O'Loughlin v Arnott - [2014] VSC 416

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

S CI 2013 5210

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Estate of Geoffrey Vernon Arnott deceased

BETWEEN

ANNETTE O’LOUGHLIN	Plaintiff
and
KATE MICHELLE ARNOTT AND MATTHEW GEOFFREY ARNOTT (who are sued as the executors of the Will)	Defendants

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2014
DATE OF JUDGMENT:	3 September 2014
CASE MAY BE CITED AS:	O’Loughlin v Arnott & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 416

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LEGAL PRACTITIONERS – Claim by plaintiff under Part IV of the Administration and Probate Act 1958 – Plaintiff’s solicitor drew prior will of deceased – Possible misuse of confidential information – Solicitor-client privilege – Duty of loyalty – Restraining solicitor as officer of the court from acting for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Seelig	Brendan Hardiman & Associates
For the Defendants	Mr J D Catlin	Armstrong Legal

HIS HONOUR:

Introduction and background

The defendants are the executors of the Will of the late Geoffrey Vernon Arnott (‘the deceased’). They are also the children of the deceased.

The plaintiff was the de facto partner of the deceased.

The deceased died on 17 March 2013 leaving a Will.

The plaintiff has brought a claim against the estate of the deceased pursuant to Part IV Administration and Probate Act 1958 (‘the Act’) alleging that the deceased did not properly provide for her in his Will.

Factual matters

Brendan Hardiman (‘Hardiman’) first acted for the deceased when he drew a Will for him in July 1997.

In February 2011, the deceased and the plaintiff (who were domestic partners at the time) consulted Hardiman in relation to their respective Wills.

In September 2012, the deceased (without the plaintiff) instructed Hardiman to draw a new Will for him. The deceased signed this Will which had been drawn by Hardiman on 4 October 2012 (‘the Penultimate Will’).

In February 2013, the deceased instructed Mahons Lawyers (who acted for the defendants in this Part IV proceeding up until about 7 months ago) to draw another Will which the deceased signed on 19 February 2013 (‘the Final Will’). The Final Will and the Penultimate Will are different. Relevantly, the Penultimate Will provides for a transfer to the plaintiff of a property situated at Unit 2/25 Victoria Street, Ringwood East (‘the Property’). The final Will gives the plaintiff a life interest or estate in the Property.

The defendants were granted probate of the Final Will on or about 15 May 2013.

There has been and is no challenge to the validity of the Final Will.

The plaintiff has retained Hardiman as her solicitor in this proceeding.

The defendants by summons dated 23 July 2014, in effect seek a permanent injunction restraining Hardiman from acting for the plaintiff.

The defendants’ application is supported by the affidavit of Mr Matthew Geoffrey Arnott affirmed…

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.

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Details

Case: [2014] VSC 416
Decision Date: 3 September 2014

CaseChat Overview and Summary

In the matter of O'Loughlin v Arnott, the plaintiff sought to restrain the defendant, her solicitor, from acting in the proceedings on the basis that the defendant had drawn a prior will of the deceased and that there was a possibility that the defendant had misused confidential information obtained from the deceased. The matter was heard in the Supreme Court of Victoria. The plaintiff contended that the defendant had breached the duty of loyalty and that the court should exercise its inherent jurisdiction to restrain the defendant from acting for the plaintiff. The defendant denied the allegations and argued that the court should not interfere with the solicitor-client relationship.

The court was required to determine whether the plaintiff's solicitor had breached the duty of loyalty owed to the plaintiff and whether the court should exercise its inherent jurisdiction to restrain the defendant from acting for the plaintiff. The court considered whether the solicitor-client privilege applied to the information in question and whether the information could have been misused. The court also considered the public interest in protecting the solicitor-client relationship and the potential impact of restraining the defendant from acting for the plaintiff.

The court found that the plaintiff's solicitor had not breached the duty of loyalty owed to the plaintiff. The court held that the solicitor-client privilege applied to the information in question and that there was no evidence of misuse of that information. The court also found that the public interest in protecting the solicitor-client relationship outweighed the potential impact of restraining the defendant from acting for the plaintiff. The court therefore refused the plaintiff's application to restrain the defendant from acting for her.

The court ordered that the plaintiff's application be dismissed and that the plaintiff pay the defendant's costs of the application.

Orders