Cicek v The Estate of the Late Mark Solomon

Court of Appeal (NSW)|2014-08-06|Before: Meagher JA, Barrett JA, Ward JA, Adam P

Background 12The factual background to the dispute, as pleaded in the statement of claim filed 13 October 2011 and apparently re-filed on 17 April 2012, is as follows. The paragraph references are taken from the later document although I have been unable to discern any substantive difference between the two. 13Each of the appellants was born in Turkey ([1(a)] and [2(g)]). Each is alleged to have had at all relevant times a limited capacity to read and write in English ([1(b)] and [2(j)]) and no relevant business, investment or legal training or experience ([1(d)] and [2(i)]). It is alleged that Mr Cicek had "negligible education" ([1(c)]). It is further alleged that each was at all relevant times at a special disadvantage in judging the effect of the loan and mortgage documents or the prudence of taking "the loan" (the reference to those documents and the loan presumably being to the transactions later referred to in the pleading) ([1(f)] and [2(k)]). 14In 2002-2004, the appellants entered into a number of property acquisitions ([4], [7] and [12]). Relevantly, in or about 29 August 2003 the appellants, together with Mr Tam and his wife, acquired a property at Blacktown; and on or about 13 May 2004 Mr Cicek acquired a property at Gwandalan. The acquisition of the Blacktown property was apparently for the purpose of development. Mr Tam, who was described in the pleading as a friend of the appellants, is said to have "held a financial, developer, and advisory role in his own personal capacity" ([6]). 15At the time of acquisition of the Blacktown property, a first registered mortgage was granted over it to secure a loan advanced to the mortgagors by an entity known as City Pacific ([9]), (the City Pacific Loan). The Gwandalan property was unencumbered ([17]), its purchase being secured by a first registered mortgage over another property (the Smithfield property) that was owned by Ms Tilli ([15]). 16It is alleged that Mr Tam facilitated the various loans referred to in the pleadings, acting as a mortgage broker: those being the City Pacific Loan ([11]); the loan for the Gwandalan property's acquisition ([16]); and the later Perpetual and NAB Loans ([24] and [47], respectively) to which I will refer shortly. 17The statement of claim pleads that, during the period from August 2003 to December 2004, Mr Tam took steps to develop the Blacktown property ([18]) and that in October 2005 he sought the agreement of the appellants to provide financial support for that development "by way of agreement to the use of the Gwandalan property as security for such further borrowing" [19], as well as their agreement to the refinance of the City Pacific Loan by a loan with NAB ([20]). That led to the respective Perpetual and NAB Loans. 18As to the Perpetual Loan, it is alleged that on or about 30 November 2005 the appellants entered into a loan agreement with Perpetual Trustee Company Limited pursuant to which Perpetual advanced the sum of $368,000 to them, secured by way of a first registered mortgage over the Gwandalan property, for the purpose of providing financial support for the development of the Blacktown property ([24]-[25]). The funds advanced by Perpetual were provided directly to Mr Tam ([32]) pursuant to a direction to the lender so to do that was given by Mr Solomon ([28]). 19The NAB Loan was procured in about December 2005. It was a $200,000 loan made by the NAB to the appellants and Mr Tam and his wife for the refinancing of the City Pacific Loan ([46]). The existing mortgage over the Blacktown property was discharged ([49]) and the NAB Loan was secured by a first registered mortgage over the Blacktown property in favour of NAB ([48]). 20On or about 20 April 2007, the NAB Loan facility was increased to provide a further $100,000 that was paid to Mr Tam ([53]-[54]). 21The complaints by Mr Cicek and his wife, as pleaded, relate variously to the Perpetual and NAB Loans, though in relation to the latter the claims against the respective respondents do not relate directly to the increase in the amount of the NAB Loan facility in April 2007. 22The appellants allege that the Perpetual Loan funds received by Mr Tam were not used by Mr Tam for the purpose of developing the Blacktown property ([33]). The same allegation is made in relation to the moneys provided by NAB to Mr Tam on the extension of the NAB Loan facility in 2007 ([55]). It does not appear that there is any such complaint as to the use of the initial funds obtained under the NAB Loan in late 2005, perhaps because those were used to discharge the existing City Pacific Loan. 23The appellants further allege that, at the time of entering into the NAB Loan (i.e., as at 5 December 2005), Mr Tam had existing loans with NAB of which they were unaware ([50]) and that the NAB mortgage over the Blacktown property secured those existing loans ([51]-[52]). It appears that this last allegation is on the basis that the mortgage secured all moneys advanced to any of the mortgagors. I interpose to note that there is in the Court Book a copy of an affidavit from an NAB business banking manager (Ms Yedgar), which does not appear to have been read in the proceedings before his Honour, in which she deposes that at the time that the 2005 NAB Loan was approved, Mr Tam was not an existing customer of that branch, having previously obtained a car lease through another branch, and had no other facilities with NAB. 24In March 2008, NAB served a s 57(2)(b) notice under the Real Property Act 1900 (NSW) on each of the mortgagors, demanding payment following default in payment of the secured moneys under its mortgage ([58]). In May 2009, NAB sold the Blacktown property in the exercise of its rights as mortgagee in possession ([60]). It is alleged that it applied the sale proceeds to reduce Mr Tam's other debts to NAB, in priority to the debts allegedly owing by the appellants to NAB under the NAB Loan facility as extended or increased in 2007 ([60]). As will be seen in due course, there is no evidence as to this allegation, simply an assertion of belief or awareness on the part of the respective appellants that this was the case. 25Meanwhile, in April 2009, the appellants demanded the repayment from Mr Tam of the moneys advanced under the Perpetual Loan and the NAB Loan facilities ([34] and [59]). No repayment was made and Mr Tam was subsequently declared bankrupt ([34] and [59]). A sequestration order was made on 17 September 2009 in respect of Mr Tam ([3(c)]). 26It appears that at some point the Gwandalan property was also sold, presumably by the mortgagee, having regard to the particularisation of the loss and damage allegedly suffered as a result of the alleged breach of Mr Solomon's retainer ([41]), to which I refer below. 27The appellants allege that Mr Solomon was first retained by them in 2002 on various other property purchases ([4]). They allege that Mr Tam had introduced the appellants to Mr Solomon ([5]). The appellants plead four oral retainers with Mr Solomon: first, a retainer in or about August 2003 (by them with Mr Tam and his wife) to advise and act on the purchase of the Blacktown property and the grant of the first mortgage over that property to secure the City Pacific Loan ([10]); second, a retainer by them in about March 2004 to advise and act on the purchase of the Gwandalan property and grant of the mortgage over the Smithfield property to fund that purchase ([15]); third, a retainer in about October 2005 by them to advise and act on the grant of the first registered mortgage over the Gwandalan property to secure the Perpetual loan ([21]); and, fourth, a retainer in about October 2005 (by them together with Mr Tam and his wife) to advise and act for them on the grant of the NAB mortgage over the Blacktown property to refinance the City Pacific Loan ([42]). 