Reilly v Reilly

The Second Defendant's Particular Circumstances

1. The second defendant, born in 1962, is the eldest of the deceased's children.
2. She lived at home until the completion of her secondary education, after she had completed Year 12, in 1979.
3. Between 1980-1983 or thereabouts she undertook secretarial studies at Canberra College of Advanced Education, training which equipped her for a career in administration.
4. Since that time, she has lived in Sydney (1983-1986), Adelaide (1986-1990), Brisbane (1990-1998) and the Narrabri (since 1998).
5. She never lost touch with her parents during her years away from "Boronga". Her move to Narrabri facilitated regular contact with them.
6. When she moved to Adelaide, she was accompanied by John ("Jock"), now her husband. They married after they moved to Brisbane.
7. They have two sons, respectively born in 1993 and 1995. Both boys have attained their majority and are living away from home, in Sydney. The older son is pursuing a career in engineering. The younger son is in pursuit of a career as a mechanic. Both are partially dependent on their parents.
8. The second defendant is in generally good health. Nevertheless, she and her husband (about two years her senior) hope to retire in the next year or so. Their plan is to move to a property they jointly own, and use as a holiday house, at Laurieton. They also own a home unit at Laurieton, subject to a mortgage.
9. Their principal assets, apart from their Laurieton properties, comprise superannuation entitlements, two cars of modest value, a small amount of shares and a modest bank account credit.
10. Their net assets (after allowing for a loan of about $128,500 owed to the bank on the investment property) have a value of about $1.7 million.
11. As they approach retirement, the second defendant has a gross taxable income of approximately $64,000 per annum and her husband has a gross income of approximately $78,000.
12. Whether or not their superannuation entitlements will sustain them in retirement is a matter of concern, but not a substantial impediment to their retirement plans.
13. The second defendant's self-description is that she and her husband live a simple but comfortable life focusing on their work, spending time with their children and family holidays in Laurieton. If allowed further provision out of the estate of the deceased, they would look, possibly, to an overseas holiday, renovation of the Laurieton house and purchase of new cars.

The Third Defendant's Particular Circumstances

1. The third defendant, born in 1964, is the second eldest of the deceased's children.
2. She lived at home until the completion of her secondary education at the end of year 10.
3. Since that time she has lived in a wide variety of places (in succession, Parkes, Melbourne, Canberra, Condobolin, Parkes again, Sydney and Orange) before settling in Brisbane with her husband, Shane.
4. She married Shane in 1998. They separated in 2015.
5. There are two children of the marriage. The older child (a son) was born in 1999, the younger child (a daughter) in 2001. Both remain at school and are dependent upon their mother.
6. Since leaving school herself the third defendant has worked in a variety of jobs, commencing with employment in a pharmacy at Parkes for four years immediately after she left school. She trained as a hairdresser in Melbourne and as a nurse in Sydney. With the birth of her sons she turned her focus to her family, a consequence of which is that her registration as a nurse lapsed, leaving her (following collapse of her marriage) to employment as a nursing assistant, with precarious employment prospects.
7. As a nursing assistant, her annual wages (assuming ongoing employment) are of the order of $55,000.
8. Consequent upon a property settlement with her husband (subject to court approval at the time of the hearing of the current proceedings), her assets comprise a house in suburban Brisbane (valued at about $660,000), superannuation (approximately $84,000), a car (valued at about $8,000), Medibank shares (valued at $16,000 dollars) and savings of approximately $107,000. Her liabilities are modest, but her ability to meet ordinary living expenses for herself and her sons is severely constrained, notwithstanding that her estranged husband has agreed to pay $700 per week in child support and to pay for the childrens' education expenses and private health cover.
9. She does not report ill health generally, but she has suffered from a hernia requiring an operation.

The Fourth Defendant's Particular Circumstances

1. The fourth defendant, born in 1965, is the middle child of the deceased's five children.
2. She completed her school education in Parkes, following which she followed her mother into the nursing profession. She continues to work as a nurse, providing the primary source of her family's income.
3. She married her husband Peter in 1985. They have three adult children: a son, born in 1988; a daughter, born in 1990; and a son, born in 1992. The youngest of the children suffers from a mild developmental disability which requires him to receive ongoing support from his parents.
4. The fourth defendant has lived all her life in the Parkes-Forbes area, the region in which "Boronga" is located.
5. She and her husband own (subject to a substantial mortgage, of the order of $620,000) three farming properties, farmed as one, comprising a total of 1280 acres. The farm produces only a small income or, not uncommonly, a loss. Hence it is that the fourth defendant and her husband depend significantly on her income as a nurse. Her annual income from nursing is of the order of $74,000.
6. The fourth defendant appears to be in good health. Her husband's health is indifferent; he is aged about 60 years, smokes and suffers from chest pains.
7. The fourth defendant anticipates that, when her husband is no longer able to manage the family farm, she and he will move into a house (valued at about $480,000) he owns in Forbes. She has superannuation valued at approximately $140,000; her husband has superannuation valued at about $81,000. They have a small amount of shares (valued at about $11,400), modest savings and a car.
8. Their principal assets are the farm and Peter's house in Forbes. Their aspiration is to reduce their debts so as to facilitate an intergenerational transfer of their farm to their children, and to enable them to assist each of their children in the meantime.
9. Their joint assets have a net value of approximately $1.5 million, to which must be added their separate assets. The fourth defendant's assets have a value of about $140,000. Peter's have a value of about $610,000.

The Fifth Defendant's Particular Circumstances

1. The fifth defendant, born in 1969, is the youngest of the deceased's children, ranking in age immediately after the plaintiff.
2. She lived at home until the completion of her secondary education at the end of Year 12 in 1986.
3. Between 1987-1989 or thereabouts she attended Charles Sturt University at Wagga Wagga, from which she graduated with a Bachelor of Business degree.
4. She moved to Canberra in January 1990 and, except for a sojourn overseas in 1995, she has lived there ever since.
5. She married her husband Ian (a Commonwealth public servant) in 2001. They have three teenage children: a son born in 2002, a daughter born in 2003; and a son born in 2006. All three are presently at high school.
6. With the benefit of her university degree, the fifth defendant earns a substantial income (approximately $175,000 per annum). Ian's income is approximately $68,000 per annum.
7. They own their own home in Canberra (valued at about $1.2 million) and they have a farming property at Murrumbateman (valued at about $710,000). Their residence is subject to a mortgage debt of about $390,000.
8. In her own right, the fifth defendant owns assets (principally shares) worth about $950,000. She and her husband have joint net assets (principally their home and farm) with an estimated value of about $1.5 million. In his own right, Ian has assets (principally superannuation) worth about $435,000.
9. In about 2004 the plaintiff, the first defendant and the fifth defendant together purchased (in the names of the plaintiff and the fifth defendant only) a house in Forbes which, initially, served as an investment but which, since 2009, has served as the first defendant's retirement residence. A fair inference from the evidence is that, although the first defendant's name does not appear on the title to the property, she has a right of residence for life, if not a life estate, in equity.
10. The fifth defendant's aspirations include hopes for the education of her children, home renovations and farm improvements. Her family must cope, also, with the ordinary vicissitudes of health in teenage children and middle-aged parents.

