Holdway v Acuri [No 2]

[2007] QSC 378

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 cited

COUNSEL:

Plaintiff: M Cooke QC and D Morgan
Defendant: R Derrington SC

SOLICITORS:

Plaintiff:  Phillip Roberts Lawyers
Defendant: Sparke Helmore

1. FRYBERG J:  Mrs Margaret Holdway has sued Arcuri Lawyers for professional negligence.

The story

1. 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…