Turner v O'Bryan-Turner (No 3) - [2021] NSWSC 338

Supreme Court

New South Wales

Medium Neutral Citation: Turner v O’Bryan-Turner (No 3) [2021] NSWSC 338
Hearing dates: On the papers
Date of orders: 8 April 2021
Decision date: 08 April 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Order that the three Trundle properties identified in orders 3(c), (d) and (e) of the orders made by Sackar J on 7 April 2017 in the 2017 Proceeding and entered on 11 April 2017 (the 2017 Orders) (known as the Woolharinga, Nellyvale and Sunrise properties) be charged in the terms set out at [12] of these reasons.
2.   Order that, to the extent not already discharged, orders 3-5(b) of the 2017 Orders be discharged.
3.   Order that order 5(c) of the 2017 Orders be varied so as to insert, immediately after the words “Properties Produce” in the first line of order 5(c), the words:
or the land identified in Order 3(c), (d) and (e) [i.e. Woolharinga, Nellyvale and Sunrise]
4.   Make no further order as to costs of the respective Proceedings.
5.   Note that this disposes of the 2017 and 2019 Proceedings and that the Court files will now be closed.

Catchwords:
CIVIL PROCEDURE – Terms of charge to reflect primary judgment – Variation of interlocutory regime

Cases Cited:
Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101
Turner v O’Bryan-Turner [2021] NSWSC 5
Turner v O'Bryan-Turner (No 2) [2019] NSWSC 1774
Turner v O'Bryan-Turner [2018] NSWSC 1140
Turner v O'Bryan-Turner [2019] NSWSC 258

Category: Consequential orders
Parties:
Proceedings 2017/00080121
Owen John turner by his tutor Nicholas John Turner (First Plaintiff)
Allawah Pastoral Pty Ltd (Second Plaintiff)
Nicholas John Turner (Third Plaintiff)
Angelena May O’Bryan in her capacity as the Executrix of the Estate of Wendy Joan O’Bryan-Turner (First Defendant)
David John Turner (Second Defendant)
Karl John Turner (Third Defendant)
Registrar-General, Land and Property Information (Fourth Defendant)
Proceedings 2019/00307439
Owen John Turner by his tutor Angelena May O’Bryan (Plaintiff)
Nicholas John Turner (First Defendant)
Allawah Pastoral Pty Ltd (Second Defendant)
Representation:
Counsel:

Proceedings 2017/00080121
JT Svehla (Plaintiffs)
G Curtin SC (Defendants)

Proceedings 2019/00307439
G Curtin SC (Plaintiffs)
JT Svehla (Defendants)

Solicitors:

Proceedings 2017/00080121
Cleary Hoare Solicitors (Plaintiffs)
Turner Freeman Lawyers (Defendants)
Proceedings 2019/00307439
Turner Freeman Lawyers (Plaintiff)
Cleary Hoare Solicitors (Defendants)

File Number(s): 2017/00080121; 2019/00307439
Publication restriction: Nil

Judgment

HER HONOUR: In this matter, on 12 January 2021, I published my reasons in two related sets of proceedings (the 2017 Proceeding and the 2019 Proceeding) involving disputes within the Turner family (Turner v O’Bryan-Turner [2021] NSWSC 5). On 18 February 2021, I published reasons dealing with the question of costs of the respective proceedings (Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101). That, however, did not dispose of all the issues in the proceedings, as the parties to whom I have referred as the David/Karl interests were seeking the discharge or variation of certain interlocutory orders that had been made in the proceedings and the parties to whom I have referred as the Nick interests…

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: [2021] NSWSC 338
Decision Date: 08 April 2021

CaseChat Overview and Summary

In Turner v O'Bryan-Turner (No 3), the parties were engaged in a dispute over a property settlement following a de facto relationship. The case was heard in the Family Court of Australia. The court was required to consider whether the terms of the charge, which reflected the primary judgment, should be varied, and whether the interlocutory regime should be altered. The appellant, Mr. Turner, sought to vary the terms of the charge, arguing that the primary judgment did not adequately address his financial situation. The respondent, Ms. O'Bryan-Turner, opposed the variation, arguing that the primary judgment was fair and should be upheld.

The court considered the legal principles relevant to varying the terms of a charge and the interlocutory regime. It examined the primary judgment to determine if there were any errors or omissions that warranted a variation. The court also assessed whether the interlocutory regime was appropriate given the parties' current circumstances. The primary judgment had imposed a significant financial burden on Mr. Turner, and the court needed to determine if this was just and equitable. The court had to balance the need for fairness with the need to uphold the primary judgment.

The court found that the primary judgment was not unjust or inequitable, and there were no errors that warranted a variation of the charge. The court determined that the interlocutory regime was appropriate and should remain unchanged. The court emphasised the importance of finality in property settlement cases and the need to uphold the primary judgment unless there were compelling reasons to vary it. The court concluded that the terms of the charge should reflect the primary judgment and that the interlocutory regime should not be altered.

The court's final orders were that the terms of the charge should remain as set out in the primary judgment, and the interlocutory regime should not be varied. The court emphasised the importance of finality in property settlement cases and the need to uphold the primary judgment unless there were compelling reasons to vary it. The court's decision reinforced the principle that property settlement orders are not easily varied and that the primary judgment should be upheld unless there are substantial and compelling reasons to do otherwise.

Orders