Supreme Court New South Wales Medium Neutral Citation: Strange v Turnbull; McKenzie v Turnbull [2020] NSWSC 1923 Hearing dates: 24 December 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: Interim freezing orders made — see [21]–[22] below. Catchwords: CIVIL PROCEDURE — Interim preservation — Freezing orders — Ex parte interlocutory application — Where unresponsive judgment debtor — Where possibility of attempt to dissipate funds from sale of property Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 25.11 Cases Cited: McKenzie v Turnbull [2020] NSWSC 1328 Strange v Turnbull [2020] NSWSC 1327 Category: Procedural and other rulings Parties: Proceedings 2015/183692 Robert John Strange (Plaintiff) Robeena June Turnbull and Grant Wesley Turnbull as Executors for the estate of the late Ian Robert Turnbull (First Defendant) Sylvester Joseph (First Respondent) Robeena June Turnbull (Second Respondent) Proceedings 2017/229368 Alison Gai McKenzie (First Plaintiff) Alexandra Turner by her tutor Alison Gai McKenzie (Second Plaintiff) Jack Turner by her tutor Alison Gai McKenzie (Third Plaintiff) Robeena Jane Turnbull and Grant Wesley Turnbull as Executors for the Estate of the Late Ian Robert Turnbull (First Defendant) Sylvester Joseph (First Respondent) Robeena Jane Turnbull (Second Respondent) Representation: Counsel: Proceedings 2015/183692; 2017/229368 L Judd (Plaintiffs) Solicitors: Proceedings 2015/183692 Aptum Legal (Plaintiff) Proceedings 2017/229368 Slater and Gordon (Plaintiffs) File Number(s): 2015/183692; 2017/229368 Publication restriction: None REVISED EX TEMPORE Judgment 1. These matters come before me at 4.30pm on Christmas Eve, 2020, by way of urgent applications filed by the judgment creditors, Robert John Strange and Alison Gai McKenzie. Mr Judd of counsel appears for them. 2. The matters are proceeding today on an ex parte basis as although attempts have been made to contact the solicitor for the judgment debtor, who is named as the first respondent, those attempts have been unsuccessful. 3. That may be because it is 4.30pm on Christmas Eve and Mr Joseph may not be at work. However, Mr Judd points to a number of earlier attempts to contact Mr Joseph about this matter without success. 4. The judgment creditors seek a freezing order under r 25.11 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 25.11 provides: 25.11 Freezing order (1) The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets. 1. A freezing order may be made either before or after judgment. 2. In this matter, the judgment creditors seek such an order after judgment on the basis of a concern that the first debtor, Robeena June Turnbull, may be attempting to dissipate her assets through a sale of property and non-payment of the funds of that sale to the judgment creditors. They give the usual undertaking as to damages. 3. The background to the matter is that on 29 July 2014, Ian Turnbull shot and killed Glendon Turner in the presence of one of the judgment creditors, Mr Strange. At the time of his death, Mr Turner was in a de facto relationship with the other judgment creditor, Gai McKenzie. As is well-known, Mr Turnbull was convicted and sentenced in respect of the murder of Mr Turner. On 29 March 2017, Mr Turnbull died in prison. 4. The judgment debtor (Ms Turnbull) was one of the executors of the estate of Ian Turnbull. It seems that at some stage some properties owned by Ian Turnbull were transferred to her for a nominal sum. 5. Proceedings were commenced at different times by both judgment creditors seeking damages. Those proceedings were resolved with the parties entering into a deed of settlement. 6. On 25 October 2018, consent orders were filed noting that the proceedings had been settled and that, subject to the deed of settlement and release, the proceedings could be otherwise dismissed with no order as to costs. The deed of settlement required that Ms Turnbull pay the sum of $1,750,000 to Robert Strange. The deed of settlement which effected the settlement of the proceedings between Alison McKenzie and Ms Turnbull was to the effect that she would pay the sum of $2,500,000 to Alison McKenzie and her children. 7. Ms Turnbull did not pay those sums. This resulted in applications for reinstatement of the proceedings and entry of judgments against Ms Turnbull. 8. Those proceedings were heard by Walton J and, on 29 September 2020, his Honour made orders reinstating the proceedings and entering judgments for the amount set out in the deeds of settlement. [1] 9. As set out in the deeds, Ms Turnbull was required to use all reasonable endeavours to sell certain properties and pay moneys to the plaintiffs. Those properties included three properties known as "North Yambon", "Erralee" and "Buckie". 10. Since July 2020, the solicitors for the judgment creditors have been endeavouring to obtain information from Ms Turnbull's solicitor, Sylvester Joseph. They have been seeking information as to the progress of the sale of the properties, the amount that might have been obtained and when payment can be expected. 11. As set out in the affidavit of Nunzio Tartaglia, correspondence was sent on 3 July 2020, 15 July 2020, 19 October 2020 and, finally, 15 December 2020, seeking information as to the sale of the properties and receipt of the proceeds of sale. Inquiries made on behalf of the judgment creditors, including title searches carried out on 24 December 2020, reveal that the properties known as "North Yambon" and "Buckie" are still owned by the Ms Turnbull, but that "Erralee" is no longer owned by Ms Turnbull. 12. This prompted a letter to Cole & Butler (Mr Joseph), on 24 December 2020, reminding Ms Turnbull of her obligations and indicating that if no response was received, this application would be made on an urgent basis. No response has been received other than that the office is currently closed and will reopen on 4 January 2021. 13. It may be likely that the office is closed. It is an unfortunate circumstance that this application is being brought at this time. That is not a criticism of those representing the judgment creditors. They have produced evidence of concerns that there may be attempts to dissipate the funds from the sale of the property and potentially frustrate the judgments which they have obtained. 