Guler v NSW Trustee and Guardian

[2012] NSWSC 1369

Supreme Court

New South Wales

Medium Neutral Citation:

Guler & Ors v NSW Trustee and Guardian & Anor [2012] NSWSC 1369

Hearing dates:

16 August 2012 and submissions received in chambers

Decision date:

13 November 2012

Jurisdiction:

Equity Division - Probate List

Before:

White J

Decision:

1. Order that the time for the commencement of the proceedings herein be extended to the date of the filing of the Summons herein.

2. Order that in the facts and circumstances which have happened, the Rule of Law known as the "Forfeiture Rule" applies to the Second Defendant as if he had been found guilty of the murder of Altun Guler on 11 April 2005.

3. Declare that the NSW Trustee and Guardian holds the estate of Altun Guler on trust for Cemil Cengiz Burak Guler (born 4 September 1996), Nazli Guler (born 29 February 1992), and Asli Guler (born 6 April 1994) as tenants in common in equal shares.

4. Order that the costs of the Plaintiffs and First Defendant be paid out of the estate of the deceased on the indemnity basis.

5. Order that the First Defendant is justified in distributing the estate in accordance with the orders.

6. Order that if and to the extent the NSW Trustee and Guardian is not able to recover its costs incurred in acting as tutor for the second defendant from the second defendant, that it be paid its costs on the ordinary basis out of the estate of the deceased.

7. Declare that the second defendant is liable to indemnify the estate of the deceased in respect of any costs payable out of the estate to the NSW Trustee and Guardian pursuant to the preceding order.

8. Order that these orders take effect from 13 November 2012.

Catchwords:

COSTS - second defendant a forensic patient within meaning of the Mental Health Act 2007 (NSW) - NSW Trustee and Guardian consented to act as tutor - prima facie both tutor and person under capacity may be liable for costs - not fair in the circumstances for tutor to be liable for costs of second defendant - tutor seeking its costs to be paid out of estate - other parties seeking that second defendant bear his own costs - tutor's costs should be borne by the second defendant in the first instance - tutor should be indemnified out of the estate to the extent that it is unable to recover its costs from second defendant

Legislation Cited:

Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Civil Procedure Act 2005 (NSW)

Cases Cited:

Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Yakmor v Hamdoush (No. 2) [2009] NSWCA 284; (2009) 76 NSWLR 148

Category:

Principal judgment

Parties:

Cemil Cengiz Burak Guler by his tutor Troy O'Brien and Nazil Guler (1st Plaintiff)
Nazil Guler (2nd Plaintiff)
NSW Trustee and Guardian (1st Defendant)
Cemil Cengiz Burak Guler (2nd Defendant)

Representation:

Counsel:
L Ellison SC (Plaintiffs)
R Kako (1st Defendant)
D Liebhold (2nd Defendant)
Solicitors:
Crown Solicitor (Plaintiffs)
NSW Trustee and Guardian (1st Defendant)
Legal Aid (2nd Defendant)

File Number(s):

2012/120967

Judgment

1. HIS HONOUR: The second defendant by his tutor has consented to the substantive relief sought in the amended summons. I have received a report from Dr. Morgans, a psychiatric registrar, that the second defendant has personally consented to those orders. It appears he understood the information provided to him and was able to use that information to make his decision.

1. I am in any event satisfied having regard to the second defendant's conduct, the absence of any provocation by the deceased, the lack of contrition, and the prior history of violent behaviour, that notwithstanding that the second defendant was found not guilty of murder on the grounds of mental illness, the forfeiture rule should apply. Accordingly, and as foreshadowed on 16 August 2012, I make orders and declarations in accordance with paras 1, 2, 3, 4 and 6 of the short minutes of order handed up by counsel for the first defendant on 16 August 2012.

1. The remaining issue concerns the costs of the second defendant. Because the second defendant is a forensic patient within the meaning of the Mental Health Act 2007 (NSW) (being a person who is detained in a mental health facility pursuant to an order under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Mental Health Act, s 4, and Mental Health (Forensic Provisions) Act, s 42)), he is a person under legal incapacity within the meaning of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW). Pursuant to r 7.17, the plaintiffs could not take further steps in the proceedings following service of the originating process until a tutor had entered an appearance on behalf of the second defendant. The NSW Trustee and Guardian consented to act as tutor of the second defendant. This facilitated the administration of justice. Had it not done so, the plaintiffs would have been put to trouble and expense either in obtaining the consent of somebody else to act as tutor, or in seeking some other order from the court, such as an order dispensing with the operation of the rule. Had it been necessary for the plaintiffs to seek the consent of some other person it is likely that such consent would only have been given on terms that the plaintiffs indemnify the tutor in respect of costs for which the tutor could be liable and for the legal costs the tutor would incur in the proceedings on behalf of the second defendant (e.g. Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 205).

1. Costs are in the discretion of the court (Civil Procedure Act, s 98). Prima facie, both a tutor and the person under incapacity for whom the tutor acts may be liable for costs (Yakmor v Hamdoush (No. 2) [2009] NSWCA 284; (2009) 76 NSWLR 148).

1. In the circumstances of this case it would not be just for the NSW Trustee and Guardian, as tutor for the second defendant, to be liable for any costs for which the second defendant is liable. Nor was such an order sought. The plaintiffs and the first defendant sought an order that there be no order as to the costs of the second defendant, to the intent that he bear his own costs. However, the solicitor for the NSW Trustee and Guardian (in its capacity as tutor for the second defendant) sought an order that the costs incurred by the tutor be paid out of the estate on the ordinary basis.

1. It was in the interests of the administration of the estate for the NSW Trustee and Guardian to have consented to act as the second defendant's tutor. It has incurred legal costs in acting for the second defendant leading to the second defendant's consenting to the orders sought by the plaintiffs. I see no reason that the NSW Trustee and Guardian should be out of pocket. However, the costs of the NSW Trustee and Guardian in acting as tutor for the second defendant should in the first instance be borne by the second defendant pursuant to the usual rule that the incapacitated party is liable to indemnify his or her tutor in respect of those costs. To the extent the NSW Trustee and Guardian is unable to recover such costs from the second defendant, then it should be entitled to be indemnified out of the estate. If it is indemnified out of the deceased's estate, the second defendant will be liable to indemnify the estate. That would only be of practical significance if he subsequently becomes entitled to other assets.

1. For these reasons I make the further order and declaration:

1. Order that if and to the extent the NSW Trustee and Guardian is not able to recover its costs incurred in acting as tutor for the second defendant from the second defendant, that it be paid its costs on the ordinary basis out of the estate of the deceased.

2. Declare that the second defendant is liable to indemnify the estate of the deceased in respect of any costs payable out of the estate to the NSW Trustee and Guardian pursuant to the preceding order.

Decision last updated: 28 March 2013