants that the first defendants had been retained by Mrs Baker, to act for her in relation to the family arrangement, at the conference with Mr Sheridan on 18 July 1996. It was submitted that I should accept Mr Sheridan’s evidence of what had happened and of what had been said at that conference. Accordingly, I should find that the terms of the retainer were that Mr Sheridan was instructed by Mrs Baker to draw documents and to take steps to give effect to what Mrs Baker said she wanted to happen and, in particular, that the properties previously owned by Mr Baker should be transferred to Stephen Rigg and Trevor Baker, that Stephen Rigg and Trevor Baker should assume responsibility for the debts Mr Baker owed to the Commonwealth Bank and the State Bank, that the livestock and the plant and equipment should be transferred and that Mrs Baker should be able to live in her home on the homestead rent free. I should find that on 18 July 1996 Mrs Baker gave instructions in person to Mr Sheridan; that she said to Mr Sheridan “I want” the properties to be transferred and not that anybody else had suggested to her or told her that the properties should be transferred; that neither Stephen Rigg nor Trevor Baker was present at the conference; and that, although Mrs Rigg had been present, I could not, on the evidence, make any finding that Mrs Rigg was exerting any influence on Mrs Baker.

390 It was submitted that Mr Sheridan had not been under any obligation to provide financial advice to Mrs Baker. It was submitted that I should find that Mr Sheridan was not retained by Mrs Baker to provide financial advice, that Mrs Baker did not rely on Mr Sheridan to provide any financial advice and that Mr Sheridan did not assume any responsibility to provide financial advice.

391 As to whether a solicitor is obliged to provide financial advice, I was referred by counsel for the first defendants, not merely to Waimond, but also to Clark Boyce v Mouat [1994] 1 AC 428, Citicorp Australia Limited v O’Brien (1996) 40 NSWLR 398 especially at 418 per Sheller JA and Nikolic v Nikolic [2002] NSWCA 248.

392 In Nikolic the New South Wales Court of Appeal at par 17 approved the following statement by Lord Jauncey in Clark Boyce:-

“When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in carrying out a particular transaction, that solicitor is under no duty, whether before or after accepting instructions, to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on the solicitors”.

393 It was submitted that I should find that on 18 July 1996 Mrs Baker was not incapacitated by emotional distress as a result of her husband’s death and was in full command of her faculties and apparently aware of what she was doing, with the consequence that Mr Sheridan was under no duty to proffer unsought advice on the wisdom of the proposed transaction.

394 Counsel for the first defendants disputed that, if a client is inexperienced in business matters, the scope of the solicitor’s duty to give advice is extended. It was submitted that the true position is that, if a client is inexperienced in business matters, a solicitor may have to advise more fully on matters on which it is within his retainer to give advice.

395 As regards sub-par 18(g) of the amended statement of claim, it was submitted by counsel for the first defendants that I should find that Mrs Baker knew, to the knowledge of Mr Sheridan, that she had received the assets of the estate under her husband’s will and that she was transferring away those assets. Evidence on which such findings could be based would include the evidence that Mrs Baker had been present at the reading of the will on 7 May 1996, evidence that on 18 October 1996 she had made the affidavit of executor in which the assets and liabilities of the estate were listed, evidence of what happened in the conference on 18 July 1996, evidence of Mrs Baker’s visit to Centrelink on 19 July 1996 and of the contents of the Centrelink documents signed by her, evidence of what happened at the conference on 25 November 1996 and evidence of admissions made by Mrs Baker in cross-examination.

396 It was submitted that there was no need for Mr Sheridan to tell Mrs Baker of matters of which, to Mr Sheridan’s knowledge, Mrs Baker was already fully aware.

397 As regards sub-par 18(d) of the amended statement of claim, Mrs Baker had admitted in cross-examination that she had realised that, if the properties were transferred, Mr Rigg as the owner of some of the properties could borrow money on the security of a mortgage over those properties and that, if Mr Rigg did not repay the lender, the lender could sell the properties. She realised that this was “a possibility” but she “didn’t think it would happen”.

