Brownlie v Murray - [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

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.
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…

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.

Continue reading Brownlie v Murray

Details

AGLC: Brownlie v Murray [2018] NSWCA 4
Case: [2018] NSWCA 4
Decision Date: 31 January 2018

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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