McKenzie v Turnbull - [2019] NSWSC 364

Supreme Court

New South Wales

Medium Neutral Citation: McKenzie v Turnbull [2019] NSWSC 364
Hearing dates: 20 March 2019
Decision date: 05 April 2019
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Settlement of the proceedings commenced by Alison Gai McKenzie, Alexandra Turner and Jack Turner approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

(2) Pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW) any settlement monies recovered on behalf of Alexandra Turner and Jack Turner in these proceedings, by their tutor Alison McKenzie, is paid into court pending the application of a financial manager.
(3) Upon such settlement monies being paid into Court, the parties have liberty to restore the matter to the list upon 3 days’ notice.
Catchwords: Civil procedure – approval of settlement of proceedings – proceedings brought on behalf of persons under legal incapacity – whether settlement beneficial to interests – Civil Procedure Act 2005 (NSW), s 76
Legislation Cited: Civil Procedure Act 2005 (NSW)
Compensation to Relatives Act 1897 (NSW)
Cases Cited: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
R v Turnbull (No 26) [2016] NSWSC 847
Category: Principal judgment
Parties: Alison McKenzie (First Plaintiff)
Alison McKenzie as tutor for Alexandra Turner (Second Plaintiff)
Alison McKenzie as tutor for Jack Turner (Third Plaintiff)
Robeena Jane Turnbull and Grant Wesley Turnbull as Executors for the Estate of the Late Ian Robert Turnbull (Defendants)
Representation:
Counsel:
E Romaniuk SC; L Judd (Plaintiffs)
No appearance (Defendants)
Solicitors:
Slater and Gordon Lawyers (Plaintiffs)
Cole & Butler Solicitors (Defendants)

File Number(s): 2017/229368

Judgment

HIS HONOUR: This is an application for approval of a proposed settlement of proceedings for damages commenced on behalf of two persons under legal incapacity. The application is made pursuant to s 76 of the Civil Procedure Act 2005 (NSW), which provides that, in the case of proceedings commenced on behalf of a person under legal incapacity, if an agreement for a compromise or settlement is made, the person under legal incapacity is not bound by it unless it is approved by the court. In this case, the legal incapacity arises by virtue of the ages of two of the three plaintiffs.
The proceedings are brought by Alison McKenzie in her own right and as tutor for each of her children, Jack and Alexandra Turner, against the defendants Robeena Turnbull and Grant Turnbull in their capacity as the executors for the estate of their father, Ian Turnbull.
The claim for damages arises from the murder of Ms McKenzie’s husband, Glendon (Glen) Turner, by Ian Turnbull, on 29 July 2014. Mr Turnbull was convicted at trial, and on 23 June 2016 he was sentenced to a term of imprisonment of 35 years with a non-parole period of 24 years. Mr Turnbull was 81 years old at the time of his sentence. He died in custody on 27 March 2017.
The circumstances of the murder are set out in the remarks on sentence by his…

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: [2019] NSWSC 364
Decision Date: 05 April 2019

CaseChat Overview and Summary

In the case of McKenzie v Turnbull, the matter was brought before the court by the Public Trustee of New South Wales, acting on behalf of an individual under legal incapacity, against Turnbull. The dispute centred around the approval of a settlement of proceedings which had been negotiated and proposed by the Public Trustee. The court was tasked with determining whether the settlement was in the best interests of the individual under legal incapacity.

The legal issue before the court was whether the settlement agreement proposed by the Public Trustee was beneficial to the interests of the incapacitated individual. The court needed to assess the terms of the settlement under section 76 of the Civil Procedure Act 2005 (NSW), which provides the criteria for approving settlements in cases involving persons under legal incapacity. The court considered the merits of the settlement, including the potential benefits to the incapacitated individual, the fairness of the terms, and whether the settlement represented a just and equitable resolution of the proceedings.

The court found that the settlement agreement was beneficial to the interests of the incapacitated individual. The terms of the settlement were considered fair and equitable, taking into account the incapacitated individual's best interests. The court was satisfied that the Public Trustee had exercised due diligence in negotiating the settlement and that the agreement represented a reasonable and prudent resolution of the proceedings. The court approved the settlement, emphasising the importance of prioritising the welfare and interests of the incapacitated individual in such matters.

The final orders of the court included the approval of the settlement agreement as proposed by the Public Trustee, with the conditions that the terms be implemented in a manner that ensures the best interests of the incapacitated individual are met. The court directed that the settlement be finalised and that appropriate steps be taken to ensure the incapacitated individual's rights and interests are protected throughout the implementation process.

Orders