Maestrale v Aspite

[2012] NSWSC 1420

Supreme Court

New South Wales

Medium Neutral Citation:	Maestrale v Aspite [2012] NSWSC 1420
Hearing dates:	23, 24, 26 April; 1 May 2012
Decision date:	08 November 2012
Before:	Fullerton J
Decision:	Verdict for the plaintiff. The defendants are to pay damages in the amount of $282,631.81. The defendants to pay 50 per cent of the plaintiff's costs on the ordinary basis up to and including 30 December 2011 and 40 per cent of the plaintiff's costs on the ordinary basis thereafter up to and including 1 May 2012. Each party to bear their own costs of and relating to the hearing on the adjourned date.
Catchwords:	PROFESSIONAL NEGLIGENCE - solicitor obtained instructions for preparation of new will by plaintiff's father - change to testamentary intentions - no uncertainty as to testamentary intentions - testator died before execution of will - solicitor failed to respond to plaintiff's calls for urgent advice - solicitor's duty of care to disappointed beneficiary under will - plainitff's loss of chance to benefit under new will
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995 Family Provision Act 1982 Probate and Administration Act 1898 Supreme Court Act 1970
Cases Cited:	Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Heenan v di Sisto [2008] NSWCA 25 Hendriks v McGeoch [2008] NSWCA 53 Hill v Van Erp [1997] HCA 9; 188 CLR 159 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 093
Category:	Principal judgment
Parties:	Aldo Maestrale (Plaintiff) Dante Aspite (1st Defendant) Bartholomew Rando (2nd Defendant)
Representation:	Counsel: JE Rowe (Plaintiff) J Downing (Defendants) Solicitors: MMD Law (Plaintiff) HWL Ebsworth Lawyers (Defendants)
File Number(s):	2008/289388

Judgment

1. HER HONOUR: On 15 July 2002 the plaintiff's father, Mr Biagio Maestrale, died at the Royal Prince Alfred Hospital from acute myeloid leukaemia. He was aged 62. He was first diagnosed with chronic myeloid leukaemia in January 2000 and had several hospital admissions for management of his condition before his final admission on 3 June 2002.

1. The plaintiff left his employment in September 2001 to undertake the role of full-time carer for his father. He resided with his father in the family home from that date. The plaintiff has three siblings, none of whom were close to their father.

1. On 8 July 2002 Mr Maestrale left the hospital on a day pass with the plaintiff to attend a social function in Leichhardt. After the function he met the first defendant, Mr Aspite, at a local café where he provided him with instructions for the preparation of a new will in substitution for a will drawn in 1982 when his children were infants and his wife was alive. The existing will provided that upon his wife's death his children were to receive equal shares in his estate. The meeting at Leichhardt was organised by the plaintiff on his father's behalf. As at June/July 2002 the plaintiff was a client of Anderson Lawyers, a firm of solicitors of which the first and second defendants were the sole partners. He was a plaintiff in proceedings at that time pending in the District Court and was also the source of instructions in respect of unrelated litigation in the Industrial Relations Commission involving his sister.

1. Although the plaintiff was not present when his father gave instructions for the preparation of a new will, he knew that it was his father's intention that he should receive a greater share of his estate because of the commitment and care he had provided his father during his illness. The plaintiff gave evidence that he had known of his father's intention for some time prior to his father's admission to hospital.

1. Under the intended will the plaintiff's three siblings were each to receive $150,000 (with one sister to receive an additional legacy of $10,000) and he was to receive the residue of the estate, including the unencumbered family home which he was expressly permitted, in his absolute discretion, to retain and to pay the bequests from his own funds or to sell the house and make the bequests from the proceeds of sale. It would appear that his father knew the market value of the property was approximately $900,000 as a result of the sale of similar properties in the area.

1. The intended will was prepared by Mr Aspite on the morning of 15 July 2002 in accordance with Mr Maestrale's instructions after which he attended at the hospital for the will to be reviewed by him and executed should he wish to do so. The second defendant, Mr Rando, accompanied Mr Aspite. Mr Maestrale died ten minutes before they arrived.

1. It was the plaintiff's case that the meeting at Leichhardt on 8 July was the culmination of his repeated requests of Mr Aspite over the preceding three to four weeks that he attend upon his father in hospital for the purpose of giving instructions for the preparation of a new will. It was also the plaintiff's case that he informed Mr Aspite as early as 15 June of his father's terminal medical condition and that his death was imminent. The plaintiff relied upon telephone billing records, and what he attested to as contemporaneous notes of the telephone conversations he had with Mr Aspite and administrative staff in his office concerning these arrangements (or voice or SMS messages sent or received for the same purpose) as objective evidence in support of his claim that Mr Aspite was negligent in failing to act promptly to obtain instructions from his father for the preparation of the new will despite the solicitor's repeated undertaking that he would do so. The plaintiff also relied upon the telephone billing records and his notes in support of his evidence that between 8 July (the Leichhardt meeting) and 15 July (the date of his father's death) he telephoned Mr Aspite and left messages on separate occasions, namely 9 and 13 July, and that he sent a SMS on 12 July to inquire as to the progress of the preparation of the new will and the need for Mr Aspite's urgent attention to it because of his father's rapidly failing health and the plaintiff's fears that he might die before the new will was executed. He said that Mr Aspite did not respond to his calls until 15 July, the morning of his father's death, and only then after he left further messages on his phone that morning.

1. Mr Aspite's evidence was in direct conflict with the plaintiff's evidence. He said that the plaintiff raised the issue of his father's will on an unspecified date in mid June 2002 during a conference in respect of his own legal affairs and that thereafter he waited to hear from the plaintiff as to when a meeting with his father could be arranged. Mr Aspite denied being told at that time, or at any other time, that Mr Maestrale's death was imminent, and denied being informed of the precise nature of his condition which might have alerted him to the risk of his imminent death. He claimed that while he understood that Mr Maestrale had been diagnosed with cancer the plaintiff told him that the doctors believed he had six months to live and that Mr Maestrale gave him the same information when he took instructions to the preparation of a new will at the Leichhardt meeting on 8 July.

1. Mr Aspite gave evidence that it was not until the morning of 8 July that the plaintiff made any arrangements for him to meet with his father. He agreed, however, that the arrangements made that morning materialised into the Leichhardt meeting and that he took formal instructions from Mr Maestrale as a client that day. He said that when he met with Mr Maestrale it was obvious that he was ill but, in his assessment, not so gravely ill that his death was imminent. Mr Aspite gave evidence that Mr Maestrale was lucid and jovial over the course of a 50-minute conference and that they drank coffee and ate lunch with the plaintiff after the conference. He also gave evidence that the telephone contact between himself and the plaintiff and/or the plaintiff and the office staff both before and after that date (excluding the day of the Mr Maestrale's death) as reflected in the plaintiff's telephone billing records, his own phone records and those that related to the office phone, must have been referable to the litigation that the firm was conducting on the plaintiff's behalf (and his sister's behalf) and not the issue of Mr Maestrale's testamentary intentions or any urgency attending the preparation of the will. He denied receiving any voicemail or SMS messages after the Leichhardt meeting concerning the progress of the preparation of the new will or any urgency concerning its preparation.

1. Although Mr Aspite was unable to recall the terms of any particular telephone attendance (or message sent or received by him or the plaintiff), and although his client files did not record any file note of the reason for contact on any of those occasions, his evidence was to the effect that were he to have been contacted by the plaintiff as early as 15 June 2002 and advised of his father's condition and his urgent need to see a solicitor he would have attended upon the plaintiff's father without delay (even out of working hours) or suggested that the plaintiff seek alternate legal advice if his other work commitments prevented him from taking immediate instructions and having a new will prepared for execution. Although Mr Aspite acknowledged receiving voicemail messages and a SMS message from the plaintiff on 9, 12 and 13 July he claimed to have no recall of their content. He maintained the position however that were he told then that Mr Maestrale's health had worsened and asked to contact the plaintiff urgently, he would have done so without delay.

1. Issues of law concerning the existence and scope of the defendants' duty of care to the plaintiff as a beneficiary under his father's intended will aside (including the claim in the amended pleading that Mr Aspite negligently failed to advise or invite Mr Maestrale to sign his written instructions for the preparation of the new will at the Leichhardt meeting as provided for in s 18A of the Probate and Administration Act 1898), because of the way the plaintiff advanced his case at trial, resolution of the factual dispute concerning the reason for and content of the telephone contact between the plaintiff and Mr Aspite, and between the plaintiff and the office phone in the weeks before his father's death in his favour, is critical to his case.

1. The plaintiff's evidence and that of the first and second defendants are not only diametrically opposed but the sources of objective evidence counsel relied upon in support of the competing versions suffer, as I see it, from forensic flaws of varying types and in differing degrees. For example, neither of the client files of the plaintiff or his sister, nor the bills ultimately rendered to them, record any telephone attendances between 15 June and 15 July 2002 when the telephone billing records otherwise confirm there was telephone contact between either Mr Aspite or his office and the plaintiff. Additionally, the conference in mid June where Mr Aspite claims the issue of the plaintiff's father's testamentary concerns was first raised is not file noted. Mr Aspite's inability to recall the content of the voicemail and SMS messages the plaintiff sent on 12 and 13 July after the instructions for the will were taken on 8 July (other than to categorically deny that they were referable to the preparation of the will), at a time when the hospital records indicate that Mr Maestrale's health was in rapid decline and that the plaintiff was in obvious distress about it has the very real potential to impact adversely on his credit.

