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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1369
Decision Date: 13 November 2012

CaseChat Overview and Summary

Guler v NSW Trustee and Guardian involved a dispute concerning the liability for costs arising from a proceeding. The plaintiff sought to recover costs from the second defendant, who was a forensic patient under the Mental Health Act 2007 (NSW). The NSW Trustee and Guardian, which had consented to act as the tutor for the second defendant, intervened in the matter to argue that it should not be held liable for the costs. The court had to determine whether the tutor, the person under capacity, or both could be held liable for costs, and if the tutor should be indemnified by the estate.

The legal issues before the court included the interpretation of the Mental Health Act 2007 (NSW) and the principles governing liability for costs in cases involving persons under disability. Specifically, the court had to consider whether it was fair and just to hold the tutor liable for costs when the person under capacity was unable to contribute to those costs. Additionally, the court had to examine the equitable principles that might apply to the distribution of costs between the tutor, the person under capacity, and the estate.

The court determined that it was not fair for the tutor to be liable for the costs of the second defendant. It held that both the tutor and the person under capacity could be liable for costs, but that the tutor should bear the costs in the first instance. The court reasoned that the tutor should be indemnified out of the estate to the extent that it was unable to recover its costs from the second defendant. This approach balanced the need to hold the person under capacity accountable for their legal expenses while recognising the practical limitations on the person's ability to contribute. The court concluded that the tutor's costs should be borne by the second defendant, with the tutor being indemnified out of the estate if necessary.

The final orders of the court directed that the second defendant was to pay the costs of the tutor in the first instance, with the tutor being indemnified out of the estate to the extent it could not recover its costs from the second defendant. This decision provided clarity on the distribution of costs in cases involving forensic patients and their tutors, ensuring that the principles of equity and justice were upheld.

Orders