Brownlie v Murray

Case [2018] NSWCA 4


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Brownlie v Murray [2018] NSWCA 4
Hearing dates: On the papers
Date of orders: 31 January 2018
Decision date: 31 January 2018
Before: Harrison J
Decision:

(1)  Set aside the judgment of Delaney ADCJ dated 4 October 2017.
(2)  In lieu thereof, order that there be judgment for the plaintiff for $1,650,000 plus costs.
(3) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 with respect to so much of the judgment monies as are to be apportioned in favour of:
      (a) Xxx Xxx born xx xx xx in the sum of $300,000;
      (b) Xxx Xxx born xx xx xx in the sum of $340,000.
(4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the sums referred to in orders (3)(a) and (3)(b) hereof be paid into Court for payment out thereafter to the NSW Trustee & Guardian upon trust for Xxx Xxx and Xxx Xxx respectively until each attains the age of 18 years or as the Court may upon application made pursuant to s 77(3) of that Act otherwise direct.

Catchwords: CIVIL PROCEDURE – settlement – court approval – where proceedings commenced on behalf of minors
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76(4), 77(2), (3)
Compensation to Relatives Act 1897 (NSW)
Category:Principal judgment
Parties: Alexander Thomas Brownlie (Appellant)
Alison Jean Murray (Respondent)
Representation:

Counsel:
A Stone SC (Respondent)

  Solicitors:
Curwoods Lawyers (Appellant)
John McGuire & Associates (Respondent)
File Number(s): 2017/304509
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
11 September 2017
Before:
Delaney ADCJ
File Number(s):
2016/138544

Judgment

  1. HIS HONOUR: Alison Murray, who is the respondent in this Court, is the widow of the late Gavin Murray who died as the result of injuries sustained in a motor vehicle accident on 21 December 2015. Ms Murray commenced proceedings in the District Court of New South Wales on her own behalf and on behalf of her two dependent children pursuant to the Compensation to Relatives Act1897. Alexander Brownlie, who is the appellant in this Court and the defendant in the Court below, admitted liability. The matter therefore proceeded before Acting Judge Delaney as an assessment.

  2. His Honour published what is described as a Preliminary Judgment on 17 July 2017. His Honour was, in effect, asked by the parties to make a series of findings upon the basis of which or with the advantage of which they could proceed to calculate the damages for which the defendant was liable. In the events that occurred, damages calculated in that way amounted to $2,024,081. Of that sum, an amount of $435,000 was allocated to the elder child and the sum of $475,000 was allocated to the younger child. Approval of those allocations by the Court below would have been necessary in accordance with the provisions of the Civil Procedure Act 2005 because…

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Brownlie v Murray [2018] NSWCA 4
Case
[2018] NSWCA 4
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Harrison J considered an application to set aside a previous judgment concerning proceedings commenced on behalf of minors. The dispute involved the approval of a settlement in a matter where the plaintiff, acting on behalf of infant beneficiaries, sought to have a prior judgment altered and the terms of a settlement approved.

The central legal issues before the court were whether to set aside the existing judgment and, in its place, enter a new judgment reflecting an agreed settlement amount. Crucially, the court was required to determine whether to approve the proposed settlement pursuant to section 76(4) of the *Civil Procedure Act 2005* (NSW) and how the settlement monies apportioned to the minors should be managed and protected, in accordance with section 77(2) of the same Act.

Harrison J reasoned that the prior judgment was not reflective of the agreed settlement and that it was in the best interests of the infant beneficiaries to approve the revised terms. The court applied the principles of section 76(4) of the *Civil Procedure Act 2005* (NSW), which allows for court approval of settlements involving minors, and section 77(2), which mandates the payment of such funds into court for the protection of minors until they reach the age of majority, or as otherwise directed by the court.

Consequently, the court ordered that the previous judgment be set aside and replaced with a judgment for the plaintiff in the sum of $1,650,000 plus costs. The settlement was approved, with specific apportionments of $300,000 and $340,000 to two named minors. These sums were ordered to be paid into court for subsequent payment to the NSW Trustee & Guardian for the benefit of the minors until they attained the age of 18 years, subject to further court direction.

Orders

Orders of the court

(1) Set aside the judgment of Delaney ADCJ dated 4 October 2017.

(2) In lieu thereof, order that there be judgment for the plaintiff for $1,650,000 plus costs.

(3) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 with respect to so much of the judgment monies as are to be apportioned in favour of:

(a) Xxx Xxx born xx xx xx in the sum of $300,000;

(b) Xxx Xxx born xx xx xx in the sum of $340,000.

(4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the sums referred to in orders (3)(a) and (3)(b) hereof be paid into Court for payment out thereafter to the NSW Trustee & Guardian upon trust for Xxx Xxx and Xxx Xxx respectively until each attains the age of 18 years or as the Court may upon application made pursuant to s 77(3) of that Act otherwise direct.

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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