Queensland Art Gallery v Henderson Trout [2000] QCA 93

[1] PINCUS JA: This is an appeal against a judgment for the defendants in an action for negligence against solicitors. The judge provisionally assessed damages at $8.9M. The appellant's case, well put by its counsel, is that the solicitors received instructions from Lady Trout ("the testatrix") to make a Will leaving a valuable art collection and other items to it, that through inexcusable dilatoriness on the solicitors' part they failed to complete their task and that the testatrix died leaving a Will under which the Gallery received nothing. I shall call the chattels in issue "the art collection" which is the expression used in the Statement of Claim.

[2] It appears to me to follow, not directly but by analogy, from the High Court's decision in Hill v Van Erp (1997) 188 CLR 159, that the solicitors owed a duty of care to the Gallery because they knew that the Will the testatrix proposed to make was, according to the testatrix's instructions to them, to include the Gallery as a substantial beneficiary; the point is discussed further below. A complication in the case is that there is a dispute as to whether it was the fact that, as the testatrix instructed the solicitors, Henderson Trout, she had decided to leave her art collection to the Gallery; there was evidence, referred to below, that not long before her death she had in truth still not made up her mind whether to benefit the Gallery by her Will. The judge decided that the testatrix never asked the solicitors to prepare a Will for execution and that she did not do so because she was undecided about the gift to the Gallery.

[3] The solicitors at Henderson Trout who dealt with the testatrix about her proposed new Will were George William Deeb and Timothy David Ferrier; Deeb was senior to Ferrier in the firm. The judge regarded their account of events favourably and made findings which, in general, accorded with their evidence. The Gallery argues that his Honour should have scrutinised their evidence with some suspicion, insofar as it dealt with their contacts with the testatrix, because the testatrix is dead and cannot contradict what they say. There is information available as to what the testatrix's attitude towards relevant events was, much of it unchallenged; the primary judge also had the advantage of some writings made by the testatrix, both instructions to Henderson Trout and a diary. Also, a number of witnesses whose credit could hardly be questioned gave evidence intended to show that the testatrix was minded, indeed determined, to leave her art collection to the Gallery; unfortunately, not all of this evidence can be reconciled with objective events disclosed by the evidence.

[4] The Gallery can and does rely upon statements made by the testatrix and argues that they should have induced the judge not to place the faith he did in the veracity of Deeb and Ferrier. Henderson Trout, on the other hand, argue that the testatrix was not always reliable in her statements about relevant events and was inclined to change her mind and to be uncertain in her intentions.

[5] The Gallery's case on appeal has no central theme. The Court is in effect asked to retry the matter on the record, considering a number of reasons why the primary judge's factual conclusions should be rejected. But as it appears to me, an important issue is whether, as the Gallery would have it, the primary judge should have been inclined because of evidence about the testatrix's statements to reject important parts of the version of events given by Deeb and Ferrier - to disbelieve them, as he did not.

[6] I have called Lady Trout (who was the widow of an eminent Brisbane solicitor Sir Leon Trout) "the testatrix", although the case is not about a Will she made, but about one she did not make. Nevertheless the description of her as a testatrix is apt, because she had a persistent interest in as well as much experience in the process of Will-making. Sir Leon died on 6 March 1978 and between that date and her own death, on 24 May 1988, the testatrix executed 16 testamentary instruments - Wills and Codicils; some of those included the Gallery as a beneficiary and some did not. During the 10 years which elapsed between the two deaths there were two periods when there were Wills of the testatrix extant which gave the testatrix's house and art collection to the Gallery; six days from 13 April 1978 (shortly after her husband's death) to 19 April 1978 and about 3½ years from 24 May 1979 to 21 December 1982. For most of the 10 years the Gallery was not a beneficiary and in particular it was not during the last five years of the testatrix's life.

