Vagg v McPhee

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.