New South Wales
Court of Appeal
CITATION: HENDRIKS v McGEOCH [2008] NSWCA 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 17 March 2008
JUDGMENT DATE:
2 April 2008JUDGMENT OF: Spigelman CJ at 1; Giles JA at 7; Basten JA at 29 DECISION: 1. Appeal allowed in part.
2. Set aside the judgment for the plaintiff against the defendants for $422,834, and in lieu thereof judgment for the plaintiff against the defendants for such sum as shall be advised to the Registrar in accordance with order 3 taking effect on 13 April 2007.
3. Direct the parties to confer with a view to agreement on the plaintiff’s damages computed in accordance with these reasons and to advise the Registrar within seven days hereafter of the amount of the judgment for the plaintiff against the defendants.
4. Appellants pay 50 per cent of the respondent’s costs of the appeal.
5. Liberty to apply in the event that the Registrar is not advised in accordance with order 3, such liberty to be exercised within fourteen days hereafter.
6. Application for leave to cross-appeal dismissed with costs.CATCHWORDS: CONTRACT – express or implied retainer – legal practitioner described as “the family solicitor” in arrangement to transfer property from mother to her sons - COSTS – costs follow the event – cost of issues abandoned at beginning of proceedings – offers of compromise – Uniform Civil Procedure Rules r 42.1 - DAMAGES – loss of chance – assessment of probabilities and possibilities - TORTS – negligence – duty of care –duty of solicitor of testator to intended beneficiary of will – duty of solicitor to third party where performance of duty not in conflict with duty to client LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 56, 98
Fair Trading Act 1987 (NSW), s 42
Legal Profession Act 1987 (NSW), s 174
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.15CATEGORY: Principal judgment CASES CITED: Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166
Birmingham v Renfrew (1937) 57 CLR 666
Clare v Joseph [1907] 2 KB 369
Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; 26 IPR 261
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Hawkins v Clayton (1988) 164 CLR 539
Heenan v Di Sisto [2008] NSWCA 25
Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1
Hill v Van Erp (1997) 188 CLR 159
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
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Details
- AGLC
- Hendriks v McGeoch [2008] NSWCA 53
- Case
- [2008] NSWCA 53
- Decision Date
CaseChat Overview and Summary
The case of *Hendriks v McGeoch* concerned an appeal from a judgment in favour of the plaintiff, Mr McGeoch, against the defendants, Mr and Mrs Hendriks. The dispute arose from a property transaction where the plaintiff alleged negligence on the part of the defendants, who were described as the "family solicitor" in relation to the transfer of property from the plaintiff's mother to her sons. The primary court had awarded the plaintiff damages for loss of a chance.
The Court of Appeal was required to determine several key legal issues. These included whether an express or implied retainer existed between the parties, whether the defendants owed a duty of care to the plaintiff as an intended beneficiary of a will, and whether such a duty could exist without conflicting with the duty owed to their client. The court also considered the assessment of damages for loss of chance, the principles governing costs following the event, and the costs associated with issues abandoned at the commencement of proceedings, in light of the Uniform Civil Procedure Rules.
The Court of Appeal allowed the appeal in part, finding that the original judgment for the plaintiff against the defendants for $422,834 should be set aside. In its place, the court ordered that judgment be entered for the plaintiff against the defendants for a sum to be determined by the Registrar, taking into account the court's reasons and the parties' agreement on the computation of damages. The parties were directed to confer and advise the Registrar of the agreed amount within seven days. The appellants were ordered to pay 50 per cent of the respondent's costs of the appeal, and the application for leave to cross-appeal was dismissed with costs.
The Court of Appeal was required to determine several key legal issues. These included whether an express or implied retainer existed between the parties, whether the defendants owed a duty of care to the plaintiff as an intended beneficiary of a will, and whether such a duty could exist without conflicting with the duty owed to their client. The court also considered the assessment of damages for loss of chance, the principles governing costs following the event, and the costs associated with issues abandoned at the commencement of proceedings, in light of the Uniform Civil Procedure Rules.
The Court of Appeal allowed the appeal in part, finding that the original judgment for the plaintiff against the defendants for $422,834 should be set aside. In its place, the court ordered that judgment be entered for the plaintiff against the defendants for a sum to be determined by the Registrar, taking into account the court's reasons and the parties' agreement on the computation of damages. The parties were directed to confer and advise the Registrar of the agreed amount within seven days. The appellants were ordered to pay 50 per cent of the respondent's costs of the appeal, and the application for leave to cross-appeal was dismissed with costs.
Orders
Orders of the court
1. Appeal allowed in part. 2. Set aside the judgment for the plaintiff against the defendants for $422,834, and in lieu thereof judgment for the plaintiff against the defendants for such sum as shall be advised to the Registrar in accordance with order 3 taking effect on 13 April 2007. 3. Direct the parties to confer with a view to agreement on the plaintiff's damages computed in accordance with these reasons and to advise the Registrar within seven days hereafter of the amount of the judgment for the plaintiff against the defendants. 4. Appellants pay 50 per cent of the respondent's costs of the appeal. 5. Liberty to apply in the event that the Registrar is not advised in accordance with order 3, such liberty to be exercised within fourteen days hereafter. 6. Application for leave to cross-appeal dismissed with costs.
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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