[7] The testatrix's sister Mrs Hawley made a statement which was put in evidence saying in effect that from late 1986 the testatrix regularly discussed with her efforts to have a new Will made at Henderson Trout to leave her art collection to the Gallery. Henderson Trout received no instructions about that until near the end of 1987. It is clear from entries in the testatrix's diary and from the fact that she made a Will in October 1986 leaving nothing to the Gallery that what was said to have been told to Mrs Hawley was incorrect. There is an entry for 11 April 1986 which is extremely critical of the Gallery and of their attitude towards donors. The testatrix recorded that a private dealer and gallery owner, Mr Philip Bacon, had helped her sort out portraits she was leaving to the Gallery in her Will; but the entry continued, "have since changed my mind". Other entries in 1986 evince great hostility to the Gallery and, somewhat strangely in view of her subsequent reliance upon his legal work, Deeb. She was described before us as a "demanding and difficult client"; but it is not my view that her demands on the solicitors were unreasonable.

[8] A period of about five months elapsed from the date when the testatrix first gave instructions to Deeb for a new Will and the date, 5 May 1988, when she terminated those instructions; the Gallery's case is that the period of five months was far too long and that but for dilatoriness on the part of Deeb and Ferrier a Will would have been made leaving the Gallery the art collection. But the judge's findings, if accepted, support the view that during that period the testatrix did not have a fixed intention about the disposition of her art collection.

[9] The main evidence on the point just mentioned was from Mr J N Goss a member of the Queensland Legislative Assembly and a former member of the Brisbane City Council. In 1987 and 1988, in his capacity as the representative in the Council of a ward in which her house was located, Goss had had discussions with the testatrix about her art collection. During those discussions the testatrix expressed a fear that her collection would be put in storage if it were given to the Gallery and mentioned reasons for her dissatisfaction with the Gallery. She told Goss that Wills had been drawn up and that she had been:

"stalling in the hope that she could find some alternative to keep the art collection together rather than being split up, but she made it quite clear that she did not want the Queensland Art Gallery to get the collection".

Goss took the opportunity to suggest an alternative donee, the Brisbane City Council, and offered to approach the Lord Mayor about the matter. There is what appears to me to be a critical letter, dated 19 May 1988, written by Goss to the testatrix. The letter contemplates a Lord Mayoral visit to the testatrix's home to view her art collection on 26 May 1988; she died two days earlier. The conversations of which Goss spoke contemplated that the Council might exhibit the collection for public benefit if the collection were bequeathed to it. The letter of 19 May 1988 was written with a view to pursuing that idea.

[10] Unless the discussions the testatrix had with Goss in 1987 and 1988 until the very month of her death were engaged in by her frivolously, they constitute a solid reason for the judge's having declined to find that the testatrix had at any time before she died a fixed intention of leaving her collection to the Gallery. The judge was of opinion that relevant conversation between Goss and the testatrix occurred as late as April 1988, the month before the testatrix's death. Despite the strong attack made on this finding, it was in my opinion one which was well open to his Honour.

[11] I have already mentioned the diary evidence of the testatrix's hostility to and indeed attitude of complete abhorrence towards Deeb. Mr D G Hall, called by the Gallery's counsel below, gave evidence that "around August, maybe early September 1987" she complained about Deeb's alleged failure to prepare a new Will and became "increasingly agitated"; she would complain to him two or three times a week. It will be recalled that it was not until December of that year that Deeb was first approached about a new Will. She told Mr M J D Meadows, a solicitor who began to act in the matter of her Will after she dismissed Henderson Trout, that she had been trying to have a new Will prepared by Henderson Trout and had been waiting for some 18 months. That was untrue, in my opinion. I would comment that an attitude of hostility towards her chosen solicitor, of such a degree as to bring about the abusive remarks confided to her diary and numerous complaints to third parties, suggests a rather unusual relationship between solicitor and client and one hardly calculated to bring about outcomes satisfactory to either.