398 As to sub-pars 18(f), 18(h) and 18(e) of the amended statement of claim, it was submitted that I should find that the course Mrs Baker wanted to adopt had a number of advantages for her, which she communicated to Mr Sheridan, including that the properties would be kept together, the properties would continue to be used for cattle grazing, the business of Kempsey Kar Kare would continue to be carried on, Mrs Baker would be relieved of having to take any part in the cattle grazing business or the business of Kempsey Kar Kare, Mrs Baker would be relieved of having to worry about the debts of the estate, Mrs Baker would be able to occupy her home rent free and free of any other charges and Mrs Baker would derive income from a pension.

399 Mrs Baker had admitted in cross-examination that she knew that she had a choice whether or not to transfer the properties to Stephen Rigg and Trevor Baker.

400 It was also submitted by counsel for the first defendants that there was no viable alternative course of action, a submission which was more fully developed later in counsel’s submissions.

401 As to sub-par 18(i) of the amended statement of claim, it was submitted that, notwithstanding any concession made by Mr Sheridan in cross-examination, there had in fact been no conflict of interest between Mrs Baker on the one hand and Stephen Rigg and Trevor Baker on the other hand, because of the limited nature of Mrs Baker’s retainer of Mr Sheridan and the absence of any viable alternative course of action. Even if there had been a conflict of interest between the clients and Mr Sheridan had been acting for clients whose interests conflicted, it would still be necessary for Mrs Baker to prove that, by reason of the conflict, Mr Sheridan had omitted to give some advice or information to Mrs Baker which should have been given, and that this had not been proved.

402 Counsel for the first defendants submitted that, even if the plaintiff established that some breach of duty had occurred, it would still be necessary for the plaintiff to prove that the breach had caused damage to the plaintiff; that, if no breach had occurred, the plaintiff would have acted differently from the way in which she had acted and in a way which would have involved no damage or less damage for her. It would be necessary for the plaintiff to prove that, if Mr Sheridan had given advice which he had omitted to give, Mrs Baker would have acted on that advice. Counsel referred to Citicorp at p418G per Sheller JA.

403 It was submitted by counsel for the first defendants that, although direct evidence from the plaintiff on an issue of causation was not essential, the absence of evidence or at least of clear evidence from the plaintiff about what she would have done, if certain advice had been given to her, made it more difficult to make a finding in her favour on the issue of causation.

404 It was submitted that, if a breach consisted of Mr Sheridan failing to give information on some matter but the plaintiff was already aware of the matter without having to be told by Mr Sheridan, then the omission to give information on that matter could not have been causative of damage to Mrs Baker.

405 As to whether, if Mrs Baker had been advised before 25 November 1996 that she should seek independent legal advice, she would have sought independent legal advice, it was submitted that the vague and conflicting evidence given by Mrs Baker did not establish that, if such advice had been given by Mr Sheridan, Mrs Baker would have sought independent legal advice. It was submitted that I should accept Mr Sheridan’s evidence that on 25 November 1996 he did ask Mrs Baker whether she wanted to see another solicitor.

406 Likewise, it was submitted that Mrs Baker’s evidence did not establish that, if Mr Sheridan had advised her to seek financial advice from an accountant, she would have taken his advice and seen an accountant. Nor did the evidence establish what financial advice an accountant might have given Mrs Baker.

407 A number of submissions were made by counsel for the first defendants on whether Mrs Baker could have acted differently, consistently with what her objectives were, if she had been given different advice by Mr Sheridan; that is, whether there was any viable alternative course of action to the course of action in fact adopted by Mrs Baker.

408 It was submitted that the present case was not a “no transaction case” in which a viable alternative would have been for Mrs Baker simply to have done nothing. Because of the death of her husband, who had been carrying on two businesses, who had left assets and debts secured by mortgages and who had left a will under which Mrs Baker was the executrix and the beneficiary, Mrs Baker had to do something. She could not simply do nothing.

