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Tamcelik v Savas

Tamcelik v Savas

Case [2022] NSWSC 1537 11 November 2022

Civil Litigation & Procedure

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Tamcelik v Savas [2022] NSWSC 1537
Hearing dates: 4 November 2022
Decision date: 11 November 2022
Jurisdiction: Equity - Applications List
Before: Meek J
Decision:
Dismiss application for summary judgment

Catchwords:
CIVIL PROCEDURE – Claim by grandson of deceased to enforce contingent benefit under deceased’s Will – Defendant (deceased’s son and uncle of plaintiff) named as executor but has not appeared in proceedings – plaintiff seeks summary judgment – Various impediments to summary judgment – Summary judgment refused
CIVIL PROCEDURE – Distinctions between default judgment, summary judgment and judgment in absence of defendant – No appearance by defendant – Default judgment only available in proceedings on a statement of claim UCPR r 16.1 – Plaintiff in summons proceedings faced with non-appearing defendant may apply to proceed with hearing in the absence of the defendant UCPR r 29.7
SUMMARY JUDGMENT – Applicable principles –Nature of evidence in support of application
GRANTS OF ADMINISTRATION – Special and limited grants – The extent of power of a special or limited grant is not defined by reference the usual or common name given to the grant (e.g. by the use of a Latin appellation) but rather by reference to the precise wording of the Court order making the grant.
TRUSTS – rights of beneficiaries – nature of "rule" in Saunders v Vautier – nature of power of adult beneficiary with absolute vested and indefeasible interest in trust property – power not unqualified
TRUSTS – appointment of trustees whether family members or persons having close family ties to beneficiaries should be appointed – Court is traditionally reluctant to appoint beneficiaries as trustees of the trust or appoint as a new trustee a person having close family ties with the beneficiaries – The reluctance is based on common sense and collected legal wisdom from life experience in cases coming before courts and its application yields to the facts and exigencies of each given case
TRUSTS – Appointment of trustees – Evidence of fitness of proposed trustee required unless NSW Trustee or trustee company appointed

Legislation Cited:
Civil Procedure Act2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27
Beck v Henley [2014] NSWCA 201
Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; [2005] HCA 53
Dixon v Dixon [2022] NSWSC 721
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25
Goulding v James [1997] 2 All ER 239
Guazzini v Pateson (1918) 18 SR (NSW) 275
Kennedy v Kennedy [2011] NSWSC 1619
Saul v Lin (No 2) (2004) 60 NSWLR 275; [2004] NSWSC 332
Saunders v Vautier (1841) 41 ER 482
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Stanford v Stanford [2021] NSWSC 1469
Webster v Lampard (1993) 177 CLR 598;

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.

Continue reading Tamcelik v Savas

Details

AGLC: Tamcelik v Savas [2022] NSWSC 1537
Case: [2022] NSWSC 1537
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the case of Tamcelik v Savas, the dispute involved a claim by the grandson of a deceased individual to enforce a contingent benefit under the deceased's will. The defendant, who was the deceased's son and the plaintiff's uncle, was named as the executor of the will but did not appear in the proceedings. The plaintiff sought summary judgment against the defendant, who had not responded to the proceedings. The court had to determine the legal issues related to the distinctions between default judgment, summary judgment, and judgment in the absence of the defendant, as well as the applicable principles for summary judgment and the nature of evidence in support of the application. Additionally, the court had to consider the extent of the power of a special or limited grant in relation to the appointment of trustees, whether family members or persons with close family ties to the beneficiaries should be appointed, and the evidence required for the fitness of a proposed trustee.

The court first addressed the distinctions between default judgment, summary judgment, and judgment in the absence of the defendant. It noted that default judgment was only available in proceedings on a statement of claim under the UCPR rule 16.1, whereas a plaintiff in summons proceedings who faced a non-appearing defendant could apply to proceed with the hearing in the absence of the defendant under UCPR rule 29.7. The court then considered the principles applicable to summary judgment, including the nature of the evidence required in support of the application. It noted that the plaintiff had not provided any evidence in support of the application, which was a significant impediment to the grant of summary judgment. The court also considered the extent of the power of a special or limited grant, which was not defined by the usual or common name given to the grant but rather by the precise wording of the court order making the grant. Finally, the court considered the appointment of trustees, whether family members or persons with close family ties to the beneficiaries should be appointed, and the evidence required for the fitness of a proposed trustee.

After considering the legal issues, the court refused the plaintiff's application for summary judgment. The court noted that there were various impediments to the grant of summary judgment, including the lack of evidence in support of the application and the defendant's failure to appear in the proceedings. The court also noted that the appointment of a trustee was a serious responsibility that required careful consideration, and that the court was traditionally reluctant to appoint beneficiaries as trustees of the trust or appoint as a new trustee a person having close family ties with the beneficiaries. The court held that the plaintiff had not provided sufficient evidence to support the grant of summary judgment and that the defendant's failure to appear in the proceedings was a significant impediment to the grant of summary judgment.

The court did not make any orders in relation to the appointment of a trustee or the contingent benefit under the will. The case highlights the importance of providing sufficient evidence in support of an application for summary judgment and the need for careful consideration in the appointment of trustees, particularly where family members or persons with close family ties to the beneficiaries are involved.

Orders