[12] On 8 December 1987 the testatrix rang Deeb and gave him instructions which he recorded in a diary note. The note showed that Deeb was instructed that a new Will should contain a devise to the Gallery of "the twentyseven paintings that are insured, plus all the portraits in the Menzies Wing, (some of these may be included in the twentyseven insured paintings) plus all porcelain silverware and sculpture and certain items of furniture as per a list and photographs to be supplied". The appellant attacks the accuracy of this diary note, on the basis that it does not accord with one which the testatrix made for her own purposes two weeks earlier. The judge commented:

"It is hard to imagine that Mr Deeb could mistake 'all paintings' for the elaborate description that appears in his diary note'".

I respectfully agree. If the evidence shows the testatrix to be, generally speaking, a person of fixed and unyielding mind, which it does not, the consideration his Honour mentioned would be less compelling. The judge also mentioned as a reason for his opinion that Deeb's note was correct the matter referred to above, that in 1986 the testatrix swiftly changed her mind about making a bequest to the Gallery.

[13] After a short visit to hospital in the same month, the testatrix rang Mr Deeb and raised the question of her Will. Two days later he sent the testatrix the diary note of 8 December 1987 which included the part quoted in para [12]. The testatrix told him that the Gallery was to get all the paintings. That this change was made appears from alterations made by Deeb and by the testatrix on their respective copies of the diary note. On 4 January 1988 the testatrix phoned Deeb, according to an answer to interrogatories, to advise him that "she wished to progress the matter of her Will". On 18 January 1988, Deeb sent to the testatrix what was called a "cut and paste version" of a draft Will accompanied by a note saying:

"As arranged, we are enclosing herewith a further draft of your new Will, to facilitate our discussions".

Counsel for the Gallery pointed out the inaccuracy of the description of the document forwarded as a draft of a new Will; it was merely an addition to the existing Will of some notes which could, by further work, have been turned into a proper Will. The learned primary judge made reference to this in dealing with the question whether Henderson Trout were instructed to prepare a Will for execution, as opposed to preparing drafts for consideration. His Honour, correctly in my opinion, regarded the note of 18 January 1988 as supporting the latter view.

[14] Three days later the testatrix responded by a letter which enclosed the draft, altered in some respects in handwriting, and also enclosing photographs and descriptions of furniture "for the Qld. Art Gallery". The intention seems clearly to have been to have these incorporated in the Will. The letter begins:

"Thanks for amended Instructions to the Will. All now seems in Order".

The appellant particularly relies on the latter sentence; it is capable of implying that no further alteration is necessary and that a Will should forthwith be prepared in form for execution; however the letter does not explicitly say that.

[15] In any event no final version was prepared, then or later. Deeb was on holidays for a while after the testatrix's letter of 21 January 1988 was written and thought he did not see that letter until he returned. He gave evidence that in mid to late February he was instructed that the testatrix had not made up her mind about the bequest to the Gallery. Acceptance of this important piece of evidence would have been made more difficult by the circumstance that there was no diary note to support it; further, there was no suggestion that the information was passed on to Ferrier when, as mentioned below, he took over Deeb's task. The judge was inclined to think that Deeb's evidence on this point was correct, although his Honour expressed doubt about the time of its occurrence; he was not satisfied that it took place in February. If, as the judge thought likely, there was such a conversation during the period of delay complained of by the Gallery it would partially explain such delay; perhaps more importantly, it would add weight to the considerations which support the judge's opinion, based largely on his acceptance of the evidence of Goss, that at relevant times the testatrix had not finally made up her mind about the gift to the Gallery.

