Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors. (No 2) [2013] NSWSC 1479

Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors. (No 2) [2013] NSWSC 1479

Leave was refused because the further affidavits were served very late, almost six months after the Registrar's order requiring leave for further evidence, raised new matters requiring investigation, would likely necessitate a lengthy adjournment, cause prejudice to the defendants, increase costs and delay, and adversely affect the efficient use of court time. The plaintiffs' explanation involving reliance on their former solicitor did not outweigh the unfairness to the defendants and the case management considerations.

Jurisdiction
Australia
Judgment Date
08 October 2013
Procedural Posture
Practice and Procedure Application Concerning Leave to Rely on Further Affidavit Material / First Day of Hearing
Outcome
Leave to rely on further affidavits refused.
Legal Topics
['leave to Rely on Further Affidavit Evidence' 'late Service of Evidence' 'case Management' 'prejudice, Delay and Costs' 'just, Quick and Cheap Resolution of Proceedings']
['civil Procedure'] ['leave to Rely on Further Affidavit Evidence' 'late Service of Evidence' 'case Management' 'prejudice, Delay and Costs' 'just, Quick and Cheap Resolution of Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure Application Concerning Leave to Rely on Further Affidavit Material / First Day of Hearing

Legal Issues

  1. 1 ["Whether the plaintiffs should be granted leave to rely upon four further affidavits served approximately one week before trial despite the Registrar's order that they not rely on further evidence without leave of the court." 'Whether granting leave would prejudice the defendants, cause delay and additional costs, and adversely affect the efficient use of court time.']

Ratio Decidendi

Leave was refused because the further affidavits were served very late, almost six months after the Registrar's order requiring leave for further evidence, raised new matters requiring investigation, would likely necessitate a lengthy adjournment, cause prejudice to the defendants, increase costs and delay, and adversely affect the efficient use of court time. The plaintiffs' explanation involving reliance on their former solicitor did not outweigh the unfairness to the defendants and the case management considerations.

Court Disposition

Leave to rely on further affidavits refused.

Orders

  • ['Leave to rely on the further four affidavits refused.' 'The four affidavits collectively are to be marked MFI 2 in the proceedings.']