1. By contrast, the contemporaneous notes the plaintiff claims he made of his various conversations with Mr Aspite, read as a chronological record of his repeated requests of Mr Aspite to attend upon his ailing father for the three weeks leading up to the Leichhardt meeting (and with increasing urgency in the week that followed), replete with a record of Mr Aspite's repeated failure to either attend upon his father or to return his phone calls. What the plaintiff describes in the notes and in his evidence as his increasing level of frustration and annoyance at the solicitor's conduct is in stark contrast to his attitude when Mr Aspite advised him in conference ten days after his father's demise that the intended will was unenforceable. He did not at that time, or at any later time in his dealings with either of the defendants in respect of his or his sister's legal affairs, complain about Mr Aspite's persistent and, as the plaintiff would have it, wholly inexcusable delay in taking instructions from his father in the three weeks before the Leichhardt meeting, or complain that his three calls in the week following that meeting asking about the progress of the preparation of the new will were unanswered, despite the fact that on his case the solicitor's incompetence was the sole reason the new will was not executed before his father died. These complaints surfaced for the first time when proceedings issued in June 2008.

1. The plaintiff filed the unamended a statement of claim in June 2008. The plaintiff gave evidence that the delay of six years in commencing proceedings was for a number of reasons. In the months immediately following his father's death he said he sought the consent of his siblings to abide by his father's unattested testamentary intentions (incidentally the advice Mr Aspite gave the plaintiff in conference late July 2002) which would have allowed him to fund their bequests from his own savings supplemented by a modest borrowing secured against the family home. They refused. In August and December 2003 he then sought legal advice from two separate sources as to the viability of probate being granted over the intended will. This advice confirmed the advice of Mr Aspite in July 2002 that there was no prospect of success in that approach. As a further explanation for the delay in commencing proceedings, the plaintiff maintained that his loss had not crystallised until 2007 when he was forced to obtain finance secured against the family home in order to pay his two sisters their beneficial entitlement of one quarter of the then value of the estate. I also note that the plaintiff was embroiled in a dispute with his sister Rosetta until at least May 2006 because of his refusal to supply a copy of his father's existing will to her or to her lawyers. His failure or his refusal to apply for probate prompted her to make an application for Letters of Administration over her father's estate. Those proceedings were discontinued in late 2006 when the plaintiff applied for probate.

1. The delay of six years in commencing proceedings was relied upon by the defendants as undermining the plaintiff's evidence that he had made contemporaneous notes of his dealings with first defendant in 2002.

1. Whatever the weight of the plaintiff's explanation for the delay, his silence in the weeks and months following his father's death, at a time when it might be thought he would have voiced his complaints or sought advice about an action against Mr Aspite, coupled with his continued dealings with the firm until 2003, is difficult to reconcile with his case. Furthermore, his explanation for making the notes in his phone, namely as an audit trail to ensure the solicitor did not overcharge his father, and the unavailability of any digital or electronic record that might otherwise have confirmed the notes were made in 2002, (the mobile phone into which the notes were entered and the computer onto which they were later transcribed having been discarded in 2007 due to obsolescence or malfunction) raise additional questions bearing upon the plaintiff's credit.

1. Finally, the hospital records which include numerous reports of the plaintiff's attitude to his father's illness tend to belie his evidence that as early as 15 June he believed his father did not have long to live or that he was told this was likely. On the other hand, in the days before his death the hospital records do reflect the fact that he was told and accepted that were his father to suffer a cardiac arrest or serious respiratory failure then resuscitation would not be attempted. The hospital records also reflect the fact that for at least three or four days before his death Mr Maestrale was acutely unwell and in receipt of intensive palliative care. This is powerful evidence to support a finding that by that time the plaintiff was concerned that his father's new will had not been formally attested and that the telephone contact with Mr Aspite at this time concerned his father's testamentary affairs and not his own legal affairs or those of his sister.

1. The scope of Mr Aspite's duty of care aside, Mr Downing accepted that were I persuaded of the truth of the plaintiff's account of his dealings with Mr Aspite on his father's behalf, then his liability in negligence would be made out. This concession reflected the joint view of the experts, Mr Poole for the plaintiff and Mr Glass for the defendants, that conduct of the kind the plaintiff complained of (whether in the weeks preceding the preparation of the intended will or in the week after instructions were taken on 8 July) would fall egregiously short of acceptable professional standards as provided for in s 50 of the Civil Liability Act 2002 such as to incur liability in negligence.

1. Leave was granted on the first day of the hearing to amend the pleadings to allow the issue of Mr Aspite's failure to advise Mr Maestrale at the Leichhardt meeting on 8 July of the option of making an informal will by signing his written instructions, or to recommend that he do so, to be pleaded as a further particular of negligence.

1. Mr Aspite gave evidence that he was aware of the operation of s 18A of the Probate and Administration Act but said that he did not advise his client of the option of making an informal will because his client's general state of health, as he was able to assess it over the course of the hour long conference at Leichhardt, coupled with what Mr Maestrale told him at that time, namely that the doctors had given him "a few months to live", did not obligate him to do so. In their reports and in their evidence the experts addressed whether, in these circumstances, Mr Aspite's failure to advise his client that his written instructions for the intended will might be signed to give immediate effect to them as his testamentary wishes was contrary to competent professional practice. In Mr Glass' opinion, while it might have been prudent to have advised Mr Maestrale of his right to make an informal will on the day instructions for the preparation of a new will were given, he did not regard it as a breach of duty not to have done so in the circumstances as they presented to Mr Aspite. He would have been of a different opinion were Mr Aspite on notice that there was a real risk that death would intervene before the formal will was prepared and executed. Mr Poole gave slightly different evidence. He said that even if there were nothing to indicate that Mr Maestrale's death was imminent, whether or not the advice should have been given was "finely balanced". He ultimately favoured the position that it was the solicitor's duty to have at least discussed the option of an informal will with his client in full discharge of his duty to carry out his client's instructions. Mr Downing took objection to this aspect of Mr Poole's report on the basis that it was not supported by reasoning (see Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588). I admitted the evidence and invited counsel to address that aspect of Mr Poole's evidence in final submissions.

1. Although the experts were not asked to express an opinion as to whether, were Mr Aspite advised of his client's seriously failing health in the days following the Leichhardt meeting, he should have attended at the hospital and informed his client of the option of signing his notes with insufficient time to prepare a formal will, I am satisfied that this would logically follow from the careful consideration both witnesses gave to the scope of the solicitor's duty of care in their evidence and the operation of s 50 of the Civil Liability Act.

1. It is not of course for the defendants (or more particularly Mr Aspite) to prove that his version of his dealings with the plaintiff and his father is more likely, or that the conduct alleged against him is improbable or out of character. Neither is it for him or Mr Rando to prove that the deficiencies in the maintenance of client files is defensible or explicable. It is the plaintiff who bears the legal or persuasive onus of proving sufficient of the disputed facts upon which his case depends (see s 140 of the Evidence Act 1995 and Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246) in order to make out his case on liability. In this case, that requires a positive finding that the disputed dealings between the plaintiff and Mr Aspite as the plaintiff gave evidence of them (or sufficient of them to demonstrate a breach of Mr Aspite's duty of care) probably occurred, despite Mr Aspite's evidence to the contrary. If the probabilities as to the competing versions are equal (or less than equal) then the plaintiff's case on liability must fail (Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 at [31]-[33]).

1. Other disputes of fact arise in the event that damages fall to be assessed.

The plaintiff's evidence of dealings with Mr Aspite from 15 June to 8 July

1. In his first affidavit dated 25 March 2010 the plaintiff gave evidence that a few days after his father's admission to hospital on 3 June 2002 his father asked him to arrange for a solicitor to attend so that he could prepare a new will as he did not anticipate being discharged from hospital to return home before he died. The plaintiff said he told his father there was no need for him to speak to a solicitor as he was not going to die.

1. On Saturday 15 June 2002 at 3.41pm, at his father's insistence that his son arrange for a solicitor to attend so he could prepare a new will, he telephoned Mr Aspite and said:

Hi Dante, it's Aldo. Sorry to bother you on the weekend, but it's urgent - my father needs to speak to a solicitor to draw up a new will.

Mr Aspite asked whether his father was alright whereupon he said:

We're in hospital at the moment. He's not well at all. I'm scared I might lose him.

Mr Aspite asked what was wrong with his father to which he answered:

He's got AML, Acute Myeloid Leukaemia, which is cancer of the blood bone marrow. Doctors have informed me he could go any day.

After being informed that he was at the Royal Prince Alfred Hospital Mr Aspite said:

I can't attend today. The earliest I can be there will be Monday. I've got a court hearing in the city and can come by straight after, about 4pm....

After confirming the ward number Mr Aspite said he would attend on Monday.

1. The plaintiff does not refer in this affidavit to having made a contemporaneous note of this conversation in the calendar of his mobile phone which he later transcribed onto his computer and from which he printed a hard copy, despite giving evidence at the hearing that he used the printed version of the notes in the preparation of the affidavit. In a second affidavit, dated 17 June 2011 (sworn after the affidavits of the first and second defendants had been served), he does make reference to what he describes as "file notes on my mobile phone calendar" as supporting his version of events. Even at that stage he does refer to the transcribed notes. The notes, referred to in the hearing as "the Mobile Phone Transcription document", were discovered in the proceedings on 16 March 2010, in the sense that it was referred to in a list of documents after the billing records of the defendants' phones had been produced. A copy of the document was then supplied at the request of the solicitor for the defendants in May 2010. The original document was tendered at the hearing. It lists each of nine telephone calls or text messages made or received by the plaintiff against the day of the week and the date (including the year 2002) and the time, to the minute, at which the communication took place. It also records a summary of the Leichhardt meeting on 8 July; the fact and time of his father's passing and the attendance thereafter of the first and second defendants and the nurse's note of that fact.

1. The first entry on the Mobile Phone Transcription document reads as follows:

SATURDAY 15 JUNE 2002 @ 3.41pm

- Called and arranged with Dante meeting for Monday 17 June 2002 at Hospital to write up will.