[16] Late in February, Deeb passed the work to Ferrier, another partner in Henderson Trout. Ferrier rang the testatrix and discussed with her the changes which she desired to be made in the draft Deeb had sent her in January. Ferrier prepared a further draft and took it out to the testatrix's home to discuss it with her; he understood that he was to do a still further draft incorporating the changes requested; all the drafts done by Ferrier left the art collection to the Gallery. When asked about the reason for preparing a series of drafts, he said in effect that that was the way things were being done and the way the testatrix expected them to be done. Ferrier's evidence was that the testatrix made no complaint to him about delay and said to him, apparently with reference to the Will, "I really don't care about any of this". But Ferrier went back to his office and wrote the words "Leigh - urgent please" on his copy of the second draft, handing it on to the operator of a word processor for preparation of a further draft. Ferrier gave an explanation of the expression "Leigh - urgent please" which did not satisfy the primary judge; in my view it tends to throw doubt upon the proposition that the testatrix had made no complaint about delay. The primary judge was satisfied that "on some occasions after 16 March Lady Trout had exhibited some impatience with Mr Ferrier's rate of progress. I think she did hurry him up".

[17] After an arrangement was made by a phone call, initiated by the testatrix, on 16 March 1988, Ferrier went to the testatrix's home again, on 21 March 1988. At that meeting some further changes to the Will were requested and a correction made to a solicitor's error relating to the fate of a bequeathed mink stole. Ferrier said he was told to include a bequest of $50,000 and a piece of jewellery to a Mrs Formica; he understood that the testatrix was to let him know what piece of jewellery Mrs Formica was to receive.

[18] His Honour's comment on these events included that the changes which were requested on 21 March 1988 "were not so momentous as to require three weeks gestation". The judge found that "there was a longer interval of time between the production of the second, third and fourth drafts than was necessary".

[19] On 11 April 1988, Ferrier posted the fourth draft to the testatrix. It provided for a gift of $50,000 to Mrs Formica, but did not say anything about a gift of jewellery to her. His Honour noted that Ferrier had not by that date heard from the testatrix but "did not contact her to seek an explicit identification of the item of jewellery to be given to Mrs Formica". It was his Honour's view that:

"A proficient solicitor would, I think, have reminded his client specifically that she was to decide on the item of jewellery to form part of the bequest to Mrs Formica and, when he had not heard within a few days, would have contacted his client to seek instructions".

Having received the fourth draft, the testatrix phoned Deeb on 18 April 1988 and, it appears, arranged to come in to talk about the Will on 28 April 1988. The appellant relied upon the content of Deeb's diary note, which referred to an account from Sotheby's and said "to bring a/c and we to pay when signing the Will". The Gallery's counsel (Mr Sofronoff QC, who led Mr O'Shea) also pointed out that a note made by Deeb said the testatrix "might come in", not that she would. The testatrix did not keep the (perhaps tentative) appointment for 28 April 1988.

[20] Deeb said that if the testatrix had attended on 28 April 1988 and was satisfied with the Will, a document in form for execution could have been prepared on that day. When cross-examined about the diary note's reference to signing the Will, Deeb said that the testatrix intended to talk to him about it before signing. The judge apparently accepted this and was not satisfied that Deeb was instructed, during the conversation on 18 April 1988, to prepare a Will in final form.

[21] There is substance in the Gallery's criticism of the judge's acceptance that on 18 April 1988, Deeb was given to understand by the testatrix that she wanted to talk about the contents of the Will. But it is my view that the note about signing the Will is insufficient to displace his Honour's finding. Although in some respects he had reservations about the accuracy of Deeb's recollection his Honour was quite satisfied of his honesty and apparently regarded him as a credible witness. Further, the judge took into account, reasonably enough, the fact that the testatrix did not keep or confirm the tentative appointment made for 28 April 1988 which the Gallery alleges was made to enable her to sign a Will in final form. His Honour expressed the view that the testatrix would have kept the appointment if she had thought that a Will was in final form and awaited her signature.

[22] On 3 May 1988 there was a discussion between Deeb and the testatrix about a valuation of a picture, to be done before a forthcoming overseas trip. It appeared from the evidence that Deeb was accustomed to deal, as the testatrix requested, with matters connected with or arising from such absences. The judge found on that occasion there was mention neither of the testatrix's proposed Will, nor of her non‑attendance on 28 April 1988. On the following day, the evidence showed, the testatrix went to the building in which Henderson Trout's offices are located for a purpose other than to see them; she did not take the opportunity to call on Deeb or Ferrier.

