Smeaton v Pattison

Case [2002] QSC 431

SUPREME COURT OF QUEENSLAND

CITATION:

Smeaton & Ors v Pattison [2002] QSC 431

PARTIES:

SIMON SMEATON
(first plaintiff)
BELINDA SMEATON
(second plaintiff)
PAUL SMEATON
(third plaintiff)
NATHAN SMEATON
(fourth plaintiff)
v
JOSEPH JOHN PATTISON
(defendant)

FILE NO/S:

SC No 6074 of 2001

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5 December 2002

JUDGE:

Atkinson J

ORDER:

Judgment is given for the plaintiffs in the sum of $232,322.82 together with interest

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where testator retained solicitor to prepare will leaving testator’s half interest in joint tenancies to his children – where solicitor failed to advise that to sever the joint tenancy under s 59 of the Land Titles Act a transfer must be served on the other joint tenant – where intended beneficiaries were deprived of benefit under the will – whether conduct of solicitor was negligent

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – OTHER CASES  - where testator was reluctant to serve transfer of joint tenancy on his wife – where testator decided not to serve transfer after receiving negligent advice that the joint tenancy could be severed after his death – whether testator would have served the transfer if properly advised – whether the negligent advice caused the loss to the plaintiff beneficiaries

Land Title Act 1994 (Qld), s 59
Evidence Act 1977 (Qld), s 18, s 101, s 102

Carr-Glynn v Frearsons [1999] Ch 326, followed
Corin v Patton (1990) 169 CLR 540, applied
Dickson v Creevey [2002] QCA 195, followed
Dobson v Morris (1986) 4 NSWLR 681, followed
Green v Chenoweth, unreported Queensland Court of Appeal, Appeal No 10998 of 1996, 11 November 1997, followed
Hawkins v Clayton (1988) 164 CLR 539, followed
Hill and Van Erp (1997) 188 CLR 159, applied
Hughes v National Trustees, Executor and Agency Co of Australasia Limited (1979) 143 CLR 134, followed
Johnson v Perez (1988) 166 CLR 351, applied
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, considered
Rosenberg v Percival (2001) 205 CLR 434, followed
White v Jones [1995] 2 AC 207, cited
Wright v Gibbons (1949) 78 CLR 313, followed

COUNSEL:

K S Howe for the plaintiffs

R V Hanson QC for the defendant

SOLICITORS:

Delaneys Lawyers for the plaintiffs

Clayton Utz for the defendant

  1. In March 1995, Peter Smeaton was 63 years old.  He decided that he needed a new will.  He therefore went to see a solicitor, Joseph Pattison, whom he knew personally and trusted.  Mr Smeaton’s eldest son, Simon, had been best man at Mr Pattison’s wedding.  In 1995, Mr Smeaton was married to Joanne Smeaton, his second wife.

  1. Mr Smeaton’s first marriage, in 1955, was to Judith Smeaton.  They had three children; Simon, born in 1957, Belinda, born on 6…

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AGLC
Smeaton v Pattison [2002] QSC 431
Case
[2002] QSC 431
Decision Date

CaseChat Overview and Summary

In the case of Smeaton v Pattison, the plaintiffs sought damages for negligence against the defendant, a solicitor, who had failed to properly advise the testator regarding the severing of a joint tenancy in property. The testator had intended for his half interest in a joint tenancy to be left to his children through his will, but the solicitor's advice led to the children being deprived of their intended inheritance. The dispute hinged on whether the solicitor's conduct constituted negligence and, if so, whether this negligence caused the loss to the intended beneficiaries. The court was tasked with determining if a special relationship existed between the solicitor and the testator that gave rise to a duty of care, and whether the solicitor breached this duty, leading to the plaintiffs' loss.

The central legal issues before the court were whether the solicitor owed a duty of care to the intended beneficiaries of the testator's estate and if so, whether this duty was breached by the solicitor's failure to advise correctly on the legal requirements for severing a joint tenancy. Additionally, the court needed to ascertain if the solicitor's negligent advice directly caused the loss suffered by the plaintiffs. The court's reasoning involved examining the relationship between the solicitor and the testator, the standard of care expected in such relationships, and the causal link between the negligent advice and the plaintiffs' loss.

The court found that the solicitor owed a duty of care to the intended beneficiaries of the testator's estate, as there was a special relationship that imposed such a duty. The court determined that the solicitor breached this duty by providing incorrect advice on the legal requirements for severing the joint tenancy. Furthermore, the court concluded that the negligent advice caused the loss to the plaintiffs, as it was reasonably foreseeable that proper advice would have led the testator to serve the necessary transfer on the other joint tenant. Consequently, the court held the solicitor liable for negligence, awarding the plaintiffs damages in the sum of $232,322.82, together with interest.

Orders

Orders of the court

Judgment is given for the plaintiffs in the sum of $232,322.82 together with interest

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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