Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988) High Court of Australia Case Title: HAWKINS v. CLAYTON [1988] HCA 15; (1988) 164 CLR 539 F. C. 88/012 Medium Neutral Citation:[1988] HCA 15 Hearing Date(s): 1987, May 13 1988, April 8 Decision Date:20 June 2011 Jurisdiction: High Court of Australia Before:C. J Mason J. Wilson J. Brennan J. Deane J. Gaudron Catchwords: Negligence - Duty of care - Solicitor - Will held by solicitor - Failure to inform executor of death of testator and of contents - Whether duty to do so - Loss to estate caused by executor's ignorance of death - Measure of damages.

Limitation of Actions - Tort - Accrual of cause of action - Running of time - Commencement - Breach by solicitor of duty of care to inform executor of testator's death - Loss to estate caused by executor's ignorance of death - Limitation Act 1969 (N. S. W. ), s. 14(1). Legislation Cited: Limitation Act 1969 (N. S. W. ), s. 14(1) Wills, Probate and Administration Act 1898 (N. S. W. ), s. 150 s. 32 of the Wills, Probate and Administration Act s. 61 of the Wills, Probate and Administration Act Cases Cited: Central Trust Co. v. Rafuse (1986) 31 DLR (4th) 481, at p 521

Bowen v. Paramount Builders (1977) 1 NZLR 394, per Richmond P. , at p 407 Central Trust Co. v. Rafuse (1986) 31 DLR (4th) 481, at p 521 Bowen v. Paramount Builders (1977) 1 NZLR 394, per Richmond P. , at p 407 Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, at p 85 Midland Bank v. Hett, Stubbs and Kemp (1979) Ch 384, at pp 402-403 Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1963] UKHL 4; AC 465 Marshall v. Broadhurst (1831) 1 C & J 403 [1831] EngR 151; (148 ER 1480) Balch v. Symes [1823] EngR 362; (1823) Turn & R 87, at p 92

Aebly's Will (1941) 29 NYS 2d 929, at pp 931-932; affirmed (1941) 31 NYS 2d 664 Georges v. Georges [1811] EngR 446; (1811) 18 VesJun 294 (34 ER 328) Lord v. Wormleighton [1822] EngR 477; (1822) Jac 580, at p 581 [1822] EngR 477; (37 ER 969) Estate of Harvey (1907) P 239 Goods of Shepherd (1891) P 323, at p 326 Hollis v. Smith (1808) 10 East 293, at p 295 (103 ER 786, at p 787) Meyappa Chetty v. Supramanian Chetty (1916) 1 AC 603, at pp 608-609 Ryan v. Davies Bros. Ltd. [1921] HCA 53; (1921) 29 CLR 527, at p 536) Pinchon's Case [1572] EngR 289; (1611) 9 CoRep 86b, at p 88b [1572] EngR 289; (77 ER 859, at p 863)

Texts Cited: Sir James Stephen, A History of the Criminal Law of England (1883) Parties: Representation - Counsel: File number(s): DECISION The case of Hawkins V Clayton was the result of a breach of duty by the solicitors of the testator, Mrs Brasier, and to the executor of the estate, Mr Hawkins. The solicitors were in custody of Mrs Brasier’s will and seemingly were not aware of the testators death for some time as they had written letters to her regarding her will in September 1978 and August 1979 with no response.

After the commencement of the action taken up by Mr Hawkins, he had passed and his widow and executor continued the action as she had become Mrs Brasier’s executor by devolution. Mr Hawkins and his family had lived with Mrs Brasier as a “tenant” in her home at Blakehurst, sometime during August 1973 Mr Hawkins and Mrs Brasier had had a disagreement and the Hawkins family had left the Blakehurst house. It was determined that Mrs Brasier had spoken with Mr Hawkins about his appointment as executor but had not confirmed it once the will was written.

After August 1973 Mrs Brasier had contact the solicitors to make a new will but had not carried out the changes and the solicitors had not had any instructions from her since. After the death of Mrs Braiser, her nephew, Ronald Lamb had taken up residence in her house and had not paid any rent or maintained the property. Mr Lamb had contacted the solicitors and had represented to them that Mr Hawkins had disappeared and requested payment out of the estate for funeral expenses.

Some years later, Mr Hardwick who had been handling the matter had retired and upon the retention of new solicitors from the Executor, had rendered an account for services provided to the estate. This case was heard in the High Court of Australia on appeal from the judgment handed down from the Supreme Court of New South Wales. In the judgment from the Supreme Court, it was found that the Statute of Limitations had barred the solicitors from being found guilty of a breach of duty of care.

The High Court Judges had not reached a unanimous decision regarding the duty of care owed to the executor. Mason C. J and Wilson J found that there was no duty of care owed to Mr Hawkins and suggested the appeal be dismissed, on the other hand; Brennan, Deane, Gaudron JJ had found that there had been a breach of the duty owed to Mr Hawkins, and that the Limitations Act would not affect any claim of such a breach as the breach did not occur at the time of the death of Mrs Braiser but from when the Solicitors found out of her death.

There was argument that the resultant damages incurred by Mr Hawkins was caused by his ignorance of the will and his failure to administer the estate it was however found that the damages were indeed caused by the lack of the solicitors to promptly notify Mr Hawkins of his interest in the estate and his role as executor. Brennan, Deane, Gaudron JJ ordered that damages be paid by the respondents though as the damages had not been quantified, they all agreed that the parties should discuss and agree to the amount of damages payable, if the parties could not agree to an amount, the Supreme Court of NSW would determine the costs owed.

The final orders as found in the judgment are as follows: 1. the appeal to that Court be allowed with costs; 2. the judgment of Yeldham J. be set aside; 3. in lieu thereof judgment be entered for the plaintiff for damages to be assessed; 4. the action be remitted for determination by a judge of the Supreme Court; and 5. the defendants to pay the plaintiff's costs to be taxed.