Mehcur v Mehcur - [2021] NSWSC 1252

Supreme Court

New South Wales

Medium Neutral Citation: Mehcur v Mehcur [2021] NSWSC 1252
Hearing dates: 20 September 2021
Decision date: 20 September 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Refuse the relief sought in prayer 4 of the notice of motion filed 10 May 2021.
2.   Refer the parties to court-annexed mediation on 1 October 2021.
3.   Direct the parties to liaise with the Registry in relation to the court-annexed mediation.
4.   Give leave for the filing of the amended statement of claim in the form annexed to the affidavit sworn 7 September 2021 of Zeinab Tawbe.
5.   Reserve costs.
6.   List the matter for directions in the Applications List at 8.30am on 5 October 2021.
7.   Direct that, while Mr Sayit remains on the record as the tutor for the first defendant in the proceedings that he be permitted online access to the online court in this matter.

Catchwords:
COSTS — Where proceedings defended by way of tutor — Whether protective costs order should be made
CIVIL PROCEDURE — Alternative dispute resolution — Referral to court-annexed mediation
CIVIL PROCEDURE — Pleadings — Amendment

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 26, 56
NSW Trustee and Guardian Act 2009 (NSW), s 62
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 7.18(1)(b)

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey (No 2) [2016] NSWSC 1718
Ashton v Pratt (No 2) [2015] NSWCA 134
Guha v Guha [2020] NSWSC 1337
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427
New Idafe Incorporated v Barnard [2007] NSWSC 1107
Smith v NRMA Insurance Ltd (2016) 77 MVR 480; [2016] NSWCA 250
Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284

Category: Procedural rulings
Parties: Mahmut Marley Mehcur (Plaintiff)
Hayriye Mehcur by her tutor Kuranda Seyfi Seyit (First Defendant)
NSW Trustee and Guardian (Second Defendant)
Representation:
Counsel:
S Balafoutis SC (Plaintiff)
Solicitors:
One Group Legal (Plaintiff)
First Defendant by her tutor Kuranda Seyfi Seyit (Self-represented)

File Number(s): 2020/126543
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by notice of motion dated 4 May 2021 brought by Mr Seyit in his capacity as tutor for the first defendant, his mother, Mrs Hayriye Mehcur.
The relief sought in the notice of motion is supported by affidavits that have been affirmed by Mr Seyit on 4 May 2021 and 9 August 2021, respectively.
The application seeks the following orders:

1.   I am seeking orders to be joined as a party to the proceedings.
2.   I am seeking orders to Act as Tutor for the first Defendant, Hayriye Mehcur and have filed an application to Act as Tutor (See Annexure A containing application attached). There are no objections from the NSW Trustee and Guardian (see Annexure B of letter attached).
3.   We are seeking orders for an extension of time,…

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: [2021] NSWSC 1252
Decision Date: 20 September 2021

CaseChat Overview and Summary

The case of Mehcur v Mehcur involved the parties Mehcur and Mehcur, who were engaged in a legal dispute. The nature of the dispute was primarily concerned with a request for a protective costs order and the referral of the matter to court-annexed mediation. The case was heard in a lower court, with the decision being appealed to a higher court. The legal issues that the court was required to decide included whether a protective costs order should be granted in the context of proceedings defended by a tutor, the appropriateness of referring the matter to court-annexed mediation, and the possibility of amending pleadings.

The court considered the application for a protective costs order, noting that the proceedings were defended by a tutor on behalf of the defendant, who was a child. The court examined the financial circumstances of both parties and the necessity of the requested costs. Regarding the referral to mediation, the court assessed the potential for resolving the dispute through mediation and the suitability of the parties for such a process. The court also examined the application to amend pleadings, considering whether the amendments would be in the interests of justice and whether there were any valid reasons for the delay in seeking the amendments.

The court concluded that a protective costs order should not be made, as the financial circumstances of both parties and the nature of the dispute did not warrant such an order. The court found that referring the matter to court-annexed mediation was appropriate, given the potential for resolving the dispute amicably and the willingness of the parties to participate. The court allowed the amendment of pleadings, finding that the amendments would not prejudice the other party and were in the interests of justice. The appeal was dismissed, and the lower court's decisions were upheld.

Orders