Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Howe v Fischer [2014] NSWCA 286 Hearing dates: 23 May 2014 Decision date: 26 August 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Barrett JA at [3] Decision: 1. Appeal allowed.
2. Set aside the orders made in the Common Law Division on 19 August 2013.
3. In lieu thereof, make the following orders:
(a) Order verdict and judgment for the defendant.
(b) Order that the plaintiff pay the defendant's costs of the proceedings.
4. The respondent pay the appellant's costs in this Court
5. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - professional negligence - solicitors - solicitor retained to prepare will - testatrix died before will prepared - duty of care owed by solicitor to disappointed beneficiary - scope of such duty dependent on terms of solicitor-client retainer - where solicitor and client agreed that solicitor would present draft of will at an agreed future time about two weeks after initial consultation - where the agreed time suited the convenience of both the solicitor and the client - client 94 years old - whether the terms of the retainer were such as to require immediate steps to sign informal will - whether solicitor was or should have been aware that the client might die or lose testamentary capacity within the agreed period of about two weeks
PROFESSIONS AND TRADES - lawyers - solicitors - duties to client when instructed to prepare will.Legislation Cited: Civil Liability Act 2002 (NSW)
Succession Act 2006 (NSW)Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311
CGU Insurance v Porthouse [2008] HCA 30; 235 CLR 103
Dickson v Creevey [2002] QCA 195
Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67
Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1
Hill v Van Erp [1997] HCA 9; 188 CLR 159
Keesing v Adams [2010] NSWSC 336
Lucantonio v Kleinert [2009] NSWSC 853
Maestrale v Aspite [2012] NSWSC 1420
Maestrale v Aspite [2014] NSWCA 182
Neagle v Power [1967] SASR 373
Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735
Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Summerville v Walsh [1998] NSWCA 222
Takla v Nasr [2013] NSWCA 435
Vagg v McPhee [2013] NSWCA 29
White v Jones [1995] UKHL 5; [1995] 2 AC 207
Zakka v Elias [2013] NSWCA 119Category: Principal judgment Parties:
Continue reading Howe v Fischer
Sign in free to access the full text
- AGLC
- Howe v Fischer [2014] NSWCA 286
- Case
- [2014] NSWCA 286
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the terms of the retainer between the solicitor and the testatrix imposed a duty on the solicitor to take immediate steps to have an informal will signed, or whether the solicitor should have been aware of the risk that the testatrix might die or lose testamentary capacity within the agreed timeframe for finalising the will. The court was required to determine the scope of the solicitor's duty of care in the context of preparing a will, particularly when the client was elderly.
The Court of Appeal found that the terms of the retainer did not require immediate steps for the signing of an informal will. The agreement was for the solicitor to present a draft will at an agreed future time, approximately two weeks after the initial consultation, which suited both parties. The court reasoned that the solicitor was entitled to rely on the agreed timeframe and was not obliged to anticipate the testatrix's death within that period, especially as there was no indication that she was in imminent danger or had lost testamentary capacity. The court applied principles relating to the scope of a solicitor's duty of care, which is primarily defined by the terms of the retainer and the reasonable expectations arising from it.
The appeal was allowed, and the orders of the Common Law Division were set aside. The court entered a verdict and judgment for the defendant solicitor, ordering that the plaintiff pay the defendant's costs of the proceedings at first instance. The respondent was ordered to pay the appellant's costs in the Court of Appeal and was granted a certificate under the Suitors Fund Act 1951 (NSW) if qualified.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made in the Common Law Division on 19 August 2013.
3. In lieu thereof, make the following orders:
(a) Order verdict and judgment for the defendant.
(b) Order that the plaintiff pay the defendant's costs of the proceedings.
4. The respondent pay the appellant's costs in this Court
5. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.