Tamcelik v Savas [2022] NSWSC 1537

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 Act 2005 (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; [1993] HCA 57 Texts Cited: "Grants in administration of deceased estates" (2016) 43 Aust Bar Rev 115 NSW Court Forms and Precedents Category: Procedural rulings Parties: Mesut Tamcelik (Plaintiff) Fatih Savas (Defendant) Representation: Counsel: D G Lambley (solicitor) (Plaintiff) No appearance (Defendant) Solicitors: Michael Vassili Barristers & Solicitors (Plaintiff) File Number(s): 2021/365996