409 The present case, it was submitted, was different from the case of parents who are asked to give a guarantee of the debts of their child, the guarantee to be supported by a mortgage over their home. Such a case is, indeed, a “no transaction case”. A viable alternative for the parents is simply to decline to enter into any transaction.

410 The plaintiff’s case had been opened by counsel for the plaintiff on the basis that, if Mrs Baker had been properly advised by Mr Sheridan, she could have acted differently by using the personal property in the estate to pay the debts of the estate and by letting the real property in the estate on agistment so as to provide an income for herself. This case had collapsed, when it became apparent during the course of the hearing that the personal property in the estate would not have been sufficient to pay the debts of the estate and that the evidence of the plaintiff’s expert witness, the accountant Mr Otto that a modest, but sufficient, income for Mrs Baker could be derived from letting the real property on agistment, had been based on false assumptions, including an assumption that the cattle owned by Mr Baker at his death had been grazing solely on his land and not also on Syd’s property. In addition, the evidence of the first defendants’ expert Mr Naunton, that the nett income from agistment would be insufficient to support the plaintiff, should be accepted.

411 During the hearing it was suggested on behalf of the plaintiff that another alternative course which would have been viable, would have been for Mrs Baker to sell some of the real property so as to pay the balance of the debts of the estate and to let the rest of the real property on agistment so as to provide some income from agistment for her, and for her to receive a pension.

412 In relation to this suggested alternative, it was submitted by counsel for the first defendants that the realty which might have been sold had not been identified, that this course of action would have been contrary to Mrs Baker’s wish to keep all of her husband’s properties together, that there was no evidence that, if she had retained some of the real property, she would still have been eligible to receive a pension and that there was no evidence from the plaintiff that, if she had been advised to adopt this alternative course, she would have taken it.

413 It was submitted by counsel for the first defendants that I should find that the plaintiff would not have acted any differently, if any different advice had been given by Mr Sheridan. The course the plaintiff had adopted and had told Mr Sheridan that she wanted to adopt fulfilled the objectives she had.

DECISION

414 Earlier in this judgment I made an assessment of the various witnesses and I made lengthy findings of fact. My decision on the claims made by Mrs Baker against the first defendants is determined, to a large extent, by my earlier findings of fact.

415 I accept counsel for the first defendant’s submission that it is necessary for the plaintiff to prove, not only a breach of a duty owed to Mrs Baker, but also that the breach caused loss to Mrs Baker, including that Mrs Baker would have acted differently, if the breach had not occurred.

416 I accept counsel for the first defendant’s submissions about the terms of the retainer and the circumstances in which the retainer was given.

417 Having considered the authorities and in the light of the findings of fact I have made, I do not consider that Mr Sheridan was under an obligation to advise Mrs Baker about the financial wisdom of the proposed transaction or, having been provided by Mrs Baker with reasons why she wanted to enter into the transaction, to question her further about her reasons and motives. I am not satisfied that, if Mr Sheridan had questioned Mrs Baker, Mrs Baker would have given an answer which would have revealed to Mr Sheridan that she was acting out of a sense of crisis induced in her by Mr Rigg. I do not accept that Mrs Baker was acting out of a sense of crisis induced in her by Mr Rigg.

418 I am not satisfied that, if Mrs Baker had been advised by Mr Sheridan to seek independent legal advice or to seek financial advice, she would have taken Mr Sheridan’s advice.

419 I accept counsel for the first defendant’s submission that it has not been shown that there was any viable alternative course of action for Mrs Baker or at least any viable alternative course of action which would have fulfilled as many of her objectives.

420 As to sub-par 18(g) of the amended statement of claim, I find that Mrs Baker was already fully aware, to the knowledge of Mr Sheridan, that she would be transferring away the assets of her husband’s estate. These were the instructions Mrs Baker gave on 18 July 1996. On 25 November 1996, before the deed of transfer was signed, Mr Sheridan asked Mrs Baker whether she realised that she was transferring all the assets of the estate. I find that there was no breach as alleged in sub-par 18(g) of the amended statement of claim.