[23] On 5 May 1988 the testatrix phoned Deeb about the trip overseas which she intended to make in June and later phoned Ferrier to ask about the preparation of the Will and, according to him, he said he was waiting to hear about the item of jewellery for Mrs Formica. That seems unlikely; the draft he had prepared made no mention of any jewellery for Mrs Formica, nor had Ferrier even asked the testatrix for details of such jewellery. According to Ferrier, the response he got was that the testatrix never intended to give any jewellery to Mrs Formica and, to put the matter shortly, after engaging in an angry conversation with Deeb, she terminated her retainer to the firm. Importantly, the judge found that during the conversation with Ferrier on this day (5 May 1988) the testatrix:

" ... did not ask when she could come to sign the will or request Mr Ferrier to bring it to her for signature. She inquired about the progress of the will which is, I think, different".

His Honour gave detailed reasons for this conclusion which appear to me, with respect, to be defensible. We were invited to hold that the testatrix expected, when she spoke to Ferrier on 5 May 1988, that a Will would have been ready for execution. The judge was not prepared to make that finding and, although the appellant's contention about the likely expectation the client had on 5 May 1988 has strength, it should not I think be accepted. It is worthy of remark that, as counsel for Henderson Trout argued, the note made by Meadows about a conversation he had with the testatrix suggests that a precipitating cause of her dismissing Henderson Trout was rudeness which, the testatrix thought, Ferrier had displayed, rather than merely delay.

[24] On 9 May 1988 the solicitor mentioned above, M J D Meadows, who had been asked to phone the testatrix did so and following an arrangement made the next day, saw her at her house two days later. She then gave him the fourth draft prepared by Henderson Trout, together with a list of furniture and photographs to be attached to the Will. He went through the draft with the testatrix "word for word"; some changes, not of a substantial character, were made. Meadows said that the testatrix told him that Ferrier had been to see her on the morning of her admission to hospital some months or six weeks before "with this Will, which I took to be either the draft or execution copy even of the document that she handed to me. But she said she was in no state to sign a Will at that stage. She was admitted to hospital that afternoon. She was upset". Henderson Trout contend that it does not appear that anything like that event ever occurred.

[25] Meadows noted that he told the testatrix that he would go through the draft, put it into what he thought was an appropriate form and would call her "in a week or so" to make an arrangement to have it signed. The expression "in a week or so" is perhaps of some significance, as tending to suggest that Meadows did not understand there was any great hurry, although at that stage the testatrix was to go to hospital within a few days. Further, Meadows said the testatrix wanted her Will finalised before she left on a planned overseas trip "in a month to six weeks".

[26] When Meadows returned to his office, he had the Henderson Trout draft entered into the word processing system and gave a copy to an employee who handled the estate work -

" ... I suggested that he read it through and let me know if there was anything there that he thought with his experience should be reviewed, amended ... ".

This seems to imply that Meadows regarded the Henderson Trout version as not necessarily the final one and that he, like his predecessors, had produced a document which was still subject to approval by the testatrix.

[27] On 15 May 1988 the testatrix was admitted to hospital and Deeb saw her there on 17 and 19 May 1988. On the former occasion he asked her whether she would like him to do anything for her to which she replied no. The testatrix died, apparently quite unexpectedly, on 24 May 1988, some 19 days after she withdrew her instructions from Henderson Trout.

