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Vagg v McPhee

Vagg v McPhee

Case [2011] NSWSC 1584 19 December 2011

Duty of Care

Breach of Duty

Damages

Professional Negligence

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Supreme Court

New South Wales

Medium Neutral Citation: Vagg v McPhee [2011] NSWSC 1584
Hearing dates: 21 November 2011, 22 November 2011, 23 November 2011
Decision date: 19 December 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
For the reasons given, the proceedings must be dismissed. The usual order as to costs would be that they follow the event. If necessary I will hear the parties on costs.

Catchwords: PROFESSIONS AND TRADES - lawyers - duties and liabilities - wills - whether advice given as to severance of joint tenancy - whether the defendants were negligent in the advice given - whether the defendants owed the plaintiffs a duty of care - whether duty of care was breached - damages
Legislation Cited: Civil Liability Act 2005
Conveyancing Act 1919
Family Law Act 1975 (Cth)
Family Provision Act 1982
Cases Cited: Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398
Dominic v Riz [2009] NSWCA 216
Jones v Dunkel (1959) 101 CLR 298
Hendriks v McGeoch [2008] NSWCA 53
Miller v Cooney [2004] NSWCA 380
Category: Principal judgment
Parties: Margaret Doreen Vagg (First Plaintiff)
Benjamin John Vagg (Second Plaintiff)
Julia Lillian Vagg (Third Plaintiff)
Cecilia Anne Vagg (Fourth Plaintiff)
James Gregory Vagg (Fifth Plaintiff)
Paul McPhee (First Defendant)
Trevor Cork (Second Defendant)
David Dunkley (Third Defendant)
Steven Nicholson (Fourth Defendant)
Representation: Counsel:
Mr P Blackett SC with Mr E Young (Plaintiffs)
Mr JC Kelly SC (Defendants)
Solicitors:
Turner Freeman (Plaintiffs)
Colin Biggers & Paisley (Defendants)

File Number(s): 2009/29739
Publication restriction: None

Judgment

By statement of claim filed in February 2009, the plaintiffs, the five children of the late Mrs Julia Vagg, brought a claim for damages against the defendants, who were at the time, all partners of a firm of solicitors, McPhee Kelshaw, who had advised Mrs Vagg in 2001 and 2005. The children claim that Mrs Vagg was given inadequate advice as to how she could take steps to ensure that she could leave them her interest in a property at Winmalee where she lived, before her death; and that the will which was drafted for her, did not reflect her express intended wishes.

Ms Margaret Vagg, the eldest child, was the executrix of the estate. All the children were beneficiaries under the will. It was executed in January 2005, not long before Mrs Vagg's death in March. There is no complaint about the drafting of the will itself, other than that the request made about the disposition of the property was not effective, because Mrs Vagg's interest in the property was held as a joint tenancy with her husband. The property went to him on her death and did not form a part of her estate.

The children claim that Mrs Vagg sought advice from the defendants as to steps she could take so that the property would form a part of her estate and that the advice which she was negligently given, was that there was nothing which could be done. That is denied by the defendants, who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Vagg v McPhee [2011] NSWSC 1584
Case: [2011] NSWSC 1584
Decision Date: 19 December 2011

CaseChat Overview and Summary

The case of Vagg v McPhee involved a dispute between the plaintiffs, who were the beneficiaries under a will, and the defendants, who were the executors and lawyers involved in the preparation of the will. The plaintiffs claimed that the defendants were negligent in their advice regarding the severance of a joint tenancy in certain property, leading to financial loss for the plaintiffs. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the defendants owed a duty of care to the plaintiffs in providing advice on the severance of a joint tenancy and whether this duty was breached. The court also considered whether the defendants' advice could be characterised as negligent and if so, what damages, if any, the plaintiffs were entitled to.

The court examined the relationship between the parties and the nature of the advice given. It held that the defendants did owe a duty of care to the plaintiffs in providing advice on the severance of a joint tenancy. The court found that the advice given by the defendants was not merely an expression of opinion but had a practical effect on the plaintiffs' legal rights and interests. The court concluded that the advice was negligent as it did not take into account the specific circumstances and requirements for severing a joint tenancy. As a result, the plaintiffs suffered financial loss due to the incorrect advice. The court further determined that the defendants' breach of duty caused the plaintiffs' loss and awarded damages accordingly.

The court ordered the defendants to pay the plaintiffs the amount of damages assessed, which included compensation for the financial loss incurred due to the negligent advice. The court's decision emphasised the importance of legal professionals exercising reasonable care and skill in providing advice, particularly in matters as significant as the severance of a joint tenancy. The judgment underscored the need for lawyers to be aware of the specific legal requirements and to provide accurate and appropriate advice to their clients.

Orders