Badenach v Calvert [2016] HCA 18

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, GAGELER, KEANE AND GORDON JJ

ROBERT BADENACH & ANOR APPELLANTS

AND

ROGER WAYNE CALVERT RESPONDENT

Badenach v Calvert [2016] HCA 18 11 May 2016 H12/2015

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Supreme Court of Tasmania made on 24 July 2015, and in their place order that the appeal be dismissed with costs.

On appeal from the Supreme Court of Tasmania

Representation

J Ruskin QC with S B McElwaine SC for the appellants (instructed by Shaun McElwaine Barrister & Solicitor)

K N Wilson QC with S S Monks for the respondent (instructed by Shine Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Badenach v Calvert

Negligence – Duty of care – Scope of duty of care – Where solicitor received instructions from testator to prepare a will – Where entirety of testator's estate was to pass to respondent – Where testator's daughter brought successful proceedings under Testator's Family Maintenance Act 1912 (Tas) ("TFM Act") for provision out of testator's estate – Whether duty of care owed by solicitor to testator extended to advising testator of possible steps to avoid exposing testator's estate to a claim under TFM Act.

Negligence – Duty of care – Existence of duty of care – Whether solicitor owed duty of care to intended beneficiary under testator's will – Whether Hill v Van Erp (1997) 188 CLR 159 applied – Whether interests of testator coincident with interests of intended beneficiary.

Negligence – Causation – Whether, but for solicitor's failure to give advice, respondent would have received entirety of testator's estate – Whether relevant loss is a loss of chance.

Words and phrases – "coincident", "duty of care", "interests of the intended beneficiary", "interests of the testator", "loss of a chance", "testamentary intention".