28The allegations against Mr Solomon are that: (i)in breach of his duty under the third retainer, he failed properly to advise the appellants as to the effect of the commercial arrangement entered into with Mr Tam (in context this allegation seems to relate to the Perpetual Loan) ([36]); it is alleged that Mr Solomon had provided no advice to the appellants as to steps that might be taken to eliminate or reduce "those risks" - again, in context, this seems to relate to the risk that the Perpetual Loan funds would not be used for the purpose of the development of the Blacktown property ([31]); (ii)in breach of an implied term and duty (there, seemingly referring again to the third retainer - [22]-[23]), he failed properly and appropriately to advise the appellants and failed to exercise all reasonable skill, care, competence and diligence ([39]); in that context there were allegations at [37] and [38] as to various matters, including that Mr Solomon did not properly and appropriately explain the provisions and legal and practical effect of the arrangements with Mr Tam; did not provide proper and appropriately independent legal advice; did not properly and appropriately protect the appellants from any undue influence, unfair pressure or unfair tactics that were or might have been exerted on or used against them; and did not obtain any third party to explain the commercial outcomes of the dealings; (iii)in breach of an implied term and duty (there, seemingly referring to the fourth retainer - [43]-[44] but also with reference to the second retainer - [64]), he failed to advise the appellants of Mr Tam's existing loans with NAB and the nature and effects of the NAB mortgage over the Blacktown property ([65]-[67]); and (iv)in breach of a fiduciary duty not to prefer the interests of Mr Tam over those of the appellants and not to put himself in a position of conflict as to those interests, he "by reason of his ongoing association with [Mr Tam] ... stood in a conflicted position that led to him favouring the interests of [Mr Tam] over the interests of [the appellants]" ([72]-[73]). At [74]-[76], the failure to advise the appellants of certain matters is alleged to be a failure to protect the interests of the appellants and appears also to be alleged to be a breach of fiduciary duty. 29The loss claimed as a result of the breaches pleaded at [36] and [39] (referred to at [28(i) and (ii)] above) was the amount of the Perpetual Loan together with the loss of the Gwandalan property ([41]). The loss claimed as a result of the breach alleged at [65] ([28(iii)] above) was the value of the Blacktown property ([71]), though presumably this could only be the loss of the appellants' interest therein since they seem to have acquired that property together with Mr Tam and his wife. The loss claimed as a result of the alleged breach of fiduciary duty is particularised as an amount corresponding to the amount advanced by Perpetual ([76]). 30As to the claim against NAB, it is alleged that the bank: (i)used its knowledge of Mr Tam's financial position "to its own advantage" when entering into the NAB Loan facility (i.e., on or about 5 December 2005) with the appellants ([86]); and (ii)acted unconscionably in its dealing with the appellants, in approving the NAB Loan facility (i.e., the 5 December 2005 facility) with the mortgage ([87]). 31The particulars to [87] assert that NAB should have informed the appellants that it was securing additional debts of Mr Tam by the NAB Loan facility and the mortgage and that the appellants were "by virtue of the mortgage" agreeing to pay Mr Tam's existing debts to NAB; and should have disclosed that the NAB Loan and mortgage only benefited NAB and Mr Tam. 32The appellants claim against NAB the loss of value of the Blacktown property (again, presumably, only their own interest therein) ([88]).

Procedural history of the matter 33The proceedings have had an unsatisfactory procedural history, which I summarise below. They were commenced by way of statement of claim in October 2011. There were a number of defaults in compliance with directions made in the course of the proceedings (set out in a schedule compiled by the first respondent, the accuracy of which was not disputed by the appellants). In August 2012, there was a show cause hearing, following which there were further complaints as to the compliance by the appellants with procedural orders. 34Orders were made in February, September and November 2012 and again in January 2013 in respect of the provision of discovery by the appellants. An unverified list of documents was served on 25 January 2013. There was a complaint as to the adequacy of that discovery, which led to an application filed by the first respondent on 1 May 2013 seeking an order that verified discovery be given by the appellants. That application was in due course amended to include an application for summary dismissal of the proceedings on the basis of deficiency in the discovery (to which I refer at [39] below). The importance of discovery in the present case was highlighted by the fact that both Mr Solomon and Mr Tam are deceased. 35As to the service of evidence, orders were made in November 2012 and again in January 2013 for service by the appellants of their affidavits in chief. On 27 February 2013, witness statements of each of the appellants were served: Mr Cicek's sworn statement dated 29 January 2013; Ms Tilli's sworn statement dated 21 February 2013. Notwithstanding the allegations in the statement of claim as to the appellants' lack of familiarity with written English, neither of those statements disclosed the assistance of any interpreter in the preparation thereof. 36The appellants' submissions on the present application refer to the service of property valuations dated 26 June 2012 in respect of each of the Gwandalan and Blacktown properties. However, NAB denies that any valuation evidence was served as part of the appellants' case and none was referred to or sought to be relied upon at the hearing on 8 October 2013. 37On 10 April 2013, Registrar Bradford ordered that the appellants not be permitted to serve any further evidence (in chief) without the leave of the Court, though provision was made for the service of affidavits in reply once the respondents' evidence was served. 38On 24 May 2013, the proceedings were listed for hearing for a period of four days, commencing on 8 October 2013. 39The first respondent's application for summary dismissal of the proceedings was heard by McCallum J on 10 September 2013. By the time of that hearing, the appellants, who had previously retained at least three other firms of solicitors - Gillard Consulting Lawyers, Stojanovic Solicitors (though only briefly) and LawTime Lawyers - were represented by The People's Solicitors (Mr Lui of that firm being the solicitor on the record). Dr Tarrant of Counsel appeared for the appellants on the hearing of that motion. 40Her Honour dismissed the application for summary dismissal of the proceedings on 11 September 2013, reserving her reasons for so doing. On 10 and 11 September 2013, orders for the further conduct of the proceedings were made, including that the appellants serve any additional evidence upon which they would wish to rely on or before 30 September 2013, the question of leave to do so being expressly reserved. 41In her Honour's reasons for refusing the summary dismissal application, subsequently published on 17 September 2013 (Cicek v The Estate of the Late Mark Solomon [2013] NSWSC 1348), her Honour referred to some of the procedural history of the matter to that date and noted the concession by Dr Tarrant that the appellants' discovery had been inadequate (at [13]). Her Honour further noted at ([21]) that there was an unsatisfactory record of failures by the appellants to comply with orders of the Court. 42At [41], her Honour referred to the evidence before the Court that the appellants had incurred liability for some $280,000 in legal costs and observed that the prejudice if they were to lose the entitlement to prosecute the claim at that stage was manifest. Reliance is placed by the appellants on the present application on the criticisms made by her Honour on this occasion of the previous conduct of the matter by the appellants' former solicitors and her Honour's recognition of the prejudice that would be suffered if the proceedings were to be dismissed at that stage. 43At [42], her Honour said: ... In determining what are the dictates of justice in the present case, I have had regard to the fact that at least some of the plaintiffs' default appears to have arisen from their reliance on a solicitor who does not appear to have the skills or perhaps the capacity to attend to the preparation of a matter of this nature with due expedition. The evidence reveals occasions on which he has failed to appear or else asked the defendants to mention his appearance on dates when he ought to have appeared; he allowed the categories sought by the first defendant to pass without objection; he has served woefully inadequate evidence and, in his absence from court on a day when the matter was listed for directions, allowed the position to be reached where leave is required to rectify that problem. 