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

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

The Court held that the 2017 interlocutory restraints had served their purpose of preserving the status quo pending final determination and should not be maintained merely to protect the Nick interests' possible costs recovery. John's interests would be adequately protected by a charge over the 50% interest in Woolharinga, Nellyvale and Sunrise held by Wendy's estate, subordinate to NAB's mortgage, together with the undertaking by David and Karl. Orders 3-5(b) were therefore discharged to the extent not already discharged, and order 5(c) was varied to cover proceeds from the relevant land.

Jurisdiction
Australia
Judgment Date
08 April 2021
Procedural Posture
Consequential Orders in Equity Proceedings / On the Papers After Principal Judgment and Costs Judgment, Determining the Terms of a Charge and the Discharge or Variation of Interlocutory Orders
Outcome
Orders made charging the three Trundle properties, discharging parts of the 2017 Orders, varying order 5(c), making no further costs order, and closing the 2017 and 2019 proceeding files.
Legal Topics
['terms of Charge to Reflect Primary Judgment' 'variation of Interlocutory Regime' 'interlocutory Injunctions' 'administration of Estate Assets' 'costs Orders']
['civil Procedure' 'equity' 'property' 'succession and Estates'] ['terms of Charge to Reflect Primary Judgment' 'variation of Interlocutory Regime' 'interlocutory Injunctions' 'administration of Estate Assets' 'costs Orders']

Case Brief

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Procedural Posture

Consequential Orders in Equity Proceedings / On the Papers After Principal Judgment and Costs Judgment, Determining the Terms of a Charge and the Discharge or Variation of Interlocutory Orders

Legal Issues

  1. 1 ["What terms should be imposed for the charge over the Woolharinga, Nellyvale and Sunrise properties to secure Owen John Turner's financial needs and Sara Turner's legacy." 'Whether orders 3-5(b) of the 2017 Orders should be discharged and order 5(c) varied following final determination of the proceedings.' "Whether maintaining the injunctive regime was justified to protect potential costs recovery by the Nick interests or Owen John Turner's interests."]

Ratio Decidendi

The Court held that the 2017 interlocutory restraints had served their purpose of preserving the status quo pending final determination and should not be maintained merely to protect the Nick interests' possible costs recovery. John's interests would be adequately protected by a charge over the 50% interest in Woolharinga, Nellyvale and Sunrise held by Wendy's estate, subordinate to NAB's mortgage, together with the undertaking by David and Karl. Orders 3-5(b) were therefore discharged to the extent not already discharged, and order 5(c) was varied to cover proceeds from the relevant land.

Court Disposition

Orders made charging the three Trundle properties, discharging parts of the 2017 Orders, varying order 5(c), making no further costs order, and closing the 2017 and 2019 proceeding files.

Orders

  • ['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.'...