421 As to sub-par 18(d) of the amended statement of claim, I find that Mr Sheridan did not advise Mrs Baker of the risk of default being made under a mortgage of the homestead and the mortgagee exercising its rights under the mortgage. I find that he should have done so and that this was a breach as alleged in sub-par 18(d) of the amended statement of claim. However, Mrs Baker was aware of this risk, without having to be told by Mr Sheridan, and I am not satisfied that, if advised of the risk by Mr Sheridan she would have acted any differently. Mrs Baker, while aware of the risk, believed that it would not eventuate.

422 As to sub-pars 18(f), 18(h) and 18(e), Mr Sheridan admitted that he did not, in terms, tell Mrs Baker that she had a choice whether to enter into the deed of transfer. However, what he said to Mrs Baker of 25 November 1996 would have clearly conveyed to Mrs Baker that she was not obliged to proceed with signing the deed of transfer. Mrs Baker admitted in evidence that she knew that she had a choice. I do not consider that there was any breach as alleged in these sub-pars of par 18 of the amended statement of claim. Alternatively, I do not consider that it has been shown that Mrs Baker would have acted any differently, if any breach had not occurred. As stated by me earlier, there was an absence of a viable alternative.

423 As to sub-par 18(i) of the amended statement of claim, I am not satisfied that, having regard to the limited terms of the retainer and the absence of any viable alternative course of action, there was any conflict of interest. Alternatively, it has not been shown that by reason of any conflict of interest Mr Sheridan omitted to give information or advice to Mrs Baker, which he ought to have given.

424 I find a verdict for the first defendants against the plaintiff.

The Plaintiff’s Claims against the Second Defendant

425 The claims made by the plaintiff against the second defendant were that she had been induced to enter into the deed of transfer by undue influence exerted on her by Mr Rigg and that the deed of transfer was an unconscionable dealing.

426 It was conceded by counsel for the plaintiff that there is no presumption of undue influence from a relationship of nephew and aunt and that it was necessary for the plaintiff to prove undue influence.

427 It was submitted that I should find that:-

428 It was submitted that I should find that the evidence established that Mrs Baker was a person of little education, that she had worked in simple occupations such as being a waitress, that she was a person of no business experience, that during their married life her husband had attended to all their business and financial matters, that she had no knowledge of the affairs of Kempsey Kar Kare, that she had little knowledge of her husband’s debts and mortgages, that she was distraught as a result of the death of her husband and unable to cope, that she trusted Mr Rigg and that she did not receive any real advice from Mr Sheridan.

429 It was submitted that I should find, in relation to Mr Rigg, that he had business experience, that he had been the active partner in Kempsey Kar Kare and was familiar with the affairs of Kempsey Kar Kare and that he knew much more about the financial circumstances of Mr Baker than Mrs Baker did.

430 It was submitted that I should accept Mrs Baker’s evidence about her conversations with Mr Rigg and find that Mr Rigg had deliberately manufactured a false atmosphere of crisis, so that Mrs Baker was induced to feel that she had to transfer all the properties in order to save her home. The atmosphere of crisis was false, because there were other alternative courses of action open to Mrs Baker.

431 Counsel submitted that I should find that the plaintiff had established the existence of an antecedent relationship of influence, which gave rise to a presumption throwing upon Mr Rigg the burden of justifying the transfer of the properties by showing it was the result of a free exercise of Mrs Baker’s will. Counsel cited Johnson v Buttress (1936) 56 CLR 113 at 138 per Dixon J. Such a presumption had not been rebutted and, in particular, had not been rebutted by the giving of independent legal advice, because no advice which was truly independent had been given to Mrs Baker.

432 As to whether the deed of transfer was an unconscionable dealing, counsel for the plaintiff referred to inter alia Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621.