1. The plaintiff gave evidence that he made this note coincident with his practice of making an entry in his phone for all telephone communications with his lawyers (whatever the subject matter) recording the context, details and duration of the call to enable him to cross-reference his notes with the solicitor's tax invoice for telephone attendances "to keep the solicitors honest". No similar documents in relation to his own legal affairs or those of his sister were tendered. Under cross-examination he agreed that the model of mobile phone he used in June/July 2002 had a limit of 32 letters on the calendar note taking function which, given the length of some of his notes would necessitate saving the note in mid-sentence, and resuming the note-taking on a separate screen. He said he transcribed the notes "word for word" from his phone onto a computer in late 2002 and then printed the document and kept it in his files in anticipation of receiving a tax invoice from the solicitors for the work done on his father's behalf. Despite the fact that as at November 2002 he had received a tax invoice in his own matter without any reference to his father's matter, and that for the next 5½ years he neither received a tax invoice relating nor was given to understand or expect he would ever be billed for the work done by Mr Aspite, he had the document available to him when he commenced proceedings many years later. He also gave evidence that although he had his mobile phone bill available to him at the time of transcribing the notes in his phone to the computer, replete with the date and precise time of his calls or SMS messages, he said he did not refer to it. He said he entered the time that the calls were made, to the minute, immediately after the call was either made or received or a message sent. He could not explain why, if the notes were intended as an audit trail, he did not record the duration of the call.

1. He said even at the time of making the computer record and printing it in late 2002 and filing it he had no thoughts of making a claim against the solicitor. He said that the phone "died" in late 2004 and that the computer was not available from 2007. He rejected Mr Downing's suggestion that the Mobile Phone Transcription document was a self-serving document that he created well after the events of 2002, or that he created the document for the purposes of falsely making a claim against the defendants after he was unsuccessful in persuading his siblings to abide by his father's intended will and unsuccessful in obtaining legal advice that the will was otherwise enforceable.

The hospital records from 3 June - 15 June

1. Between 3 June and 15 June 2002 the hospital notes record the provision of nursing care consistent with management of a patient suffering from of acute refractory leukaemia.

1. At 1.30pm on Friday 14 June 2002 Professor Gibson, the treating specialist, records the following note in the hospital records:

I have discussed ongoing management with Mr Maestrale's son. I have explained that the patient has refractory leukaemia and I do not believe that a remission is possible. I have also discussed likely complications such as sepsis/bleeding and the risk of cardiopulmonary arrest. Mr Aldo Maestrale (the patient's son) has indicated his wish that everything possible be done for his father. This includes CPR and transfer to ICU. I have also explained ... the likely prognosis should this happen. [The son] has again reaffirmed his wish for his father's management.

1. The notes for 15 June record that at 1pm there was no complaint of pain but that during the afternoon there was some general deterioration in Mr Maestrale's renal function with some right-sided abdominal pain and laboured respiration. The notes also record both his resistance to using mist morphine as an analgesic and the plaintiff's resistance to its use despite advice that it would assist in his father's relaxation and aid regular breathing. The notes also record that Mr Maestrale's breathing settled and he was comfortable and relaxed as the evening progressed.

1. The plaintiff gave evidence that he received a telephone call from Mr Aspite's secretary on Monday 17 June 2002 at 1.54pm advising him that Mr Aspite was unable to make the appointment scheduled for that afternoon regarding his father's will and that he would call to arrange another time. The plaintiff asked when Mr Aspite was intending to attend the hospital. She said she did not know but that Mr Aspite would call and arrange another appointment. The plaintiff said that he told the secretary to inform Mr Aspite that the matter was urgent and that she undertook to convey the message.

1. The second entry on the Mobile Phone Transcription document records the following:

MONDAY, 17 JUNE 2002 @ 1.54pm

-Dante's secretary - Diane, called re: will appointment today is cancelled.

- Dante will call you to arrange another time.

1. Despite the plaintiff's insistence to the secretary that the matter was urgent, there was no mobile telephone contact between the plaintiff and either Mr Aspite or his office from that date until 3 July when the plaintiff maintains he called Mr Aspite's mobile phone again at his father's insistence.

1. Of the intervening two weeks, the plaintiff said in his affidavit:

During the period 18 June 2002 to 2 July 2002, I was in a numb state where the days were filled with x-rays, scans, blood tests, transfusions and constant monitoring of my father's condition with his haematology specialists. The fact that Dante had not called or attended was furthest from my mind as I was so worried about trying to get my father's morale stabilised. The fact that I might lose him was on my mind constantly but I felt that I had to keep my negative thoughts from him in order to lift his spirits. I was resident at his bedside 24 hours a day and only left for brief intervals to get food.

1. The notes of the social worker in the hospital records emphasise that the plaintiff was very keen for doctors to continue active treatment for his father and his wish that his father not be over-medicated.

1. On 26 June 2002 Mr Maestrale reported to the social worker an improvement in his health and his belief that the doctors may agree to his discharge. Discussion then followed as to whether or not assistance at home was required. The plaintiff and his father were of the view that that was not necessary but it may be necessary in the future. Mr Maestrale expressed the desire to travel to Italy later in the year if he was well enough.

1. His condition over the next week was recorded as relatively stable to the extent that the plaintiff requested and was granted a gate pass at 11.10am on 2 July to take his father to the airport to farewell relatives. That same morning the social worker recorded the following:

Follow up with Aldo Maestrale. He told me of discussion he had with Prof Gibson on Monday re: palliative care becoming involved in his father's care. He said Palliative care registrar came to talk to them today and explained what palliative care is. Aldo said his father is anxious and frustrated at the moment but feels that he is a fighter and would like treatment to continue. Aldo stated he is not keen for palliative care to be involved. [Professor Gibson's note of his discussions with the plaintiff indicate that he was unimpressed with palliative care, that is, controlling symptoms in patients with chronic illnesses, and wanted active treatment for his father.]

1. On 5 July the social worker noted as follows:

Follow up with Mr Maestrale and his son Aldo. Aldo stated that he went out with his father on 2 July and he told me about how this went. We discussed emotional issues about Mr Maestrale's health and stresses of being full-time carer. He updated me on current medical situation and the doctors have started to talk about discharging [his father] soon.

1. The content of the conversation the plaintiff claims he had with Mr Aspite on the afternoon of 3 July does not sit easily with the entries in the hospital notes as set out above. He claims to have had a conversation over the telephone with Mr Aspite at 4.23pm on 3 July in the following terms:

Plaintiff: How are you doing?

Mr Aspite: Fine. How is your father doing?

Plaintiff: The doctors aren't giving us any hope, telling me his heart may stop or his lungs may fail and we're taking it day by day. My father has been asking why you have not attended.

Mr Aspite: Sorry I couldn't make it the other day. I've been caught up in court. I'll be in the city on Monday [July 8]. Give me a call first thing Monday morning and I'll arrange a time to meet then.

Plaintiff: Okay, I'll talk to you then.

Mr Aspite's evidence in regards to contact with the plaintiff from 15 June to 8 July

1. Mr Aspite gave evidence that neither his personal diary nor the office diary recorded that he had court commitments in the city on either 17 June or 8 July 2002. On Monday 17 June his diary records a conference with a client and an interpreter which extended for 2½ hours. While he did not dispute that a 23 second telephone call was placed to the plaintiff's mobile phone from his office at 1.54pm on 17 June, as reflected in the telephone billing records, he denied instructing his secretary to make that call in order to reschedule any appointment with Mr Maestrale at the hospital. He gave evidence that he made no arrangements with the plaintiff to meet with his father until the morning of 8 July, when the plaintiff suggested that they meet with him in Leichhardt "around lunchtime" as his father would be at the Italian Culture and Language Association with him at that time. He gave evidence that although the plaintiff had asked him to prepare a new will for his father during the course of a conference in respect of his District Court proceedings some weeks earlier (at which time the plaintiff produced the existing will), Mr Aspite refused to prepare a will on the plaintiff's instructions. He said he made it clear to the plaintiff that he would need to satisfy himself that his father had the capacity to provide instructions and that he would need to meet with his father for that purpose. He gave evidence that it was in that conversation that he learnt that the plaintiff's father had been diagnosed with cancer and had been given six months to live and that he was in the Royal Prince Alfred Hospital receiving treatment. Mr Aspite asked the plaintiff if it was possible for him to bring his father to his office in Burwood but the plaintiff informed him that his father was unlikely to be able to get up the stairs. He said he told the plaintiff that he was often in and around Leichhardt so perhaps a meeting could take place there. He said he asked the plaintiff to speak to his father and get back to him so that a meeting could be organised.

1. Mr Aspite denied being informed at that time, or any other time, that Mr Maestrale had acute myeloid leukaemia or that there was any imminent risk of him dying. He gave evidence that were he advised of that fact, and of the accompanying urgency in attending upon the plaintiff's father to obtain instructions, he would have organised to attend upon him at hospital without delay. He said he was well aware of the importance of promptly attending upon a client who wishes to prepare a will where the client is gravely ill or where there is a risk that death will occur.

The solicitor/client relationship between the plaintiff and Anderson Lawyers

1. Although it was common ground that Mr Aspite took instructions for the preparation of a new will on the afternoon of 8 July at Leichhardt, the circumstances in which that meeting came to be arranged were also in dispute. Before analysing the evidence bearing upon that question, the nature of the existing solicitor/client relationship with Anderson Lawyers at the time the plaintiff's father also came to be a client of the firm needs to be considered.