44Her Honour acknowledged (at [43]) that a defendant ought not necessarily suffer the burden of poor representation of a plaintiff but considered that the degree of injustice that would have been suffered by the appellants were their claim to be dismissed at that stage outweighed the injustice to the respondents that was established by the evidence. Her Honour continued: I also had regard to the fact that the plaintiffs have now retained Mr Liu and briefed counsel. The steps undertaken by the new legal representatives to bring the proceedings back in order played a substantial role in persuading me not to accede to the first defendant's application. 45Sometime shortly after the hearing before McCallum J, and somewhat ironically in light of that representation being a matter on which her Honour had placed substantial weight when deciding not to accede to the first respondent's then summary dismissal application, The People's Solicitors ceased to act for the appellants. According to the appellants' written submissions, this occurred on 13 September 2013. 46On the application of one or both of the respondents, the proceedings were re-listed before her Honour on 18 September 2013. On that occasion, her Honour made orders that, in default of compliance by the appellants with the orders made on 10 and 11 September 2013 (with one exception), the proceedings were to be automatically dismissed. 47Her Honour's ex tempore reasons on that occasion record that her Honour had made clear to Mr Cicek (and through those reasons it must also have been clear to the then new legal representatives for the appellants, Simon Diab & Associates) the importance of complying with the directions that had been made in order to have the matter ready for hearing on 8 October 2013. Those orders included the provision of a final verified list of documents, the special need for which (in light of the death of Mr Solomon) had been noted in her Honour's earlier reasons. In particular, the need for leave to be obtained in order to rely on any further evidence must have been clear to the appellants' then legal representatives, who presumably must also have addressed their minds to the content of the further evidence that was required to support the appellants' claims. 48On or about 27 September 2013, two affidavits, one sworn by each of the appellants, were served on the respondents, as was a short affidavit sworn by an interpreter. Mr Cicek also swore a further short affidavit on 30 September 2013. This is the further evidence for which leave was in due course sought by the appellants. I consider in due course the content of the September affidavits. 49On 4 October 2013, the proceedings were listed before Bellew J, before whom the matter had been listed for hearing on 8 October 2013. The first respondent maintained there had been a failure by the appellants to comply with the orders of 10 September 2013, thus enlivening McCallum J's self-executing order. Mr McKeand SC appeared for the appellants on that occasion, instructed by Ms Antoon of Simon Diab & Associates. 50His Honour declined to dismiss the proceedings for the reasons set out in his judgment of that date (Cicek v The Estate of the Late Mark Solomon (No 1) [2013] NSWSC 1490). Immediately following his Honour's indication to the parties of his decision in that regard, Mr McKeand made an application to file a notice of ceasing to act under r 7.29(2) of the UCPR, on the basis that the appellants had failed to make provision for the payment of their solicitors' legal costs. His Honour granted the application. 51A further application was then made by the respondents to dismiss the proceedings on the basis of the inadequacy of the appellants' discovery, and the fact of the withdrawal of their then legal representation. Mr Cicek was noted on the transcript as appearing for himself at that stage and confirmed his and his wife's intention to appear at the hearing. His Honour declined to dismiss the proceedings, and confirmed the hearing date of 8 October 2013.

Refusal to grant leave for further evidence 52The matter then came before Bellew J for hearing on 8 October 2013. As a review of the transcript discloses, his Honour was clearly conscious of the fact that the appellants were not legally represented and of the need to ensure that they understood what was happening, but was also aware of the limitations on the assistance that he could provide to them, consistent with his duties as a judicial officer. There was no application for the hearing date to be vacated. (Nor had there been any such application on 4 October 2013 while the appellants were still legally represented but when it must have been apparent to their legal representatives that they would shortly be unrepresented if leave to withdraw was granted to the solicitor on the record.) 53His Honour dealt first with the objections that had been made to the existing evidence for which leave was not necessary. That comprised two short witness statements, one by each of the appellants. Counsel on the present application acknowledges that there were obvious difficulties in the form in which much of the existing witness statements had been couched. 54The basis on which much of the objections were taken was lack of relevance to the pleaded case. It is apparent that his Honour sought the appellants' views as to the evidentiary objections made to Mr Cicek's statement, with which he dealt first, understanding that they would not appreciate the rules of evidence but seeking to ascertain from them what was the relevance, if any, to their case of the material to which objection had been taken. It is also apparent, from a review of the objections made, and the rulings thereon, that his Honour had not taken an overly technical view when ruling on the objections. For example, his Honour struck out statements such as that in [23] of Mr Cicek's witness statement to the effect that Mr Solomon had destroyed his life, as being not relevant to anything that his Honour had to decide in the proceedings, but did permit general statements such as that in [21] that Mr Solomon "did not explain to me exactly what he was doing and I did not understand what he was saying to me when he got me to sign papers". 55The only objection to Ms Tilli's statement was as to two paragraphs ([8] and [9]) and then only on the basis that they were in effect submissions. It may well be that they could be read as such. Nevertheless, Ms Tilli informed his Honour that she did not wish to rely on the witness statement that had been served by her. 56His Honour then turned to the appellants' application for leave to rely on the further evidence, i.e., the September affidavits. 57For the reasons set out in his Honour's judgment ([2013] NSWSC 1479), leave was refused. His Honour referred to the need to have regard both to the provisions of s 56 of the Civil Procedure Act 2005 (NSW) and to the interests of justice ([20]). At [22], his Honour also clearly had in mind the principles articulated by the High Court in AON Risk Services Australia Ltd v The Australian National University [2009] HCA 27; (2009) 239 CLR 175. 58His Honour noted that the explanation proffered for the late service of the material was the assumption that the solicitor previously retained by the appellants had dealt with procedural matters properly ([21]). I interpose to note that, at least from 10 September 2013, when the matter was before McCallum J, Mr Cicek can surely have been under no misapprehension that there were problems with the way in which the case had been prepared to that stage. Her Honour's subsequent reasons advert to her having made clear to him the need for compliance with the procedural directions then made. He was represented on that occasion by Senior Counsel and one would expect that he had the benefit of advice at that stage as to what was required to be done. I read his Honour's comments, against that background, as relating to the delay before September 2013. 59His Honour inferred, from the dates of the affidavits in respect of which leave was sought, that the relevant affidavits had been served approximately one week before the hearing and six months after the Registrar's order of 10 April 2013 ([23]). His Honour was satisfied that if leave were granted it would have the effect of substantially delaying the further conduct of the proceedings ([24]). 60His Honour considered the unfairness to the appellants if the consequences of default of their solicitor were to be visited on them personally and balanced that with the unfairness to the defendants in terms of costs and delay as a consequence of that default ([25]). 61Finally, his Honour considered the impact of the grant of leave on the efficiency of the use of court time and the substantial delay that would be occasioned in terms of the final determination of the proceedings, though noting that this was not a determinative consideration ([26]). 