The Plaintiff's Particular Circumstances

1. The plaintiff, born in 1967, is the fourth of the deceased's five children.
2. After he completed high school in 1984 he spent about 16 months working full time as a farm hand on "Boronga", after which he spent about eight years settling upon career qualifications, living for a time in Wagga Wagga, Canberra, Sydney and Orange. For a few months he studied radiography at Charles Sturt University in Wagga, before turning to the trade of a plumber. He commenced his plumbing apprenticeship in Canberra and finished it in Sydney. He completed academic work to become a Master Plumber in Orange. Between the time when he completed his apprenticeship in Sydney and when he pursued his master plumber qualifications in Orange he lived and worked at "Boronga".
3. There is a perception within the family circle of the first defendant and her daughters that the plaintiff has been restlesstly torn between pursuing the trade of a plumber and devoting himself to farming. That perception is, in my assessment, a reflection of his having been given responsibilities for farmwork on "Malaya" and "Boronga" without having authority to run his own race. He has undoubtedly benefited from the transfer of "Malaya" to him in 2000, and in other ways, but the farming business has never, in a practical sense, been entirely his to run as he pleases.
4. Between 2000-2009 the farming business of the family was conducted by a partnership of the deceased and the first defendant. Since 2009 it has been conducted by a partnership between the plaintiff and his sisters.
5. In the earlier period, the plaintiff was subject specifically to the directions of his parents. In the later period he has been subject to the strong influence of his mother, the demands of his sisters to sell up "Boronga" or to buy them out, and the uncertainty of the current proceedings. He has divided his time between plumbing (first, in self employment and, subsequently, as a full time maintenance plumber at the Parkes District Hospital) and farming. He has attended to "on the property" chores relating to operation of the farm since 2009, and the fifth defendant has attended to accounting work. He says, and I accept, that he has never fully understood the financial aspects of the Shadrack Partnership, believing that the partnership was in some way conducted as a proxy for the deceased and the first defendant.
6. If these proceedings have achieved nothing else, they have confirmed that the farming operations on "Malaya" and "Boronga" since 1 July 2009 have been conducted by the plaintiff and his sisters, on their own account, as partners of the Shadrack Partnership. The first defendant has acquiesced in the conduct of the proceedings on that basis. So too have the plaintiff and his sisters, the partners in the partnership and the only persons beneficially entitled to the estate of the deceased.
7. The plaintiff has a concern, probably well founded, that, if farming operations on "Malaya" and "Boronga" are to be commercially viable, a combined area of not less than the two properties is a necessity. He apprehends that, if deprived of ownership of "Boronga", he could not long retain "Malaya" as a viable operation, despite the fact that he has acquired a 50% interest in an adjoining 100 acre property.
8. In his evidence the plaintiff speaks of his partner (or spouse), Lee, without elaborating their domestic arrangements. He and Lee have no children.
9. The plaintiff has a long history of kidney disease which, he apprehends, will eventually require him to have a kidney transplant.
10. He has acquired a substantial amount of property, including investment properties, a share portfolio, cash investments and superannuation entitlements.
11. The precise value of his estate is not revealed by the evidence, but he is well able to cope with his indebtedness of about $270,000 to the bank.
12. He acknowledges receipt of a bank transfer of $100,000 from his mother in or about April 2010 but says that he did not solicit that money and he has kept it separate, invested without drawing upon it.
13. The proceedings having been conducted by the defendants on the basis that that money was a gift made to him by the first defendant from her own resources, he would be justified in proceeding hereafter on the basis that it belongs to him unqualified by any claim by his mother or sisters.

The Succession Act, 2006 NSW, sections 59(1)(c) and 59(2)

1. No "conduct disentitling". As a preliminary to consideration of the operation of sections 59(1)(c) and 59(2) of the Succession Act, I observe that the plaintiff has not contended that a bar to success of his sisters' respective family provision claims is an element of "conduct disentitling", on the part of his sisters, arising from their participation in their mother's breach of fiduciary obligations owed to the deceased.
2. For convenience only do I use the expression "conduct disentitling", an echo of the long-since repealed provisions of section 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW, which authorised the Court to refuse to grant an order for family provision relief "in favour of any person whose character or conduct is such as to disentitle him [sic] to the benefit of such an order".
3. Sections 59(1)(c) and 59(2) of the Succession Act, read in the context of section 60 of the Act, require all the circumstances of a case to be taken into account.
4. The matters which section 60(2) specifically authorise the Court to take into account include (in section 60(2)(m)) "the character and conduct of the applicant [for family provision relief] before and after the death of the deceased…" and (in section 60(2)(n)) "the conduct of any other person before and after the date of the death of the deceased…".
5. Those matters are found, in section 60(2), in a long list of matters bearing upon the nature, quality and duration of personal relationships; the nature and extent of obligations or responsibilities; the nature and extent of the deceased's estate and any notional estate; available financial resources, and needs, of those who have a claim on the bounty of the deceased; the personal circumstances of such persons; any contribution made by an applicant for relief to the estate or welfare of the deceased, or to his or her family; and any provision made for the applicant by the deceased, amongst other broadly stated matters. There is, under this legislation, no narrowly focussed concept of "conduct disentitling" as there was under the 1916 Act.
6. Although the plaintiff has characterised the conduct of his mother, and his sisters, in transferring "Boronga" out of the name of the deceased, as "unconscionable" or "unconscientious" in the sense understood by equity lawyers, he has deliberately refrained from characterising their conduct as dishonest or the like.
7. I do likewise. I also take into account the fact that the plaintiff's sisters, in common with their mother, acted in reliance upon legal services provided to them by the sixth defendant's firm. I accept that those services were provided without ill-intent, although (as I find) negligently.
8. In these circumstances, I proceed on the basis that nothing in the conduct of the claimants for family provision relief, in their participation in an inter vivos transfer of "Boronga" to them, precludes relief being granted to them under Chapter 3 of the Succession Act.
9. Succession Act, section 59(1)(c). I am satisfied that each of the claimants for family provision relief, in varying degrees, is a person for whom (within the meaning of section 59(1)(c) of the Succession Act) adequate provision has not been made in the will of the deceased (as rectified) for her proper maintenance, education or advancement in life.
10. In the respective cases of the second, fourth and (especially) the fifth defendants, the extent of the inadequacy of provision made for them is a function of the obligation of the deceased to provide, out of an estate sufficiently ample for the purpose, an allowance for contingencies, additional security against adversity as they look towards retirement and managing their employment and families in the meantime. To paraphrase Blore v Lang (1960) 104 CLR 124 at 135 (commonly associated with Gorton v Parks (1989) 17 NSWLR 1 at 9), their "need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit".
11. As has been recognised on both sides of the bar table, the third defendant's particular circumstances demonstrate a need greater than that of her sisters. She is not wholly without assets, means of earning an income or financial assistance from her estranged husband, but her domestic circumstances are less stable, her property is less valuable, her employment is more precarious and her prospects are more limited, all the while with teenage children to nurture.
12. The proceedings have been conducted upon an assumption that, the deceased's will having been rectified, the claimants, as the deceased's residuary beneficiaries, were entitled to receive $50,000 or thereabouts from his estate. If their respective interests in the Shadrack Partnership are to be taken into account as emanating, in part at least, from the deceased, their present entitlements increase by $100,000 or thereabouts. Those entitlements do not represent a charge on "Boronga", a property with a value of not less than $1 million or thereabouts.
13. The deceased endeavoured to ensure that his children received an education and vocational training commensurate with each child's personal circumstances. Afflicted by a dementia in the final years of his life, he was denied a final opportunity to marshall his resources for the benefit of his family. By contrast, the Court is required, by section 59(1)(c), to consider questions about adequacy of provision "at the time when the Court is considering" an application for family provision relief.
14. Succession Act, section 59(2). The power of the Court to "make such order for provision out of the estate of the deceased… as the Court thinks ought to be made for the maintenance, education or advancement in life" of each claimant for family provision relief requires that the Court have regard to the facts known to the Court at the time an order is made.
15. In my opinion, each of the claimants for family provision relief should receive, in addition to the provision made for them in the will of the deceased (as rectified), a legacy charged upon "Boronga".
16. In the case of each of the second and fourth defendants that legacy should be fixed at $80,000. I am disinclined to adopt differential legacies because, although the claimants' respective circumstances differ, they are not so materially different as to warrant different treatment.
17. The fifth defendant, on the other hand, is so much wealthier, and in such comparatively secure employment, that, in my opinion, the legacy allowed to her should be fixed at $60,000. No greater family provision relief should be granted than is necessary to address the inadequacy of provision made for the claimant. A legacy of $60,000 serves that purpose.
18. The third defendant differs from her sisters in both the scale and nature of her need. She should be allowed a legacy in the sum of $275,000.
19. These legacies, in total, provide for a sum of $495,000 to be charged against "Boronga".
20. That sum represents a charge on "Boronga" which is substantial but not more than half the value attributed to the property.
21. I remain mindful of a need, implicit in the terms of the will of the deceased as rectified, to allow the plaintiff an opportunity to continue farming operations on "Malaya" and "Boronga" should he wish, and otherwise be able, to do so.
22. Given the state of the title to "Boronga" and an evident need in the plaintiff to arrange finance to fund legacies in favour of his sisters, the legacies to be ordered in favour of the claimants should be payable (and bear interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides) only after the expiry of a reasonable time (which I presently estimate to be four months) following registration of title to "Boronga" in the plaintiff as administrator of the estate of the deceased.
23. Such, if any, consequential relief should be granted to the parties to ensure that the estate of the deceased is administered in a manner that moves, as expeditiously as possible, towards vesting "Boronga" in the plaintiff and securing the entitlements of his sisters in the meantime.

