Maestrale v Aspite [2012] NSWSC 1420

Supreme Court New South Wales

Medium Neutral Citation: Maestrale v Aspite [2012] NSWSC 1420 Hearing dates: 23, 24, 26 April; 1 May 2012 Decision date: 08 November 2012 Before: Fullerton J Decision: 1. Verdict for the plaintiff. 2. The defendants are to pay damages in the amount of $282,631.81. 3. The defendants to pay 50 per cent of the plaintiff's costs on the ordinary basis up to and including 30 December 2011 and 40 per cent of the plaintiff's costs on the ordinary basis thereafter up to and including 1 May 2012. 4. Each party to bear their own costs of and relating to the hearing on the adjourned date. Catchwords: PROFESSIONAL NEGLIGENCE - solicitor obtained instructions for preparation of new will by plaintiff's father - change to testamentary intentions - no uncertainty as to testamentary intentions - testator died before execution of will - solicitor failed to respond to plaintiff's calls for urgent advice - solicitor's duty of care to disappointed beneficiary under will - plainitff's loss of chance to benefit under new will Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Family Provision Act 1982 Probate and Administration Act 1898 Supreme Court Act 1970 Cases Cited: Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Heenan v di Sisto [2008] NSWCA 25 Hendriks v McGeoch [2008] NSWCA 53 Hill v Van Erp [1997] HCA 9; 188 CLR 159 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 093 Category: Principal judgment Parties: Aldo Maestrale (Plaintiff) Dante Aspite (1st Defendant) Bartholomew Rando (2nd Defendant) Representation: Counsel: JE Rowe (Plaintiff) J Downing (Defendants) Solicitors: MMD Law (Plaintiff) HWL Ebsworth Lawyers (Defendants) File Number(s): 2008/289388