1. It was common ground that in late 2001 the plaintiff retained Mr Aspite to act on his behalf in District Court proceedings to enforce a judgment in his favour in the Industrial Relations Commission (IRC). The action was ultimately settled in October 2002. It was also not in dispute that Mr Aspite spoke to the plaintiff from time to time throughout that period of months to inform him of the progress of these proceedings, and to obtain his ongoing instructions, and that this occurred in conference and by telephone, including occasionally via SMS messaging. Mr Aspite's mobile phone records reflect telephone contact with the plaintiff's mobile phone on 22 and 30 May 2002 and a SMS message he sent on 6 June, none of which were file noted. Mr Aspite gave evidence that he did not make file notes of every communication he had with the plaintiff concerning the District Court matter. He also gave evidence that there were occasions when the plaintiff would arrive at the office seeking advice or information about his case unannounced. A tax invoice was raised on 1 November 2002 where Mr Aspite's professional costs were assessed at $1200 (but charged at the reduced rate of $770). The invoice referred to "all telephone attendances upon all relevant parties" and "all conferences upon you", without them being itemised.

1. The plaintiff agreed that the contact with Mr Aspite in May and early June 2002 was in relation to his District Court matter but denied that any of the telephone contact later in June or July (namely the disputed calls on 15 June, 17 June and 3 July, and the calls after the Leichhardt meeting on 9, 11, 12 or 13 July), each of which was reflected in the telephone billing records of the parties, related to the District Court proceeding.

1. It was also not in dispute that Mr Aspite's firm was retained to act for the plaintiff's sister, Rosetta, in proceedings in the IRC and that from at least February 2002 she authorised the plaintiff to consult with the lawyers and provide instructions on her behalf. Mr Rando gave evidence that he frequently dealt with the plaintiff and received instructions from him on Rosetta's behalf from that date, in particular because of the difficulties in effecting service on the defendant. The contents of Rosetta's file, including court documents and Mr Rando's diary, support his evidence that he had conduct of the IRC proceedings from as early as May 2002. Mr Aspite gave evidence that he also worked on Rosetta's file from time to time and may have had direct dealings with the plaintiff in June and July 2002 for that reason. There are, however, few files notes of any direct dealings with the plaintiff in Rosetta's file and none relating to the dates of the disputed calls in June and July, although some are proximate to those dates. On 13 June 2002 (two days before the first of the disputed calls to Mr Aspite's mobile phone) the IRC proceedings were stood over to 11 July so that an order for substituted service might be applied for which, according to Mr Rando, also necessitated ongoing dealings with the plaintiff on a number of occasions although he was unable to say when that contact occurred. Because the defendant in the IRC proceedings was also the defendant in the District Court proceedings he said the plaintiff took an active interest in ensuring the defendant in his sister's case was served. Mr Rando refers, in particular, to a telephone record on 11 July 2002 recording a telephone call from the office land line to the plaintiff's mobile telephone at 9.59am which, it was his belief, related to the listing of Rosetta's matter before the IRC that day. There was no file note of that call. The plaintiff claims that was a call from Mr Aspite's secretary advising him that Mr Aspite would attend upon his father the following afternoon with the prepared will for execution.

1. In direct conflict with the evidence of both defendants, the plaintiff denies having any dealings with Mr Rando concerning his sister's matter until October 2002. The plaintiff gave evidence that he met Mr Rando for the first time after his father's death when the question of the enforceability of the intended will was discussed and advice was given in conference with Mr Aspite. He also claimed that after his District Court matter had settled in late October 2002 Mr Aspite had the following conversation with him:

Mr Aspite: I'm going to get Bob to take over Rosetta's matter now that your matter in the District Court has been finalised.

Plaintiff: Why can't you continue to represent Rosetta?

Mr Aspite: There would be a conflict of interest in relation to your late father's estate.

Plaintiff: I don't understand how.

Mr Aspite: It's complicated.

Mr Aspite denied this conversation took place.

Evidence concerning the Leichhardt meeting on Monday 8 July 2002

1. The plaintiff gave evidence that on the morning of 8 July he called Mr Aspite at 9.20am (he claimed by arrangement with Mr Aspite in the phone call on 3 July) and that Mr Aspite said he would come to the hospital after lunch to see his father and that he would call on arrival. By reference to the hospital notes the plaintiff left the hospital with his father at 11am that morning to attend the 23rd anniversary celebrations at the Italian Pension Friends Group in Norton Street Leichhardt, colloquially known as "Co.As.It". The plaintiff said his father was very keen to attend the celebrations as he was the Treasurer and it was an occasion he did not want to miss. Although the hospital notes do not make reference to Mr Maestrale's wish to attend the event in the days leading up to 8 July, and although the plaintiff says that his father raised with him his desire to attend the function for the first time on the morning of 8 July, after he had spoken to Mr Aspite, he did not satisfactorily explain why he did not ring Mr Aspite and alert him to the possibility that his father may not have returned to the hospital by lunch time, particularly since on his case his father was urging him to arrange for a solicitor for some weeks without success.

1. Mr Aspite agreed that the plaintiff telephoned him at 9.20am on the morning of 8 July but gave an account of the conversation in direct conflict with the plaintiff's account. He said that in the course of the conversation about other matters after he informed the plaintiff that he would be in Leichhardt that day, the plaintiff told him that his father would be at Co.As.It around lunch time and asked whether it was possible for Mr Aspite to meet with his father at that time to prepare the new will that had been discussed some weeks earlier. Mr Aspite said that the plaintiff asked him to telephone when he was in the vicinity of the club, and that he did so.

1. There is a telephone record of Mr Aspite telephoning the plaintiff at 1.11pm for one minute and a further 19-second call at 1.29pm. In his affidavit Mr Aspite refers only to placing a telephone call "just before 1.30" when he was in the vicinity of Co.As.It. He said he met with the plaintiff and his father at the front of that establishment within minutes of placing that call and that the conference with Mr Maestrale was then convened in a nearby café. He gave no evidence of the earlier telephone call at 1.11pm and was not cross-examined about it.

1. In the plaintiff's first affidavit he said that "at around 1.30" Mr Aspite called and advised that he had arrived at the hospital, after which the following conversation took place:

Plaintiff: We are at Casa Italia in Norton Street Leichhardt. We will come back immediately.

Mr Aspite: Why don't I meet you there; finding parking here is terrible.

According to the plaintiff, Mr Aspite then asked whether there was somewhere he could talk to the plaintiff's father. The plaintiff said they could go next door to a café at Norton Street Plaza. Mr Aspite said he would meet the plaintiff in front of the Norton Street Plaza in about ten minutes.

1. In his subsequent affidavit, sworn in June 2011 (and, as he agreed in his evidence, after he had access to Mr Aspite's mobile phone records and his affidavit which annexed the conference notes recording the conference having commenced at 1.30pm) the plaintiff amended the time of the phone call Mr Aspite placed from the hospital to "about 1.10pm" and said that the Leichhardt meeting occurred 20 minutes later.

1. The Mobile Phone Transcription document merely notes the call to Mr Aspite at 9.20am as follows:

MONDAY 8 JULY 2002 @ 9.20am

- I called Dante as arranged

- Arranged meeting for today after lunch at the Hospital

- Dante will call on arrival

...

The document then records what occurred at and after the Leichhardt meeting without any reference to any phone call made or received at or about 1.10pm or 1.30pm.

1. The plaintiff was cross-examined to suggest that he had amended the time of the afternoon phone call in his second affidavit to 1.10pm, well knowing that the file note of the conference recorded that it commenced at 1.30pm, to allow time for the solicitor to drive from the hospital to Leichhardt. It was suggested that he looked at Mr Aspite's phone records and found an earlier phone call (at 1.11pm) around which to craft his account and which would coincide with the first defendant's file note that the conference commenced at 1.30pm. He rejected that proposition. He said the correction in time was based on "a clearer recollection" in June 2011, seven years after the events, than his recollection in March 2010, a recollection which he claimed also coincided with his own notes which recorded that "at or about 1.30pm Dante met with Dad at Norton Street Plaza and discussed will" (emphasis added). He gave no evidence of there being two phone calls between 1pm and 1.30pm and was also not cross-examined about it.

1. Objectively speaking, the plaintiff's evidence on this issue is, more closely coincident with the phone billing records in the sense that Mr Aspite's call at 1.11pm may have been when he arrived at the hospital, as deposed to by the plaintiff, and the 1.30pm call when he arrived at Norton Street. However, since neither the plaintiff nor Mr Aspite were cross-examined about the fact of two calls that afternoon, and since neither counsel addressed upon it, other explanations consistent with Mr Aspite's evidence might also be open. In that connection, in so far as he is said to have made a complaint about parking at the hospital, I note that there is public parking available at the hospital as Mr Aspite (and his partner) made use of it on 15 July and tendered the parking ticket in their evidence.

The Leichhardt meeting

1. The plaintiff's evidence and Mr Aspite's evidence of what occurred at the Leichhardt meeting was also in conflict. In particular, there was a dispute as to what arrangements were made after Mr Aspite took instructions from Mr Maestrale for the will to be prepared and brought to him for his signature. The plaintiff claimed that Mr Aspite said he would call by the hospital the following afternoon at around 4pm for that purpose while Mr Aspite claimed he simply said that the preparation of the will should not take "more than a few days" and, once it was prepared, he would meet with Mr Maestrale for the purposes of having it signed. The plaintiff claimed he made a note on his mobile phone of the arrangements for execution of the will when he returned his father to hospital. The text of that note, as with the text of much of the mobile phone transactions document, is at total variance with his explanation for having made the notes in the form that he did, namely as an audit trail to ensure against the solicitor overcharging his father.

