Weller v Phipps

The case of *Weller v Phipps* involved a dispute concerning the conduct of a solicitor, Mr Weller, who represented Mr Phipps. Mr Phipps had initially brought proceedings under the *Family Provision Act 1982* (NSW) seeking provision from his grandmother's estate, which primarily consisted of a house. Following an order for a legacy and costs from the estate, Mr Phipps sought further advice from Mr Weller regarding a potential claim to an interest in the house based on an alleged promise by his grandmother and/or estoppel. The core of the dispute concerned the liability of Mr Weller for the estate's costs incurred over an eight-month period, arising from allegations that he was negligent in not advising Mr Phipps earlier that such a claim was likely to fail due to issue estoppel and/or *Anshun* estoppel. The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the court were whether Mr Weller, as Mr Phipps' solicitor, was negligent in his conduct. Specifically, the court had to determine if Mr Weller had a duty to advise Mr Phipps, or obtain counsel's advice, that any claim to an interest in the house based on a promise or estoppel was hopeless due to the prior Family Provision Act proceedings. This involved considering whether expert evidence was required for the court to reach such a conclusion regarding the application of issue and *Anshun* estoppel. The court also had to assess whether Mr Weller's actions in obtaining detailed statements from Mr Phipps, rather than immediately seeking urgent advice from counsel on the prospects of a new claim, constituted a breach of his duty of care.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The court reasoned that the solicitor's conduct in obtaining detailed statements from Mr Phipps was appropriate, given the complex evidentiary issues surrounding the alleged promise, including the deceased's cognitive capacity at the time, her moral obligations to other children, the lack of written evidence, and the absence of corroboration. These factors presented significant hurdles to any claim. Furthermore, the court found that there was no undue delay in Mr Weller's actions, and that the urgency of the situation did not necessitate immediate advice from counsel, particularly considering the timeframes involved in Supreme Court proceedings and the possibility of a stay. The court implicitly accepted that the solicitor's approach allowed counsel to properly assess the probability of success on the merits of any further action. The appeal was dismissed with costs.