433 It was submitted that, within the principles stated in Amadio by Mason J at 462-3 and by Deane J at 474-5, Mrs Baker had been under a special disadvantage or special disability, that Mr Rigg knew or ought to have known of the special disadvantage or special disability or the special disadvantage or special disability would have been evident to Mr Rigg and that Mr Rigg had unconscientiously taken advantage of Mrs Baker’s position of special disability or special disadvantage to obtain her consent to the transfer of the properties.

434 The same factors in relation to Mrs Baker as were relied on in the part of counsel for the plaintiff’s submissions dealing with undue influence, were relied on as amounting to a special disadvantage or special disability which would have been known to Mr Rigg.

435 It was then submitted that Mr Rigg had unconscientiously taken advantage of Mrs Baker as a person subject to such a special disadvantage or special disability.

436 It was submitted that I should find that what had happened was that Mr Rigg had been a partner in Kempsey Kar Kare, Kempsey Kar Kare was Mr Rigg’s livelihood, Mr Rigg was optimistic about the prospects of Kempsey Kar Kare, Mr Rigg had participated in the negotiations with the Commonwealth Bank in February 1996 for refinancing the loan capital of Kempsey Kar Kare, the accommodation to be provided by the Commonwealth Bank was to be secured by mortgages over the properties owned by Mr Baker and Mr Rigg himself had insufficient property of his own to serve as security. It was in these circumstances that Mr Baker had died. Soon after Mr Baker’s death Mr Bowden the Commonwealth Bank manager was pressing Mr Rigg to be told what was going to happen to Kempsey Kar Kare.

437 Mr Rigg, according to his own evidence, had had a conversation with Mrs Baker in May 1996, in which he had put three options to Mrs Baker. The first option, that Kempsey Kar Kare be wound up, would have had serious adverse consequences for Mr Rigg and was an option which Mr Rigg knew would not be acceptable to Mrs Baker. The second option, that Mrs Baker and Trevor Baker together take over the interest in the partnership which Mr Baker had had, was an option which Mr Rigg knew would not be acceptable, because, to his knowledge, Trevor Baker had no desire to be involved in Kempsey Kar Kare. That left only the third option, that Mr Rigg alone carry on the business of Kempsey Kar Kare, which would be very advantageous to Mr Rigg and which was what ultimately happened. Mr Rigg told Mrs Baker that, if the third option was adopted, the properties would have to be transferred to him. Mr Rigg did not offer to Mrs Baker the fourth and fifth options which were suggested to Mr Rigg in cross-examination by counsel for the first defendants.

438 It was submitted by counsel for the plaintiff that I should find that Mr Rigg set out to get Mr Baker’s estate for himself, that he deliberately gave an incomplete set of options to Mrs Baker, which was skewed towards the option which he wanted her to chose, and that he thereby unconscientiously took advantage of Mrs Baker.

439 The matters on which counsel for the plaintiff attacked Mr Rigg’s credibility as a witness were relevant, not merely to his credibility as a witness, but also as tending to show that he was conscious that he had deliberately taken advantage of Mrs Baker.

440 I turn to the submissions made by counsel for the second defendant.

441 It was submitted by counsel for the second defendant that it was necessary to distinguish undue influence and unconscionable dealing. Counsel referred to Amadio at p 461 per Mason J and at p 474 per

Deane J.

442 Counsel for the second defendant noted that it was conceded by counsel for the plaintiff that in the present case there was no presumption of undue influence and undue influence had to be proved.

443 In the further particulars of undue influence in the amendment to the amended statement of claim it was alleged that the undue influence had commenced in May 1996 and had enured until 1999. It was submitted by counsel for the second defendant that the plaintiff had been constrained to allege that the undue influence had continued up until 1999, because the plaintiff had not made any complaint about the deed of transfer until at least 1999 and it would be difficult to explain the absence of any complaint, except on the basis that the undue influence alleged had continued up until 1999. However, no evidence at all had been adduced to show any undue influence of Mr Rigg on Mrs Baker between November 1996 and 1999.

444 It was submitted by counsel for the second defendant that, although, notwithstanding the difference in principle between undue influence and unconscionable dealing the same factual matters may be relevant to both, if in the present case the evidence about the alleged unconscionable dealing was excluded, there was very little, if any, other evidence tending to show a relationship of undue influence.