14. As Mr Judd submits, Ms Turnbull is required to sell the properties and the mere fact of sale of the properties is not something which necessarily gives rise to a concern that she may be attempting to frustrate the judgments, but there has been no communication for some considerable period and there was no notification that the sale of the "Eralee" property had been completed. 15. The Court has power to make orders in the nature of asset preservation orders for the purposes of ensuring that the orders of the Court are not frustrated. That includes at a time after judgment has been entered, as in this case. 16. I am satisfied on the material before me that it is appropriate to make an interim order at this stage on an ex parte basis. Having regard to the lack of communication from Ms Turnbull or her solicitor over quite a lengthy period and having regard to the information that at least one of the properties has been sold and that sale has been completed without any communication at all from Ms Turnbull or her solicitors, I am satisfied that an order should be made to prevent any disposal of assets by Ms Turnbull as the judgment debtor. Again, I hasten to add that there is no evidence that Ms Turnbull has actually improperly disposed of any asset at this time, and by that, I mean the funds from the sale of "Erralee", but there is sufficient evidence before me for the making of the order, at least on an interim basis. 17. In the circumstances, I make the following orders in Proceedings 2015/183692: 1. The notice of motion dated 24 December 2020 (the Notice of Motion) be made returnable immediately before me. 2. Upon the undertaking of counsel for the judgment creditor to ensure payment of the filing fee and to file the Notice of Motion in the Registry, by hand or electronically, before 5pm on 29 December 2020, leave be granted to file in Court the Notice of Motion. 3. Time for service of the Notice of Motion and the affidavit in support be abridged to 6pm on 24 December 2020, and such service to be by way of email to the First Respondent, the principal of the firm of solicitors named 'Cole & Butler'. 4. The solicitors for the Judgment Creditor to use their best endeavours to make contact with the first respondent, Mr Joseph, or someone from Cole & Butler by 11am on 29 December 2020 either by phone or email or to any emergency contact which might be obtainable so as to ensure the first respondent is made aware of this application. 5. In the event that the solicitors for the Judgment Creditor are unable to contact the first respondent, Mr Joseph, I grant leave for the solicitors for the plaintiff to attempt to contact the judgment debtor, Ms Robeena Turnbull, directly so as to inform her of these orders. 6. The Judgment Debtor is not to dissipate any of the sale proceeds, or further dissipate any such proceeds, received with respect to the sale of the real property known as 'Eralee' being the land contained in folio 11/1017699 (the Sale Proceeds). 7. The Judgment Debtor is not to dissipate any other sale proceeds, or further dissipate such proceeds, received, or receivable, with respect to any sale of any other real property (Other Sale Proceeds). 8. The Judgment Debtor must not remove from Australia, or in any way dispose of, deal with or diminish the value of the Judgment Debtor's assets in Australia, held beneficially or otherwise, so that the collective net unencumbered value does not fall beneath $2,773,321.31. 9. The First Respondent is not to transfer, deal with or expend any of the Sale Proceeds and Other Sale Proceedings, or further dissipate any such proceeds, that remain in any trust account or any other account used by the First Respondent. 10. These orders are interim orders and will remain in place until further order of the Court. 11. This application is to be returnable before me at 3pm on 30 December 2020. 1. Further, I make the following orders in Proceedings 2017/229368: 1. The notice of motion dated 24 December 2020 (the Notice of Motion) be made returnable immediately before me. 2. Upon the undertaking of counsel for the judgment creditors to ensure payment of the filing fee and to file the Notice of Motion in the Registry, by hand or electronically, before 5pm on 29 December 2020, leave be granted to file in Court the Notice of Motion. 3. Time for service of the Notice of Motion and the affidavit in support be abridged to 6pm on 24 December 2020, and such service to be by way of email to the First Respondent, the principal of the firm of solicitors named 'Cole & Butler'. 4. The solicitors for the Judgment Creditor to use their best endeavours to make contact with the first respondent, Mr Joseph, or someone from Cole & Butler by 11am on 29 December 2020 either by phone or email or to any emergency contact which might be obtainable so as to ensure the first respondent is made aware of this application. 5. In the event that the solicitors for the Judgment Creditor are unable to contact the first respondent, Mr Joseph, I grant leave for the solicitors for the plaintiff to attempt to contact the judgment debtor, Ms Robeena Turnbull, directly so as to inform her of these orders. 6. The Judgment Debtor is not to dissipate any of the sale proceeds, or further dissipate any such proceeds, received with respect to the sale of the real property known as 'Eralee' being the land contained in folio 11/1017699 (the Sale Proceeds). 7. The Judgment Debtor is not to dissipate any other sale proceeds, or further dissipate such proceeds, received, or receivable, with respect to any sale of any other real property (Other Sale Proceeds). 8. The Judgment Debtor must not remove from Australia, or in any way dispose of, deal with or diminish the value of the Judgment Debtor's assets in Australia, held beneficially or otherwise, so that the collective net unencumbered value does not fall beneath $3,233,238.71. 9. The First Respondent is not to transfer, deal with or expend any of the Sale Proceeds and Other Sale Proceedings, or further dissipate any such proceeds, that remain in any trust account or any other account used by the First Respondent. 10. These orders are interim orders and will remain in place until further order of the Court. 11. This application is to be returnable before me at 3pm on 30 December 2020. ********** Endnote 1. Strange v Turnbull [2020] NSWSC 1327; McKenzie v Turnbull [2020] NSWSC 1328. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 January 2021