TALBOT & OLIVIER -v- SHANN & ANOR [2005] WASCA 34

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 34
Court:	THE FULL COURT (WA)
Case No:	FUL:146/2003	Heard:	2 NOVEMBER 2004
Coram:	MURRAY J TEMPLEMAN J ROBERTS-SMITH J	Delivered:	4/03/05
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal dismissed Cross-appeal allowed
Category:	B
PDF Version

Parties:	TALBOT & OLIVIER IAN DAVID SHANN DEBORAH JANE COWLING
Catchwords:	Negligence Legal advice to solicitor who sold his property to clients Whether error in finding that solicitor's legal advisers undertook to provide advice and were under duty to provide advice Whether error in finding advice should have included presumption of undue influence and difficulty of rebuttal Cross-appeal on damages Whether error in denying award on basis that amounts paid by person other than plaintiff or that plaintiff did not provide documentary evidence of payment
Legislation:	Nil
Case References:	Chappel v Hart (1998) 195 CLR 232 McGuire & Tanzy v Makaronis (1997) 188 CLR 449 Northwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 Royal Bank of Scotland plc v Ettridge (No 2) [2002] 2 AC 773 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Chapman v Hearse (1961) 106 CLR 112 Craig v Troy (1997) 16 WAR 96 Delta Corporation Limited & Davy [2002] WASCA 125 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Medlin v SGIC (1995) 182 CLR 1 Pegrum v Fatharly (1996) 14 WAR 92 Purkess v Crittenden (1965) 114 CLR 164 Rosenberg v Percival (2001) 205 CLR 434 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Shire of Brookton v Water Corporation & Ors [2003] WASCA 240 Sykes v Midland Bank Executor and Trustee Co Ltd (1971) 1 QB 113 Tubemakers of Australia v Fernandez (1976) 10 ALR 303 Wakim v McNally (2002) 121 FCR 162 Wood v Apple Introductions (Brisbane) Pty Ltd (in liq) (1990) ANZ ConvR 518

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TALBOT & OLIVIER -v- SHANN & ANOR [2005] WASCA 34 CORAM : MURRAY J

TEMPLEMAN J

ROBERTS-SMITH J

HEARD : 2 NOVEMBER 2004 DELIVERED : 4 MARCH 2005 FILE NO/S : FUL 146 of 2003 BETWEEN : TALBOT & OLIVIER

Appellant (Defendant)

AND

IAN DAVID SHANN

First Respondent (First Plaintiff)

DEBORAH JANE COWLING

Second Respondent (Second Plaintiff)

ON APPEAL FROM:

For File No : FUL 146 of 2003

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DEANE DCJ

Citation : SHANN v TALBOT & OLIVIER

File No : CIV 4074 of 1999

(Page 2)

Catchwords:

Negligence - Legal advice to solicitor who sold his property to clients - Whether error in finding that solicitor's legal advisers undertook to provide advice and were under duty to provide advice - Whether error in finding advice should have included presumption of undue influence and difficulty of…

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: [2005] WASCA 34
Decision Date: 4 MARCH 2005

CaseChat Overview and Summary

The case of Talbot & Olivier v Shann involved a dispute where the plaintiffs, Talbot and Olivier, alleged that their legal advisers had provided negligent advice in relation to the sale of property. The legal advisers, Shann, argued that they did not owe a duty of care to the plaintiffs. The case was heard in the court, which had to decide on the legal obligations of the advisers to the plaintiffs. The court examined whether there was a clear undertaking by the advisers to provide advice and if the advisers were indeed under a duty to provide such advice. Additionally, the court assessed whether the advice should have included a presumption of undue influence and the difficulties associated with rebutting such a presumption.

The court's reasoning involved a thorough analysis of the nature of the relationship between the legal advisers and the plaintiffs. It was determined that there was indeed an undertaking to provide advice, establishing a duty of care. The court also examined the scope of the advice that should have been provided, concluding that the advisers should have included a presumption of undue influence in their advice and highlighted the challenges in rebutting such a presumption. Furthermore, the court addressed the cross-appeal concerning the damages awarded, ruling that the award should not have been denied solely on the basis that the payments were made by someone other than the plaintiff or that the plaintiff had not provided documentary evidence of the payment.

The appeal was dismissed, affirming the initial findings regarding the duty of care and the scope of the advice that should have been provided. However, the cross-appeal was allowed, resulting in a re-evaluation of the damages awarded. This decision underscores the importance of clear and comprehensive legal advice, particularly in property transactions, and the necessity for legal advisers to consider potential presumptions of undue influence in their advice.

Orders

Orders of the court

Appeal dismissed

Cross-appeal allowed

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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