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.
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.
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.
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
The appeal is allowed.
The judgment for the respondents dated 24 November 2014 is set aside.
Judgment be entered for the appellant against the respondents for damages to be assessed.
The assessment of damages be remitted to a single…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.