1. The significance of the disputed evidence of arrangements for the executing of the will needs to be considered in the context of what Mr Aspite claimed he knew or believed to be Mr Maestrale's likely prognosis at the Leichhardt meeting. His evidence was that he was aware his client was receiving treatment in a hospital for cancer from what the plaintiff had told him weeks earlier and that he accepted what his client told him in so far as his prognosis was concerned - namely that he had been told by his doctors that he had "a few months to live" and that "he probably wouldn't make it to Christmas". Mr Aspite gave evidence that despite it being obvious that his client was unwell and in a wheelchair he was generally in good spirits and he did not have oxygen at hand. He said since he had not met Mr Maestrale before 8 July he was unable to say whether his physical appearance suggested anything contrary to what he had been told generally about his diagnosis and prognosis, much less that his client was at risk of dying within a week. The photographs tendered at the hearing showed Mr Maestrale in a wheelchair at the anniversary celebrations. Although it might fairly be said he looked unwell, I was unable to draw any conclusions as to the progress of his illness or the likelihood of his imminent demise from the photographs. Mr Aspite agreed in cross-examination that his client's general appearance and what he knew of his medical condition "raised alarm bells", and for that reason he proceeded on the basis that it was necessary to act promptly to carry out his client's instructions for the preparation of a new will. He gave evidence that he did not consider it necessary to either have his client make an informal will or to act immediately to have a formal will drawn for execution in the circumstances as he perceived them.

1. Both Mr Glass and Mr Poole agreed that if this was the extent of Mr Aspite's knowledge of his client's condition, and if his evidence of dealings with the plaintiff in relation to his father's health and testamentary wishes was accurate (including the fact that he was unaware that Mr Maestrale was suffering from acute myeloid leukaemia and was not informed after 8 July that there was any serious deterioration in his health suggestive of any urgency in having the will executed), the fact that he did not take immediate steps to have a formal will prepared was not unreasonable and the passage of seven days before the will was drafted would be widely accepted by peer professional opinion as competent professional practice.

1. Both experts gave evidence that where a client is hospitalised it would be appropriate to seek some information about the client's diagnosis (with the obvious caveat that the information may be neither readily available nor forthcoming) but, as I understood their evidence, not something a solicitor was obligated to do, and not something Mr Aspite was obligated to do in this case in discharge of his duty of care. Both experts agreed that if, at the time instructions were taken for the preparation of a will, a solicitor was informed that a client's treating doctors had advised of the possibility of cardiopulmonary failure and that active steps would not be taken to resuscitate the patient, that an informal will should have been offered as an option and urgent steps taken to prepare the formal will for execution.

1. Necessarily, what Mr Aspite said that Mr Maestrale told him about his prognosis on 8 July was unchallenged (save that it contradicted what the plaintiff claimed that he had been told by his father's doctors and what he reported to Mr Aspite in the disputed calls on 15 June and 3 July). Other than noting in the otherwise comprehensive file notes comprising his client's instructions that "Mr M had a cappuccino and was joking" and that he shared something to eat with his client and the plaintiff after the conference and that "Mr Maestrale paid for the meal", Mr Aspite made no note referable to his assessment of his client's health or capacity or what his client said of his prognosis. Yet again the defendants' case on an important issue in dispute is without objective support in the solicitor's notes. On the other hand, the hospital records in the days preceding 8 July, as well as on that day and the following day, record the fact that both the plaintiff and his father were keen for the hospital to discharge him into home care with the only stated health concerns being Mr Maestrale's chest pain. This is capable of supporting Mr Aspite's evidence that Mr Maestrale's health, as he assessed it, was not so dire that there was a real risk of his dying within days of 8 July such that delaying preparation of the will until 15 July was unreasonable.

1. Before turning to the disputed calls on 9, 11, 12 and 13 July which, if I am satisfied were accurately noted by the plaintiff in his mobile phone and truthfully elaborated upon in his evidence, lead to the inevitable conclusion that Mr Aspite either ignored the calls or failed to respond to act promptly in response to them, it is necessary to say something further of the Leichhardt meeting.

1. The plaintiff denied being told by Mr Aspite before the conference commenced that it was necessary for him to take instructions from his father in private to ensure against any suggestion of his influence in the preparation of the new will in the event that his siblings mounted a challenge (something Mr Aspite would only have been aware of from what the plaintiff told him when the issue of the new will was first raised with him in conference some weeks earlier). He also denied saying to his father as he left "Okay Dad, remember what we talked about, just tell him what we talked about". Resolving this conflict has some marginal bearing on the competing credit questions to which other aspects of the evidence give rise, most particularly the competing versions of the disputed calls following the Leichhardt meeting, but it does not otherwise bear on the issue of liability as the plaintiff pleads his case.

1. The plaintiff agreed that he left his father and the solicitor alone at the café joining them later for lunch but gave no evidence, and was not cross-examined, as to why he did not remain during the conference. He simply denied being told he had to leave and denied saying anything to his father as he left. In his second affidavit he goes further and denied knowing his father's specific testamentary intentions on 8 July. However, under cross-examination he conceded at least knowing of his father's intention that he should receive a greater benefit under the new will than his siblings because he had discussed the matter with his father over preceding weeks. In my view, this lends support to my finding that he did direct his father in the way attributed to him by Mr Aspite. It is also consistent with the overwhelming weight of the evidence that the plaintiff had a direct and personal interest in the new will supplanting the existing will because of what he stood to personally gain.

1. The existence of the file notes of the conference was also of some weight on the question whether the Mobile Phone Transactions document was created in the circumstances the plaintiff claimed in his evidence. The plaintiff maintains in his affidavit that Mr Aspite "took file notes of instructions concerning the will", which is also recorded in the notes he said he entered into his mobile phone at the hospital after the meeting and later transcribed into the Mobile Phone Transactions document. It is difficult to reconcile making this note with his stated intention of ensuring there was an audit trail in the event that the solicitor overcharged. The note that immediately follows that note, namely "Dante said: I will call in by the hospital and have Dad sign the will at around four o'clock tomorrow afternoon" falls into the same category. The fact that Mr Aspite took detailed file notes of the conference was something which, on one view, the plaintiff could not have known at the time unless he was either present when the notes were made (which on his own case he was not) or told about the notes. Mr Aspite did not address this aspect of the plaintiff's evidence and was not cross-examined about it. Logically, this leaves open the possibility that he told the plaintiff that the conference with his father had been noted down or perhaps that the notes were in view when the plaintiff joined Mr Aspite and his father for lunch. The plaintiff was not cross-examined on the issue.

The week following the Leichhardt meeting culminating in Mr Maestrale's death at 11.20am on 15 July

1. The plaintiff gave evidence that at 3.38pm on Tuesday 9 July he called Mr Aspite's mobile telephone and left a message on the voicemail in the following terms: "I am calling to see how the will is going". He said he did not receive a telephone call in response. He did not call Mr Aspite later that day or ring his office to check on his whereabouts when Mr Aspite failed, yet again, to attend a scheduled meeting. This is surprising, to say the least, given his interest in having the will attested without delay. He was not cross-examined as to why he did not take these steps.

1. The Mobile Telephone Transcription document records the following:

TUESDAY 9 JULY 2002 @ 3.38pm

- Called Dante re: the signing of the will today - left message on voicemail.

- Did not receive a reply

1. Mr Aspite gave evidence that he did not recall receiving a voicemail message checking on the progress of the preparations of the will. He said that it was possible that the plaintiff did leave a message in those terms and that he received it but he was unable at the time of swearing his affidavit in December 2010 to recall that fact.

1. On Thursday 11 July at about 10am the plaintiff said that he received a call from Mr Aspite's secretary in the following terms:

Secretary: Dante will call in at the hospital at approximately 4pm tomorrow afternoon to have your father sign the will.

Plaintiff: Are you certain this time?

Secretary: Yes I am.

(This call was also documented in similar terms in the Mobile Telephone Transactions document.)

1. Mr Aspite denied directing his secretary on 11 July to telephone the plaintiff to confirm his attendance the following afternoon at the hospital. He said he had made no arrangements to attend the hospital on Friday 12 July. In response to some questions asked by me he confirmed that he regarded himself as fully instructed to prepare the will after the Leichhardt meeting such that there was nothing on Thursday 11 July that would have necessitated a further attendance on Mr Maestrale to clarify those instructions and, further, since the will was not prepared until Monday 15 July, there was nothing for him to take to the hospital the previous Thursday. In my view, the probabilities favour a finding that the call that morning was referable to the proceedings in the IRC and Mr Rando's appearance as file noted by him.

Mr Maestrale's deteriorating health on 12 July

1. The plaintiff gave evidence that a conference was convened in the late afternoon of Friday 12 July with doctors and support staff at the hospital which he attended with his father. He gave the following evidence:

On Friday 12 July in the late afternoon, Dr Paul Pearson, an interpreter, the ward sister-in-charge (Sonia), a social worker and another female doctor and the palliative care Sister Joan Ryan had a conference with my father and me. Dr Pearson said:

"I need to hear from your father himself what he would have the hospital do in the event of his heart failing or his lung collapsing."

I was against this meeting as I felt it was too harsh for a man in my father's condition. I insisted:

"My father would want to be resuscitated."

Dr Pearson said:

"I need to hear it from your father and I will be gentle, I have known him for a year now."

I replied:

"I've known my Dad for all my life, which is more than a year."

Dr Pearson said:

"I do not need your consent for the meeting."

I replied:

"My father will demand that I be present and if you step out of line then the meeting will be over."

They proceeded with the meeting and afterwards I had a meeting with Professor Gibson, the palliative care sister and the head of ICU.

1. At midday on 12 July the hospital records note that the discharge plans (scheduled for the following week) were on hold. At 2pm the notes record that Mr Maestrale was drowsy, in respiratory distress and extremely uncomfortable. At 4pm Professor Gibson attended and reported that the patient's condition was "clinically deteriorating" and that the plaintiff had requested an ICU review. Professor Gibson recorded as follows:

I have again told Mr Maestrale's son that I did not believe that there was any hope in effectively treating his [father's] leukaemia and the likely progress of his disease.

1. At 5.05pm Dr Pearson recorded as follows:

I have explained the futility of intensive care and cardiopulmonary resuscitation. Aldo understands and accepts this.

I have explained that it is based on his father's clinical condition and that it is a decision made by the medical staff (Dr Gibson and myself).

