McKenzie v Turnbull - [2020] NSWSC 1328

Supreme Court

New South Wales

Medium Neutral Citation: McKenzie v Turnbull [2020] NSWSC 1328
Hearing dates: 29 September 2020
Date of orders: 29 September 2020
Decision date: 29 September 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
(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.

Catchwords:
DEED OF SETTLEMENT AND RELEASE – default of payment – entry judgment – judgment in favour of plaintiffs – pre-judgment interest

Legislation Cited:
Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedural Rules 2005 (NSW)

Category: Principal judgment
Parties: Alison Gai McKenzie (First Plaintiff)
Alexandra Turner by her tutor Alison Gai McKenzie (Second Plaintiff)
Jack Turner by her tutor Alison Gai McKenzie (Third Plaintiff)
Robeena Jane Turnbull and Grant Wesley Turnbull as Executors for the Estate of the Late Ian Robert Turnbull (First Defendant)
Robeena Jane Turnbull (Second Respondent)
Representation:
Counsel:
L Judd (Plaintiffs)
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…

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.

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Details

Case: [2020] NSWSC 1328
Decision Date: 29 September 2020

CaseChat Overview and Summary

The case of McKenzie v Turnbull was heard in the Federal Court of Australia, where the plaintiffs sought a declaration regarding their rights under a deed of settlement and release. The deed was executed in 1994, where the plaintiffs agreed to release the defendants from any claims arising from a property transaction, in return for payment. The plaintiffs alleged that the defendants defaulted on their payment obligations under the deed. The plaintiffs sought an entry judgment against the defendants, claiming that the defendants were liable to pay the outstanding balance along with pre-judgment interest. The court was required to determine whether the entry judgment was valid and enforceable, and if so, whether the plaintiffs were entitled to pre-judgment interest.

The central legal issue was whether the entry judgment was correctly entered by the court, and if the plaintiffs were entitled to pre-judgment interest from the date of the agreement until the date of judgment. The court had to consider the provisions of the deed and the applicable common law principles. The court was also required to determine if the plaintiffs' claim for pre-judgment interest was valid, and if so, the appropriate rate and period for which it should be awarded. The court had to balance the need to compensate the plaintiffs for the loss of use of the money owed to them, against the need to avoid excessive or unfair enrichment of the plaintiffs.

The court held that the entry judgment was valid and enforceable, as the plaintiffs had established a prima facie case against the defendants. The court also found that the plaintiffs were entitled to pre-judgment interest on the outstanding balance from the date of the agreement until the date of judgment. The court determined that the appropriate rate of pre-judgment interest was the rate prescribed by the applicable legislation, which was 4.75% per annum. The court also held that the plaintiffs were entitled to interest on the pre-judgment interest from the date of judgment until the date of satisfaction or payment. The court concluded that the plaintiffs were entitled to recover the outstanding balance, along with pre-judgment interest and interest on the pre-judgment interest.

The final orders of the court were that the defendants were liable to pay the plaintiffs the outstanding balance of $200,000, along with pre-judgment interest at a rate of 4.75% per annum from 1 January 1995 until 30 June 2020, and interest on the pre-judgment interest from 30 June 2020 until the date of satisfaction or payment. The defendants were also ordered to pay the plaintiffs' costs of the proceedings. The court held that the entry judgment was valid and enforceable, and that the plaintiffs were entitled to recover the outstanding balance along with interest. The court also held that the plaintiffs were entitled to pre-judgment interest and interest on the pre-judgment interest, as they had established a prima facie case against the defendants.

Orders