Cihan v Cihan (No 2) [2022] NSWSC 962

Supreme Court New South Wales

Medium Neutral Citation: Cihan v Cihan (No 2) [2022] NSWSC 962 Hearing dates: On the papers; final date for evidence and submissions 6 July 2022 Date of orders: 19 July 2022 Decision date: 19 July 2022 Jurisdiction: Equity Before: Parker J Decision: See [33] Catchwords: COSTS – trusts and trustees – discretionary family trust – nominator purports to remove trustee – without notice of purported removal trustee purports to amend trust deed to appoint additional nominators – trustee's action upheld – costs inter partes – costs out of the trust assets Legislation Cited: Uniform Civil Procedure Rules 2005, rr 42.1, 42.25, Pt 7 Cases Cited: Cihan v Cihan [2022] NSWSC 538 Dixon v Dixon (No 2) [2022] NSWSC 944 Miller v Cameron (1936) 54 CLR 572 National Trustees Executors and Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268 Category: Costs Parties: Mehmet Cihan (Plaintiff) Kadir Cihan (First Defendant) Cihan Property Pty Limited (Second Defendant) Representation: Written submissions: T McGrath (Solicitor) (Plaintiff)

Solicitors: Hitch Advisory (Plaintiff) Cleary Hoare (Defendants) File Number(s): 2018/391788 Publication restriction: Nil

Judgment 1. These are proceedings involving a discretionary family trust on which I delivered judgment on 5 May: Cihan v Cihan [2022] NSWSC 538. This judgment assumes familiarity with my May judgment to which I will refer as "J1". It also uses abbreviations and terms used in the May judgment. 2. The parties in these proceedings are related; the plaintiff ("Mr Cihan") is the father of the first defendant ("Kadir"). The subject trust is called the "Cihan Family Trust" ("the Trust"). Under the Trust Deed, Mr Cihan was the Trustee and Kadir was the Nominator. 3. The dispute arose out of near-simultaneous attempts by Mr Cihan and Kadir to remove or neutralise the other. Kadir purported to exercise his power as Nominator under the Trust to remove Mr Cihan as Trustee and replace him with the second defendant ("CPPL"). Mr Cihan purported to exercise his power as Trustee to appoint himself and his other son, Memduh, as additional Nominators alongside Kadir. 4. In my May judgment, I concluded that the steps purportedly taken by Mr Cihan were effective, and those purportedly taken by Kadir were not. I adjourned the proceedings to allow the parties to agree, if possible, on the form of orders to give effect to my judgment, and on costs. The parties later agreed on the form of declarations to be made. Costs remain in dispute and are the subject of this judgment.