Cicek v The Estate of the Late Mark Solomon [2013] NSWSC 1348

Cicek v The Estate of the Late Mark Solomon [2013] NSWSC 1348

There was no irremediable prejudice to the defendants from the plaintiffs’ default. The degree of injustice to the plaintiffs from dismissal outweighed injustice to the defendants, especially since new legal representatives were actively remedying the default.

Parties
First Plaintiff: Ishak Cicek; Second Plaintiff: Basak Ulka Tilli; First Defendant: The Estate of the Late Mark Solomon; Second Defendant: The Estate of the Late Robert Tam; Third Defendant: National Australia Bank Ltd
Jurisdiction
Australia
Judgment Date
17 September 2013
Procedural Posture
Interlocutory Application / Motion to Dismiss for Failure to Comply With Discovery
Outcome
First defendant's application to dismiss proceedings dismissed. Plaintiffs ordered to pay first defendant's costs.
Legal Topics
Discovery, Failure to Comply With Orders, Application to Dismiss Proceedings
Civil Procedure Discovery Failure to Comply With Orders Application to Dismiss Proceedings

Case Brief

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Parties

Ishak Cicek

First Plaintiff

Basak Ulka Tilli

Second Plaintiff

The Estate of the Late Mark Solomon

First Defendant

The Estate of the Late Robert Tam

Second Defendant

National Australia Bank Ltd

Third Defendant

Procedural Posture

Interlocutory Application / Motion to Dismiss for Failure to Comply With Discovery

Legal Issues

  1. 1 Whether plaintiffs' failure to comply with discovery orders justifies dismissal of their proceedings
  2. 2 Whether the plaintiffs’ default has caused irremediable prejudice to the defendants
  3. 3 Adequacy of plaintiffs' explanation for discovery default

Ratio Decidendi

There was no irremediable prejudice to the defendants from the plaintiffs’ default. The degree of injustice to the plaintiffs from dismissal outweighed injustice to the defendants, especially since new legal representatives were actively remedying the default.

Court Disposition

First defendant's application to dismiss proceedings dismissed. Plaintiffs ordered to pay first defendant's costs.

Orders

  • First defendant's application dismissed.
  • Plaintiffs to pay the first defendant's costs of the application.