McKenzie v Turnbull

Supreme Court of NSW|2020-09-29|Before: Walton J

Solicitors: Slater & Gordon Lawyers (Plaintiffs) Cole & Butler Solicitors (First Defendant and Second Respondent) File Number(s): 2017/229368

Judgment

HIS HONOUR: By amended notice of motion filed on 13 August 2020, the first plaintiff, Alison Gai McKenzie applied for the entry of judgment against Robeena June Turnbull, the second respondent ("the motion"). The amended motion was amended slightly, with objections, during the course of the hearing today by varying proposed order 2, seeking that pre-judgment interest be expressed in terms and an order for costs be made in favour of the plaintiff as agreed or as assessed. The further amended motion so described will herein be referred to as the motion.
In support of the motion, the plaintiff read the affidavits of Phillip Robert Young sworn 3 July 2020 ("the first affidavit") and 27 August 2020 ("the second affidavit").
The defendant, Robeena June Turnbull and Grant Wesley Turnbull as executors for the estate of the late Ian Robert Turnbull and second respondent did not serve any evidence in response to the motion. By her solicitor, the second respondent did not oppose the motion.

Factual background

On 29 July 2014, Ian Turnbull shot and killed Glendon Turner ("the deceased") in the presence of Robert Strange.
At the time of the shooting, the first plaintiff was the de facto partner of the deceased and they had two children, Alexandra Turner ("the second plaintiff") and Jack Turner ("the third plaintiff").
On 29 March 2017, following his arrest on charges of murder, Ian Turnbull died in prison.
The defendant obtained a grant of probate no 2017/00129360 (NSW) and thereafter became the defendant in the proceedings.
On 27 July 2019, the plaintiffs commenced these proceedings against the defendant claiming common law damages ("the McKenzie Common Law proceedings").
On 27 September 2017, the plaintiffs commenced proceedings in the Equity Division of this Court claiming relief under s 37A of the Conveyancing Act 1919 (NSW) against the defendant and second respondent, in her personal capacity, with respect to certain transfers of real property.
The parties agreed to settle the common law and equity proceedings pursuant to the terms of the deed of settlement and release dated 9 October 2018 ("the Deed of Settlement").
In accordance with the terms of the Deed Settlement, on 30 July 2019 the plaintiffs caused for consent orders to be filed with the Court Registry which was recorded as follows: 1. Notes that the proceedings have been settled between the parties in accordance with the Deed of Settlement and Release dated 9 October 2018 and notes that the settlement as it concerns Alexandra Turner and Jack Turner was approved by the Court on 5 April 2019 ([2019] NSWSC 364). 2. Orders that Robeena June Turnbull pay the plaintiffs' costs of the proceedings, as agreed or assessed; 3. Subject to the Deed of Settlement and Release, the proceedings be otherwise dismissed with no order as to costs.

The Deed of Settlement

The relevant terms of the Deed of Settlement are as follows: 2.1 Without admission of liability and in full and final settlement of the McKenzie Common Law proceedings and the McKenzie Equity proceedings, Robeena Turnbull: a. agrees to pay Alison McKenzie and her children the total sum of $2,500,000 (the settlement sum) in accordance with clause 2.4; b. consents to an order that she pay the costs of the McKenzie Common Law proceedings, as assessed or agreed; and c. consent to an order that she pay the costs of the McKenzie Equity proceedings, as assessed or agreed. 2.2 Robeena Turnbull acknowledges that the obligation to pay the settlement sum and the costs referred to in clause 2.1 is a personal obligation, such that if she was deceased before the payments were made, her Estate would be obliged to make those payments to Alison McKenzie and her children in accordance with clause 2.1. 2.3 … 2.4 Alison McKenzie acknowledges that the settlement sum and the costs referred to in clause 2.1 will be paid by Robeena Turnbull from the net proceeds of sale of the Properties on or before 30 June 2020 and in consideration of the extended time for payment, Robeena Turnbull: a. Agrees to pay Alison McKenzie and her children pre-judgment interest on the settlement sum pursuant to s. 100 of the Civil Procedure Act 2005 (NSW) from the day following that date of this Deed until the date of payment; b. … 2.5 Robeena Turnbull acknowledges and agrees that if the settlement sum is not paid to Alison McKenzie and her children on or by 30 June 2020, Alison McKenzie and her children will have liberty to enter judgment in the McKenzie Common Law proceedings forthwith against the Robeena Turnbull in the total sum of $2,500,000.00 plus pre judgment interest pursuant to section 100 of the Civil Procedure Act from the day following that date of this Deed until the date of judgment. 2.6 Subject to clause 2.5, Alison McKenzie and her children and the Executors consent to McKenzie Common Law proceedings being otherwise dismissed in accordance with clause 5.1. … 5.1 Upon the signing of this Deed of Settlement and Release, the Parties to McKenzie Common Law proceedings will execute the consent orders in the form of the orders attached and marked 'B' and will use their best endeavours to ensure that the said consent orders are made the Court.
By 30 June 2020, the second respondent failed to make payment of the settlement sum.
On 11 August 2020, the McKenzie Common Law proceedings were listed for directions before Registrar Jones to deal with an issue in relation to amendments to the original notice of motion. For the purpose of avoiding any undue delay and expense, the parties agreed that the Deed of Settlement should be treated as taking effect as from 15 November 2018. That date is relevant to the calculation of pre-judgment interest.

Conclusion

In substance, the plaintiffs applied for judgment on the following terms pursuant to s 90 of the Civil Procedure Act 2005 NSW: 1. Judgment for the plaintiffs against the second respondent in the sum of $2,500,000.00; 2. An order that the second respondent pay the plaintiffs' pre-judgment interest on the settlement sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) as from 15 November 2018 (the sum of which is found in a Schedule appearing in the court book at page 175); and 3. An order that the second respondent pay the plaintiffs' costs of the motion in the sum of $1,000.00.
In default of payment of the settlement sum and in the absence of objection to the proposed order, it is appropriate that the Court enters judgment in favour of the plaintiffs in the terms sought by the plaintiffs. Those orders may be made having regard to rule 36.1A of the Uniform Civil Procedural Rules 2005 (NSW), and ss 90 and 100 of the Civil Procedure Act 2005 (NSW).
At the close of the proceedings, the Court determined to grant the motion and directed the plaintiff to bring in short minutes of order reflecting the same.
Those orders were in the following terms: 1. The proceeding be reinstated. 2. Pursuant to paragraph 2.5 of the deed of settlement executed by the First Plaintiff, the State of NSW, Robeena June Turnbull and Grant Wesley Turnbull, in their capacity as the executors of the estate of the late Ian Robert Turnbull, and the Second Respondent and agreed to take effect as from 15 November 2018, and pursuant to s 90(1) of the Civil Procedure Act 2005, judgment for the Plaintiffs against the Second Respondent in her personal capacity in the sum of $2,500,000.00. 3. Pursuant to s 100 of the Civil Procedure Act 2005, the Second Respondent is ordered to pay the Plaintiffs pre - judgment interest in the sum of $237,145.98. 4. The Second Respondent is to pay the Plaintiffs' costs of the motion, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020

Uniform Civil Procedural Rules 2005(NSW)

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