[28] It will have been noticed that although the judge was prepared to accept, in general, the evidence given by the Henderson Trout partners, the firm did not escape criticism. Leaving aside any question of earlier delays, during the time when Ferrier was responsible for the work, in March and April 1988, there were delays in arranging to discuss the third draft with the testatrix; between the date of that discussion (21 March 1988) and forwarding of the fourth draft (11 April 1988); and then a lack of activity on Ferrier's part from 11 April 1988 until 5 May 1988 when the retainer was terminated. It seems plain that if steps towards producing a Will in final form, for execution, had been regarded as a more urgent task, the periods I have mentioned could have been substantially shortened. The judge was not satisfied that Henderson Trout owed any relevant duty to the Gallery - a point discussed below - and also held that if there were such a duty it was not breached. In arriving at this view, his Honour was influenced by evidence that the testatrix was deliberately slowing the process, as she told Goss; by her statement to Deeb, discussed above, that she was reconsidering her gift to the Gallery; and by the fact that, his Honour found, "there was no apparent urgency in the finalisation of the will". It seems to me clear that, were it not for the adoption of the views set out in the preceding sentence, the judge must have held that Henderson Trout, by dilatoriness, breached their duty to the testatrix. The testatrix was an elderly woman, although one who was to outward appearances in a reasonable state of health. Henderson Trout must have appreciated that excessive delay could frustrate the testatrix's final intentions.

[29] It follows from Hill v Van Erp (above) that defects in a solicitor's work, whatever their character, may sometimes at least be just as much a breach of duty to persons foreseeably damaged by them as they are to the client. In Hill v Van Erp, as McHugh J explained in his dissenting judgment, nine reasons were relied on by members of the majority for concluding that there was a duty of care to the intended beneficiary: see 188 CLR at 215. Most or perhaps all of those reasons apply in the present case. Although McHugh J was of opinion that the reasons were insufficient to justify a conclusion, in Hill v Van Erp, that there was a duty, his Honour's colleagues thought otherwise.

[30] There is also, in my view, important support for the existence of a relevant duty constituted by the decision of the House of Lords in White v Jones [1995] UKHL 5; [1995] 2 AC 207. The learned primary judge quoted passages from Hill v Van Erp to demonstrate that there were expressions of opinion in the judges' reasons which are inconsistent with the approach taken by the House of Lords in White v Jones. It does not appear to me, with respect, that the differences of approach are critical, for the majority judges in Hill v Van Erp, other than Dawson and Toohey JJ, also approached the problem before them in different ways. For example, Dawson and Toohey JJ regarded the fact that as they found, there was relationship of "proximity" between the solicitor and the intended beneficiary as a point of significance; whereas Brennan J eschewed any reliance on that principle, which he had previously criticised: Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 at 259‑261, Bryan v Maloney (1995) 182 CLR 609 at 653-655. Gaudron J thought the critical point was the solicitor's position of control over the testamentary wishes of the client, whereas Dawson J relied in substantial part on the existence of responsibility and reliance, apart from that of proximity, already mentioned.

[31] It is not possible to extract from the reasons given in Hill v Van Erp a rule or principle adopted by the majority of the judges, which may be applied in solving the, no doubt increasingly common, problem of the liability of professional people such as accountants and lawyers to persons other than their clients, injured by defective work done under the contract with the client. In my view, the fundamental basis of the duty being as yet unascertained, one must proceed by analogy, despite the warning given by Gummow J in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190 at [199]. If a mistake in arranging for the execution of a Will as in Hill v Van Erp and in Somerville v Walsh, NSW Court of Appeal CA 40321 of 1997, 26 February 1998, suffices to create a duty of care, then I can see no reason why it should be held that a disappointed beneficiary, whose hope of benefit is evident to the solicitor engaged, should not have a right to sue if that hope fails of realisation because of the solicitor's culpable delay in preparing a Will. My opinion is that if there was a breach of duty, then, subject to the question of causation, the Gallery had a right of action in law.

[32] In the present case, on the judge's findings, the testatrix's true state of mind went beyond toleration of the solicitors' delay; his Honour inferred that the testatrix, despite her assurances to a number of reliable witnesses, had not truly made up her mind about the disposition of this valuable art collection, his Honour thought this was a factor, if not the factor, in her failure to insist upon prompt conclusion of the matter. This conclusion, based in large part (I believe) upon Goss's evidence, is strongly criticised by the appellant. But I can see no good reason why the judge could not accept Goss's evidence and draw from it the conclusion mentioned.

