Miller v Cooney

Case [2004] NSWCA 380
CITATION: MILLER & ORS v COONEY & ORS t/as HOWARD COONEY HARVEY [2004] NSWCA 380
HEARING DATE(S): 13 September 2004
JUDGMENT DATE:
1 November 2004
JUDGMENT OF: Sheller JA at 1; Hodgson JA at 38; Santow JA at 39
DECISION: 1 For the purposes of this appeal Roy Miller, the husband of the deceased appellant, Marcia Gladys Miller, be appointed to represent her estate; 2 Appeal dismissed with costs.
CATCHWORDS: WILL - solicitor's duty to take reasonable care to give effect to the client's intentions - whether beyond solicitor's retainer to check instructions given for a previous will - whether further enquiry should have been made as to ownership of property being disposed of - evidence as to usual practices of a solicitor
LEGISLATION CITED: Succession Act 1981 (Queensland)
Wills Probate and Administration Act 1898
CASES CITED: Carr-Glynn v Frearsons [1999] Ch 326
Curneck v Nitschke [2001] NSWCA 176
Erl v Wilhelm (1998) 2 WWR 522
Hawkins v Clayton (1988) 164 CLR 539
Heydon v NRMA Limited (2000) 36 ACSR 462
Hill v Van Erp (1997) 188 CLR 159
Permanent Trustee Australia Ltd v Boulton & Lynjoe Pty Ltd (1994) 33 NSWLR 735
Waimond Pty Ltd v Bryne (1989) 18 NSWLR 642

PARTIES :

 Marcia Gladys Miller, Jason Miller, William Miller, Tracey Ann Booby, Victoria Louise Slavin - Appellants
Chris Cooney, Phillip Harvey and Patrick Sheridan t/as Howard Cooney Harvey - Respondents
FILE NUMBER(S): CA 40106/04
COUNSEL: D L Davies SC - Appellants
S A Kerr - Respondents
SOLICITORS: Napier Keen - Appellants
Phillips Fox - Respondents
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 1455/02
LOWER COURT
JUDICIAL OFFICER : 		Certoma ADCJ


                          CA 40106/04
                          DC 1455/02

                          SHELLER JA
                          HODGSON JA
                          SANTOW JA
MILLER & ORS v COONEY & ORSt/as HOWARD COONEY HARVEY

Mr Alwyn and Mrs Joyce Ruth Lalor were the owners and joint tenants of a property known as 690 Gowings Hill Road, Kalateenee and another property known as 83 Broughton Street, Kempsey. On 19 August 1999, Joyce Ruth Lalor died. On her death, these two properties passed to Mr Lalor, as the surviving joint tenant.

Mr and Mrs Lalor had executed wills on 18 May 1989 and Mrs Lalor had executed another will on 19 January 1993. On 7 April 1998, Mr and Mrs Lalor instructed Mr Cooney, a partner in the firm of Howard, Sheridan, Cooney and Harvey to make some changes to their existing wills and consequently new wills were prepared for Mr and Mrs Lalor to sign.

By this new will, executed on 7 April 1998, Mrs Lalor provided that the Katateenee and Kempsey properties be divided between various family members identified in clauses 3 and 4. However, because the properties were held by Mrs Lalor jointly with Mr Lalor, neither clauses 3 or 4 were effective.

On 14 March 2002, the sister, nieces and nephews of Mrs Lalor named as beneficiaries in her will, commenced proceedings in the District Court against Mr Cooney and members of the firm claiming damages for negligence in…

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AGLC
Miller v Cooney [2004] NSWCA 380
Case
[2004] NSWCA 380
Decision Date

CaseChat Overview and Summary

This appeal concerned a claim brought by the executor of the estate of the late Marcia Gladys Miller against her solicitor, Mr. Cooney. The executor alleged that the solicitor had breached his duty of care in preparing Mrs. Miller's will. The dispute centred on whether the solicitor had taken reasonable care to ascertain the true ownership of certain property that Mrs. Miller purported to dispose of in her will, and whether he had a duty to investigate instructions given for a previous will. The appeal was heard by Sheller, Hodgson and Santow JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the solicitor's retainer extended to verifying the ownership of the property Mrs. Miller sought to bequeath, and whether the solicitor ought to have made further inquiries regarding the ownership of that property, given the circumstances and the instructions provided for a prior will. The court was also required to consider the evidence presented regarding the usual practices of solicitors in such matters.

The Court of Appeal found that the solicitor had acted within the scope of his retainer and that there was no evidence to suggest that he had failed to exercise reasonable care. The court noted that the solicitor had relied on the instructions given by his client, who was the registered owner of the property. While the solicitor was aware of a previous will, the court held that it was not incumbent upon him to conduct an independent investigation into the ownership of the property beyond what was indicated by his client's instructions and the information available to him. The court considered the usual practices of solicitors and concluded that the solicitor's conduct was consistent with those practices.

The appeal was dismissed, and the court ordered that Roy Miller, the husband of the deceased appellant, be appointed to represent her estate for the purposes of the appeal. The respondent was awarded costs.

Orders

Orders of the court

1 For the purposes of this appeal Roy Miller, the husband of the deceased appellant, Marcia Gladys Miller, be appointed to represent her estate; 2 Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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