Ozdemir v No Defendant

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.

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

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.

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

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.

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.

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

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.

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).

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.

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

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.

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.

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

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

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.

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

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

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

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

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.

For these reasons, the Court orders that: