Brownlie v Murray

[2018] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Brownlie v Murray [2018] NSWCA 4
Hearing dates:	On the papers
Date of orders:	31 January 2018
Decision date:	31 January 2018
Before:	Harrison J
Decision:	(1)  Set aside the judgment of Delaney ADCJ dated 4 October 2017. (2)  In lieu thereof, order that there be judgment for the plaintiff for $1,650,000 plus costs. (3) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 with respect to so much of the judgment monies as are to be apportioned in favour of:       (a) Xxx Xxx born xx xx xx in the sum of $300,000;       (b) Xxx Xxx born xx xx xx in the sum of $340,000. (4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the sums referred to in orders (3)(a) and (3)(b) hereof be paid into Court for payment out thereafter to the NSW Trustee & Guardian upon trust for Xxx Xxx and Xxx Xxx respectively until each attains the age of 18 years or as the Court may upon application made pursuant to s 77(3) of that Act otherwise direct.
Catchwords:	CIVIL PROCEDURE – settlement – court approval – where proceedings commenced on behalf of minors
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 76(4), 77(2), (3) Compensation to Relatives Act 1897 (NSW)
Category:	Principal judgment
Parties:	Alexander Thomas Brownlie (Appellant) Alison Jean Murray (Respondent)
Representation:	Counsel: A Stone SC (Respondent)   Solicitors: Curwoods Lawyers (Appellant) John McGuire & Associates (Respondent)
File Number(s):	2017/304509
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 11 September 2017 Before: Delaney ADCJ File Number(s): 2016/138544

Judgment

1. HIS HONOUR: Alison Murray, who is the respondent in this Court, is the widow of the late Gavin Murray who died as the result of injuries sustained in a motor vehicle accident on 21 December 2015. Ms Murray commenced proceedings in the District Court of New South Wales on her own behalf and on behalf of her two dependent children pursuant to the Compensation to Relatives Act1897. Alexander Brownlie, who is the appellant in this Court and the defendant in the Court below, admitted liability. The matter therefore proceeded before Acting Judge Delaney as an assessment.

2. His Honour published what is described as a Preliminary Judgment on 17 July 2017. His Honour was, in effect, asked by the parties to make a series of findings upon the basis of which or with the advantage of which they could proceed to calculate the damages for which the defendant was liable. In the events that occurred, damages calculated in that way amounted to $2,024,081. Of that sum, an amount of $435,000 was allocated to the elder child and the sum of $475,000 was allocated to the younger child. Approval of those allocations by the Court below would have been necessary in accordance with the provisions of the Civil Procedure Act 2005 because each child is under the age of 18 years: Xxx Xxx was born on xx xx xx and Xxx Xxx was born on xx xx xx.

3. Before that occurred, Mr Brownlie appealed to this Court challenging in general terms his Honour’s findings upon the basis of which the damages were calculated. However, prior to that appeal being determined, the parties resolved to compromise the appeal upon the basis of a judgment for Ms Murray in the sum of $1.65M plus costs. Ms Murray proposes that of that amount, her elder child should receive $300,000 and her younger child should receive $340,000. Those allocations now require the approval of this Court.

4. I have read the affidavits of John McGuire sworn on 8 November 2017 and Alison Murray affirmed on 9 November 2017. I have also been provided with a forensic accountant’s report dated 24 August 2017 prepared by Robert Smith. Mr Smith assessed the net loss of expected financial support suffered by Ms Murray as the result of her husband’s death in the sum of $1,558,648. There appears to be no reason to think that Mr Smith’s analysis is not accurate.

5. I have also been provided with a series of written opinions from Mr Stone of senior counsel dated 7 June 2017, 28 August 2017, 13 October 2017 and 1 November 2017. It is sufficient for present purposes to observe that Mr Stone is an enthusiastic proponent of the settlement having regard to the evidence available to support Ms Murray’s claims.

6. With respect to the proposed apportionment, Mr Stone reasoned as follows:

“The proposed apportionment allows just under 40 percent of the settlement amount to be allocated to the two children. In my view, this is appropriate. [Ms Murray] has been supporting the children to date and will continue to do so. Her loss of dependency [sic, support] will run for many years past that of the children. The allocation to the children is worth more than $25,000 per child [per year] until they reach their majority. This is more than the financial support their father could have provided (in after tax dollars) at the time of his death. It is a fair allocation.”

7. I agree with Mr Stone’s assessment. The evidence before Judge Delaney indicated that Mr and Ms Murray’s relationship was “solid”, rather suggesting that they were very close and presumably devoted to each other. There is also no reason to suspect anything other than that the long term care of the children following Mr Murray’s death will fall exclusively to their mother during their minority and presumably for some years beyond. It can reasonably be assumed in my experience that in such circumstances, the portion of the settlement monies to which Ms Murray will become immediately entitled will to some extent also be utilised by her for the benefit of her children in the conduct of the family’s financial affairs. I am additionally satisfied in that context that the settlement with respect to the children is in their best interests.

8. Subject to any matters to which the parties may wish to draw my attention, I consider that, having regard to the terms of the proposed settlement, the following orders should be made:

1. Set aside the judgment of Delaney ADCJ dated 4 October 2017.

2. In lieu thereof, order that there be judgment for the plaintiff for $1,650,000 plus costs.

3. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 with respect to so much of the judgment monies as are to be apportioned in favour of:

1. Xxx Xxx born xx xx xx in the sum of $300,000;

2. Xxx Xxx born xx xx xx in the sum of $340,000.

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the sums referred to in orders (3)(a) and (3)(b) hereof be paid into Court for payment out thereafter to the NSW Trustee & Guardian upon trust for Xxx Xxx and Xxx Xxx respectively until each attains the age of 18 years or as the Court may upon application made pursuant to s 77(3) of that Act otherwise direct.

9. In my opinion, the proposed settlement is in the best interests of the children of Ms Murray and her deceased husband.

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