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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278 Hearing dates: 6 August 2014 Decision date: 21 August 2014 Before: Meagher JA at [1]; Barrett JA at [2]; Ward JA at [3] Decision: 1. Appeal dismissed with costs. 2. Direct that the solicitors for the first respondent notify Ward JA's associate within 7 days as to the identity of the person or persons to whom probate or letters of administration have been granted in respect of the estate of the late Mr Solomon or, if no grant of probate or letters of administration has been made, the identity of an appropriate person who consents to be appointed as representative under rule 7.10 of the UCPR, for the purposes of regularising the parties to the proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - appeal from decision of primary judge refusing plaintiffs leave to rely on further affidavit on first day of hearing - where matter was dismissed for want of evidence - where plaintiffs had been represented but were self-represented for the hearing - whether primary judge should have adjourned hearing and referred the plaintiffs to pro bono assistance - whether the primary judge considered injustice which would be suffered by the plaintiffs in refusing the additional evidence Legislation Cited: Court Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 AON Risk Services Australia Ltd v The Australian National University [2009] HCA 27; (2009) 239 CLR 175 Cicek v The Estate of the Late Mark Solomon [2013] NSWSC 1348 Cicek v The Estate of the Late Mark Solomon (No 1) [2013] NSWSC 1490 Cicek v The Estate of the Late Mark Solomon (No 2) [2013] NSWSC 1479 Dai v Zhu [2013] NSWCA 412 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 88 ALJR 76 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 House v R [1936] HCA 40; (1936) 55 CLR 499 Kelly v Mina [2014] NSWCA 9 King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at [95] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 Maviglia v Maviglia [1999] NSWCA 188 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509 Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unrep) Re Will of Gilbert (1946) 46 SR (NSW) 318 Re Oliver Brown Pty Ltd [2013] NSWSC 738 Rowe v The Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1 Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 Winterton Constructions v Hambros (1992) 111 ALR 649 Category: Principal judgment 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) Representation: Counsel: P Glissan (Appellants) I Gristci (First Respondent) J Hynes (Second Respondent) Solicitors: The People's Solicitors (Appellants) HWL Ebsworth Lawyers (First Respondent) TurksLegal (Second Respondent) File Number(s): 2013/00341691 Publication restriction: Nil Decision under appeal Citation: Ishak Cicek v The Estate of the late Mark Solomon (No 3) [2013] NSWSC 1492 Date of Decision: 2013-10-08 00:00:00 Before: Bellew J File Number(s): 2011/00327029