Introduction

1. In his statement of claim the plaintiff pleads against the sixth defendant a personal claim to damages on a cause of action in tort. He contends that he has a cause of action in negligence that fits within a paradigm of cases defined by Hill v Van Erp (1997) 188 CLR 159, Perre Apand Pty Limited (1999) 198 CLR 180 and Badenach v Calvert (2016) 257 CLR 440. To those cases might be added a reference to Hawkins v Clayton (1988) 164 CLR 539.
2. The plaintiff's claim is made in his personal capacity. It is not a claim asserted on behalf of the estate of the deceased or grounded upon the plaintiff's status as an attorney of the deceased. It is based upon his claim to have been, throughout the sixth defendant's performance of his retainer (particularly between about 1 July 2009, when the contract for sale and the memorandum of transfer relating to "Boronga" were executed, and 2 December 2009, when the memorandum of transfer was registered), a prospectively disappointed beneficiary of the deceased. It is, in that sense, a claim made through the deceased. The plaintiff claims that he personally was owed a duty of care incidental to, and consistent with, a duty of care owed by the sixth defendant to the deceased.
3. A difference between the plaintiff's claim and each of Hawkins v Clayton, Hill v Van Erp and Badenach v Calvert (the solicitor negligence cases upon which the plaintiff relies) is that, unlike the defendant solicitor in those cases, the sixth defendant did not draw the will upon which the plaintiff relies for his status as a prospectively disappointed beneficiary. On the other hand, the sixth defendant was aware of the terms of the deceased's will and he acted upon an inter vivos transaction which, by disposal of the deceased's principal asset, profoundly affected the operation of the will.
4. If I am correct in my determination that the plaintiff's sisters hold "Boronga" on trust for the estate of the deceased, the plaintiff's claim against the sixth defendant largely, if not completely, falls away. An award of nominal damages may be in order. Proof of damage is an essential ingredient in a cause of action in negligence; damage is the gist of the action: Williams v Milotin (1957) 97 CLR 465 at 474; Badenach v Calvert (2016) 257 CLR 440 at 458[59], citing Hill v Van Erp (1997) 188 CLR 159 at 167-168 and 197.
5. In his statement of claim (paragraph 67) the plaintiff particularises his damage as the loss of an "opportunity to receive from the deceased the bequest of the land known as 'Boronga'". If (as I have held) the deceased's will must be rectified and "Boronga" is held on trust for the deceased's estate, the plaintiff will have suffered no loss as a result of a breach by the sixth defendant of any duty of care owed to him, save possibly an unpleaded loss associated with the costs and inconvenience associated with litigation with his mother and sisters.
6. In presentation of their respective cases, the parties gave little attention to identification of the time at which any cause of action to which the plaintiff was entitled accrued or to identification of the date at which any entitlement to damages should be assessed. The parties' principal focus was on whether the sixth defendant owed a duty of care to the plaintiff. An assumption appears to have been made that any cause of action accrued on 2 December 2009, upon registration of the plaintiff's sisters' title to "Boronga". Even if (as I find) it accrued upon the death of the deceased on 22 December 2012, a question could arise as to whether any entitlement to damages should be assessed at the time the cause of action accrued or at the time of trial and, if the former, whether (and, if so, to what extent) an assessment of damages could and should take into account the Court's subsequent findings about rectification and beneficial ownership of "Boronga".
7. The general rule that damages for tort are to be assessed as at the time a cause of action accrued is not universal in its operation; it can be accommodated in the interests of justice (Johnson v Perez (1988) 166 CLR 351 at 355-356, 367, 371 and 380), bearing in mind the compensatory purpose of an award of damages.
8. An award of equitable compensation (such as has been sought against the first defendant) differs from an award of common law damages because generally assessed at the time of trial: Re Dawson (deceased) [1966] 2 NSWR 211; 84 WN (Pt 1) (NSW) 399. Cf, ASA Constructions Pty Limited v Iwanov [1975] 1 NSWLR 512; Madden v Keveresky [1983] 1 NSWLR 305.
9. An award of pre-judgment interest (under section 100 of the Civil Procedure Act 2005 NSW) on damages assessed at "the date of breach" of a duty might, but will not necessarily, bridge any gap between that assessment and an assessment as at the time of trial.
10. Too late in the course of the trial to be allowed, the plaintiff applied to amend his statement of claim to include a claim against the sixth defendant based upon the second limb of Barnes v Addy. He must be held to the cause of action in negligence upon which he opened his case.
11. Against the possibility of an appeal challenging my primary findings as to rectification of the deceased's will and beneficial ownership of "Boronga", I am bound to deal with the plaintiff's claim for damages against the sixth defendant.