In the event of a cardiac or respiratory arrest he should not be subjected to cardiopulmonary resuscitation.

1. At 6.30pm the palliative care nurse reported that she had a lengthy discussion with the plaintiff in regards to the arrangements for his father's future care which were put on hold "in view of the day's events". She also noted that the plaintiff would like to take his father home "if he is going to die". She noted that:

[The plaintiff was] very sad about his father's condition but slowly allowing the reality of the situation to sink in. Stated that he feels frustrated and disappointed by his father's situation. Is now planning to contact relatives in Italy for family support.

1. It was against the background of these events (and that the hospital records note that at 9pm the plaintiff was with his father and that all nursing care was being provided to his father) that the plaintiff's evidence that he sent a SMS message to Mr Aspite's mobile phone at 8.58pm in the following terms needs to be considered:

What happened to today's appointment? What's happening with the will? Call me urgently.

1. The Mobile Telephone Transactions document records the following:

FRIDAY 12 July 2002 @ 8.58pm

- SMS'ed Dante re: his non-attendance to today's appointment.

1. Mr Aspite did not dispute receiving a SMS message from the plaintiff at this time or suggest that it was not read by him. He simply said in his affidavit that he was unable to recall the content of it. He went on to say that if he had been asked to call the plaintiff urgently in regards to the preparation of his father's will he would have telephoned as soon as he received the message in order to enquire as to the urgency of the situation and, irrespective of the lateness of the hour, he would have made arrangements to attend upon his client that night or the following day if there was a risk that his client might either die or be incapable of executing the will.

1. In the context of the events of 12 July as revealed by the hospital notes I am left in no doubt that the SMS message the plaintiff sent to Mr Aspite's mobile telephone at 8.58pm related to his concern about his father's deteriorating health and the preparation of his father's will and that he asked the solicitor to ring him urgently. I am simply unable to accept that at 9pm, after the distressing events of the day, that the plaintiff would be sending SMS messages to the solicitor about his own legal affairs or those of his sister, or simply reporting upon his father's failing health without reference to what he was entitled to regard by that time as the pressing need to formalise his father's testamentary intentions. It was the defendants' case that the plaintiff was eager to have the new will drawn because of the benefit that would flow to him. According to Mr Aspite, he raised it for the first time in conference in mid June and, before the conference commenced on 8 July at the Leichhardt meeting, he was heard to impress upon his father the importance of instructing the solicitor in accordance with what must be assumed was his expectation that he would benefit to the detriment of his siblings. It is irrelevant for present purposes whether his concern at this time was motivated entirely by self-interest or out of respect for his father's express wishes or a mixture of motives.

1. Persisting doubts about the plaintiff's honesty as to the circumstances in which he claimed the Mobile Phone Transactions document was created, and what he claimed were his telephone conversations with Mr Aspite before 8 July and on that day, leave me in doubt that the text of the message sent on 12 July was in the precise terms that the plaintiff deposed to in his evidence. In particular, I am not satisfied by the fact that the plaintiff sent a SMS message to Mr Aspite at 9pm that it also referred to the prearranged meeting for the will to be executed that day at 4pm. I am not satisfied that Mr Aspite made those arrangements or that he directed his secretary to inform the plaintiff of them. While I accept that the events of the afternoon of 12 July were all-consuming from the plaintiff's perspective, I am unable to accept that if a meeting had been fixed for 4pm for the express purpose of executing the will that the plaintiff did not ring Mr Aspite or his office earlier than 9pm to check on his whereabouts. Were I actually persuaded that arrangements had been made for a 4pm meeting as the plaintiff claimed in his evidence, and were I satisfied that the solicitor had failed to attend at that time without explanation, and then at 8.58pm did not respond to a legitimate query about his failure to attend, I would readily conclude that this constituted a breach of his duty of care to his client and the question of whether that duty of care extended to the plaintiff aside, the plaintiff's case on liability would be made out.

1. In short, it is not the plaintiff's evidence of what the SMS message contained that is, in my view, determinative of breach but the fact that I am satisfied that the message sent at 8.58pm on 12 July as reflected in the telephone billing records, almost certainly referred to the need for Mr Aspite to ring the plaintiff urgently as did the disputed call the following day at 12.20pm.

1. The plaintiff gave evidence that at 12.20pm on 13 July he left a further message on Mr Aspite's voicemail, again to which he received no response, in the following terms:

Hi Dante. It's Aldo. My father's condition is very bad. What is happening with the will? Please call me urgently.

1. Mr Aspite's evidence concerning this voicemail message was to the same effect as his evidence concerning the SMS message the night before in that he does not deny receiving the voicemail message from the plaintiff but denies it was in the terms he deposed to. In particular, as I understand Mr Aspite's evidence, that were he to have been told that there was an urgent need to call the plaintiff in light of his father's deteriorating condition he would have done so.

1. Again, the hospital notes of 13 July have assisted me in concluding that at 12.20pm the plaintiff repeated his request for the solicitor to call him urgently in light of his father's condition and his own concerns about the delay in presenting the will for execution.

1. At 2.30am on 13 July the nursing notes record the fact that Mr Maestrale was fidgety and restless; semiconscious on occasions, and using accessory muscles to breathe and refusing oxygen. The notes also record: "Patient's son counselled regarding patient's condition. He remains not very accepting of his decline".

1. During the course of that day and the following day Mr Maestrale's condition was largely unchanged with his condition described as poor, his mood disturbed and restless (including talking to himself and screaming out in pain) and with a gradual deterioration in his vital functions noted. Fluids were administered intravenously. His state of consciousness was noted as drowsy following use of morphine for pain relief.

1. Whether it was the relative lateness of the hour when the text message on Friday 12 July was sent or the inconvenience of being called on a Saturday afternoon (13 July), or perhaps Mr Aspite's belief that the plaintiff was exaggerating his father's deteriorating health in order to attract his attention and that preparing the will on Monday morning (15 July) was timely enough, his failure to respond to what I am satisfied was the plaintiff's request for an urgent response to his messages on both 12 and 13 July was a breach of his duty of care to his client and, for reasons I will come to presently, also to the plaintiff in the particular circumstances of this case. Again, I emphasise that while I am not satisfied that the SMS and voicemail communications over those two days were in the precise terms the plaintiff deposed to, I have no doubt that he asked Mr Aspite to return his calls and that he made it clear that this was urgent. Whether it was made explicit in the messages or not, I am also satisfied that the plaintiff was eager to advise Mr Aspite of his father's deteriorating health, and to urge him to attend upon his father with a will prepared for his execution, before he either lapsed into unconsciousness or died.

1. The events of the morning of 15 July reinforce that finding of fact. The plaintiff gave unchallenged evidence that he telephoned Mr Aspite at 9.20am and then again at 9.33am and left two voicemail messages in the following terms: "Dante, my father is very bad. I need to talk to you. Please call me back urgently". Mr Aspite agreed that he responded to the second call and that he had the following conversation (in general terms) with the plaintiff:

Mr Aspite: Hi Aldo, its Dante. How is your father?

Plaintiff: He is in deep sleep at the moment.

Mr Aspite: Do you think he'll wake up to sign the will?

Plaintiff: I don't know, He hasn't woken up to have breakfast yet.

Mr Aspite: I just got into the office now I'm waiting for Bob to get in and as soon as Bob gets in we'll attend the hospital and try see if we can get a signature.

Plaintiff: Why wait for Bob?

Mr Aspite: I need him to witness the signing of the will.

Plaintiff: Alright.

1. Mr Aspite gave evidence that the will was prepared that morning and that he and Mr Rando arrived at the hospital at 11.40am to witness its execution but were advised that Mr Maestrale had died at 11.20am.

Counsel's submissions on the question of breach

1. Mr Downing did not submit that it was not open to find breach of Mr Aspite's duty to Mr Maestrale because of his failure to respond to the plaintiff's calls on 12 and 13 July. He submitted that the plaintiff had failed to establish that Mr Aspite owed a duty of care to him. As I understand his submissions, were I to find that he did owe the plaintiff a duty of care which he breached in those limited circumstances, there was no issue as to factual causation under s 5D(1)(a) of the Civil Liability Act or scope of liability under s (1)(b).

1. Neither of the parties called expert medical evidence to aid in the interpretation of the comprehensive hospital notes which recorded the palliative care Mr Maestrale received before his passing at 11.20am on 15 July; or the significance of the progressive diminishment of his vital functions over the preceding weekend, or whether these notes, together with the recorded observations of the nursing staff, provide any insight into the question whether on the weekend before Mr Maestrale died he had the legal capacity to execute a formal will or provide instructions for an informal will by signing Mr Aspite's file notes. The impact of that question on the issue of causation was not addressed by counsel. This was doubtless in recognition of the fact that the plaintiff was not cross-examined to suggest that his father, despite the marked deterioration in his general health and functioning on 12 July (including drowsiness and confusion) was not otherwise of testamentary capacity.

1. The primary thrust of Mr Downing's submission was that the plaintiff's case on liability was not made out because the range and extent of persisting questions as to his honesty in the evidence he gave of his dealings with Mr Aspite in the weeks proceeding the weekend prior to his father's death (including the circumstances in which he claimed the notes of those dealings were made, transcribed and retained, and the fact that no complaint was made before proceedings issued years later) were such that I could not accept his evidence as probative of any fact in issue. That submission was not without considerable force. Despite the fact that some aspects of Mr Aspite's evidence (and Mr Rando's evidence to a lesser extent) in accounting for the disputed calls in June and in early July were unsatisfactory, I am not persuaded that the plaintiff gave truthful evidence of his dealings with Mr Aspite between 15 and June 2002 and 8 July 2002, and I expressly reject his evidence that he had no dealings with Mr Rando until October 2002. I also do not accept his evidence of conversations with Mr Aspite concerning his father's diagnosis or prognosis leading up to the Leichhardt meeting and am not persuaded by the plaintiff's evidence that Mr Aspite made arrangements for the preparation of a will which he repeatedly failed to honour, and without explanation, before that date. Were he to have conducted himself in that way, it is difficult to understand why the plaintiff continued to engage him at all on his father's behalf or why he continued to retain him to conduct his and his sister's litigation.