62His Honour refused leave for the appellants to rely on the four September affidavits. His Honour clarified with the appellants whether there was any further material that they wished to rely on or that they wished his Honour to see, bearing in mind that he was not going to allow the recently served affidavits to be relied upon, and Ms Tilli confirmed that there was not. The appellants' case was therefore closed. 63After an adjournment to consider their position, the respondents having confirmed (in the case of the first respondent) or indicated a tentative view (in the case of NAB) that neither would be calling any evidence, an application for summary judgment was made by the respondents, on the basis that on the evidence before the Court a judgment for the appellants could not be supported. 64His Honour explained the nature of that application to the appellants and gave them an opportunity to consider the respondents' submissions in relation to that application. His Honour gave the appellants an opportunity to say anything they wished about how the case should be decided. Relevantly, Ms Tilli informed his Honour that the claim against Mr Solomon's estate was that he had misled them as to the purpose for which the money was going to be used (something not pleaded at all) and that they believed it was for construction (the pleading alleged that the retainer to advise was in connection with the loan to be used for development purposes). 65Mr Cicek said that the loss suffered was that they had applied for a construction loan and the money went to the "wrong hand". That might have supported a claim that Mr Solomon had acted without authority in disbursing the Perpetual Loan funds to Mr Tam, but that allegation was not pleaded. Rather, the allegation was that Mr Tam had not used the funds for the development of the property. 66Mr Cicek suggested that Mr Solomon had made them "guarantor" for the loan (something inconsistent with the pleading in which it is alleged in effect that the loan was taken out by them as borrowers) and said that Mr Solomon had never told them of the risk of borrowing money jointly with Mr Tam (which was relevant to the NAB Loan jointly taken out by the appellants and Mr Tam and his wife and might be taken as going broadly to what was pleaded at [67], as to the failure to advise of the nature and effect of the NAB mortgage). 67Ms Tilli also emphasised that she had not signed any papers from the bank, something not raised on the pleading. 68His Honour reserved his decision. In his subsequent reasons, his Honour noted (at [24]) that, even apart from the fundamental question of evidence of the various retainers and their precise terms (as to which, as will be seen shortly, there was almost none), there was no evidence that Mr Solomon had breached his duty towards either of the appellants and no evidence of any loss suffered as a consequence of any such breach. As to NAB, his Honour noted Counsel's submission that the case was misconceived because there was no obligation on the part of a lender to disclose the private business affairs of another customer (there referring to Winterton Constructions v Hambros (1992) 111 ALR 649 at 667) but said that in any event the evidence taken at its highest did not establish any unconscionable conduct and that there was no evidence of loss ([25]). His Honour entered judgment for the respondents accordingly.

Relevant principles 69Appellate courts exercise particular caution in reviewing interlocutory rulings on matters of practice and procedure (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at [9] 177; Re Will of Gilbert (1946) 46 SR (NSW) 318 at 322-3). The task of a party challenging such a ruling is recognised as being a difficult one (Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 at [6]; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]). 70What is required is that the appellants establish an error of legal principle; material error of fact; that the primary judge took into account some irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or that the primary judge arrived at a result so unreasonable or unjust as to suggest such an error (House v R [1936] HCA 40; (1936) 55 CLR 499 at 505; Micallef per Heydon JA, as his Honour then was, at [45]). In Kelly v Mina [2014] NSWCA 9 at [46], it was recognised that an appellate court should be slow to interfere and ought not reverse the primary judge's decision on a matter of practice and procedure unless convinced it is plainly erroneous.

Appellants' submissions 71After his Honour's judgment, the discontinuity in legal representation seems to have continued. The People's Solicitors were retained by the appellants, with Mr Lui as solicitor on the record, for the appeal. Dr Tarrant prepared written submissions for the appellants but did not appear at the hearing of the appeal. On that occasion, the appellants were represented by Mr Glissan of Counsel, who informed the Court that he had been retained only the previous day. Mr Glissan adopted and sought to expand and give "colour" to the filed written submissions by reference to the transcript of the proceedings before the primary judge. 72Relevantly, however, Mr Glissan confirmed that the sole issue in the appeal was that which had been identified in the notice of appeal, namely that his Honour had erred in refusing leave to rely upon the further evidence in circumstances, where it is said that this did not facilitate the just resolution of the real issues in the proceedings. 73Nowhere in the written submissions for the appellants was there an attempt to explain what the "real issues" in the proceedings were or how the admission of the September affidavits would have been relevant to those issues, by reference to the pleaded case brought against the respective respondents. It was simply assumed that the refusal to admit the further evidence was a miscarriage of justice because it led to the summary dismissal of the proceedings. 74When that issue was explored in oral submissions on the appeal, it became apparent that what the appellants were principally seeking to rely upon in the further evidence was the assertion that their signatures had been forged on the documents relating to the extension of the NAB Loan facility in April 2007, something not pleaded in the statement of claim as part of any cause of action against either of the respondents. 75If the further evidence was irrelevant to the pleaded case, then there cannot have been any injustice occasioned to the appellants in not permitting them to rely upon it. When that issue was put squarely in debate with Counsel, what emerged was a series of propositions as to the injustice claimed to have been occasioned by his Honour's ruling (most, if not all of which, were not raised in the notice of appeal and do not seem to have been the subject of any application or submission before his Honour at the time, though it is submitted that they were "buried" within the sole ground of appeal that was raised). The complaint is that the appellants did not receive a "fair hearing" in the sense referred to in Rowe v The Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1 (namely that the right of every man to a fair hearing before he is condemned lies at the root of the tree of justice). However, no ground of appeal based on procedural unfairness has been raised and, as will be seen, in my opinion there is no basis for the criticism that there was not a "fair hearing" accorded to the appellants. 76The argument put in oral submissions was that his Honour should have appreciated: having regard to the criticism of the appellants' earlier legal representation made by McCallum J, that the appellants' previous solicitors had not been "persistent in any way in achieving justice or the proper ventilation of the claim"; that they were unrepresented at the hearing; and that they could not understand English properly. It is said that it should have been apparent to his Honour that there were "certain issues that probably hadn't been adequately pleaded but were issues of very substantial moment and concern". The grievance of the appellants was identified as being that they were never aware that any money was given out to Mr Tam and that they had not signed the direction for moneys to be paid to him. 77It is said that "[h]is Honour was in a position to realise that the pleading was probably not adequate to put the case that the [appellants] were seeking to put from the bar table". In this regard, the nub of the present complaint is that his Honour should have appreciated, from what was said by the appellants at the hearing (referring in particular to what Mr Cicek said at Black 79.28-36), and from the references in the further affidavits to forged signatures, that the appellants had a different claim against one or more of the respondents than that which had been pleaded and that he should have adjourned the proceedings so that they could obtain legal advice as to that different claim and put on further evidence. 