The pleaded case of the plaintiff

1. In his statement of claim the plaintiff pleads against the sixth defendant, inter alia, allegations to the following effect: 1. At all material times the sixth defendant was a solicitor of the Supreme Court of New South Wales carrying on practice at Forbes in the State of New South Wales (S/C 4(a)). 2. At all material times he was the employer of Mr McCallum, also a solicitor of the Supreme Court of NSW (S/C 4(b)). 3. Between about 30 June 2009 and 2 December 2009 the sixth defendant was retained by his co-defendants, and each of them, to act as solicitor and to facilitate the transfer of "Boronga" unto the second, third, fourth and fifth defendants (S/C 4(c)). 4. On or about 2 December 2009, by his employee Mr McCallum, the sixth defendant participated with and procured his co-defendants and each of them to transfer "Boronga" unto the second, third, fourth and fifth defendants (S/C 4(d)). 5. On or about to December 2009 the defendants, and each of them, acting in unison, procured the transfer of "Boronga" unto the second, third, fourth and fifth defendants (S/C 26), particularised as recorded in paragraph [165] above). 6. Between July and December 2009 the defendants, and each of them, knew or ought to have known that the deceased's testamentary intention was that, upon his death, "Boronga" should pass in an unencumbered state unto the plaintiff together with two-thirds of the deceased's interest in the capital of the FB & ML Reilly Partnership (S/C 37). 7. In consequence of that fact, the defendants, and each of them, knew or should have known or foreseen that the plaintiff was a person who was vulnerable to economic loss and damage in the event that any act or thing was done by them which would defeat the deceased's testamentary intentions (S/C 38). 8. In consequence of their knowledge of the deceased's testamentary intentions, and the vulnerability of the plaintiff in the event that any act or thing was done by them which would defeat those testamentary intentions, the defendants and each of them owed to the plaintiff a duty not to do any act or thing which would defeat the deceased's testamentary intentions (S/C 39). 9. At all material times the first-fifth defendants, by themselves and/or their servant and/or agent the sixth defendant, knew or should have known that the first defendant in her capacity as an attorney for the deceased had no power to make an improvident transfer of "Boronga" unto the second, third, fourth and fifth defendants (S/C 40). 10. At all material times the second-sixth defendants ,and each of them, knew or should have known that they were not entitled to participate with the first defendant in an improvident transfer of "Boronga" to the second, third, fourth and fifth defendants (S/C 41). 11. At all material times the defendants, and each of them, knew or ought to have known that an improvident transfer of "Boronga" by the first defendant, purporting to act as attorney for the deceased, to the second, third, fourth and fifth defendants was a void or voidable transaction (S/C 42). 12. In the circumstances of the facts pleaded in the statement of claim, at all material times the defendants, and each of them, were under duties not to participate in an improvident transfer of "Boronga" and/or in any conduct which would defeat the deceased's testamentary intentions (S/C 43). 13. The sixth defendant, by his servant Mr McCallum, was at all material times the servant and/or agent of the defendants, and/or each of them, in the circumstances of the improvident and ultra vires transfer of "Boronga" unto the second, third, fourth and fifth defendants (S/C 44). 14. As a solicitor of the Supreme Court of New South Wales, Mr McCallum knew or ought to have known that the first defendant was not empowered by the power of attorney to make an improvident transfer of "Boronga" unto the second, third, fourth and fifth defendants, and that any such improvident transfer of "Boronga" was void or voidable (S/C 45). 15. As a solicitor of the Supreme Court, Mr McCallum knew, ought to have known of or ought to have ascertained the testamentary intentions of the deceased with respect to "Boronga", and the deceased's interest in the FB & ML Reilly Partnership, before accepting a retainer to transfer "Boronga" to the second, third, fourth and fifth defendants without payment of valuable consideration by the transferees (S/C 46). 16. As a solicitor of the Supreme Court, the sixth defendant knew or ought to have foreseen that the plaintiff was a person who would suffer economic loss and/or damage in consequence of the improvident gift of "Boronga" to the second, third, fourth and fifth defendants (S/C 47). 17. As a solicitor of the Supreme Court, the sixth defendant knew or ought to have known that he had not given notice to the plaintiff of the proposed improvident transfer of "Boronga" to the second, third, fourth and fifth defendants, and that the plaintiff was, in consequence, unable to take any steps then available to him to protect his interest (if any) in "Boronga" (S/C 48). 18. As a solicitor of the Supreme Court, the sixth defendant knew or ought to have foreseen that the plaintiff was a person vulnerable to the economic consequences of an improvident transfer of "Boronga" to the second, third, fourth and fifth defendants (S/C 49). 19. In the circumstances of the facts pleaded in the statement of claim, the sixth defendant, by his servant Mr McCallum, owed a duty of care, prior to the transfer of "Boronga", to inform the plaintiff of the defendants' intention to transfer "Boronga" to the second, third, fourth and fifth defendants without the passing of valuable consideration (S/C 50). 20. In the circumstances of the facts pleaded in statement of claim, Mr McCallum was under a duty to decline to aid, abet, counsel and/or procure the defendants or any of them and/or participate with them in what he knew to be an ultra vires and/or improvident transfer of "Boronga" (S/C 51). 21. In breach of his duties as pleaded, on or about 2 December 2009 the sixth defendant, by his servant Mr McCallum, did participate in and aid, abet, counsel and procure his co-defendants to procure the transfer of "Boronga" to the second, third, fourth and fifth defendants without the passing of valuable consideration from the transferees to the deceased (S/C 56). 22. In further breach of those duties, since 22 December 2012, the sixth defendant aid, abet, counsel and procure the first defendant to breach her fiduciary duties: (i) to do all acts and things that were necessary to identify and then to perform and carry into effect the trusts created in the deceased's last will; and/or (ii) to identify and then do all acts and things that were necessary on her part to ascertain and carry into effect the true testamentary intentions of the deceased with respect to "Boronga", and with respect to the deceased's interest in the capital FB & ML Reilly Partnership (S/C 57). 23. In consequence of the breaches of duty (pleaded in the statement of claim) on the part of the defendants and each of them, the plaintiff has suffered loss and damage (S/C 67).
2. The plaintiff's particularisation of his "loss and damage" focused, principally, on the loss of an opportunity to receive "Boronga" as a testamentary gift. That is the plaintiff's prime case.
3. However, he also particularised as "loss and damage" an alleged loss of an opportunity to receive the profits earned from farming and grazing activities on "Boronga" from the time of the deceased's death. That claim does not sit well with the plaintiff's entry into, and active participation in, the Shadrack Partnership. It can be disregarded.
4. The only relief claimed in the statement of claim against the sixth defendant comprises claims for damages, interest and costs.
5. It is common ground between the plaintiff and the sixth defendant that there was no contractual relationship between them either generally or, more particularly, in relation to the transfer of "Boronga". It is not suggested that, by his preparation of the partnership deed for the Shadrack Partnership or by his submission of that deed (through the first defendant) for execution, the sixth defendant had a retainer from the plaintiff.

