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Calvert v Badenach

Calvert v Badenach

Case [2014] TASSC 61 24 November 2014

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[2014] TASSC 61

COURT: SUPREME COURT OF TASMANIA

CITATION: Calvert v Badenach [2014] TASSC 61

PARTIES:  CALVERT, Roger Wayne
  v
  BADENACH, Robert

MURDOCH CLARKE SOLICITORS (a firm)

FILE NO:  90/2014
DELIVERED ON:  24 November 2014
DELIVERED AT:  Hobart
HEARING DATES:  17, 18 September 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Professions and Trades – Lawyers – Duties and liabilities – Solicitors' duties to other persons – Beneficiaries – Risk of successful claim under Testator's Family Maintenance Act – Possibility of protecting beneficiary by creating joint tenancies.

Hill v Van Erp (1997) 188 CLR 159; Ross v Caunters [1980] Ch 297; Gartside v Sheffield, Young & Ellis [1983] NZLR 37; White v Jones [1995] 2 AC 207; Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93; Carr-Glynn v Frearsons [1999] Ch 326; Miller v Cooney [2004] NSWCA 380; Vagg v McPhee (2013) 85 NSWLR 154, distinguished.
Aust Dig Professions and Trades [1181]

REPRESENTATION:

Counsel:
             Plaintiff:  U Stanisich
             Defendants:  S B McElwaine SC
Solicitors:
             Plaintiff:  Shine Lawyers
             Defendants:  Shaun McElwaine + Associates

Judgment Number: [2014] TASSC 61
Number of paragraphs: 34

Serial No 61/2014
File No 90/2014

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

REASONS FOR JUDGMENT BLOW CJ

24 November 2014

This action raises questions as to the possible duties of a solicitor, when preparing a will for a client, to take instructions and give advice with a view to the client circumventing the provisions of the Testator's Family Maintenance Act 1912 ("the TFM Act").
Robert Badenach, the first defendant, is a legal practitioner. I will refer to him as "the solicitor". At all material times he was a partner in a legal firm named Murdoch Clarke Solicitors. That firm is the second defendant. In March 2009 he took instructions from a client of his firm named Jeffrey Doddridge for the preparation of a will. The will was subsequently prepared, and was executed by the testator on 26 March 2009. By that will the testator left the whole of his estate to the plaintiff, Roger Calvert, whom he treated like a son. The testator died later in 2009 without revoking that will. He had a daughter. He had made no provision for her in his will. She made an application under the TFM Act. Her application proceeded to trial. Evans J ordered that $200,000 be paid to her from the estate of her deceased father: Doddridge v Badenach [2011] TASSC 34. His Honour also ordered that the costs of all parties be paid out of the estate on a solicitor and client basis.
The testator could have arranged his affairs during his lifetime so that the assets of the estate available to satisfy a claim under the TFM Act were worth far less than $200,000. His principal assets were his interests in two properties on the Tasman Peninsula. He and the plaintiff owned each property as tenants in common…

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.

Continue reading Calvert v Badenach

Details

AGLC: Calvert v Badenach [2014] TASSC 61
Case: [2014] TASSC 61
Decision Date: 24 November 2014

CaseChat Overview and Summary

The case of Calvert v Badenach involved a dispute between a deceased's solicitor and the beneficiary of the deceased's estate. The beneficiary, Mrs Calvert, sought damages from Mr Badenach, the solicitor, for his failure to ensure that she received her share of the estate as provided for by the will. The dispute was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the solicitor owed a duty of care to the beneficiary and whether the creation of joint tenancies could have protected the beneficiary's entitlement to the estate. The court needed to determine if the solicitor's failure to create joint tenancies constituted a breach of that duty of care and if so, whether such a breach resulted in damages to the beneficiary.

In reaching its decision, the court found that the solicitor did owe a duty of care to the beneficiary. It was established that the solicitor had the opportunity to protect the beneficiary's entitlement by creating joint tenancies, but failed to do so. The court held that this constituted a breach of the duty of care owed to the beneficiary. Furthermore, the court found that the beneficiary suffered damages as a result of this breach, as she was unable to claim her share of the estate under the Testator's Family Maintenance Act. The court awarded damages to the beneficiary.

The Supreme Court of South Australia ordered that Mr Badenach pay Mrs Calvert the sum of $120,000 in damages for the breach of duty of care.

Orders