78The relevant passage in the transcript, to which Mr Glissan referred in this regard, related to what had been said by Mr Cicek in respect of the objection to [21] of Mr Cicek's witness statement. That paragraph appeared under the heading "Historical backgrounds - Meeting Mark Solomon - Solicitors". It commenced with the words (which his Honour rejected) "I do not know why he [Mr Solomon] did what he did to me when he gave my money to Tam". It must be referring to the Perpetual Loan since that is the only loan about which it is alleged that funds were paid at Mr Solomon's direction to Mr Tam. What Mr Cicek said to his Honour in explanation of this paragraph (at Black 79.29-36) was: ... what it is, I went to Mark Solomon. I applied for the loan and the thing is, I know I applied for the loan and the thing is I was never aware about the loan went through and I was never aware that the money was - I say, regarding the Mark Solomon, okay, I apply for loan, for construction loan, I was never aware of the loan went through to get approval. The thing is I was never aware any money was given out to Robert Tam before I went to see the first time the solicitor Brian Gillard. This is the only time I find out the money was being given away. 79The statement that Mr Cicek was not aware of the construction loan (the Perpetual Loan) was made in his witness statement at [37]. That part of [37] was not excised. So his Honour's refusal to allow further evidence to the same effect in the September affidavit cannot have caused any injustice to Mr Cicek or his wife. Insofar as it raises the allegation of forgery, that was not pleaded; nor was there an allegation that Mr Solomon was acting outside his authority in directing the payment to Mr Tam. The complaint, rather, is that Mr Solomon did not advise Mr Cicek as to the steps that might be taken to eliminate the risks of the proceeds being paid to Mr Tam ([31] of the statement of claim). 80It is also submitted that his Honour should have adjourned the matter and referred the appellants to the NSW Bar Association's legal assistance referral scheme or alternatively to the Registrar of the Court for an attempt to find a pro bono legal representative for them. 81Further, it is said that his Honour should have explained to the appellants that if leave was refused for them to rely on the further affidavits, they would in all likelihood lose the case because there would be no evidence to support their claims. 82In contrast, the complaint made by the appellants in their written submissions was that his Honour did not make reference to ss 57 or 58 of the Civil Procedure Act and failed expressly to explore the requirements of those sections. The essence of the appellants' argument in that regard was that his Honour, while placing appropriate emphasis on cost and delay, failed to place appropriate emphasis on the overriding purpose mandated by s 56 of the Act that the resolution of the real issues in the proceedings be not simply "quick" and "cheap" but also "just". Emphasis was placed on the position of the comma in s 56 of the Act. In that regard, I note that in Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 at [94], Sackville AJA pointed out that the legislation did not expressly accord paramountcy to the "just" determination of the proceedings, although this is the first object stated in s 57(1) of the Act. 83Reference was made by the appellants to Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [37], where Allsop ACJ (as his Honour then was) emphasised the requirement that the Court seek to act in accordance with the dictates of justice. Reference was also made to Re Oliver Brown Pty Ltd [2013] NSWSC 738 at [11] per Black J and Dai v Zhu [2013] NSWCA 412 per Sackville AJA, with whom Barrett and Leeming JJA agreed, at [83]-[86], as to the principles to be applied when exercising discretion under s 56, including the need to have regard to ss 57 and 58. 84Emphasis was also placed on the statement of the plurality in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 88 ALJR 76 at [57], with reference to the powers in ss 56, 57 and 58, that the "focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs". 85The appellants submit that although the primary judge expressly considered (at [20]-[27]) the potential injustice to each of the respondents if leave to rely on the further evidence was granted, his Honour did not address the potential injustice to the appellants if their application for leave to rely on the further evidence was refused, that being the likelihood that the "real" issues in the proceedings would not be determined, in circumstances where the appellants had incurred legal costs over a two year period. The "real" issues that would not be determined are, however, those issues identified in the oral submissions as issues that "probably" had not been adequately been raised in the pleading and which it seems to be acknowledged would have required amendment to the pleading to raise.

September affidavits 86In considering the appellants' claim that they suffered injustice as a result of the inability to rely on the further affidavits, it is necessary to consider what that evidence was and whether it supported any of the pleaded claims. 87The principal further affidavit was one that was sworn by Mr Cicek on 27 September 2013. That was supplemented by a further short affidavit sworn by him on 30 September 2013. An interpreter deposed to having translated the first but not the second. 88In Mr Cicek's 27 September affidavit, prepared at a time when Simon Diab & Associates were acting for him, Mr Cicek deposed in summary: that he could speak and understand basic English; to the background of his first meetings with Mr Tam and then Mr Solomon; to the acquisition of the Blacktown and Gwandalan properties; and to his knowledge of Mr Tam's application for a development loan in relation to the Blacktown property. 89At [32], Mr Cicek denied receipt of a facsimile transmission from Mr Solomon referring to the direction for payment of the Perpetual moneys to Mr Tam. At [33], Mr Cicek deposed that Mr Solomon had never explained to him the obligations and risks involved in signing and authorising a direct debit in favour of Mr Tam (which leaves open the possibility that such an authorisation was signed). At [35], he denies receipt of an 8 December 2005 invoice. At [30], Mr Cicek says that he was not contacted by Mr Solomon about settlement of the Perpetual Loan or cheque directions. 90At [36], Mr Cicek refers to a discussion with Mr Tam about the $200,000 NAB Loan. He does not dispute that he agreed to the making of that application. At [37], he agrees he signed documents for the NAB $200,000 facility. At [38], he says he was not advised that the Blacktown property was being used as security for all NAB amounts. 91At [40], Mr Cicek says that he never signed a document consenting to an increase in the "refinance loan" (i.e., the extension of the NAB Loan facility to $300,000) and, at [42], that he never signed the letter of instruction (for the increase in the loan funds to be deposited to Mr Tam's account). 92Mr Cicek deposes (at [57]) as to the first time he knew about the Blacktown property sale and (at [59]) he asserts that he became aware (he does not say how or on what basis) that the sale proceeds of Blacktown were directed to Mr Tam to settle "other" NAB debts. 93There is nothing in this affidavit as to the terms of the respective retainers with Mr Solomon and nothing at all as to the existence of the fourth alleged retainer. There is almost nothing about Mr Cicek's dealings with Mr Solomon or NAB. What does emerge from the affidavit is that Mr Cicek knew that the Perpetual Loan was being provided for the purpose of the development of the Blacktown property; and that the $200,000 loan was one that he agreed to take out in order to refinance the City Pacific Loan. 94In Mr Cicek's 30 September affidavit, he deposes to having signed the loan application for the Perpetual Loan and to the fact that he had no advice as to the risks of moneys being paid to Mr Tam and gave no direction for payment of the proceeds of the Loan to Mr Tam; and that Mr Solomon did not tell him the proceeds were to be paid to Mr Tam. The first time he said he learnt this was in March 2008 from his then solicitor, Mr Gillard. 