The sixth defendant's defence

1. The sixth defendant contends, in essence, that: (a) he was retained by the first defendant alone, albeit that he was retained by her in respect of the transfer of "Boronga" to her daughters, purportedly as attorney for the deceased; (b) he did not act for or owe any duty of care to the plaintiff; (c) the first defendant was the holder of a valid, enduring power of attorney granted by the deceased and she was duly authorised, in accordance with the terms of her instrument of appointment, to instruct him in the transfer of "Boronga" to her daughters; (d) to the extent that he may have been required to take into account the interests of the deceased, he was entitled to do so via the first defendant as attorney for the deceased; and (e) if the first defendant could only act as an attorney in the interests and for the benefit of the deceased, the transfer of "Boronga" to the deceased's daughters was of benefit to the deceased in potentially relieving him of a liability for nursing home fees because of a means test governing the availability of social security.
2. In answer to the whole of the statement of claim the sixth defendant also contends that, if any acts or omissions on his part caused loss or damage alleged in the statement of claim (which was denied) then, by operation of section 35 of the Civil Liability Act 2002 NSW, his liability to the plaintiff is limited to an amount reflecting that proportion of the damage or loss claimed that the Court considers just, having regard to the extent of the sixth defendant's responsibility for the plaintiff's damage or loss.

Analysis

1. As suggested by Hawkins v Clayton (1988) 164 CLR 539 at 544, the starting point for analysis of the plaintiff's claim is identification of the nature and scope of the sixth defendant's retainer: What work was he retained to perform? The scope of a solicitor's duties is usually set by the terms of his or her retainer: Badenach v Calvert (2016) 257 CLR 440 at 449[16], 451[19], 457[57]-460[63], 462[78] and 463[81].
2. On my findings, the sixth defendant acted for the first defendant (in both her personal and representative capacities) and her daughters on the transfer of "Boronga" to the daughters. The fact, as I find, that he acted for the daughters as well as for the first defendant is not essential to any cause of action the plaintiff may have against him. Nevertheless, it adds colour to Mr McCallum's understanding that he acted for "the Reilly family", of which, incidentally, both the plaintiff and the deceased were patently members.
3. At a general level of abstraction, there is no dispute about the nature or scope of the sixth defendant's retainer. He was retained, in the language of the statement of claim, to facilitate a transfer of "Boronga" by the deceased (acting through the first defendant as his attorney) to the second, third, fourth and fifth defendants. The complexity of debate arises, at a lower level of abstraction, from the facts that: (a) the sixth defendant's retainer arose from instructions of an attorney who, as I have found, exercised her power as an attorney for a purpose of her own, foreign to the power; (b) the sixth defendant ought reasonably to have known that the attorney was acting beyond power; and (c) the plaintiff, as a prospectively disappointed beneficiary of the principal, sues the sixth defendant through, although not on behalf of, the principal's deceased estate.
4. In the language of the sixth defendant's costs estimate dated 22 April 2009, that transfer was seen by the sixth defendant as an exercise in "estate planning" involving professional services (for example, a consideration of capital gains tax implications) more sophisticated than a mechanical conveyancing transaction. The sixth defendant's costs estimate described his retainer as: "Attending to all aspects of intergenerational transfer of land", coupled with preparation of a partnership deed "for farm management incorporating provisions on death" and a second partnership deed "for management of investments including similar provisions".
5. Although he was not named as a party in either the contract for sale of land or the memorandum of transfer, both dated 1 July 2009, the plaintiff was plainly in contemplation by the sixth defendant as a member of "the Reilly family", as is evidenced by the form of the Shadrack Partnership deed (prepared by the sixth defendant) and express references to the plaintiff in both the deceased's power of attorney and the will of the deceased. The sixth defendant had possession of both the power of attorney and the will, and Mr McCallum read them, at a time contemporaneous with his preparation of the contract, the memorandum of transfer and associated documents.
6. Critical facts, known to Mr McCallum at the time of preparation of those documents, were the following: 1. The first defendant necessarily instructed the sixth defendant in her capacity as an attorney for the deceased. Without any other source of authority (and without, for example, an application to the Court for conferral of authority on an exercise of protective jurisdiction), she could not effect a transfer of "Boronga" without deployment of the deceased's power of attorney. 2. The power of attorney granted to the first defendant appointed the plaintiff as a joint and several attorney, took the form of an enduring power of attorney and withheld from the attorneys authority to confer a benefit on themselves. 3. The deceased was mentally incapable of managing his own affairs. 4. "Boronga" was the deceased's principal asset; if effectively disposed of by an inter vivos transfer, it would be unavailable to pass via the deceased's will. 5. "Boronga" was part of a single farming operation on land including "Malaya", of which the plaintiff was registered proprietor; an alienation of "Boronga" might, on that score alone, affect the plaintiff's interests. 6. On the first defendant's instructions, the plaintiff was deliberately to be excluded as a transferee of "Boronga" and the property was to be transferred out of the name of the deceased for no consideration. 7. On any reading of the deceased's unrectified will, the likelihood was that the deceased did not intend his daughters to receive "Boronga", but quite possibly intended it to be given to the plaintiff, one of the executors named in the will. 8. The sixth defendant provided no advice to the plaintiff, and received from the plaintiff no verification or corroboration of the first defendant's instructions, notwithstanding that the plaintiff was an attorney of the deceased; a person who (as was reasonably foreseeable) stood to lose a benefit from the estate of the deceased in the event that "Boronga" was transferred out of the name of the deceased; and a person vulnerable to harm in the event that the solicitor acted upon unauthorised instructions to divest the deceased of "Boronga".
7. Mr Maccallum was also critically aware, because the first and fifth defendants told him so at an early stage of their interaction, that "the family" (that is, the first defendant and her daughters) were motivated to transfer "Boronga" out of the deceased's name because, the plaintiff having received "Malaya", it was only fair that the girls get "Boronga". Mr Maccallum was, thus, aware of the first defendant's principal purpose in effecting a transfer: a purpose that could not easily be justified as serving the interests of the deceased or as beneficial to him.
8. The sixth defendant relies upon, as I have found, the first defendant's secondary purpose or something akin to it (prospective relief from the cost of nursing home care for the deceased by qualifying him for means tested social security benefits) to say that the "Boronga" transfer was of benefit to the deceased. However, even if that purpose be acknowledged, the fact remains that the first defendant's dominant purpose was foreign to the purpose for which a power of attorney was conferred upon her. Moreover, depriving the deceased of his principal asset in the hope of qualifying him for social security benefits could not readily, objectively, be characterised as beneficial to him.
9. In his contemplation, and implementation, of business described by him as "estate planning" and an "intergenerational transfer" of property, Mr Maccallum consciously accepted that it was open to "the family" (without reference to the personal interests of the deceased or any benefit or detriment to him) to divest the deceased of his principal asset. An integral part of this deliberate programme of action was nomination of a nominal purchase price ($1.00) for the defendants' "sale" of "Boronga", coupled with an application by the "purchasers" for exemption from liability for the payment of stamp duty.
10. Mr Maccallum performed the sixth defendant's retainer in the erroneous belief that the deceased's will was irrelevant to the work to be performed by him. He relied upon the fact of the deceased being mentally incompetent, believing that the sixth defendant was (he thought) entitled simply to act on the instructions of the first defendant in the performance of work on behalf of "the Reilly family" and that the firm was acting on behalf of "the family".
11. Mr Maccallum proceeded on the basis that he could accept, and act upon, the first defendant's instructions without critical examination. This was far too mechanical a view of the professional function, and the duty, of a solicitor. I adopt the following observations of Barron J in McMullen v Farrell [1993] 1 IR 123 at 142-143 as extracted in Jackson & Powell On Professional Liability (Sweet and Maxwell, London, 6th edition, 2007) at paragraph [11-125]: "A solicitor cannot in my view fulfil his obligations to his client merely by carrying out what he is instructed to do. This is to ignore the essential element of any contract involving professional care or advice… In my view a solicitor when consulted has an obligation to consider not only what the client wishes him to do but also the legal implication of the facts which the client brings to his attention. If necessary, he must follow up these facts to ensure that he appreciates the real problem with which he is being asked to deal."
12. Local confirmation of the correctness of these observations can be found in Cockburn v GIO Finance Limited [1996] NSWCA 109, in which a solicitor was held liable for damages for breach of the contractual duty of care he owed to a client who, to the knowledge of the solicitor, was a vulnerable young person under the influence of a dominant father who prevailed upon the son to enter an improvident transaction for the benefit of the father. The Court of Appeal (constituted by Kirby ACJ, Priestley JA and Giles AJA) held (at 25-27) that, armed with knowledge of the client's vulnerability and the dominance of the father, it was not open to the solicitor simply to act, as he did, on the instructions of the father without making enquiries sufficient for him to understand the particular transaction and to take steps to protect the interests of the vulnerable son.
13. Mr Maccallum's understanding of the nature and extent of the first defendant's authority as an attorney was not dissimilar to that of the solicitor who Hutley AP criticised, in the following terms, in Moloney v The Law Society of NSW (Court of Appeal, 13 September 1984, unreported): "He [the solicitor] had peculiar and erroneous ideas as to the responsibilities of a donee of a power of attorney, in that he regarded the absolute language of the power language designed to ensure that persons dealing with the holder of the power did not have to inquire as to the purpose of the exercise of the power as exempting the holder of the power from being required to exercise the power for the purposes of the donor and permitting its use for the donee's own purposes".
14. The High Court refused a grant of special leave to appeal from the Court of Appeal's judgment, although it qualified other, unrelated observations of the Court of Appeal made about the solicitor: Moloney v The Law Society of NSW [1985] HCA 77; (1985) 62 ALR 221.
15. Mr Maccallum evidently failed to appreciate that: (a) uncritical acceptance of the first defendant's instructions in dealing with property of the deceased exposed her, and her daughters, as these proceedings demonstrate, to claims for relief made in equity by or on behalf of the deceased or his estate; and (b) that, insofar as the deceased's "family" proposed to deal, or dealt, with the deceased's property for purposes of their own, there was a conflict between their interests and the interests of the deceased and any person (such as the plaintiff) claiming through the deceased.
16. He failed to appreciate, also, that, in acting on instructions of the first defendant as attorney for the deceased he was effectively acting also for the deceased, to whom he owed a duty of care and the professional obligations due to a client. He failed to appreciate that he could not act (as he did) on both sides of the conveyancing transaction relating to transfer of "Boronga" without falling foul of conflicts between duty and interest emanating from the different interests of (a) the deceased and (b) the wife and daughters of the deceased. He failed to appreciate, further, that he might owe professional duties not only to the deceased but also to the plaintiff as a person claiming a prospective interest in "Boronga" as an intended beneficiary of the deceased.
17. In Hill v Van Erp (1997) 188 CLR 159 the High Court of Australia accepted that a solicitor who fails to use reasonable care in the preparation of a will for a testator may also be in breach of a duty of care owed to an intended beneficiary under the will who suffers foreseeable loss upon the death of the testator if the duty to the beneficiary corresponds with a duty owed by the solicitor to the testator as client of the solicitor.
18. In Badenach v Calvert (2016) 257 CLR 440 at 450[20] French CJ, Kiefel and Kean JJ clarified the field of operation of Hill v Van Erp by making the following observations: "In Hill v Van Erp (1997) 188 CLR 159 at 167 Brennan CJ explained that a solicitor's duty is generally considered to be owed solely to the client because the duty is to exercise professional knowledge and skill in the preparation and advancement of the client's interests in the transaction in which the solicitor is retained. That duty cannot be compromised by a duty to a person whose interests are not coincident with those of the client, but in the case of a testator and an intended beneficiary under the testator's will the interests are coincident. So understood, the duties said to be owed by the solicitor to an intended beneficiary is something of an exception to the general rule. Nevertheless, in a practical sense it operates consistently with the duty to the client."
19. In the current proceedings, although the sixth defendant's core instructions emanated from the first defendant as attorney for the deceased Mr Maccallum was bound to consult the interests of the deceased as the firm's ultimate client. Those interests were coincident with the interests of the plaintiff insofar as an ultra vires exercise of the deceased's power of attorney by the first defendant was not in the interests of either of them.
20. Recognition that the sixth defendant owed a duty of care to the plaintiff in connection with performance of a retainer by the first defendant, as attorney for the deceased, imposes on the sixth defendant no exposure to an indeterminate liability. Mr Maccallum had actual knowledge of the deceased's will, the existence of the plaintiff, the plaintiff's family and commercial interest in "Boronga" and the determination of the first defendant to bypass the plaintiff by an inter vivos transfer of the property to her daughters. He ought reasonably to have known that the plaintiff was, or was likely to be, the deceased's intended recipient of "Boronga", although not named in clause 3 of the will. The subject matter of clause 3 was an identified, single property.
21. The sixth defendant was bound to exercise reasonable care in performance of his retainer, recognising that he was (relevantly) retained by the first defendant in a representative capacity that required him to protect the interests of the deceased (and, incidentally, the plaintiff as an intended beneficiary of the deceased).
22. In breach of a duty of care owed to the deceased, and incidentally to the plaintiff, he acted on the transfer of "Boronga" without a critical examination of the first defendant's authority to effect the transfer, in circumstances in which the first defendant acted for a purpose foreign to her power and the effect of her so doing was to divest the deceased (and ostensibly, indirectly, the plaintiff) of substantial property.
23. Upon an assumption that the estate of the deceased is not entitled to recover title to "Boronga" from the plaintiff's sisters, the sixth defendant's breach of the duty of care he owed to the plaintiff caused damage to the plaintiff as a disappointed beneficiary of the deceased.
24. In light of the way these proceedings have been conducted, the true measure of that damage is the market value of "Boronga" at or about the time of the death of the deceased, allowing a reasonable time for administration of the deceased's estate. Although the plaintiff particularises his damage as a "loss of opportunity" (Badenach v Calvert (2016) 257 CLR 440 at 448-449[14] and 454[39]) any uncertainty attaching to the plaintiff's status as an intended beneficiary of "Boronga" on 2 December 2009 was always negligible (given the deceased's lack of testamentary capacity and the constraints of any application for a "statutory will" under the Succession Act 2006 NSW) and, more importantly, his entitlement as such a beneficiary crystallised on the death of the deceased.
25. On the current state of the evidence about the value of "Boronga", I do not speculate about quantification of the plaintiff's entitlement to damages against the sixth defendant (assuming he has suffered damage at all) beyond an observation that it is not less than $815,000 (the value of the property in mid-2009) plus interest calculated from the time when the plaintiff might reasonably have acquired an interest in the property consequent upon due administration of the deceased's estate.
26. If called upon to make a determination pursuant to section 35 of the Civil Liability Act 2002 NSW as to what share of the plaintiff's assumed entitlement to damages should be borne by the sixth defendant, I would hold the sixth defendant 100% liable for the damages payable to the plaintiff. The sixth defendant was retained to provide legal services without which the first defendant and her daughters (who were entitled to rely upon his professional expertise) could not have done what they did in exposing the plaintiff to damage.
27. As it happens, if the plaintiff is able to take title to and possession of "Boronga" (subject to the family provision relief charged on the property in favour of his sisters), he will have suffered no substantial damage consequent upon the sixth defendant's negligence, and any award of damages made in his favour could be no more than nominal.

