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Ashleigh Lynn Bent v Yuksel Ceper [2026] NSWSC 788 | Case summary | Zoe

NSWNSWSC

Ashleigh Lynn Bent v Yuksel Ceper

[2026] NSWSC 788

Supreme Court of NSW|2026-07-07|Before: McGrath J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-07

Before

McGrath J

Catchwords

EVIDENCE – Hearsay – Exceptions – whether affidavit evidence is admissible under s 63(2) of the Evidence Act pursuant to a direction under s 67(4) of the Evidence Act – HELD – requirement to provide notice dispensed with and direction made pursuant to s 67(4) of the Evidence Act for hearsay exception to apply

Source

Original judgment source is linked above.

Catchwords

EVIDENCE – Hearsay – Exceptions – whether affidavit evidence is admissible under s 63(2) of the Evidence Act pursuant to a direction under s 67(4) of the Evidence Act – HELD – requirement to provide notice dispensed with and direction made pursuant to s 67(4) of the Evidence Act for hearsay exception to apply

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Ashleigh Lynn Bent v Yuksel Ceper [2026] NSWSC 788

Hearing dates: 7 July 2026

Date of orders: 7 July 2026

Decision date: 07 July 2026

Jurisdiction: Equity

Before: McGrath J

Decision: Dispensation with notice requirement granted and direction made for hearsay exception to apply

Catchwords: EVIDENCE – Hearsay – Exceptions – whether affidavit evidence is admissible under s 63(2) of the Evidence Act pursuant to a direction under s 67(4) of the Evidence Act – HELD – requirement to provide notice dispensed with and direction made pursuant to s 67(4) of the Evidence Act for hearsay exception to apply

Legislation Cited: Evidence Act 1995 (NSW), ss 59, 63, 67, 108, 135, 192
Evidence Regulation 2020 (NSW), cl 4
Uniform Civil Procedure Rules 2005 (NSW), r 31.5

Cases Cited: Harrington-Smith v State of Western Australia (No 8) [2004] FCA 338
Quintano v B W Rose Pty Ltd [2008] NSWSC 1012
Trewin v Felton [2007] NSWSC 919
Turnbull v Gorgievski [1999] NSWSC 871

Category: Procedural rulings

Parties: Ashleigh Lynn Bent (Plaintiff)
Yuksel Ceper (First Defendant)
Yuksel Investments Pty Ltd (Second Defendant)

Representation: Counsel:
KJ Sanders (Plaintiff)
A Hopkins (Defendants)
Solicitors: S Lloyd Legal (Plaintiff) Reuben George Lawyers (Defendants)

In each case the gist of the evidence is a conversation which is alleged to have occurred with Yuksel in which he referred to either a conversation having taken place between Ms Bent and himself or the shared intentions of them in relation to proposed arrangements to be put in place regarding the purchase of a property by Ms Bent.
On the first day of the trial (yesterday, 6 July 2026), I provided my preliminary rulings on the objections that had been taken to the affidavits and indicated that I proposed to allow the relevant evidence pursuant to the operation of s 63(2) of the Evidence Act if the requisite notice had been given pursuant to s 67 of the Evidence Act. Immediately following the receipt of my proposed rulings on these objections, the defendants served a purported notice under s 67 of the Evidence Act. There is no explanation from the defendants for the default in doing so other than oversight.
Ms Bent maintains her objections to the relevant evidence and says that the notice served does not meet the description of a reasonable notice in writing for the purposes of s 67(1) of the Evidence Act. In particular, Ms Bent argues that r 31.5 of the Uniform Civil Procedure Rules 2005 (NSW) states that the reasonable notice for the purposes of s 67 is taken to be 21 days prior to the date on which the proceedings are fixed for hearing. It appears to me that it is plain that reasonable notice has not been given by the defendants in the present case.
In addition, I also note that Ms Bent argued that the notice provided to her failed to meet the requirements of cl 4(5) of the Evidence Regulation 2020 (NSW), which requires a copy of the written representations to be relied upon be attached to the notice. As written representations are not relied upon by the defendants, this deficiency does not appear to be relevant.
The defendants say that if I am not satisfied that reasonable notice has been given then I should dispense with the requirement that notice be given in accordance with the power in s 67(4) of the Evidence Act, which would have the effect that s 63(2) of the Evidence Act operates so that the hearsay rule does not apply to the evidence. Ms Bent says that in making any such decision, I must have regard to all the factors contained in s 192 of the Evidence Act, which states as follows:

The onus of persuading me to dispense with the requirement for giving a notice under s 67(4) of the Evidence Act is on the defendants: Harrington-Smith v State of Western Australia (No 8) [2004] FCA 338, Lindgren J at [101].
Turning to each of the matters I must address in determining whether to dispense with the s 67 notice, the principal issue that I must consider is the unfairness caused to either party if I dispense with the notice or do not dispense with the notice: Quintano v B W Rose Pty Ltd [2008] NSWSC 1012, Brereton J at [6].
The basis on which it is said by the defendants that Yuksel is not available to give evidence arises because he suffered a heart attack in 2016, which resulted in him suffering from cognitive deficiencies. Ms Bent says that if a notice had been given at the appropriate time, then she could have had the opportunity to investigate whether Yuksel was truly not available to give evidence by reason of a medical condition. I give less credence to this submission in light of the fact that in providing her opening submissions in the trial, counsel for Ms Bent made reference to the fact that Yuksel is incapable and also said “it’s not disputed by my client that he lacks capacity” (T5–6). It therefore appears to me that Ms Bent has conducted her case on the basis that Yuksel was not available to give evidence and there was no challenge to that fact.
Ms Bent also relies on evidence given on affidavit in her own case in multiple instances of Yuksel’s incapacity (see the affidavit of Jessica Bent affirmed 28 February 2025 at [23] and the affidavit of Ashleigh Bent sworn 17 February 2025 at [201]). I also take into account that the solicitors for Ms Bent signed orders consenting to Ms Ceper acting as tutor for Yuksel.
The defendants also pleaded the incapacity of Yuksel in their amended defence at [101]. No reply was filed by Ms Bent to contest this pleading. In my consideration, there is no real issue regarding Yuksel’s incapacity that has been raised by Ms Bent in these proceedings.
Contrary to Ms Bent’s submission, I do not consider that the relevant unfairness to Ms Bent to which I should give significant consideration includes her inability to cross-examine Yuksel on the evidence to which objection is taken. In every case where a witness is not available to give evidence and consideration is being given to whether to dispense with a notice which has not been given or has not been given in proper form, that witness is not available for cross-examination. The unfairness on which I must focus is whether there was additional unfairness to a party in the position of Ms Bent caused by the failure to give the notice.
As indicated above, Ms Bent argued that the loss of opportunity to cross-examine Yuksel is part of the unfairness I must take into account. In my view, while that forms part of the matters to which I give consideration, that factor arises more in relation to the weight to which I should give the hearsay evidence if I allow it to be adduced: Harrington-Smith at [111] (Lindgren J), where his Honour was dealing with the question of prejudice that arises under s 135 of the Evidence Act to determine whether the absence of cross-examination should cause the exclusion of the hearsay evidence.
Ms Bent also argued that there was further unfairness in that she lacked an opportunity to contest the incapacity of Yuksel and lost the opportunity to bring credibility evidence regarding Yuksel under s 108 of the Evidence Act. For the reasons I have already mentioned above, I do not regard these matters as relevant unfairness in the discretion I must exercise. Ms Bent always had the opportunity to contest the incapacity and credibility of Yuksel by whatever means she wished. The failure to serve a notice under s 67 of the Evidence Act did not cause her to lose that opportunity. As I have stated above, Yuksel’s incapacity was plainly made an issue in the defendants’ case, and it could have been contested at any point by Ms Bent.
In relation to the unfairness to the defendants, if the evidence is excluded then the intentions of Yuksel (as revealed by the conversations with his mother and his accountant respectively) in relation to the arrangements that were made that Ms Bent seeks to set aside will not be available evidence in the proceedings. This is heavy prejudice to which I give considerable weight. Cross-examination of Ms Bent has already taken place, and questions have been put to her regarding conversations it is alleged that she had with Yuksel concerning the purpose of the arrangements. I note that these questions were refuted by Ms Bent in the answers that she gave (see, for example, T32). I do not consider that there is any additional prejudice to Ms Bent arising from the evidence being allowed but there is considerable prejudice to the defendants if I do not allow it because it forms the basis of the questions that were already asked of Ms Bent and is evidence corroborative to the case that is made by the defendants in answer to the claims that have been made against them.
I have also taken into account that the affidavits to which objection is taken were made on 15 and 28 August 2025 and since that time Ms Bent has been on notice of the nature of the evidence that was sought to be relied upon by the defendants on this issue. There appears to be a debate in the cases as to whether this may provide sufficient “notice” of the evidence without the need to rely on a formal notice of the type contemplated in s 67 of the Evidence Act: see, for example, Turnbull v Gorgievski [1999] NSWSC 871 at [3] (Hamilton J) and Trewin v Felton [2007] NSWSC 919 at [1]–[2] (Brereton J). In my view, the fact that Ms Bent received the evidence to which objection is taken nearly a year ago substantially lessens the extent of any surprise she might have had from that evidence and the failure to give a notice under s 67 of the Evidence Act.
Taking into account the factors in s 192(2)(b) of the Evidence Act, it is clear that this evidence is important to the defendants’ case but it is of a type that ultimately it will be necessary for me to determine whether to believe the denials of Ms Bent regarding conversations that she is alleged to have had with Yuksel.
Section 192(2)(a) of the Evidence Act requires that I take into account the extent to which granting the dispensation with respect to the notice would be likely to add unduly or shorten the length of the hearing. I do not consider that the hearing would be changed in any way whether I dispensed with or did not dispense with the requirement for a notice under s 67 to have been given.
The other two factors to which I must also have regard under ss 192(2)(d) and (e) of the Evidence Act are the nature of the proceeding and the power to adjourn the hearing or make any other order or to give a direction in relation to the evidence. Neither of those matters are of any weight to determine this application and therefore do not provide factors for or against the decision I must reach.
In all the circumstances, I am satisfied that I should dispense with the requirements for the defendants to have given notice of the relevant evidence and allow it to be adduced during the trial that I am currently hearing. Subsequently, I will determine what weight I will give to that evidence.
I therefore make the following direction:
Direct that s 63(2) of the Evidence Act 1995 (NSW) is to apply to the evidence given in the affidavit sworn 28 August 2025 by Cicek Ceper at [22] and in the affidavit sworn 15 August 2025 by Dimitrios Amargianitakis at [17] and [35] in these proceedings despite the defendants’ failure to give a notice under s 67 of the Evidence Act 1995 (NSW) with respect to it.