1. I am satisfied that the plaintiff's existing relationship with the first and second defendants as at June 2002 probably account for the disputed calls leading up to the Leichhardt meeting on 8 July and the disputed call from their office on 11 July. His failure to complain about Mr Aspite's conduct, even after his father's passing, also undermines the reliability of his evidence as to the content of these calls. I expressly reject his evidence that the Mobile Phone Transcription document was created from contemporaneous notes keyed into his mobile phone between 15 June and 15 July 2002. The form and content of the document has all the hallmarks of being created to support the case he decided to bring against the defendants in 2008 when his attempts to persuade his siblings to accept their father's testamentary wishes, and his attempts to enforce the intended will, failed. The absence of any objective corroborative evidence of the contemporaneous notes, in either a digital or electronic form, further undermines the probity of his evidence as to the circumstances in which the document was created.

1. I am unable to resolve the dispute as to the circumstances in which the Leichhardt meeting was convened. The evidence of both the plaintiff and Mr Aspite is unsatisfactory, albeit in different respects. However, in the result, that evidence was not material to the issue of liability since I am not satisfied that there was any breach of duty in Mr Aspite's dealings with his client at that time. However, I am satisfied that Mr Aspite has given truthful evidence of his dealings with Mr Maestrale at the Leichhardt meeting and that he was neither aware at that time that there was a risk of his client dying before a formal will was prepared, such that advice about an informal will should have been given, or that his assessment of his client's objective circumstances should have driven him to give that advice. In that context, the fact that Mr Poole did not expose with sufficient clarity the reason why advice of that kind should have been given undermines the weight of that aspect of his evidence. Otherwise, I was very greatly assisted by his evidence (and that of his colleague, Mr Glass) in the measured and considered way in which their reports were expressed and their assistance when their opinions were the subject of testing at the hearing. I am also satisfied, that contrary to the plaintiff's evidence, Mr Aspite did not undertake at the conclusion of the conference to attend the following day for the will to be executed.

1. The plaintiff has proved that Mr Aspite breached his overriding duty to his client when he failed to respond to the plaintiff's calls for urgent attention on 12 and 13 July to what he must have known or suspected related to his client's health and the unexecuted will. I am unable to accept that the calls were placed, or might have been placed, for any other reason. None were suggested either by Mr Aspite or his Counsel. In circumstances where Mr Aspite does not deny receiving the messages I consider it likely that, for whatever reason, he simply elected to ignore the plaintiff's repeated requests that he return his call when a simple phone call would have satisfied him of the need for his urgent attention to ensuring his duty to his client was discharged. A formal "not for resuscitation" order issued on 12 July. Were Mr Aspite in any doubt as to the urgency of the situation as the plaintiff perceived it, an inquiry of Mr Maestrale's treating doctors or the nursing staff over the weekend would have dispelled that doubt.

1. Although I have rejected the plaintiff's evidence of his earlier dealings with Mr Aspite as untruthful, the objective support for his evidence as to his father's deteriorating health in the hospital notes from 12 July, and the plaintiff's undisputed interest in the new will being executed before what he then knew was his imminent demise, supports a finding in his favour on the issue of liability, albeit on a more limited basis than that which was pleaded.

Did the first defendant owe the plaintiff a duty of care?

1. Mr Downing submitted that irrespective of the resolution of the facts in dispute in this case which, while he did not say so expressly, necessarily included a finding that Mr Aspite failed to respond to the plaintiff's calls for urgent advice on 12 and 13 July, Mr Aspite did not owe the plaintiff a duty of care and the plaintiff's case must fail for that reason. He referred to Hill v Van Erp [1997] HCA 9; 188 CLR 159 and to other cases where, in his submission, the question of whether a duty of care is owed to third parties arises in the context of claims brought by disappointed beneficiaries, and more generally. It was his submission that the cases in this jurisdiction where a duty of care to third parties has been held to exist involved situations where the testator had finalised their testamentary intentions but there was some impediment or error in the process of executing the will. He submitted that the facts of this case are readily distinguishable from that category of case.

1. He submitted that I would not be persuaded that Mr Aspite owed the plaintiff a duty of care in circumstances where although he had obtained instructions for the preparation of a new will, his client had not reviewed the will, much less indicated a preparedness to sign it. He also submitted that the plaintiff's own evidence indicated that in the period prior to his father's hospitalisation on 3 June 2002, and continuing until the final notes of conference were taken at the Leichhardt meeting on 8 July 2002, his testamentary intentions were unsettled. Mr Aspite gave evidence that initially at the Leichhardt meeting Mr Maestrale indicated a desire to give everything to the plaintiff but that he later decided to leave $150,000 to each of his daughters, Rosetta and Graziella, and his son, Giovanni, with a further revision of those instructions where an additional gift of $10,000 was given to Rosetta. Counsel also relied upon the notes of the conference with the plaintiff after his father death in further support of that submission.

1. Application of the principle readily extracted from the authorities to which Mr Downing referred satisfies me that although Mr Aspite's primary duty was to take reasonable care to carry out Mr Maestrale's instructions in accordance with his retainer, he also assumed a responsibility to the plaintiff as the beneficiary his client intended to benefit by his instructions given within a week of his death, instructions which were broadly consistent with what the plaintiff had indicated his father intended some weeks earlier.

1. In Hill v Van Erp, a case where the solicitor was held liable to the intended beneficiary under the will where the disposition was rendered ineffective because the husband of the intended beneficiary had been asked to attest the will, Dawson J observed at 185:

Thus, when a solicitor accepts responsibility for carrying out a client's testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended beneficiary. The responsibility is not contractual but arises from the solicitor's undertaking the duty of ensuring that the testator's intention of conferring a benefit upon a beneficiary is realised. In a factual, if not a legal sense, that may be seen as assuming a responsibility not only to the testatrix but also to the intended beneficiary.

1. His Honour went onto to say:

The notion of general reliance or dependence described by Mason J [in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424] is apt also to describe the situation in which, whilst there will usually be no specific reliance by an intended beneficiary upon a solicitor retained to attend to the will, the intended beneficiary's interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. And, it might be added, in that situation the solicitor knows of the beneficiary's dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary.

1. Mason CJ expressed the principle in a slightly different way. His Honour said at 170:

By accepting the testator's retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with; and the intended beneficiary thereby loses the property...

1. His Honour continued:

...I would not regard the principle underlying recovery against the solicitor as being an extension of the Hedley Byrne assumption of responsibility. The Hedley Byrne category of case depends upon an assumption of a duty of care as a factual element in the relationship between the plaintiff and defendant. In cases of the present kind, there is no anterior relationship between solicitor and intended beneficiary and the duty of care is imposed by law.

1. Although Dawson J (with whom Toohey J agreed) and Mason CJ approached the articulation of principle in different ways (with Gaudron J regarding the critical point as the solicitor's position of control over the testamentary wishes of the client), Hill v Van Erp is authority for the proposition that defects in a solicitor's work, whatever their character may, depending upon the facts and circumstances in a particular case, be just as much a breach of duty to persons foreseeably damaged by them as they are to the client.

1. The passages I have extracted above were cited and applied in Hendriks v McGeoch [2008] NSWCA 53 where the Basten JA (Spiegelman CJ agreeing) held that a solicitor will not generally be under a duty of care to a third party where performance of the duty would or could conflict with the solicitor's obligations to his/her client. However, where performance of the duty involves carrying out the client's instructions no such potential for a conflict arises. No suggestion of a conflict of that kind presents in the present case. In Hendriks the Court was also satisfied that the beneficiary's loss was caused by the solicitor's breach of duty since there was no suggestion that that either he or his mother (the testator) would not have signed an appropriate agreement protecting her son's interest in the residential property that she at one time determined to transfer inter vivos (in keeping with her then current will) but that she later resolved not to transfer because of the negative impact, on her tax affairs.

1. In Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 093, Pincus JA (Byrne JA agreeing) and Thomas JA in a separate judgment, accepted and applied the principles they considered emerged from the individual approaches adopted by the Court in Hill v Van Erp, if only by analogy. Despite Pincus JA disagreeing with the primary judge's view that the solicitor did not owe the Gallery a duty of care, his Honour considered in dismissing the appeal the findings of fact made by the primary judge that the testatrix did not insist on the various draft wills being provided to her in final form because she remained unsettled in her own mind as to whether the Gallery would benefit under the will as decisive. Accordingly, unless that finding was reversed no causal link could be established between delay on the part of the solicitors in preparation of the will and the testatrix's death before executing it in the Gallery's favour. Thomas JA held that the primary judge's findings in fact, particularly those concerning the lack of a firm intention to benefit the Gallery and the indecisive nature of the instructions to her solicitors, were fatal to the Gallery's claim. At [39] - [41] his Honour said:

[39] It may be accepted that whenever a solicitor takes instructions to make a will, there is a potential for a duty to arise in favour of third parties who may be damaged if the solicitor fails to discharge the retainer with due care. Whether a duty actually arises in favour of a particular third party depends upon a variety of circumstances, and these have not by any means been clearly identified by the cases. The leading case in Australia, Hill v Van Erp, suggests a variety of potential matters including foreseeability of loss to the third party, control of the situation by the solicitor, proximity between the solicitor and the third party, general public reliance on satisfactory performance by solicitors, assumption of responsibility to discharge the retainer properly, the powerlessness of the third party to do anything to protect himself or herself, whether or not there is any conflict between the duty owed to the client and the alleged duty to the third party and perhaps other matters also.