95In Ms Tilli's September affidavit she deposes: that she can speak and understand English; as to her first meeting with Mr Solomon in 2001 in relation to her father-in-law's will; to her recollection that Mr Solomon was the solicitor dealing with most of the sales and purchases that her husband was involved with; that she agreed to the purchase of the Blacktown property; that she and her husband were not actively involved with the applications made to the council for development approvals or dealings with the architect (Mr Tam and his wife being involved in those); that her husband had told her when development approval was obtained for the Blacktown property; and that she had agreed to the NAB Loan to refinance the City Pacific Loan. She refers to a meeting at the Smithfield property in about December 2005 with Mr Tam and a lady who Mr Tam said was an employee of NAB, at which the NAB Loan documents were signed. 96Ms Tilli deposes that she was not advised by Mr Solomon or anyone else that the Blacktown property was being used as security for all amounts that NAB had advanced or paid to any and all of the four mortgagors; nor that it was to secure any and all moneys that the parties might borrow in the future; and that she was not aware of any liabilities that Mr Tam had with NAB ([20]). 97Ms Tilli says that she did not see the documents in relation to the increase in the NAB Loan facility ([21]); and that she had never signed a document consenting to the increase in the facility or as to the instructions for those funds to be deposited ([22]-[23]). 98Ms Tilli deposes to an attendance on Mr Gillard of Gillard Consulting in relation to the matter and making a complaint about Mr Tam to the police. Like her husband, she says that the first time she became aware that the Blacktown property had been sold was when Mr Gillard informed her in November 2009. She also deposes to being aware that the proceedings from sale were directed to Mr Tam to settle the other NAB debts in priority to the NAB Loan facility, though she does not state the basis for that awareness. 99The earlier witness statement of Mr Cicek contains broad assertions that Mr Solomon did not explain exactly what he was doing and that Mr Cicek did not understand what he was signing when he had to sign papers [21] and as to leaving the title deeds to the Gwandalan property with Mr Solomon (the latter not relating to any complaint made in the pleading). The statement refers to the construction loan for the Blacktown property and the refinance of the City Pacific loan. 100Ms Tilli's first witness statement is short. She said that at all times left matters concerning the buying of properties to her husband; that she had some minimal involvement in her husband's business affairs; and that she remembered Mr Tam and a lady coming to the Smithfield offices to help with "some paperwork". Paragraphs [8] and [9] were a plea for justice from failure "by negligence and fault to protect us from bad financial harm" and to give back what was lost by the defendants' negligence. 101NAB had served, but ultimately did not read in the proceedings below, an affidavit from Ms Yedgar, the banking business executive of NAB who had dealt with the parties (sworn on 9 May 2013) in relation to the NAB Loan and the increase in the facility. Relevantly, she said at [20] that Mr Tam had no facilities with the Bank (other than the car lease through another branch) at the time of the application for that facility and was not an existing customer of that branch. Ms Yedgar also deposed to a conversation with Ms Tilli in about mid-February 2008 in which the latter said she knew nothing about the increase in the facility and believed someone (perhaps her husband) had forged her signature. Ms Yedgar also denied ever meeting the appellants in Mr Tam's offices.

Respondents' submissions 102The respondents maintain that no error has been disclosed of the kind that would warrant appellate intervention. 103They point out that it has been recognised that the introduction of the Civil Procedure Act has led to a significant qualification to the procedural powers enforced by the Court (referring to Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]). 104It is submitted that nothing in the judgments to which the appellants refer required that his Honour expressly refer to ss 57 and 58 of the Civil Procedure Act and that his Honour's reasons disclose that his Honour was conscious of and took into account the relevant criteria imposed by ss 57 and 58. The respondents also point to his Honour's express acknowledgment at [20] that in the exercise of his discretion he must "endeavour to do justice to all parties". 105It is submitted that it is apparent from his Honour's reasons that the state of the appellants' evidence was a matter within his Honour's consciousness at the time that he made the relevant decision, since his Honour noted that a number of paragraphs had been excised from Mr Cicek's witness statement as a result of his earlier rulings and that Ms Tilli did not seek to rely on her earlier statement. 106The respondents maintain that no satisfactory reason was provided for the delay in serving the proposed further evidence and that the appellants have underestimated the delay that would have resulted and expense that would have been incurred had there been a need to investigate the case of forgery sought to be put forward in the further affidavits, given that Mr Solomon is deceased. 107Emphasis is placed on the fact that the application for further leave was made on the commencement of the hearing of the proceedings and after a history of delays and non-compliance by the appellants. It is noted that the plurality in Aon observed at [98] that an order for costs will not always provide sufficient compensation and therefore achieve a just resolution. 108In any event, it is submitted for both respondents that the September affidavits sought to be relied on would have led to no different determination of the rule 29.10 application. 109The first respondent points to the lack of evidence of the alleged fourth retainer and hence says that that part of the appellants' case against the first respondent could not have succeeded even if the further evidence had been admitted. As to the claim against the first respondent based on the third retainer (relating to the release of the Perpetual Loan funds directly to Mr Tam), it is submitted that the appellants' case faced the difficulty that there was evidence of a facsimile from Mr Solomon to Mr Cicek, prior to settlement of the transaction, stating that the balance of loan funds would be sent directly to Mr Tam in accordance with Mr Cicek's instructions. The first respondent nevertheless acknowledges that receipt of this was denied by Mr Cicek in his September affidavit (at [32]). 110As to the import of the proposed further evidence on the claims against NAB, it is noted that the allegations made against NAB (primarily in [83]-[88] of the statement of claim, as summarised earlier in these reasons) were premised on an allegation that there was a special relationship between NAB and Mr Tam and that NAB should have disclosed to the appellants Mr Tam's pre-existing liability under his loan facility with it. 111NAB maintains that the appellants' claim against it was fundamentally misconceived since there is no obligation on the part of a lender that would necessarily compel it to disclose the private business affairs of its other customers (including their financial obligations to the bank) and that such an assertion would be contrary to established authority (referring to Winterton). 112NAB points out that the pleaded allegation against it was that NAB did not advise the appellants of the existence of Mr Tam's facility at the time that the 5 December 2005 facility was established ([50]) and that NAB used its knowledge of Mr Tam's financial position to its own advantage when entering into the 5 December 2005 facility ([86]); whereas Mr Tam's facility was not established until 20 December 2005. Evidence as to the latter point was not, however, before the primary judge. 113Moreover NAB contends that any complaint or allegation of loss raised by the appellants (referable to the value of the Blacktown property) would have no basis since the net sale proceeds were used to discharge their outstanding liabilities under the 5 December 2005 facility. NAB points out that no evidence of loss was before the Court. 114Both respondents thus submit that even if the appellants had been permitted to rely upon the further evidence, the ultimate outcome would have been no different and therefore there has been no miscarriage of justice.

