Ozdemir v No Defendant

Publication restriction: Nil

JUDGMENT (EX TEMPORE REVISED FROM TRANSCRIPT)

1. By a summons dated 11 November 2025, the plaintiff, Nagihan Ozdemir (Nagihan), seeks an order pursuant to s 75 of the Trustee Act 1925 (NSW) (the Act), that all the estate, right, title and interest of the late Bahattin Ozdemir (as mortgagee) (Bahattin) under the mortgage registered as dealing XX (Mortgage) over the land described as X Gibbons Street, Auburn in the state of New South Wales (XX) (the Property) be vested in the plaintiff as administrator of the estate of Bahattin Ozdemir for the purpose of dealing with the Mortgage, including registering a discharge of mortgage with the New South Wales Land and Registry Services.

2. In the circumstances that I will explain in a moment, there is obviously no defendant to the present application.

3. In support of the application, Nagihan relies upon two affidavits made by him, dated 5 and 6 November 2025, together with a large number of documents that are annexed or exhibited to those affidavits. I have also been provided with a chronology of relevant events together with some helpful written submissions. I have also been assisted by the presence of Mr Ivers, the solicitor for the plaintiff, at the hearing today.

4. It is only necessary to give a relatively brief outline of the relevant facts.

5. On or about 25 July 1980, Bahattin and his late wife, Hacer Ozdemir (Hacer), purchased the Property. At this time, Nagihan and his brothers Yilmaz Ozdemir (Yilmaz) and Abdullatif Ozdemir (Abdullatif) contributed money towards the acquisition of the Property.

6. On 17 May 1999, Hacer passed away. On 18 May 2000, Hacer’s interest in the property was transferred to Bahattin, Nagihan, Yilmaz and Abdullatif as tenants in common in equal shares.

7. There were various other subsequent changes in ownership of the Property, the detail of which is not presently relevant.

8. In about 2014, Bahattin proposed to transfer his ownership share in the Property equally to Nagihan and Abdullatif. This transfer was conditional upon Nagihan and Abdullatif making payment of $12,000 per year to Bahattin until his death.

9. This proposed agreement was formalised in a written annuity agreement entered into between Bahattin, a company associated with Nagihan (Ozbenk) and Abdullatif on 1 May 2015 (Annuity Agreement).

10. Clause 1 of the Annuity Agreement provided that Bahattin assign and transfer to Ozbenk and Abdullatif, Bahattin’s interest as tenant in common in the Property. In consideration of this interest, Ozbenk and Abdullatif unconditionally and irrevocably granted to Bahattin an annuity of $12,000 per annum for the remainder of the life in being of Bahattin. The $12,000 was to be paid in $1,000 monthly instalments.

11. The Annuity Agreement was also secured by the Mortgage (being mortgage X) granted to Bahattin over the Property and registered on 1 May 2015.

12. The share of Bahattin in the Property was duly transferred to Ozbenk and Abdullatif. From 1 May 2015 to the date of Bahattin’s death, payments were made by Ozbenk and Abdullatif in accordance with the Annuity Agreement.

13. Bahattin passed away on 25 July 2016. By reason of the terms of the Annuity Agreement specifying that payment was required until the end of Bahattin’s life, the Annuity Agreement was terminated on this date.

14. At the time of his death, Bahattin did not hold any assets in Australia.

15. On 4 July 2023, a Turkish court granted probate to the beneficiaries of Bahattin’s estate for assets he held in Turkiye.

16. The present situation is that the Mortgage remains registered on the title to the Property. In circumstances where Bahattin had no assets in Australia, it is unclear precisely who Bahattin’s legal representative is.

17. It is against this background that the present proceedings have been brought, seeking relief under s 75 of the Act.

18. Section 75(1)-(3) of the Act relevantly provide:

75 Deceased mortgagee

(1) Where a mortgagee of land has died, the Court may make a vesting order vesting the land in such person or persons in such manner and for such estate as the Court may direct -

Provided that where the land is subject to the provisions of the Real Property Act 1900 the order may discharge the mortgage.

(2) The order may only be made if the mortgagee did not enter into possession, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or that last-mentioned person consents to any order for the reconveyance of the land.

(3) The order may be made in any of the following cases, namely—

(a) where the legal representative of the mortgagee is out of the jurisdiction of the Court or cannot be found,

(b) where the legal representative of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land has stated in writing that he or she will not convey the same or does not convey the same for the space of twenty-eight days next after a proper deed for conveying the land has been tendered to him or her by or on behalf of the person so entitled,

(c) where it is uncertain as to the legal representative of the mortgagee whether he or she is living or dead,

(d) where there is no legal representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is the mortgagee’s legal representative,

(e) where the Court might have made a vesting order if this Act had not been passed.

19. I am satisfied on the evidence presented to me that it is appropriate to make an order under s 75(1).

20. Importantly, I am satisfied that Bahattin did not enter into possession of the Property.

21. It is also clear that at least one of the requirements in s 75(3) is satisfied in the circumstances of the present case. In particular, s 75(3)(d) where there is either no legal representative of Bahattin, or it is uncertain as to who his legal representative is. It is also clear that Bahattin has been paid all sums owing under the Annuity Agreement and as such the Mortgage should be discharged.

22. For these reasons, the Court orders that:

23. Order pursuant to s 75 of the Trustee Act 1925 (NSW), that all the estate, right, title and interest of Bahattin Ozdemir, late of X/X Aras Sk, Yenimahalle Ankara, Turkiye (as mortgagee) under the mortgage registered as dealing number X over the land described as X Gibbons Street, Auburn in the state of New South Wales (X) (“the Property”) be vested in the plaintiff, Nagihan Ozdemir, as administrator of the estate of the deceased, for the purpose of dealing with the mortgage, including registering a discharge of mortgage.

24. The plaintiff be at liberty to lodge a copy of these orders with New South Wales Land Registry Services to enable registration of a discharge of mortgage in respect of dealing number X.

25. There be no order as to costs.

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