445 It was conceded by counsel for the second defendant that the evidence established that Mrs Baker trusted Mr Rigg but it was submitted that the reposing of trust commonly occurs between members of the same family and was not sufficient of itself to give rise to an inference of undue influence.

446 It was conceded that Mr Rigg had done many things in relation to Mrs Baker’s estate including communicating with Mr Sheridan but it was submitted that I should find that Mr Rigg had done those things at the request of Mrs Baker.

447 Counsel for the second defendant particularly relied on the circumstances that Mr Rigg had not attended the conference between Mrs Baker and Mr Sheridan on 18 July 1996 and had not attempted to attend the conference himself or to postpone the conference to some date when he would have been able to attend. It was submitted that these circumstances showed that Mrs Baker was not dependent on Mr Rigg and that Mr Rigg was not seeking to exercise any malign influence over Mrs Baker. It was true that Mrs Rigg had attended the conference but I should find that Mrs Rigg had not exerted any pressure on Mrs Baker.

448 It was submitted that, apart from Mr Rigg, Mrs Baker had had access to other persons who could offer her advice, for example Mr Sheridan, her accountant and her son Trevor Baker. It was submitted that I should find, as was admitted by Trevor Baker and as was inherently likely, that Mrs Baker had discussed with her son what she should do in relation to the estate.

449 The solicitor who acted for Mrs Baker (Mr Sheridan) was a solicitor who had acted for Mrs Baker’s husband and who she had instructed to act for her on the application for probate. Mr Rigg had made no attempt to have Mrs Baker retain a solicitor of his choosing.

450 It was submitted that I should accept Mrs Baker’s own evidence that she did not see anything particularly special in her relationship with Mr Rigg.

451 It was submitted by counsel for the second defendant that I should not find that Mrs Baker had been under a special disadvantage or a special disability. I should not find that she had been seriously and continuously distraught as a result of her husband’s death.

452 As against the factors relied on by counsel for the plaintiff, I should find that, after her husband’s death, Mrs Baker knew that something had to be done, she knew what were the objectives she wanted to achieve, she knew what she herself was not capable of or not interested in, she had a sense of obligation to Stephen Rigg for what he had done for her husband during his lifetime and she knew that her husband had had a sense of obligation to Stephen Rigg. Mrs Baker attended the conference with Mr Sheridan on 18 July 1996 without Mr Rigg and told Mr Sheridan what she wanted to happen. There was no other course of action which was a viable alternative.

453 Mrs Baker gave her instructions to Mr Sheridan on 18 July 1996 but did not sign the deed of transfer until more than four months afterwards, on 25 November 1996. It was submitted by counsel for the second defendant that the very length of the period during which the plaintiff had to assert that she continued to remain subject to a special disadvantage or special disability was a weakness in the plaintiff’s case.

454 It was further submitted by counsel for the second defendant that I should not find that Mr Rigg had taken advantage of any condition of Mrs Baker so as to procure her assent to the deed of transfer. The present case was not a “no transaction case”, where Mrs Baker could simply have refrained from entering into any transaction. I should find that there was no other viable alternative to the deed of transfer and the deed of residence, which would have fulfilled Mrs Baker’s objectives.

455 Mr Rigg had not attended, and had not sought to attend, the conference with Mr Sheridan on 18 July 1996. Mr Rigg had not sought to have Mrs Baker retain a solicitor of his choosing. Mr Rigg had not made any attempt to control the supply of information and advice to Mrs Baker.

456 It was submitted that Mr Rigg, so far from seeking to minimise the values of the properties being transferred to him, had participated in the supply to Mr Sheridan of values for those properties, which exceeded what the plaintiff’s expert valuer Mr McNamara considered were the true values of the properties.

457 It was submitted that conduct by Mr Rigg which tended to show that he had not been intent on obtaining advantages for himself included his participation in the proposal that some provision be made for Mrs Baker’s granddaughter, his willingness in February 1997 to negotiate with Trevor Baker and his ultimate assumption of sole responsibility for Mr Baker’s personal debts.

