Guler & Ors v NSW Trustee and Guardian & Anor [2012] NSWSC 1369

Supreme Court New South Wales

Medium Neutral Citation: Guler & Ors v NSW Trustee and Guardian & Anor [2012] NSWSC 1369 Hearing dates: 16 August 2012 and submissions received in chambers Decision date: 13 November 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: 1. Order that the time for the commencement of the proceedings herein be extended to the date of the filing of the Summons herein. 2. Order that in the facts and circumstances which have happened, the Rule of Law known as the "Forfeiture Rule" applies to the Second Defendant as if he had been found guilty of the murder of Altun Guler on 11 April 2005. 3. Declare that the NSW Trustee and Guardian holds the estate of Altun Guler on trust for Cemil Cengiz Burak Guler (born 4 September 1996), Nazli Guler (born 29 February 1992), and Asli Guler (born 6 April 1994) as tenants in common in equal shares. 4. Order that the costs of the Plaintiffs and First Defendant be paid out of the estate of the deceased on the indemnity basis. 5. Order that the First Defendant is justified in distributing the estate in accordance with the orders. 6. Order that if and to the extent the NSW Trustee and Guardian is not able to recover its costs incurred in acting as tutor for the second defendant from the second defendant, that it be paid its costs on the ordinary basis out of the estate of the deceased. 7. Declare that the second defendant is liable to indemnify the estate of the deceased in respect of any costs payable out of the estate to the NSW Trustee and Guardian pursuant to the preceding order. 8. Order that these orders take effect from 13 November 2012. Catchwords: COSTS - second defendant a forensic patient within meaning of the Mental Health Act 2007 (NSW) - NSW Trustee and Guardian consented to act as tutor - prima facie both tutor and person under capacity may be liable for costs - not fair in the circumstances for tutor to be liable for costs of second defendant - tutor seeking its costs to be paid out of estate - other parties seeking that second defendant bear his own costs - tutor's costs should be borne by the second defendant in the first instance - tutor should be indemnified out of the estate to the extent that it is unable to recover its costs from second defendant Legislation Cited: Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 Yakmor v Hamdoush (No. 2) [2009] NSWCA 284; (2009) 76 NSWLR 148 Category: Principal judgment Parties: Cemil Cengiz Burak Guler by his tutor Troy O'Brien and Nazil Guler (1st Plaintiff) Nazil Guler (2nd Plaintiff) NSW Trustee and Guardian (1st Defendant) Cemil Cengiz Burak Guler (2nd Defendant) Representation: Counsel: L Ellison SC (Plaintiffs) R Kako (1st Defendant) D Liebhold (2nd Defendant) Solicitors: Crown Solicitor (Plaintiffs) NSW Trustee and Guardian (1st Defendant) Legal Aid (2nd Defendant) File Number(s): 2012/120967