Calvert v Badenach

Case [2015] TASFC 8


[2015] TASFC 8

COURT:  SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                 Calvert v Badenach [2015] TASFC 8

PARTIES:  CALVERT, Roger Wayne
  v
  BADENACH, Robert
  MURDOCH CLARKE SOLICITORS (a firm)

FILE NO:  1062/2014
JUDGMENT

APPEALED FROM:  Calvert v Badenach [2014] TASSC 61

DELIVERED ON:  24 July 2015
DELIVERED AT:  Hobart
HEARING DATE:  20 April 2015
JUDGMENT OF:  Tennent, Porter and Estcourt JJ

CATCHWORDS:

Professions and Trades – Lawyers – Duties and liabilities – Solicitors' duties to other persons – Beneficiaries – Duty to a testator to give proper effect to testator's intentions – Duty extends to advice about family provision claims for persons not provided for and means available to minimise risk of claim – Means may include dealing with assets before death – Corresponding duty to a nominated beneficiary.

Hill v Van Erp (1997) 188 CLR 159, applied.
Doolan v Renkon (2011) 21 Tas R 156, considered.
Aust Dig Professions and Trades [1181]

Torts – Negligence – Essentials of action for negligence – Duty of care – Affecting particular professions or occupations – Lawyers – Duty of care to a testator to give proper effect to testator's intentions – Duty extends to advice about family provision claims for persons not provided for – Testator and nominated beneficiary held properties as tenants in common – Breach of duty to nominated beneficiary in failing to advise testator as to means available to minimise risk of claim – Means included creation of joint tenancies or transfer of testator's interests to beneficiary before death.

Hill v Van Erp (1997) 188 CLR 159, applied.
Doolan v Renkon (2011) 21 Tas R 156, considered.
Aust Dig Torts [28]

Appeal and New Trial – Appeal - practice and procedure – Powers of court – Assessment of damages – Action in negligence – Appellant unsuccessful at trial on issue of factual causation – Duty and breach not decided by trial judge – Appeal successful on duty and breach – Trial judge did not assess damages – Claim for damages for loss of opportunity put on basis that negligence direct and immediate cause of whole of the loss claimed – Assessment of damages remitted – Appellant able to have damages assessed on basis of value of lost opportunity.

Barnes v Forty Two International Pty Ltd [2014] FCAFC 152, distinguished.

Appeal and New Trial [261]

REPRESENTATION:

Counsel:
             Appellant:  K N Wilson SC
             Respondents:  S B McElwaine SC
Solicitors:
             Appellant:  Shine Lawyers
             Respondents:  Shaun McElwaine + Associates

Judgment Number:  [2015] TASFC 8
Number of paragraphs:  159

Serial No 8/2015
File No 1062/2014

ROGER WAYNE CALVERT v ROBERT BADENACH,
MURDOCH CLARKE SOLICITORS (a firm)

REASONS FOR JUDGMENT  FULL COURT

TENNENT J
PORTER J
ESTCOURT J
24 July 2015

Orders of the Court

  1. The appeal is allowed.

  1. The judgment for the respondents dated 24 November 2014 is set aside.

  1. Judgment be entered for the appellant against the respondents for damages to be assessed.

  1. The assessment of damages be remitted to a single…

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AGLC
Calvert v Badenach [2015] TASFC 8
Case
[2015] TASFC 8
Decision Date

CaseChat Overview and Summary

The appeal in *Calvert v Badenach* concerned a dispute between a nominated beneficiary under a will and the executors of the testator's estate. The nominated beneficiary alleged that the executors had breached their duty to the testator by failing to take reasonable steps to preserve the testator's intended testamentary dispositions, thereby diminishing the value of the estate and the beneficiary's inheritance. The matter was heard in the Court of Appeal of Queensland.

The central legal issue before the Court of Appeal was whether the executors owed a duty to the testator to take reasonable steps to give proper effect to the testator's intentions, and whether this duty extended to advising on and implementing strategies to minimise the risk of a family provision claim against the estate. Specifically, the court had to determine if the executors' failure to deal with certain assets before the testator's death, which subsequently became subject to a family provision claim, constituted a breach of their duty.

The Court of Appeal held that a solicitor acting as an executor owes a duty to the testator to exercise reasonable care and skill in administering the estate and giving effect to the testator's testamentary intentions. This duty includes advising the testator on potential family provision claims and the means available to minimise the risk of such claims, which may involve dealing with assets before death. The court found that the executors had failed to discharge this duty, as their actions and omissions led to a reduction in the value of the estate available to the nominated beneficiary due to a successful family provision claim.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment entered for the respondents at trial, and ordered that judgment be entered for the appellant against the respondents for damages to be assessed. The assessment of damages was remitted to a single judge other than the trial judge.

Orders

Orders of the court

1. The appeal is allowed.

2. The judgment for the respondents dated 24 November 2014 is set aside.

3. Judgment be entered for the appellant against the respondents for damages to be assessed.

4. The assessment of damages be remitted to a single judge other than the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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