458 As regards the options which counsel for the plaintiff had submitted had not been put by Mr Rigg to Mrs Baker in his conversation with her, even if they were to be regarded as being distinct from the options which Mr Rigg did offer, I could not be satisfied that they were viable or that Mrs Baker would have accepted either of them.

DECISION

459 As in the case of the plaintiff’s action against the first defendants, my decision on the claims made by Mrs Baker against the second defendant Mr Rigg is determined, to a large extent, by the findings of fact I have already made earlier in this judgment.

460 I accept that, as submitted by counsel for the second defendant, there is a distinction in principle between undue influence and unconscionable dealing, which was explained by Mason J and Deane J in Amadio. However, much of the same evidence will be relevant to both undue influence and unconscionable dealing.

461 I accept that the factors relating to Mrs Baker sought to be relied on by counsel for the plaintiff have been established, except that I have made a finding that Mrs Baker was not as seriously or continuously distraught as a result of her husband’s death as is alleged in the plaintiff’s case and I have earlier made findings about the extent to which Mrs Baker received advice from Sheridan.

462 I accept that the personal characteristics of Mr Rigg sought to be relied on by counsel for the plaintiff have been established. However, I have found that I should reject Mrs Baker’s evidence about her conversations with Mr Rigg. I do not accept that Mr Rigg deliberately manufactured a false sense of crisis and I do not accept that Mrs Baker was induced by Mr Rigg to feel that she had to transfer the properties to Mr Rigg in order to save her home.

463 I am not satisfied that it has been shown that there was any other alternative course of action open to Mrs Baker which would have fulfilled as many of her objectives.

464 I accept the submission by counsel for the second defendant that there is little, if any, evidence of a continuing relationship of influence between Mr Rigg and Mrs Baker, if the evidence about the particular transaction of the deed of transfer is excluded and that there is no evidence of a relationship of influence persisting up to 1999.

465 I accept the submissions made by counsel for the second defendant concerning the conference on 18 July 1996, the access Mrs Baker had to advice from persons other than Mr Rigg, concerning Mr Sheridan and not some other solicitor acting for Mrs Baker and Mrs Baker’s own evidence about how she saw her relationship with Mr Rigg.

466 I conclude that Mrs Baker was not induced to enter into the deed of transfer by undue influence exerted on her by the second defendant.

467 On the findings of fact I have made earlier in this judgment, I am not satisfied that I should find that Mrs Baker was in a position of special disadvantage or special disability. I accept the submission by counsel for the second defendant that the length of time during which the plaintiff had to assert that she continued to remain in a position of special disadvantage or special disability is a weakness in the plaintiff’s case.

468 I accept that the various circumstances sought to be relied on by counsel for the plaintiff have been proved except that, notwithstanding any admission made by Mr Rigg in cross-examination, I am not satisfied that I should find that Mr Rigg knew that the second option he offered Mrs Baker would necessarily be rejected by her.

469 As stated earlier, I consider that the present case was not a “no transaction case” and that, on the contrary, Mrs Baker was in a position where she had to do something. The course of action she took is readily explicable, otherwise than on the basis that Mr Rigg unconscientiously took advantage of her, on the basis that that course of action fulfilled a number of her objectives and it has not been shown that there was any viable alternative course which would have fulfilled as many of her objectives.

470 The second option offered by Mr Rigg to Mrs Baker, according to par 40 of Mr Rigg’s first affidavit, was that Mrs Baker and Trevor Baker take over Mr Baker’s half share in Kempsey Kar Kare. I accept that this option, according to the literal terms of Mr Rigg’s affidavit, required that both Mrs Baker and Trevor Baker join in taking over Mr Baker’s half share. However, I do not consider that Mr Rigg really intended to convey or that Mrs Baker would have understood him as conveying that Mrs Baker could not, if she wished, take over her husband’s share by herself, without Trevor Baker joining in. I consider that I should accept Mr Rigg’s evidence that, in saying what he did to Mrs Baker, he was reflecting what Mr Bowden of the Commonwealth Bank had previously said to Mr Rigg. I am not satisfied that if either option four or option five had been offered to Mrs Baker, she would have taken it.

