Turner v O’Bryan-Turner (No 4) [2022] NSWSC 1380

Turner v O’Bryan-Turner (No 4) [2022] NSWSC 1380

Because the transfer of John's half interest in the Allawah Forbes Property was not impugned on the pleadings or at trial, its inclusion in the orders setting aside the 2015 Transaction Documents was an accidental error. Correction under the slip rule is appropriate to reflect the Court's intention, which was not to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 October 2022
Procedural Posture
Equity Proceeding / Post Judgment Motions on Consequential Relief and Variation Under Slip Rule
Outcome
July Motion granted in part and otherwise dismissed; August Motion granted; consequential variations and costs orders made.
Legal Topics
['enforcement of Judgments' 'slip Rule' 'amendment of Orders' 'undue Influence' 'unconscionable Conduct']
['equity' 'civil Procedure'] ['enforcement of Judgments' 'slip Rule' 'amendment of Orders' 'undue Influence' 'unconscionable Conduct']

Source-derived case record

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Procedural Posture

Equity Proceeding / Post Judgment Motions on Consequential Relief and Variation Under Slip Rule

Legal Issues

  1. 1 ['Whether the orders made on 12 January 2021 should be varied under the slip rule to exclude the property transfer form for the Allawah Forbes Property from those set aside as 2015 Transaction Documents' 'Whether enforcement of certain orders and consequential relief should be granted']

Ratio Decidendi

Because the transfer of John's half interest in the Allawah Forbes Property was not impugned on the pleadings or at trial, its inclusion in the orders setting aside the 2015 Transaction Documents was an accidental error. Correction under the slip rule is appropriate to reflect the Court's intention, which was not to set aside a transaction not in issue or tested at trial. There was no acquiescence by the parties to expanding the pleaded case, and procedural fairness requires the property transfer be excluded from the orders set aside.

Court Disposition

July Motion granted in part and otherwise dismissed; August Motion granted; consequential variations and costs orders made.

Orders

  • ['By consent, first defendant to transfer 50% of shares in second defendant to plaintiff in accordance with original 2021 judgment.' 'Court notes transfer has now been signed for shares.' 'First defendant to provide books of account and profit and loss for the second defendant from 6 May 2015 to filing of 2019...