Consideration 115From a review of the transcript of proceedings on 8 October 2013, the following can readily be discerned. 116First, his Honour was conscious that there might be language difficulties and made enquiries of Mr Cicek before proceeding at that stage in the absence of an interpreter. Mr Cicek informed his Honour that he understood "some but not full" English and that his wife understood English. That is consistent with their evidence in their witness statements and in the further affidavits on which they unsuccessfully sought to rely. 117Second, his Honour was conscious of the fact that the appellants had no legal representation and endeavoured throughout the proceedings to ensure that they understood procedurally what was happening. 118Third, when ruling on the evidentiary objections to the earlier witness statements, his Honour first ascertained that they had been filed when the appellants were legally represented; then explained that the basis of the objections that had been taken to much of what Mr Cicek had said in his witness statement was that it was just not relevant to the proceedings and not in the proper form. His Honour then sought to ascertain from both Mr Cicek and Ms Tilli the perceived relevance of parts of the witness statement to which objection had been taken. 119His Honour did not take an overly technical view of the evidence; rather, he made clear that he was seeking to adopt a practical approach. I have already noted that his Honour permitted the general statement in [21] that Mr Cicek had not understood what Mr Solomon was saying to him at the time; another example is in the fact that his Honour permitted [22] to remain in the witness statement, which is a general description of Mr Solomon as an old man and to Mr Cicek's respect for him as an elderly man as a cultural matter. Counsel on the present application conceded the inadmissibility of much of the earlier witness statements. 120His Honour gave both Mr Cicek and Ms Tilli an opportunity to say anything they wished about particular paragraphs of Mr Cicek's witness statement to which objection was taken, in the course of which both made statements to his Honour, which his Honour quite properly seems to have treated as submissions not evidence. 121Fourth, when it came to Ms Tilli's witness statement, the only objection was to paragraphs [8] and [9]. That objection was on the basis that these were in the nature of submissions. That is clearly correct. His Honour asked Ms Tilli whether she wanted him to take into account that document and her answer was in the negative. 122Fifth, as to the further affidavits, his Honour explained the objections that had been made by the respondents to the grant of leave and asked what the appellants wished to say as to why the material was provided at such a late time. 123Sixth, when considering the rule 29.10 application, his Honour invited the appellants to say what they wished about their case. 124In light of the above, it is untenable for the appellants to submit, as Mr Glissan did, and grossly unfair to his Honour, that this was a "charade of justice". 125His Honour was faced with the position that for most of the proceedings, and up until 4 October 2013, the appellants had had the benefit of legal representation. It was not his Honour's role to advise the appellants as to the strengths or weaknesses of their case or as to the way in which their case might have been differently pleaded. Nor does the fact that they may have been incompetently or poorly represented by one or more firms of solicitors up to that point change that. 126His Honour's duty, faced with self-represented litigants, was as explained in Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unrep). There, Samuels JA said: In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. 127In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31, Beazley JA (as her Honour then was) again considered what was required of a trial judge in dealing with a claim presented by an unrepresented party. Her Honour, in the context of commenting as to the fact that a tribunal will frequently have to take affirmative steps to ensure that it understands the issues presented to it and that the applicant understands the nature of and limitations on its powers, at [149] referred to Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, where the High Court noted (at [5] 510) that: A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. 128Her Honour referred (at [150]) to the statement by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, in the context of a criminal trial, of the need for a trial judge to ensure that an unrepresented party understands the procedural options available to him or her. Clearly, there, what was being considered by Mason J in MacPherson (at 534) was the duty to ensure that an accused person has a fair trial, in the sense of procedural fairness. His Honour there said that "[t]o that end [the trial judge] is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial". Her Honour noted that the same principles were reiterated in King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at [95] by Kirby J. 129Her Honour also referred to Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [29] and Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [50]-[54] by Cowdroy J. 130None of those cases suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her. 131The further evidence, insofar as it is principally relied upon as raising the allegation of fraud, was not relevant to any of the claims as pleaded. It was not, for example, alleged that Mr Solomon or NAB had, or ought to have had any knowledge that the signatures on the relevant documents were forged (assuming for present purposes that the signatures were forged). 132The further evidence did not remedy the problems that were identified by the respondents as to the appellants' pleaded case against them. 133His Honour had regard to the need to determine the application for leave in relation to the further affidavits by reference, inter alia, to the interests of justice. In exercising his discretion in that regard, it was not necessary that he refer expressly to s 57 or 58 of the Act. A review of the further evidence sought to be relied upon makes it clear that no miscarriage of justice has been suffered by reason of the fact that leave was not granted for that evidence to be relied upon. It did not remedy the defects of proof in relation to the appellants' pleaded case. 134The fundamental complaint now made by the appellants is that they were self-represented (and had been poorly represented to that point) and that his Honour should have given them an opportunity to go away and re-plead their case and then serve further evidence in support of that re-pleaded case. That complaint is not reflected in the sole ground of appeal raised in the notice of appeal. Nor was any submission made to his Honour by the appellants (or, on 4 October 2013, by their outgoing legal representatives) that the case should be adjourned in order to permit them to obtain the assistance of yet further legal representatives to run and/or amend their case. The question of the appellants representing themselves was ventilated by his Honour with Mr Cicek on 4 October 2013, when his Honour was considering the application by the respondents for the dismissal of the proceedings at that stage. 135Furthermore, it is apparent from even a cursory review of the material before this Court (see in particular Blue 3/269 but also the material at Blue 3/272; Blue 3/410) that Mr Cicek has previously had legal advice as to whether there was a potential claim for fraudulent misappropriation of funds (and had made allegations of forgery) as Iong ago as April 2008. He was provided with advice from his first solicitor in 2008 that it would be very difficult for him to prove fraud by forgery without the support of an expert and that: It is most unlikely that Mr Tam participated in any fraud to the knowledge of Mr Solomon (if there was indeed fraud). You have admitted that you signed documents provided to you by Mr Tam without keeping records of what documents were signed. 