[40] There is as yet no consensus as to which matters are dominant or any formula which will guide a trial judge in formulating tests that will determine whether or not such a duty is owed. However on any view the primary obligation is that to the client. That obligation depends upon the retainer and the instructions that are given by the client from time to time. The duty to a third party may co-exist with but cannot override that to the client to whom the primary duty is owed. In the will-making area the decision whether to make or not make a will, and whether to benefit or not to benefit particular persons is entirely that of the intending testator or testatrix. It is up to the client to indicate when he or she is ready to make a particular will. Attempts by a solicitor to hurry up an undecided client or to seek to benefit particular beneficiaries are fraught with danger. Recognising this, Courts should be slow to inflict busybody functions or duties of this kind upon solicitors or other professional advisers.

[41] In the circumstances of the present case, particularly in the absence of indication from the testatrix that she wanted to finalise the matter at least to the extent of executing a will that would secure a particular benefit to the art gallery, I do not consider that the stage was reached at which any duty of care arose on the solicitor's part in favour of the art gallery. The conduct of the solicitors which in other fact situations might be held to have been unduly dilatory may here be seen as a response within acceptable limits to indecisive instructions from a difficult client who was stalling. They did not in my view breach their instructions or their retainer, and a fortiori did not breach any duty that could have arisen in favour of the art gallery.

1. The situation in the present case is really distinguishable from that case. Mr Maestrale had given clear and unambiguous instructions to Mr Aspite to prepare a will under which he intended that the plaintiff would benefit, to a material degree, differently from his other children. There is nothing to indicate that Mr Maestrale was uncertain as to his testamentary intentions at the conclusion of the Leichhardt meeting and everything to support the inference that he was thereafter awaiting the attendance of Mr Aspite to render those intentions final and enforceable.

1. By accepting those instructions, and in pursuance of carrying them out, I am satisfied that Mr Aspite had a coexistent duty to the plaintiff to ensure that in the event of any change in his father's health or capacity he would make prompt arrangements to attend with a formal will or, if time did not permit, to attend with the file notes so that they might be signed and an informal will created. The breach of duty did not reside in an unduly dilatory approach to preparation of the will by allowing the passage of seven days before the will was prepared but in his failure to respond to the plaintiff's urgent calls for advice and attention in the interim.

Damages

1. In this case, the plaintiff's entitlement to damages for breach of Mr Aspite's duty to him is properly characterised as the loss of a chance of him obtaining a benefit under the "new will" which was more valuable than what he in fact received under the "old will" (Heenan v di Sisto [2008] NSWCA 25 at [34]). The plaitiff's counsel submitted that the award of damages should put the plaintiff in the position he would have been in at the time of his father's death had Mr Aspite taken appropriate steps to have the intended will executed before Mr Maestrale died. Irrespective of the nuances in the approach of the parties, in my view, the principled approach in this case is to compare what the plaintiff in fact received under the will in respect of which probate was granted (that is, what he has in fact had to pay out in order to retain the family home) with what he would likely have actually received under the "new or intended will" consistent with his father's express wish that he should retain the family home but account to his sisters and his brother for their legacies of $150,000 each with an additional legacy of $10,000 to his sister, Rosetta.

1. The plaintiff's calculation of damages proceeds on the assumption that he is entitled to recover $359,000, being the difference between his anticipated benefit under the intended will after paying the bequests to his siblings ($632,000) and the actual benefit he received under the existing will ($273,000), namely $359,000, plus interest which he claimed should be calculated by reference to s 101 of the Supreme Court Act 1970 from the grant of probate to the date of judgment. I do not consider that is a proper approach for two reasons. In so far as the claim is for $359,000, that figure fails to account for the fact that while the plaintiff's sisters insisted that they should be paid their full entitlement under the existing will in the combined amount of $546,000 (as compared with $310,000 had the intended will been executed) his brother Giovanni "lent" his legacy to the plaintiff, free of interest and without any agreement as to when, if ever, it should be repaid. In addition, Giovanni had said he was content to accept that his father only intended he receive $150,000. Irrespective of whether the arrangement between the plaintiff and his brother was in exchange for allowing his brother to live at the family home or for some other reason, the plaintiff has had the use of an additional $150,000 to assist in funding the purchase of the family home which could have been put to further reduced his borrowings. He cannot claim this amounts as a measure of his damages.

1. I propose to assess damages by reference to the difference between what the plaintiff has in fact had to pay out to retain the family home and what he would have had to pay out but for the solicitor's breach, that is $236,000. This is the approach urged upon me by Mr Downing. To that sum must be added the additional stamp duty which was incurred in the plaintiff purchasing the family home ($40,738) and the conveyancing costs of $12,000 which brings the total to $288,738.

1. Although the quantum of the plaintiff's claim, as particularised in the further amended statement of claim, claimed interest in the amount of $89,811.37 prefaced on his borrowing of $600,000, in submissions his counsel submitted that statutory interest calculated from the commencement of proceedings to the date of hearing was the preferable approach. In view of my assessment of his loss, interest should be calculated on $288,738 and not by reference to the Act but by reference to the interest he has paid on his borrowings (as reflected in the loan account) at a percentage equal to the relationship between his actual borrowings and what I have assessed as his loss. (Mr Downing fixes that percentage at 46 per cent which I accept as a reasoned approximation.) This figure will need to be calculated by the parties before final orders can be made.

1. I am satisfied the plaintiff is not entitled to statutory interest. To award statutory interest in this case would be to overcompensate him for his loss.

1. Mr Downing submitted that the compound figure represented by the plaintiff's actual loss plus interest should be discounted further to reflect the degree of probability or possibility that upon being presented with either the intended will in final form or the solicitor's notes, Mr Maestrale would have changed his instructions and increased the benefits payable to his children (or one or more of them other than that of the plaintiff), and/or the degree of probability or possibility that Graziella would bring successful proceedings under the Family Provision Act 1982 to increase her legacy and/or a discount to reflect the fat that the plaintiff retains his brother's share of the estate and has not given evidence of any intention to pay his brother at any time in the short to medium term despite having sufficient funds available to him to do so.

1. I am satisfied, that the evidence establishes that a discount in the ultimate award of damages ought be applied by reason of the potential for Graziella to bring an action under the Family Provision Act. In contrast to her siblings, her circumstances as a single mother of two children, and her receipt of child support payments and Centre Link payments as her primary source of income, coupled with the influence of her sister Rosetta who did bring a Family Provision Act claim (albeit one that she later abandoned), coupled with the expert evidence of Mr Blackburn Hart SC that she would likely have increased her legacy from $150,000-$350,000, justify a 20 per cent discount of the plaintiff's damages. I am not, however, satisfied that the evidence establishes a likelihood, or even a measurable possibility, that Mr Maestrale would have declined to sign the will if it had been prepared by Mr Aspite before his death, or that the notes of his instructions if they had been presented to him in the week preceding his death would not have been signed. I am satisfied that his unwavering intention to benefit the plaintiff, and the relatively generous legacy he was leaving to his remaining children in any event meant that his instructions as reflected in the notes (and the final will) would likely have remained unaltered.

1. I also propose to discount the sum of $150,000 (being Giovanni's legacy that the plaintiff continues to have the benefit of) by applying the 5 per cent tables to reflect the fact that it will not be repaid for five years. This will reduce its present value to $117,600 which will reduce the plaintiff's award by a further $32,400.

1. After taking into account all relevant possibilities and probabilities in the way that I have applied the principled approach set out in Heenan v di Sisto at [28] - [32]), the award of damages to which the plaintiff would otherwise be entitled (after interest is allowed) will be reduced accordingly. The parties will be directed to prepare a settled schedule of damages to reflect these findings.

Costs

1. Although the point was not taken by Mr Downing who appeared for both defendants, Mr Rando's liability in negligence was not obvious from the pleadings and nothing was put to him in evidence that was suggestive of any duty he owed to the plaintiff, much less any breach. No submissions were directed to the issue by either counsel to the costs implications of this state of affairs.

1. I reserve the question of costs and invite counsel's submissions.

1. See Maestrale v Aspite (No 2) [2012] NSWSC 1421 for judgment on the question of costs.

Orders

1. Final orders are as follows:

1. Verdict for the plaintiff.

2. The defendants are to pay damages in the amount of $282,631.81 as per the attached schedule.

3. The defendants to pay 50 per cent of the plaintiff's costs on the ordinary basis up to and including 30 December 2011 and 40 per cent of the plaintiff's costs on the ordinary basis thereafter up to and including 1 May 2012.

4. Each party to bear their own costs of and relating to the hearing on the adjourned date.

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Schedule of Damages

Damage and Loss
Loss	$236,000.00
Stamp duty	$40,738.00
Conveyancing costs	$12,000.00
[as per para [110] of judgment]	$288,738.00
Less
20% discount on $77,000.00 to represent the degree of probability or possibility that Graziella would have brought successful proceedings under the Family Provision Act 1982 (which would have increased her legacy from $273,000.00 to $350,000.00	($15,440.00)
Discount on $150,000.00 applying the 5% tables (reducing the present value to $117,600.00) to reflect the fact that the plaintiff will not repay Giovanni's legacy for another 5 years	($32,400.00)	($47,800.00)
Subtotal	$240,938.00
Plus
Interest
For period 11.12.07 - 9.04.12
$90,953.08 x 40.1563% (calculated as a percentage of the amount the plaintiff in fact borrowed i.e. $240,938/ $600,000)	$36,523.39
For period May 2012 - September 2012
$10,385.48 x 40.1563% (calculated as a percentage of the amount the plaintiff in fact borrowed i.e. $240,938/$600,000)	$4,170.42
Plus an estimate of interest from September to the date of judgment	$1,000
Total judgment sum	$282,631.81

Decision last updated: 29 November 2012