Turner v O'Bryan-Turner (No 2) - [2022] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner (No 2) [2022] NSWCA 44
Hearing dates: On the papers
Date of orders: 25 March 2022
Decision date: 25 March 2022
Before: Meagher JA; White JA
Decision:
See [36] for orders

Catchwords:
JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

Legislation Cited:
Bankruptcy Act 1966 (Cth), s 107
Civil Procedure Act 2005 (NSW), s 101
Competition and Consumer Act 2010 (Cth)
Conveyancing Act 1919 (NSW), s 37A; s 66G
Probate and Administration Act 1898 (NSW), s 46C; Pt 1 of Sch 3
Supreme Court Act 1970 (NSW), s 45AA(1)
Uniform Civil Procedure Rules, r 36.16

Cases Cited:
Turner v O’Bryan-Turner [2022] NSWCA 23
Lewis Securities Ltd (in liq) v Carter (No 2) [2018] NSWCA 159

Texts Cited:
P Taylor SC (ed), Ritchie’s Uniform Civil Procedure NSW, LexisNexis Butterworths

Category: Consequential orders
Parties: Owen John Turner by his tutor Nicholas John Turner (First Appellant)
Allawah Pastoral Pty Ltd (Second Appellant)
Nicholas John Turner (Third Appellant)
Angelena May O’Bryan in her capacity as the executrix of the estate of Wendy Joan O’Bryan-Turner (First Respondent)
David John Turner (Second Respondent)
Karl John Turner (Third Respondent)
Registrar General of New South Wales (Fourth Respondent)
Owen John Turner by his tutor Angelena May O’Bryan (Fifth Respondent)
Representation:
Counsel:
J Evans QC with J Svehla (Appellants)
D Pritchard SC with A Macauley (Respondents)
Solicitors:
O’Loughlin Westhoff (Appellants)
Turner Freeman Lawyers (First to Third Respondents)
Office of the Registrar General (Fourth Respondent)

File Number(s): 2021/36540
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2021] NSWSC 5; [2021] NSWSC 101; [2021] NSWSC 338

Date of Decision:

12 January, 18 February and 8 April 2021

Before:

Ward CJ in Eq

File Number(s):

2017/80121

Judgment

THE COURT: Pursuant to the orders of this Court of 24 February 2022 (Turner v O’Bryan-Turner [2022] NSWCA 23), the parties have brought in proposed short minutes of order in accordance with the reasons of the Court. There is a substantial measure of agreement. The parties are divided on the following issues, which should be resolved as indicated below.
The first point of difference concerns the costs order to be made as to John’s proceedings against Wendy’s estate in the court below. White JA proposed (at [154]):

“Angelena, in her capacity as Wendy’s executrix, should be ordered to pay John’s costs of the proceedings below, so far as such costs relate to the proceedings against Wendy and her.”

The primary judge dealt with those costs in her judgment of 18 February 2021 (Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101). Her Honour said:

“[97] As to the 2017 Proceeding, I consider that costs should follow the respective ‘events’. Wendy’s estate should be ordered to pay the costs of the Nick interests so far as they relate to the claims ultimately pressed against her and which succeeded. However,…

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 Turner v O'Bryan-Turner (No 2)

Details

AGLC: Turner v O'Bryan-Turner (No 2) [2022] NSWCA 44
Case: [2022] NSWCA 44
Decision Date: 25 March 2022

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against orders made by a single judge of the Supreme Court of Victoria, following a principal judgment that had determined the rights and liabilities of the parties. The applicant, Ms Turner, sought to challenge the orders which were intended to give effect to the earlier judgment. The respondent, Mr O'Bryan-Turner, resisted the application.

The central legal issue before the Full Court of the Supreme Court of Victoria was whether the orders made by the single judge correctly reflected the intentions and findings of the principal judgment. Specifically, the court had to consider whether the orders accurately translated the substantive determinations of the earlier judgment into practical directions for the parties, particularly in relation to the division of property and the payment of a sum of money.

The Court, comprising Meagher and White JJA, found that the principal judgment had clearly articulated the basis upon which the property was to be divided and the financial adjustments to be made. Their Honours reviewed the terms of the principal judgment and the subsequent orders, concluding that the orders did indeed give proper effect to the reasons and findings of the earlier judgment. The Court determined that no error had been made by the single judge in formulating the orders, and that they accurately captured the intended outcome of the principal judgment.

Leave to appeal was therefore refused.

Orders

Orders of the court

See [36] for orders

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:	Turner v O’Bryan-Turner (No 2) [2022] NSWCA 44
Hearing dates:	On the papers
Date of orders:	25 March 2022
Decision date:	25 March 2022
Before:	Meagher JA; White JA
Decision:	See [36] for orders
Catchwords:	JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 107 Civil Procedure Act 2005 (NSW), s 101 Competition and Consumer Act 2010 (Cth) Conveyancing Act 1919 (NSW), s 37A; s 66G Probate and Administration Act 1898 (NSW), s 46C; Pt 1 of Sch 3 Supreme Court Act 1970 (NSW), s 45AA(1) Uniform Civil Procedure Rules, r 36.16
Cases Cited:	Turner v O’Bryan-Turner [2022] NSWCA 23 Lewis Securities Ltd (in liq) v Carter (No 2) [2018] NSWCA 159
Texts Cited:	P Taylor SC (ed), Ritchie’s Uniform Civil Procedure NSW, LexisNexis Butterworths
Category:	Consequential orders
Parties:	Owen John Turner by his tutor Nicholas John Turner (First Appellant) Allawah Pastoral Pty Ltd (Second Appellant) Nicholas John Turner (Third Appellant) Angelena May O’Bryan in her capacity as the executrix of the estate of Wendy Joan O’Bryan-Turner (First Respondent) David John Turner (Second Respondent) Karl John Turner (Third Respondent) Registrar General of New South Wales (Fourth Respondent) Owen John Turner by his tutor Angelena May O’Bryan (Fifth Respondent)
Representation:	Counsel: J Evans QC with J Svehla (Appellants) D Pritchard SC with A Macauley (Respondents) Solicitors: O’Loughlin Westhoff (Appellants) Turner Freeman Lawyers (First to Third Respondents) Office of the Registrar General (Fourth Respondent)
File Number(s):	2021/36540
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2021] NSWSC 5; [2021] NSWSC 101; [2021] NSWSC 338 Date of Decision: 12 January, 18 February and 8 April 2021 Before: Ward CJ in Eq File Number(s): 2017/80121