136This Court was not taken to that particular piece of correspondence or to other of the legal advices which addressed the claims or potential claims the appellants had or might have. Presumably, a forensic decision was made not to plead the kind of case that it is now said his Honour should have adjourned the hearing to permit be pleaded. This illustrates the difficulty inherent in the submission that it was the duty of the primary judge in effect to give advice as to how the appellants should plead their claim and to adjourn the final hearing of the matter to permit them to do so. 137There can hardly have been an injustice in his Honour not taking the course it is now suggested he should have done when his Honour was not privy to any advice that might or might not earlier have been given to the appellants as to any claim in fraud or any forensic decisions that might earlier have been made; this is particularly the case when it appears that such advice had in fact been obtained as early as April 2008 and was seemingly being re-iterated as late as 2010/2011. 138While there is certainly room for concern as to the quality of the pleading and the preparation of the evidence having regard to what the pleaded claims were, and as to the timeliness of the preparation of that evidence, for which it seems the appellants were charged not inconsiderable fees, I am not persuaded that there was any error on his Honour's part that warrants appellate intervention on the House v R test. 139Nor am I persuaded that even if it might be said (though this was not in substance the complaint ultimately made) that his Honour should have analysed in more detail in his written reasons the nature of the further evidence and how it might have supported the appellants' case, when determining the potential injustice to the appellants of a denial of leave to rely upon that evidence, there was any miscarriage of justice occasioned thereby which would warrant the matter being remitted to the Court below. The further evidence did not, at its highest, warrant a conclusion that there was a reasonably arguable case as pleaded. 140It was not necessary for his Honour to recite some formulaic reference to s 57 of the Civil Procedure Act. This was a short judgment dealing with an interlocutory ruling. The admonition by Mason P in Maviglia v Maviglia [1999] NSWCA 188 at [1] (against "picking over" ex tempore judgments) is not inapt in this case. His Honour clearly had in mind the need to have regard to the interests or dictates of justice, when considering whether to grant leave to rely upon the further evidence. If this Court were to re-exercise the discretion of which complaint is made, the dictates of justice, as that expression is used in s 58(1) of the Act, would in my opinion be best served by dismissing the appeal. The further evidence does not disclose that the appellants have a reasonably arguable claim as pleaded. Accordingly, the objective of the just determination of the proceedings (s 57(1)(a)), is best served by dismissing their appeal.

Conclusion 141For the reasons set out above, the appeal should be dismissed with costs. A direction should be made that the executor or administrator of the estate of the late Mr Solomon be substituted as the first respondent in the present proceedings, assuming that probate has been granted or letters of administration taken out. Otherwise, a representative should be appointed pursuant to rule 7.10 of the UCPR as the first respondent to the appeal. The solicitors on the record for the first respondent should provide the relevant details, and consents, to my associate in order to enable that change to be effected on the Court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2014

Court Procedure Act 2005(NSW)

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

Judgment 1MEAGHER JA: I agree that this appeal should be dismissed with costs for the reasons given by Ward JA. I also agree with the direction that her Honour proposes be made to regularise the position in relation to the parties to the appeal. 2BARRETT JA: The orders proposed by Ward JA should be made for the reasons her Honour gives. As those reasons show, Bellew J made all due allowance for the difficulties faced by the appellants as unrepresented litigants and dealt with their application concerning the September affidavits carefully, comprehensively and in a fair way calculated to promote the just, quick and cheap resolution of the real issues in the case. 3WARD JA: In 2011, Mr Cicek and his wife, Ms Tilli, commenced proceedings in the Common Law Division of the Supreme Court. The named defendants were "The Estate of the Late Mark Solomon" and National Australia Bank Limited (NAB). 4As to the named first defendant, there is no such legal entity. The proper defendant (and respondent in the present proceedings), assuming that probate has been granted or letters of administration issued, should have been the executor or administrator of the late Mr Solomon. If a grant of probate or letters of administration had not been made at the relevant time, the appropriate course would have been to make an application under rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the appointment of a personal representative in order to conduct the defence of the proceedings pending the grant of probate or administration of the estate. 5No issue seems to have been taken with this during the course of the proceedings below. It appears from some of the correspondence in the Court Book that the parties may have proceeded on the basis that the conduct of the defence of the proceedings would be assumed by the relevant insurer of the late Mr Solomon's legal practice. Whatever may be the case in that regard, it is appropriate for the Court record to be corrected to reflect the proper party in that regard, particularly where an order for costs may need to be enforced by the first respondent. 6In the Common Law Division proceedings, Mr Cicek and his wife alleged that Mr Solomon, a solicitor, had been retained by them in relation to certain property transactions and that he was negligent and had breached fiduciary duties owed to them. Their claim against NAB was for unconscionable conduct in relation to their entry into a loan facility in connection with one of the relevant property transactions. They had initially joined another party to the proceedings, Mr Tam (who is now deceased), a friend who they alleged had acted as a mortgage broker in facilitating various loans and with whom they had purchased one of the properties. They abandoned the claim against Mr Tam at some stage prior to the events in question in the present appeal. 7Although Mr Cicek and his wife had been advised by a series of firms of solicitors from April 2008 and appear also to have had the benefit of some preliminary advice from Counsel in 2010 before the commencement of proceedings, by the time of the hearing they no longer had legal representation. This was due, it seems, to their failure or inability to make provision for the legal costs of the hearing. At the hearing, they sought leave to rely upon further evidence, being four affidavits that had been served on their behalf the week before the hearing (the September affidavits). The primary judge refused to grant such leave (Cicek v The Estate of the Late Mark Solomon (No 2) [2013] NSWSC 1479). 8After ruling on the admissibility of the appellants' evidence, an application was made by each of the respondents pursuant to rule 29.10 of the UCPR for the entry of judgment in their favour on the basis of want of evidence. His Honour held that, even taken at its highest, the evidence adduced by Mr Cicek and his wife fell substantially short of supporting any cause of action pleaded in the statement of claim (Cicek v The Estate of the late Mark Solomon (No 3) [2013] NSWSC 1492). 9Mr Cicek and his wife have appealed from the decision of his Honour to enter judgment against them on the ground that the interlocutory decision of his Honour, refusing to grant leave for them to rely on the further evidence, was wrong (see Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [5]). 10The sole ground of appeal is that his Honour erred in law in refusing the appellants leave to rely upon the further affidavits in that such refusal "did not facilitate the just resolution of the real issues in the proceedings". It is not contended that, without the further evidence, the conclusion reached by his Honour on the respondents' rule 29.10 application was in error. 11The appellants seek to set aside the final judgment in this matter and orders granting them leave to file further evidence in the proceedings below and for the matter to be remitted to the court below for further directions, including the allocation of a new hearing date. Pursuant to rule 51.53 of the UCPR, this Court must not remit the matter for a new trial, even if persuaded that his Honour did err in rejecting the further evidence, unless satisfied that a substantial wrong or miscarriage of justice was occasioned as a result of that error. See also Gerlach at [7].

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