[33] Although I am in respectful disagreement with the learned primary judge's apparent view that no relevant duty of care existed, the appeal cannot succeed without substantial interference with the judge's findings, which appear to have been arrived at after a careful study of the evidence. It is of particular importance that according to the findings the testatrix, who was very experienced in the Will-making process, did not, on the findings, ever ask Henderson Trout to discontinue the process of preparation of drafts, being pursued in a leisurely fashion, and give her a Will in form for signature forthwith. The judge found that there was a reason for her failure to do so, namely that she had not quite made up her mind about the matter. Unless that finding is reversed, no causal link can be established between delay on the part of Henderson Trout and the fact that the testatrix died without having executed a Will in the Gallery's favour.

[34] To put the matter more broadly, the Gallery's challenge to the primary judge's judgment is essentially based upon a thorough and comprehensive challenge to his Honour's main factual conclusions. In my opinion that challenge fails and the appeal must be dismissed with costs.

[35] THOMAS JA: Pincus JA, whose reasons I have had the advantage of reading, has sufficiently discussed the evidence, the factual findings of the learned primary judge and the arguments which were advanced on appeal for disturbing those findings. I agree with Pincus JA's conclusions on those matters.

[36] There is ample evidence to sustain the view that Lady Trout (the "testatrix") remained ambivalent about restoring the appellant gallery as a major beneficiary in her will during the relevant period when she dealt with the respondent solicitors. That period was between 8 December 1987 and 5 May 1988.

[37] The important findings which the learned trial judge made (and was entitled to make) include the lack of a fixed intention on the testatrix's part throughout that period of leaving her collection to the gallery; the absence of instructions to produce a final will for execution (as distinct from a further draft for discussion purposes); and a lack of instruction requiring the matter to be finalised with any degree of urgency. The testatrix was not known to be suffering from any terminal illness, and died unexpectedly 19 days after withdrawing instructions from her former solicitors. In the interim she had given instructions to a new firm of solicitors for the drawing of a will which would substantially benefit the appellant art gallery, but again had not injected any urgency into the instructions.

[38] In my view these facts, particularly those concerning the lack of firm intention to benefit and the indecisive nature of the instructions to her former solicitors, are fatal to all three aspects of the respondent's claim, namely the existence of a duty of care to the art gallery, breach of duty and causation.

[39] It may be accepted that whenever a solicitor takes instructions to make a will, there is a potential for a duty to arise in favour of third parties who may be damaged if the solicitor fails to discharge the retainer with due care. Whether a duty actually arises in favour of a particular third party depends upon a variety of circumstances, and these have not by any means been clearly identified by the cases. The leading case in Australia, Hill v Van Erp[1], suggests a variety of potential matters including foreseeability of loss to the third party, control of the situation by the solicitor, proximity between the solicitor and the third party, general public reliance on satisfactory performance by solicitors, assumption of responsibility to discharge the retainer properly, the powerlessness of the third party to do anything to protect himself or herself, whether or not there is any conflict between the duty owed to the client and the alleged duty to the third party and perhaps other matters also[2].

[40] There is as yet no consensus as to which matters are dominant or any formula which will guide a trial judge in formulating tests that will determine whether or not such a duty is owed. However on any view the primary obligation is that to the client. That obligation depends upon the retainer and the instructions that are given by the client from time to time. The duty to a third party may co-exist with but cannot override that to the client to whom the primary duty is owed. In the will-making area the decision whether to make or not make a will, and whether to benefit or not to benefit particular persons is entirely that of the intending testator or testatrix. It is up to the client to indicate when he or she is ready to make a particular will. Attempts by a solicitor to hurry up an undecided client or to seek to benefit particular beneficiaries are fraught with danger. Recognising this, Courts should be slow to inflict busybody functions or duties of this kind upon solicitors or other professional advisers.

