HENDRIKS v McGEOCH [2008] NSWCA 53

New South Wales Court of Appeal

CITATION: HENDRIKS v McGEOCH [2008] NSWCA 53 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 March 2008

JUDGMENT DATE: 2 April 2008

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 7; Basten JA at 29

1. Appeal allowed in part. 2. Set aside the judgment for the plaintiff against the defendants for $422,834, and in lieu thereof judgment for the plaintiff against the defendants for such sum as shall be advised to the Registrar in accordance with order 3 taking effect on 13 April 2007. DECISION: 3. Direct the parties to confer with a view to agreement on the plaintiff's damages computed in accordance with these reasons and to advise the Registrar within seven days hereafter of the amount of the judgment for the plaintiff against the defendants. 4. Appellants pay 50 per cent of the respondent's costs of the appeal. 5. Liberty to apply in the event that the Registrar is not advised in accordance with order 3, such liberty to be exercised within fourteen days hereafter. 6. Application for leave to cross-appeal dismissed with costs.

CATCHWORDS: CONTRACT – express or implied retainer – legal practitioner described as "the family solicitor" in arrangement to transfer property from mother to her sons - COSTS – costs follow the event – cost of issues abandoned at beginning of proceedings – offers of compromise – Uniform Civil Procedure Rules r 42.1 - DAMAGES – loss of chance – assessment of probabilities and possibilities - TORTS – negligence – duty of care –duty of solicitor of testator to intended beneficiary of will – duty of solicitor to third party where performance of duty not in conflict with duty to client