Strange v Turnbull

[2020] NSWSC 1327

Supreme Court

New South Wales

Medium Neutral Citation:

Strange v Turnbull [2020] NSWSC 1327

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 2.4 of the deed of settlement executed by the 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 Plaintiff against the Second Respondent in her personal capacity in the sum of $1,750,000.00.

(3) Pursuant to s 100 of the Civil Procedure Act 2005, the Second Respondent is ordered to pay the Plaintiff pre - judgment interest in the sum of $166,002.18.

(4) The Second Respondent is to pay the Plaintiff’s costs of the motion, as agreed or assessed.

Catchwords:

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

Legislation Cited:

Conveyancing Act 1919 (NSW)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedural Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Robert John Strange (Plaintiff)
Robeena June Turnbull and Grant Wesley Turnbull as Executors for the estate of the late Ian Robert Turnbull (First Defendant)
Robeena June Turnbull (Second Respondent)

Representation:

Counsel:
L Judd (Plaintiff)

Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Cole & Butler Solicitors (First Defendant and Second Respondent)

File Number(s):

2015/183692

Judgment

1. HIS HONOUR: By amended notice of motion filed on 13 August 2020, the plaintiff, Robert John Strange 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.

2. 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”).

3. The defendant, Robeena June Turnbull and Grant Wesley Turnbull as executors for the estate of the late Ian Robert Turnbull and the 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

4. On 29 July 2014, Ian Turnbull shot and killed Glendon Turner in the presence of Robert Strange.

5. On 18 June 2015, the plaintiff commenced these proceedings against Ian Turnbull seeking common law damages (“the Strange Common Law proceedings”).

6. On 15 March 2016, the plaintiff commenced proceedings in the Equity Division of this Court claiming relief under s 37A of the Conveyancing Act 1919 (NSW) against the Ian Turnbull and the second respondent with respect to certain transfers of real property.

7. On 29 March 2017 Ian Turnbull died in prison.

8. The defendant obtained a grant of probate no 2017/00129360 (NSW) and thereafter became the defendant in the proceedings.

9. 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”).

10. In accordance with the terms of the Deed of Settlement, on 25 October 2018 the Plaintiff caused consent orders to be filed with the Court Registry which are 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.

2. Orders that Robeena June Turnbull pay the plaintiff’s 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

11. 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 Strange Common Law proceedings and the Strange Equity proceedings, Robeena Turnbull:

a. agrees to pay Robert Strange the total sum of $1,750,000 (the settlement sum) in accordance with clause 2.3;

b. consents to an order that she pay the costs of the Strange Common Law proceedings, as assessed or agreed; and

c. consent to an order that she pay the costs of the Strange 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 Robert Strange in accordance with clause 2.1.

2.3 Robert Strange 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 Robert Strange pre-judgment interest on the settlement sum pursuant to section 100 of the Civil Procedure Act 2005 (NSW) from the day following that date of this Deed until the date of payment

…

2.4 Robeena Turnbull acknowledges and agrees that if the settlement sum is not paid to Robert Strange on or by 30 June 2020, Robert Strange will have liberty to enter judgment in the Strange Common Law proceedings forthwith against the Robeena Turnbull in the total sum of $1,750,000.00 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.

2.5 Subject to clause 2.5, Robert Strange and the Executors consent to Strange 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 the Strange 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.

12. By 30 June 2020, the second respondent failed to make payment of the settlement sum.

13. On 11 August 2020, the Strange 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

14. In substance, the plaintiff applied for judgment on the following terms:

1. Judgment for the plaintiff against the second respondent in the sum of $1,750,000.00;

2. An order that the second respondent pay the plaintiff 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 168); and

3. An order that the second respondent pay the plaintiff’s costs of the motion in the sum of $1,000.00.

15. In default of payment of the sum provided by the Deed of Settlement and in absence of objection to the proposed order, it is appropriate that the Court enter judgment in favour of the plaintiff in the terms sought by the plaintiff. 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).

16. 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.

17. Those orders were in the following terms:

1. The proceeding be reinstated.

2. Pursuant to paragraph 2.4 of the deed of settlement executed by the 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 Plaintiff against the Second Respondent in her personal capacity in the sum of $1,750,000.00.

3. Pursuant to s 100 of the Civil Procedure Act 2005, the Second Respondent is ordered to pay the Plaintiff pre-judgment interest in the sum of $166,002.18.

4. The Second Respondent is to pay the Plaintiff’s costs of the motion, as agreed or assessed.

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