SUPREME COURT OF QUEENSLAND
CITATION:
Holdway v Arcuri [No 2] [2007] QSC 378
PARTIES:
MARGARET ELIZABETH HOLDWAY
(plaintiff)
v
ARCURI LAWYERS
(defendant)
MICHAEL EASTWOOD
(third party)FILE NO:
SC No 3255 of 2004
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
18 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
21-23, 27 November 2007
JUDGE:
Fryberg J
ORDER:
Judgment for the plaintiff in the sum of $233,000.00
CATCHWORDS:
Professions and trades – Lawyers – Solicitor and client – Duties and liabilities – Generally – Acceptable that solicitor will rely upon competent barrister’s advice – Solicitor maintains duty to exercise reasonable care and independent judgment – Duty to be familiar with law of jurisdiction relevant to solicitor’s practice
Professions and trades – Lawyers – Solicitor and client – Duties and liabilities to client – Obligations of solicitors – Allegation of negligence – Failure to serve or give notice of application for family provision
Succession – Executors and administrators – Administration – Distribution – What constitutes
Succession – Family provision and maintenance – Valuation of lost chose in action – Assessment of prospects of success – Factors considered
Succession Act 1981 (Qld) s41, s44, s45, s52
Baker v Williams[2007] QSC 226 cited
Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 cited
Commissioner of Stamp Duties (Queensland) v Livingston (1964) 112 CLR 12 cited
Easterbrook v Young (1977) 136 CLR 308 distinguished
Holmes v Webb[1992] QCA 172 cited
Holt v Deputy Federal Commissioner of Land Tax, New South Wales (1914) 17 CLR 720 cited
Re Anderson [1957] NZLR 401 cited
Re Burgess [1984] 2 Qd R 379 considered
Re Donkin [1966] Qd R 96 referred to
Re Faulkner [1999] Qd R 49 cited
Re Hardgraves [1955] St R Qd 601 cited
Re Hill (Unreported, Supreme Court of Queensland, Carter J, 17 June 1988) cited
Re Lago [1984] VR 706 distinguished
Re Lowe [1964] QWN 37 cited
Re McPherson [1987] 2 Qd R 394 cited
Re Terlier [1958] QWN 5 referred to
Re Whitter [1984] 2 Qd R 356 cited
Sweeney v Attwood Marshall[2003] QCA 348 followed
Wolfson v Registrar-General (NSW) (1934) 51 CLR 300 citedCOUNSEL:
Plaintiff: M Cooke QC and D Morgan
Defendant: R Derrington SCSOLICITORS:
Plaintiff: Phillip Roberts Lawyers
Defendant: Sparke Helmore
FRYBERG J: Mrs Margaret Holdway has sued Arcuri Lawyers for professional negligence.
The story
On 18 June 2002 Mrs Holdway, consulted solicitors. Her friend (to use a neutral term for the moment) Mr Frank Virgona, with whom she had been living, had died a fortnight earlier. By his will he left everything to his son Frank Jr., who was appointed executor. She wanted some of the estate. The firm she consulted was the defendant, which had acted for the late Mr Virgona. It held itself out as providing professional services in the area of wills and estate administration and it held out its employee, Mr Scott Pearson, as someone with experience in those fields. There are different recollections as to whom…
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- AGLC
- Holdway v Acuri [No 2] [2007] QSC 378
- Case
- [2007] QSC 378
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether the defendant solicitor breached their duty of care by failing to ensure that the application for family provision was served or notified to the plaintiff. The court also had to consider the extent to which a solicitor can rely on the advice of a barrister while still maintaining their duty of care and independent judgment. Additionally, the court needed to assess the value of the lost chose in action and determine the prospects of success for the plaintiff's claim.
The court held that a solicitor must exercise reasonable care and independent judgment, even when relying on a competent barrister's advice. The defendant was expected to be familiar with the law of the jurisdiction relevant to their practice and could not simply defer to the barrister's advice without verifying its accuracy. The court found that the defendant had indeed breached their duty by failing to serve or notify the plaintiff of the application for family provision. The court concluded that the plaintiff had a significant chance of succeeding in the family provision application and awarded damages of $233,000 to the plaintiff.
The final orders of the court were that judgment was entered in favour of the plaintiff, Holdway, in the sum of $233,000.00, representing the value of the lost chose in action. This amount was calculated based on the assessment of the prospects of success for the plaintiff's claim for family provision.
Orders
Orders of the court
Judgment for the plaintiff in the sum of $233,000.00
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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