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Maestrale v Aspite

Maestrale v Aspite

Case [2012] NSWSC 1420 8 November 2012

Duty of Care

Negligence

Loss of Chance

Professional Negligence

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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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maestrale v Aspite

Details

AGLC: Maestrale v Aspite [2012] NSWSC 1420
Case: [2012] NSWSC 1420
Decision Date: 08 November 2012

CaseChat Overview and Summary

The case of Maestrale v Aspite involved the plaintiff, Maestrale, who sought damages for professional negligence against the defendant, Aspite, a solicitor. The dispute arose from the solicitor's failure to provide timely advice regarding the preparation of a new will by the plaintiff's father, who had altered his testamentary intentions. The testator passed away before the execution of the new will, and the plaintiff claimed damages for the loss of opportunity to benefit from the new will due to the solicitor's negligence.

The primary legal issue before the court was whether the solicitor owed a duty of care to the disappointed beneficiary under the will. The court needed to determine if the solicitor's failure to respond to urgent calls for advice constituted a breach of this duty and if such a breach resulted in the plaintiff's loss of opportunity to benefit from the new will. The court also had to consider whether the testator's intentions were uncertain and if there was any ambiguity that might have affected the solicitor's obligations.

The court found that there was no uncertainty in the testator's intentions, and the solicitor's failure to respond to urgent calls did indeed breach the duty of care owed to the plaintiff. The court held that the plaintiff had suffered a loss of opportunity due to the solicitor's negligence, which was a foreseeable consequence of the breach. Consequently, the plaintiff was entitled to compensation for the loss of chance to benefit from the new will. The court's reasoning was based on the established principles of professional negligence, focusing on the foreseeability and proximity of the harm caused by the solicitor's actions.

The final orders of the court awarded the plaintiff damages for the loss of opportunity to benefit from the new will, reflecting the loss of chance due to the solicitor's negligence. The court provided a detailed analysis of the solicitor's duties and the specific circumstances of the case, ensuring that the plaintiff's claim was comprehensively addressed.

Orders