471 The reasons I have already given for finding that undue influence has not been proved also support a conclusion that an unconscionable dealing has not been proved.

472 I do not consider that I should find that Mr Rigg set out to get Mrs Baker’s estate for himself or that he unconscientiously took advantage of Mrs Baker.

473 Having rejected both ways in which the plaintiff’s case against the second defendant was put, I find a verdict for the second defendant against the plaintiff.

The Plaintiff’s Claims against the Third Defendant

474 Very little attention was paid at the hearing to the plaintiff’s claims against the third defendant. As previously stated, the third defendant submitted to whatever order the Court might make. For reasons similar to those which I have given for holding that the plaintiff’s claims against the second defendant fail, I hold that there should be a verdict for the third defendant against the plaintiff.

Cross Claims

475 I will deal in a subsequent judgment with the cross claims.

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Citations

Baker v Sheridan [2005] NSWSC 89

Most Recent Citation

Permanent Custodians Limited v King [2009] NSWSC 600

Cases Citing This Decision

2

Baker v Sheridan [2005] NSWCA 408

Permanent Custodians Limited v King [2009] NSWSC 600

Cases Cited

13

Statutory Material Cited

0

Nikolic v Nikolic and 2 Ors [2002] NSWCA 248

Blomley v Ryan [1956] HCA 81

Polkinghorne v Holland [1934] HCA 28

CITATION:	Baker v Sheridan [2005] NSWSC 89
HEARING DATE(S):	26/05/04-28/05/04, 31/05/04, 01/06/04-04/06/04, 23/08/04-26/08/04, 30/08/04, 01/09/04-03/09/04, 08/09/04-09/09/04, 06/12/04-7/12/04, 9/12/04-10/12/04
JUDGMENT DATE :	24 February 2005
JUDGMENT OF:	James J at 1
DECISION:	Verdicts for the First Defendants, Second Defendant and Third Defendant

CATCHWORDS:	LEGAL PRACTITIONERS - Solicitors - tort of negligence - contract - alleged breach of duty of care - first defendant was acting as solicitor for the plaintiff - scope of solicitor's duty - whether the duty extended to matters outside the terms of the retainer - unsought advice on the wisdom of the proposed transaction - independent legal advice - whether there had been breaches of solicitor's obligation - whether any such breaches had caused damage to the plaintiff - plaintiff transferred various parcels of land to son and nephew - solicitor acted for all parties to the transaction - UNDUE INFLUENCE - UNCONSCIONABLE CONDUCT - whether plaintiff induced to enter into the transaction by alleged undue influence and/or unconscionable conduct of the second defendant
CASES CITED:	Blomley v Ryan (1956) 99 CLR 362 Clark Boyce v Mouat [1994] 1 AC 428 Citicorp Australia Limited v O'Brien (1996) 40 NSWLR 398 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Dominelli Ford (Hurstville) Pty Limited v Karmot Auto Spares Pty Limited (1992) 38 FCR 471 Gould v Vaggelas (1985) 157 CLR 215 Hawkins v Clayton (1988) 164 CLR 539 Johnson v Buttress (1936) 56 CLR 113 Louth v Diprose (1992) 175 CLR 621 Nikolic v Nikolic [2002] NSWCA 248 Waimond Pty Limited v Byrne (1989) 18 NSWLR 642
PARTIES:	Dawn Marie Baker v Paul Sheridan & Ors
FILE NUMBER(S):	SC 20124/01
COUNSEL:	SC Campbell SC/CP Taylor - Plaintiff G Curtin - 1st Defendant TGR Parker - 2nd Defendant
SOLICITORS:	Paul Stubbs Law Office Colin Biggers & Paisley Maurice Blackburn Cashman