Available, alternative courses of action

1. A finding, such as I have made, that, by a want of reasonable care, the sixth defendant breached a duty of care owed to the plaintiff (a duty, it must be remembered, derived from, and ancillary to, a duty of care owed by the sixth defendant to the deceased) invites consideration of what the sixth defendant should, or could, have done had he exercised reasonable care.
2. A response to that invitation requires, as a starting point, an appreciation of the character of an enduring power of attorney when, the donor of the power having become mentally incapacitated, it is fully engaged as an enduring appointment. The concept of an "enduring" appointment of an attorney is a relatively recent one: Smith v Smith [2017] NSWSC 408 at [85]-[104]. But for the intervention of Parliament, the common law would, ordinarily, have held that a power of attorney lapses upon the donor's loss of mental capacity: Drew v Nunn (1879) 4 QBD 661 at 665-666; Ghosn v Principle Focuss Pty Limited (No. 2) [2008] VSC 574 at [36].
3. The concept of an "enduring" appointment as an attorney needs to be viewed in the context of the protective regime it serves. Under current law and practice in NSW (similar to that operative in and throughout 2009), the appointment of an enduring attorney as a means of facilitating management of the affairs of a person who lacks the requisite mental capacity to manage his or her own affairs (Gibbons v Wright (1954) 91 CLR 423 at 434-438) is an alternative to: 1. the appointment of a "financial manager" by the Guardianship Division of the Civil and Administrative Tribunal of NSW ("NCAT") , formerly the Guardianship Tribunal, under the Guardianship Act 1987; or 2. the appointment of a protected estate "manager" by the Court under section 41 of the NSW Trustee and Guardian Act 2009 NSW or, exceptionally, the appointment by the Court of the general law equivalent, a "committee of the estate" , upon an exercise of the Court's inherent jurisdiction (IR v AR [2015] NSWSC 1187 at [100]-[117], especially [113]).
4. The events of 2009 with which these proceedings are centrally concerned happened at a time of institutional change. The NSW Trustee and Guardian Act 2009 NSW was in the process of implementation, leading to repeal and replacement of the Protected Estates Act 1983 NSW. The Guardianship Tribunal has since been replaced by the Guardianship Division of NCAT, governed by the Civil and Administrative Tribunal Act 2013 NSW, to be read in combination with the Guardianship Act 1987. Important although these changes are, they have not materially changed the character of the protective jurisdiction as it operated in NSW in and throughout 2009.
5. The inherent, protective jurisdiction of the Court (the nature of which is authoritatively explained in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259) exists to enable the Court to do what is for the benefit of an incompetent person, unable to take care of himself or herself. The purposive character of the jurisdiction finds a legislative parallel in section 4 of the Guardianship Act 1987 (now matched by section 39 of the NSW Trustee and Guardian Act 2009), where can be found a statement of guiding principles which commences with the proposition that "the welfare and interests" of a person in need of protection "should be given paramount consideration".
6. The Powers of Attorney Act 2003 NSW fits in with this legislative scheme (as it did, in substance, in 2009) because an application to the Court or to the Tribunal under Part 5 (sections 26-42) of the Act - for review of a power of attorney, directions or advice - can result in the incapacitated donor of an enduring power of attorney being declared a "protected person" and having his or her estate placed under protective management.
7. A solicitor in the position of the sixth defendant or Mr Maccallum in 2009, obliged to exercise care and skill in giving effect to a retainer agreement entered with the first defendant in her capacity as an enduring attorney for the deceased, and knowing that the deceased was no longer mentally competent to manage his own affairs, would be obliged to know these things or, at least, to understand the importance of learning about them before giving effect to the first defendant's instructions that the deceased be divested of his principal asset for no consideration.
8. Such a solicitor might also be taken to have known, or to have been prudent enough to learn, about the availability of jurisdiction in the Court (under Division 2 of Part 2.2, sections 18-26, of the Succession Act 2006 NSW) to authorise the making of a will on behalf of a person (such as the deceased) who lacks testamentary capacity. The leading case in NSW (Re Fenwick; Application of JR Fenwick; re "Charles" (2009) 76 NSWLR 22) was decided on 12 June 2009, at about the same time that Mr Maccallum was turning his mind to the problem of "intergenerational transfer" of property within the Reilly family; but the legislative warrant for the Court to authorise the making of a statutory will was conferred upon commencement of the Succession Act on 1 March 2008.
9. A solicitor in the position of the sixth defendant and Mr Maccallum in 2009 should also have been familiar with the family provision jurisdiction of the Court (under Chapter 3 of the Succession Act 2006 NSW), including provisions (based upon the Family Provision Act 1982 NSW) governing the designation of property as the "notional estate" of a deceased person. Under those provisions property disposed of by a person within three years of his or her death may be brought indirectly, after his or her death, on an application for family provision relief. As explained by Palmer J in Re Fenwick, the availability of a potential family provision claim is one of the factors that may be weighed in the balance on an application for a statutory will.
10. Foundational to an understanding of the legal framework within which decisions about the deceased's affairs would have had to be made in 2009 would have been an appreciation that the first defendant, as an agent for the deceased (and, particularly, as the donee of an enduring power of attorney exercising a power at a time when the donor was mentally incompetent) would have been likely, in accordance with equitable principles, to owe the obligations of a fiduciary towards the deceased.
11. Armed with this knowledge - necessary to discharge any professional obligation owed to the first defendant, no less than to the deceased or the plaintiff - a prudent solicitor standing in the shoes of the sixth defendant or Mr Maccallum in 2009 would have appreciated the fundamental necessity of recognising that the interests of the deceased could not simply be equated with the interests of the first defendant or, more particularly, the interests of the first defendant and her daughters.
12. Exercising reasonable care in the performance of his retainer (however viewed), a prudent solicitor would have recognised that: (a) he could not act for all parties to the proposed "sale" and "transfer" of "Boronga"; (b) given that the deceased had become mentally incompetent, an "intergenerational transfer" of "Boronga" could not be achieved effectively (if it could be achieved at all) absent invocation of the protective jurisdiction exercised by the Court, or the analogous jurisdiction exercised by the Guardianship Tribunal, or (more likely) by way of an application to the Court for a statutory will; and (c) any one of those legal procedures would have been likely to require a full engagement with the plaintiff in circumstances in which he would have had an opportunity to be heard about what was, or was not, in the interests and for the benefit of the deceased .
13. It was not for the sixth defendant, or Mr Maccallum, to dictate what course the first defendant, or other members of her family, should take in addressing concerns about an "intergenerational" transfer of the first defendant's property in anticipation of his ongoing incapacity and the prospect of him dying without regaining capacity. They were, however, under a duty to warn, at least, the first defendant of risks associated with the course (unilateral transfer of property of the deceased under colour of an enduring power of attorney) she proposed to take. If, duly warned, she persisted in instructions to take that course, they were under a duty to decline to act for her. They could not act for her without exposing her and themselves to substantial risks of the nature illustrated by the current proceedings.
14. The solicitors' duty to warn would have extended, prudently, to an invitation to the first defendant to consider the making of an application for a statutory will. Such an invitation would have inevitably exposed the defective form of the deceased's will dated 26 March 2003 to view. It would have been likely, also, to expose to view any allegation of the character since made by the first defendant that she had an antecedent agreement with the deceased for disposition of "Boronga" in favour of their daughters.

