Howe v Fischer [2014] NSWCA 286

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Howe v Fischer [2014] NSWCA 286 Hearing dates: 23 May 2014 Decision date: 26 August 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Barrett JA at [3] Decision: 1. Appeal allowed. 2. Set aside the orders made in the Common Law Division on 19 August 2013. 3. In lieu thereof, make the following orders: (a) Order verdict and judgment for the defendant. (b) Order that the plaintiff pay the defendant's costs of the proceedings. 4. The respondent pay the appellant's costs in this Court 5. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - professional negligence - solicitors - solicitor retained to prepare will - testatrix died before will prepared - duty of care owed by solicitor to disappointed beneficiary - scope of such duty dependent on terms of solicitor-client retainer - where solicitor and client agreed that solicitor would present draft of will at an agreed future time about two weeks after initial consultation - where the agreed time suited the convenience of both the solicitor and the client - client 94 years old - whether the terms of the retainer were such as to require immediate steps to sign informal will - whether solicitor was or should have been aware that the client might die or lose testamentary capacity within the agreed period of about two weeks PROFESSIONS AND TRADES - lawyers - solicitors - duties to client when instructed to prepare will. Legislation Cited: Civil Liability Act 2002 (NSW) Succession Act 2006 (NSW) Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311 CGU Insurance v Porthouse [2008] HCA 30; 235 CLR 103 Dickson v Creevey [2002] QCA 195 Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67 Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 Hill v Van Erp [1997] HCA 9; 188 CLR 159 Keesing v Adams [2010] NSWSC 336 Lucantonio v Kleinert [2009] NSWSC 853 Maestrale v Aspite [2012] NSWSC 1420 Maestrale v Aspite [2014] NSWCA 182 Neagle v Power [1967] SASR 373 Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735 Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Summerville v Walsh [1998] NSWCA 222 Takla v Nasr [2013] NSWCA 435 Vagg v McPhee [2013] NSWCA 29 White v Jones [1995] UKHL 5; [1995] 2 AC 207 Zakka v Elias [2013] NSWCA 119 Category: Principal judgment Parties: Graham W Howe (Appellant) Henry Jean Louis Fischer (Respondent) Representation: Counsel: K A Stern SC/D Hume (Appellant) C J Birch SC/K Tang (Respondent) Solicitors: Colin Biggers & Paisley (Appellant) Craddock Murray Neumann (Respondent) File Number(s): CA 2013/148769 Decision under appeal Citation: [2013] NSWSC Date of Decision: 2013-05-02 00:00:00 Before: Adamson J File Number(s): 2011/306108