MacCulloch v. McInnes, (2000) 184 N.S.R.(2d) 40 (SC)

JudgeMacLellan, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMay 02, 2000
JurisdictionNova Scotia
Citations(2000), 184 N.S.R.(2d) 40 (SC)

MacCulloch v. McInnes, Cooper (2000), 184 N.S.R.(2d) 40 (SC);

 573 A.P.R. 40

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. MY.001

Patricia B. MacCulloch (plaintiff) v. McInnes, Cooper & Robertson, a registered Partnership, and Stewart McInnes (defendants)

(S.H. No. 17222)

Indexed As: MacCulloch v. McInnes, Cooper & Robertson

Nova Scotia Supreme Court

MacLellan, J.

May 2, 2000.

Summary:

MacCulloch, one of the executors of her deceased husband's estate, purchased estate assets for $500,000 (appraised value) without disclosing a previous agreement to sell the assets to a third party for $1,800,000. After the estate subsequently went bankrupt, the Trustee in Bankruptcy successfully sued MacCulloch for a declaration that she held the sales proceeds in trust for the estate. Subsequently, the judgment was set off against MacCulloch's share of the estate. MacCulloch brought a negligence action for damages against the solicitor who repre­sented her respecting the agreement to pur­chase the estate assets.

The Nova Scotia Supreme Court found the solicitor negligent for arranging the sale without court approval. It was negligence to be unaware of the restrictions on an executor buying estate property and in concluding that MacCulloch would be protected if the bene­ficiaries all signed off. The court rejected the solicitor's submission that MacCulloch would not have heeded the correct advice, had it been given. That submission was too specu­lative. Damages equalled the $61,930.50 in legal fees incurred by MacCulloch in de­fending the action by the Trustee plus the legal costs paid by the Trustee which were attributable to the action.

Barristers and Solicitors - Topic 2592

Negligence - Preparation and execution of documents - A widow was one of the executors of her deceased husband's estate - She purchased estate assets for $500,000 (appraised value) without disclosing a previous agreement to sell the assets to a third party for $1,800,000 - After the estate subsequently went bankrupt, the Trustee in Bankruptcy successfully sued the widow for breach of fiduciary duty - She held the sales proceeds in trust for the estate - The widow brought a negligence action for damages against her solicitor, submitting that he should have advised her to obtain court approval for the agreement to purchase - The Nova Scotia Supreme Court found the solicitor negligent for arranging the sale without court approval -It was negligence to be unaware of the restrictions on an executor buying estate property and in concluding that the widow would be protected by the beneficiaries signing off - The court rejected the solici­tor's speculative submission that the widow would not have heeded the correct advice, had it been given - Damages equalled the $61,930.50 in legal fees incurred by the widow in defending the action by the Trustee plus the legal costs paid by the Trustee which were attributable to the action - See paragraphs 87 to 133.

Barristers and Solicitors - Topic 2594

Negligence - Failure to inform or advise client - [See Barristers and Solicitors - Topic 2592 ].

Barristers and Solicitors - Topic 2663

Negligence - Damages - Measure of - [See Barristers and Solicitors - Topic 2592 ].

Cases Noticed:

Price Waterhouse Ltd. v. MacCulloch (1986), 69 N.S.R.(2d) 167; 163 A.P.R. 167 (S.C.), revsd. (1986), 72 N.S.R.(2d) 1; 173 A.P.R. 1 (C.A.), refd to. [paras. 44, 47].

MacCulloch (Bankrupt), Re (1992), 108 N.S.R.(2d) 130; 294 A.P.R. 130 (C.A.), refd to. [para. 53].

MacCulloch (Bankrupt), Re (1991), 102 N.S.R.(2d) 147; 279 A.P.R. 147 (Prob. Ct.), refd to. [para. 54].

MacCulloch (Bankrupt), Re (1992), 115 N.S.R.(2d) 131; 314 A.P.R. 131 (S.C.), refd to. [para. 55].

Central Trust Co. v. Rafuse and Cordon (1987), 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109 (S.C.C.), refd to. [para. 87].

MacIntosh v. Rosborough & Co., [1990] B.C.J. No. 2795 (C.A.), refd to. [para. 104].

Hants County Business Development Centre Ltd. v. Poole et al. (1998), 172 N.S.R.(2d) 393; 524 A.P.R. 393 (C.A.), refd to. [para. 104].

Fraser Park South Estates Ltd. et al. v. Lang Michener Lawrence & Shaw et al. (1999), 2 B.C.T.C. 1 (S.C.), refd to. [para. 104].

Blown v. Johnstone, [1987] B.C.J. No. 2431 (C.A.), refd to. [para. 104].

Elcano Acceptance Ltd. et al. v. Rich­mond, Richmond, Stambler & Mills (1991), 49 O.A.C. 17; 68 O.R.(2d) 165 (C.A.), refd to. [para. 112].

Robb (K.W.) & Associates Ltd. v. Wilson (1998), 169 N.S.R.(2d) 201; 508 A.P.R. 201 (C.A.), refd to. [para. 145].

Statutes Noticed:

Judicature Act, R.S.O. 1980, c. 223, sect. 41(i), sect. 41(k) [para. 141].

Counsel:

Patricia MacCulloch, on her own behalf;

John P. Merrick, Q.C., and Dufferin R. Harper, for the defendants.

This action was heard on January 17-21 and 24, 2000, at Halifax, N.S., before Mac­Lellan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 2, 2000.

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2 practice notes
  • MacCulloch v. McInnes, Cooper & Robertson, 2000 NSCA 92
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • August 3, 2000
    ...who represented her respecting the agreement to purchase the estate assets. The Nova Scotia Supreme Court, in a judgment reported 184 N.S.R.(2d) 40; 573 A.P.R. 40, found the solicitor negligent for arranging the sale without court approval. It was negligence to be unaware of the restriction......
  • MacCulloch v. McInnes, Cooper & Robertson, 2001 NSCA 8
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • January 19, 2001
    ...who represented her respecting the agreement to purchase the estate assets. The Nova Scotia Supreme Court, in a judgment reported 184 N.S.R.(2d) 40; 573 A.P.R. 40 , found the solicitor negligent for arranging the sale without court approval. It was negligent to be unaware of the restrictio......
2 cases
  • MacCulloch v. McInnes, Cooper & Robertson, 2000 NSCA 92
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • August 3, 2000
    ...who represented her respecting the agreement to purchase the estate assets. The Nova Scotia Supreme Court, in a judgment reported 184 N.S.R.(2d) 40; 573 A.P.R. 40, found the solicitor negligent for arranging the sale without court approval. It was negligence to be unaware of the restriction......
  • MacCulloch v. McInnes, Cooper & Robertson, 2001 NSCA 8
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • January 19, 2001
    ...who represented her respecting the agreement to purchase the estate assets. The Nova Scotia Supreme Court, in a judgment reported 184 N.S.R.(2d) 40; 573 A.P.R. 40 , found the solicitor negligent for arranging the sale without court approval. It was negligent to be unaware of the restrictio......

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