Mehcur v Mehcur

Link copied
Case Copied 15 min read

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

  1. 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.

  2. 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.

  3. 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,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Mehcur v Mehcur and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] NSWSC 1252
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.