Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278

Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278

There was no error or miscarriage of justice in the primary judge's refusal to grant leave to rely on further affidavits as they did not provide evidence sufficient to support the pleaded causes of action and did not facilitate the just resolution of the real issues in the proceedings. The dictates of justice and relevant procedural rules were properly applied.

Parties
First Appellant: Ishak Cicek; Second Appellant: Basak Ulka Tilli; First Respondent: The Estate of the late Mark Solomon; Second Respondent: National Australia Bank Limited
Jurisdiction
Australia
Judgment Date
21 August 2014
Procedural Posture
Civil Appeal / Appeal From Supreme Court to Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Leave to Adduce Further Evidence, Just Resolution of Proceedings, Self Represented Litigants, Negligence, Breach of Fiduciary Duty, Unconscionable Conduct
Civil Procedure Leave to Adduce Further Evidence Just Resolution of Proceedings Self Represented Litigants Negligence Breach of Fiduciary Duty Unconscionable Conduct

Case Brief

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Parties

Ishak Cicek

First Appellant

Basak Ulka Tilli

Second Appellant

The Estate of the late Mark Solomon

First Respondent

National Australia Bank Limited

Second Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court to Court of Appeal

Legal Issues

  1. 1 Whether the primary judge erred in refusing plaintiffs leave to rely on further affidavit on first day of hearing
  2. 2 Whether failure to permit further evidence occasioned injustice to the appellants
  3. 3 Whether the primary judge should have adjourned hearing and referred appellants to pro bono assistance

Ratio Decidendi

There was no error or miscarriage of justice in the primary judge's refusal to grant leave to rely on further affidavits as they did not provide evidence sufficient to support the pleaded causes of action and did not facilitate the just resolution of the real issues in the proceedings. The dictates of justice and relevant procedural rules were properly applied.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Solicitors for the first respondent to notify the Court within 7 days as to the identity of the person granted probate or letters of administration in respect of the estate of the late Mark Solomon, or, if none, the identity of an appropriate person to be appointed as representative under rule 7.10 of the UCPR.