[41] In the circumstances of the present case, particularly in the absence of indication from the testatrix that she wanted to finalise the matter at least to the extent of executing a will that would secure a particular benefit to the art gallery, I do not consider that the stage was reached at which any duty of care arose on the solicitor's part in favour of the art gallery. The conduct of the solicitors which in other fact situations might be held to have been unduly dilatory may here be seen as a response within acceptable limits to indecisive instructions from a difficult client who was stalling. They did not in my view breach their instructions or their retainer, and a fortiori did not breach any duty that could have arisen in favour of the art gallery.

[42] Finally, if there had been a breach of duty through failure to finalise the matter more promptly, its effect was superseded by the events between 5 and 24 May. The matter was taken out of the respondent solicitors' hands on 5 May, thereby depriving them of any further opportunity of remedying the position at a time when their preparation was well enough advanced to have enabled them to respond quickly had the testatrix made known any desire for quick finalisation. The testatrix then chose another firm of solicitors who were given a subsequent and quite reasonable opportunity to have prepared the necessary will if, once again, she had given instructions with a suitable note of urgency. If there had been a breach of duty it should not be regarded as causing the appellant's loss. The cause of any "loss" by the appellant was the testatrix's lack of firm intention to benefit it and her unexpected death after terminating the respondent's retainer. Indeed, in the absence of firm intention of the testatrix to benefit the appellant there is not even any loss shown.

[43] In my view the appeal must be dismissed with costs.

[44] BYRNE J: The reasons of Pincus JA discuss the pertinent facts and issues. I gratefully adopt his Honour's exposition of them.

[45] A decisive issue is whether the due performance by Henderson Trout of their obligations under the retainer reasonably required the preparation by 5 May 1988 of a will in a form susceptible of execution containing the gift to the Art Gallery that had been the subject of Lady Trout's instructions. If the answer is in the negative, her withdrawal of instructions to Henderson Trout means that the omission to prepare such a will by then cannot have caused the Art Gallery loss, in which event the Art Gallery's case fails.

[46] If Lady Trout had not instructed Henderson Trout to prepare her will in a form for execution, and was, for a reason she considered sufficient, content with the process of preparation of drafts and the pace at which that work was proceeding - not merely tolerating untoward delay - the judge was entitled to conclude that Henderson Trout acted consistently with the obligations assumed by the retainer even though no executable form of will was available by 5 May 1988. And evidence which the judge did, and was entitled to, accept accords with such a conclusion. Evidence of Mr Goss suggests that Lady Trout was not, by 5 May 1988, committed to benefiting the Gallery. Conduct of Mr Deeb and Mr Ferrier was consistent with a perception by them that they had not been instructed to engross a will. Lady Trout did not see Mr Deeb on 28 April, although she had indicated that she might do so, which tends to confirm that she was not anxious to make a new will. When Lady Trout spoke to Mr Deeb on 3 May, nothing was said about a will. What Lady Trout probably took to be Mr Ferrier's rudeness in suggesting on 5 May 1988 that she had failed to revert to him with instructions needed for another draft presents as the likely explanation for her decision to engage new solicitors. And when Flower & Hart were retained, no urgency in executing a will was communicated to them.

[47] There are, it is true, countervailing considerations: in particular the reference in Mr Deeb's 18 April diary note to Lady Trout's "signing the will" when she was to see him on 28 April, and Lady Trout's complaints about delay in connection with the will. But the judge had the advantage of seeing and hearing Mr Deeb and Mr Ferrier, and his assessment of them as persons who were unlikely not to have acted on any instructions received from Lady Trout to engross her will is not something that other evidence requires to be disturbed. Moreover, as the discussion by Pincus JA reveals, there are grounds for treating that evidence (especially concerning Lady Trout's complaints) as a less than compelling basis for deciding that Lady Trout really was disappointed at the pace of preparation of the will.

[48] It will now be apparent that I agree substantially with Pincus JA's analysis of the evidence as well as with his factual conclusions.

[1] (1997) 188 CLR 159.

[2] Cf McHugh J's summary in Van Erp at p 215.