Vagg v McPhee [2013] NSWCA 29

Court of Appeal Supreme Court New South Wales 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)