PROPOSED ORDERS

1. I propose to allow the parties an opportunity (when they have read these reasons for judgment) to make submissions about the form of orders to be made to give effect to the judgment and submissions about costs.
2. Subject to any submissions made at that time, I propose to reserve for further consideration quantification of the plaintiff's entitlement to an award of equitable compensation against the first defendant, and to an award of common law damages against the second defendant, in the event that "Boronga" is not in due course vested in him as the deceased's administrator.
3. Subject to these qualifications, I propose to make orders to the following effect: 1. ORDER that the time within which an application may be made under section 27 of the Succession Act 2006 NSW for rectification of the will of the deceased dated 26 March 2003 be extended up to and including the date upon which the statement of claim was filed. 2. ORDER, pursuant to section 27(1) of the Succession Act 2006, that the will of the deceased be rectified by inserting in clause 3 of the will after the word "thereon" the words "to my son, Joseph Thomas Reilly". 3. ORDER that the will of the deceased, as rectified, be admitted to probate in solemn form. 4. ORDER that administration of the estate of the deceased, with the will as rectified annexed, be granted to the plaintiff. 5. ORDER that the proceedings be referred to the Registrar for completion of the grant. 6. ORDER that any requirement for an administration bond be dispensed with. 7. ORDER that any requirement for further compliance with the Probate Rules be dispensed with. 8. DECLARE that the property known as "Boronga" is held by the second, third, fourth and fifth defendants on trust for the estate of the deceased. 9. ORDER that the second, third, fourth and fifth defendants transfer "Boronga" to the plaintiff as administrator of the estate of the deceased. 10. ORDER, pursuant to section 94 of the Civil Procedure Act 2005 NSW, that, if the second, third, fourth and fifth defendants fail to comply with Order 9 within a specified time, the Registrar be authorised to execute a Memorandum of Transfer of "Boronga" to the plaintiff as administrator of the estate of the deceased. 11. ORDER that the second, third, fourth and fifth defendants, within a specified time, deliver up to the plaintiff, as administrator of the estate of the deceased, the Certificates of Title relating to "Boronga". 12. ORDER that the plaintiff, by himself, his servants and agents, be restrained from charging or otherwise dealing with "Boronga" (without the prior written consent of the second, third, fourth and fifth defendants) pending payment of the legacies (including any accrued interest) for which Orders 14-16 inclusive, provide. 13. ORDER, pursuant to section 58(2) of the Succession Act, that the time within which the second, third, fourth and fifth defendants may make an application for family provision relief be extended up to and including the date upon which the cross summons was filed. 14. Upon condition that "Boronga" is transferred to the plaintiff, as administrator of the deceased, pursuant to these Orders, ORDER, pursuant to Chapter 3 of the Succession Act 2006, that, in addition to the provision respectively made for them in the will of the deceased, the second, third, fourth and fifth defendants respectively receive out of the estate of the deceased legacies in the following amounts: 1. As to the second defendant, $80,000. 2. As to the third defendant, $275,000. 3. As to the fourth defendant, $80,000. 4. As to the fifth defendant, $60,000. 1. ORDER that those legacies be payable (and bear interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides) on and from the date being four months following registration of title to "Boronga" in the plaintiff as administrator of the estate of the deceased, to the intent that, if paid within that time, no legacy will bear interest. 2. ORDER that the legacies by these orders granted to the second, third, fourth and fifth defendants be charged against the title to "Boronga" until, with any accrued interest, paid. 3. ORDER that the partnership between the plaintiff and the second, third, fourth and fifth defendants known as the "Shadrack Partnership" be dissolved pursuant to section 35(f) of the Partnership Act 1892 NSW on the basis that circumstances have arisen which render it just and equitable that the partnership be dissolved. 4. ORDER that the partnership be wound up under the direction of the Court. 5. ORDER that accounts of the partnership be taken. 6. ORDER, subject to further order, that any and all matters of difference between the partners relating to the taking of accounts be referred to arbitration in accordance with clause 17 of the Partnership Deed for the "Shadrack Partnership" dated 1 July 2009. 7. ORDER, pursuant to rule 28.2 of the Civil Procedure Act 2005 NSW, that the following questions be separately determined: 1. The quantum of any equitable compensation to which the plaintiff (through the estate of the deceased) might be entitled against the first defendant. 2. The quantum of any common law damages to which the plaintiff might be entitled against the sixth defendant. 1. RESERVE those questions for further consideration pending further order of the Court. 2. RESERVE to the parties liberty to apply for a determination of the reserved questions, or for relief in the working out of these orders. 3. ORDER that the statement of claim and the cross summons otherwise be dismissed. 4. ORDER that the proceedings be listed for mention on a date six months hence with a view to a final determination of such, if any, entitlements the plaintiff may have to a money judgment against the first and sixth defendants.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2017