Vagg v McPhee

Case [2013] NSWCA 29

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Vagg v McPhee [2013] NSWCA 29
Hearing dates:4 February 2013
Decision date: 22 February 2013
Before: Basten JA at [1];
Ward JA at [24];
Tobias AJA at [25]
Decision:

Appeal dismissed. Written submissions on costs to be filed and served by the respondents within seven days of the publication of these reasons with the appellants to have a further seven days to respond thereto.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROFESSIONAL NEGLIGENCE - legal - advice in connection with execution of will - whether failure to explain possibility of severance of joint tenancy - whether duty of care owed to deceased's children

EVIDENCE - challenge to factual findings and assessment of witnesses - whether primary judge erred in failing to recognise requirement of close scrutiny of evidence of conversations with deceased person - whether primary judge erred in failing to consider absence of corroborating evidence - whether primary judge erred in assessment of documentary evidence of circumstances surrounding execution of will

WILLS AND ESTATES - whether terms of will reflected instructions of testatrix - evidence of instructions
Legislation Cited: Conveyancing Act 1919
Land Title Act 1994 (Qld)
Real Property Act 1900
Cases Cited: Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387
Carr-Glynn v Frearsons [1999] Ch 326
Clarke v Bruce Lance & Co [1988] 1 All ER 364
Fox v Percy [2003] HCA 22; (2003) 214 NSWLR 118
Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159
Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93
Miller v Cooney [2004] NSWCA 380
Ross v Caunters [1980] Ch 297
Smeaton v Pattison [2003] QCA 341
Smeaton v Pattison [2002] QSC 431
Watson v Foxman (1995) 49 NSWLR 315
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277
White v Jones [1995] UKHL 5; [1995] 2 AC 207
Category:Principal judgment
Parties: Margaret Doreen Vagg (First Appellant)
Benjamin John Vagg (Second Appellant)
Julia Lillian Vagg (Third Appellant)
Cecilia Anne Vagg (Fourth Appellant)
James Gregory Vagg (Fifth Appellant)
Paul McPhee (First Respondent)
Trevor Cork (Second Respondent)
David Dunkley (Third Respondent)
Steven Nicholson (Fourth Respondent)
Representation: Counsel:
P Webb QC with E W Young (Appellants)
J C Kelly SC (Respondents)
Solicitors:
Turner Freeman (Appellants)
Colin Biggers & Paisley (Respondents)
File Number(s):CA13018 of 2012
 Decision under appeal 
Citation:
[2011] NSWSC 1584
Date of Decision:
2011-12-19 00:00:00
Before:
Schmidt J
File Number(s):
CL297399 of 2009 (formerly 20072 of 2009)

Judgment

  1. BASTEN JA: Julia Patricia Vagg (the testatrix) died on 14 March 2005. Pursuant to a will…

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AGLC
Vagg v McPhee [2013] NSWCA 29
Case
[2013] NSWCA 29
Decision Date

CaseChat Overview and Summary

The appeal in *Vagg v McPhee* concerned a claim of professional negligence against a solicitor, Mr. McPhee, brought by the children of the deceased, Mrs. Vagg. The dispute arose from advice provided by Mr. McPhee in connection with the execution of Mrs. Vagg's will. The children alleged that Mr. McPhee owed them a duty of care and that he had breached this duty by failing to explain the possibility of severing a joint tenancy. The matter was heard in the Court of Appeal of New South Wales before Basten and Ward JJA and Tobias AJA.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in their factual findings and assessment of witnesses, particularly concerning evidence of conversations with the deceased. Specifically, the appellants argued that the primary judge failed to apply the required close scrutiny to such evidence and did not adequately consider the absence of corroborating evidence. Furthermore, the court was asked to consider whether the primary judge erred in assessing the documentary evidence relating to the circumstances surrounding the execution of the will, and whether the terms of the will accurately reflected the instructions of the testatrix.

The Court of Appeal dismissed the appeal. The judges found no error in the primary judge's assessment of the evidence, including the evaluation of witness testimony and documentary evidence. The court applied established principles regarding the duty of care owed by solicitors and the evidential requirements for proving claims of professional negligence. The court was satisfied that the primary judge had correctly determined the facts and applied the relevant legal principles.

Orders

Orders of the court

Appeal dismissed. Written submissions on costs to be filed and served by the respondents within seven days of the publication of these reasons with the appellants to have a further seven days to respond thereto.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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