Queensland Art Gallery Board of Trustees v Henderson Trout

[2000] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

Qld Art Gallery v Henderson Trout [2000] QCA 93

PARTIES:

QUEENSLAND ART GALLERY

BOARD OF TRUSTEES
(plaintiff/appellant)
v
HENDERSON TROUT (a firm)
(defendant/respondent)

FILE NO/S:

Appeal No 11327 of 1998
SC No 1750 of 1992

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 1999, 13 August 1999

JUDGES:

Pincus and Thomas JJA, Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION OF NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – appellant alleged expectation to receive bequest of art collection under deceased's will – will at time of death did not contain that bequest – new will not prepared for execution prior to death – evidence that deceased had not formed fixed intention of benefiting appellant – whether deceased's solicitors owed duty of care to appellant – whether solicitors' alleged delay amounted to breach of any duty of care

Bryan v Maloney (1995) 182 CLR 609, mentioned
Gala v Preston (1991) 172 CLR 243, mentioned
Hill v Van Erp (1997) 188 CLR 159, considered
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190, discussed
Somerville v Walsh, NSW Court of Appeal CA 40321 of 1997, 26 February 1998, mentioned
White v Jones [1995] 2 AC 207, considered

COUNSEL:

Mr W Sofronoff QC, with him Mr P O'Shea for the appellant
Mr P A Keane QC, with him Mr D G Clothier for the respondent

SOLICITORS:

Gadens Lawyers for the appellant
Corrs Chambers Westgarth for the respondent

1. PINCUS JA:  This is an appeal against a judgment for the defendants in an action for negligence against solicitors.  The judge provisionally assessed damages at $8.9M.  The appellant's case, well put by its counsel, is that the solicitors received instructions from Lady Trout ("the testatrix") to make a Will leaving a valuable art collection and other items to it, that through inexcusable dilatoriness on the solicitors' part they failed to complete their task and that the testatrix died leaving a Will under which the Gallery received nothing.  I shall call the chattels in issue "the art collection" which is the expression used in the Statement of Claim.

1. It appears to me to follow, not directly but by analogy, from the High Court's decision in Hill v Van Erp (1997) 188 CLR 159, that the solicitors owed a duty of care to the Gallery because they knew that the Will the testatrix proposed to make was, according to the testatrix's instructions to them, to include the Gallery as a substantial beneficiary; the point is discussed further below. A complication in the case is that there is a dispute as to whether it was the fact that, as the testatrix instructed the solicitors, Henderson Trout,…