Ishak Cicek and anor. v The Estate of the Late Mark Solomon and ors.

Judgment (EX-TEMPORE) 1These reasons follow a series of applications made in these proceedings on 4 October 2013. 2The proceedings arise out of a series of property transactions and loans entered into by the plaintiffs. The nature of the proceedings is more fully set out in the judgment of McCallum J (see Cicek v The Estate of the Late Mark Solomon [2013] NSWSC 1348). On that occasion, her Honour dismissed an application made by the first defendant for dismissal of the plaintiffs' proceedings. 3On that occasion, her Honour made a number of consequential orders which were designed to ensure that the matter would be ready for hearing commencing on 8 October 2013. One of those orders required the plaintiffs to provide verified lists of documents by 23 September 2013. . 4Following the making of those orders, the plaintiffs terminated the retainer of their then solicitor. That solicitor was the second solicitor to have been retained by the plaintiffs (the retainer of the first having been apparently terminated some short time before the matter came before her Honour). 5When the retainer of the plaintiff's second solicitor was terminated, the first defendant brought the matter back before her Honour. On that occasion, her Honour ordered that in the event of a failure on the part of the plaintiffs to comply with any order previously made, the proceedings would be automatically dismissed. 6After I was allocated the matter for hearing, the first defendant had the matter re-listed for the purpose of, in effect, invoking the self-executing orders which had been made by McCallum J. In support of its position the first defendant relied upon an affidavit of Steven Mark Lurie of 2 October 2013, along with the documents exhibited thereto. 7One complaint made by the first defendant was that although verified lists of documents had eventually been provided by the first and second plaintiffs, the list provided by the second plaintiff was not provided within the time ordered by her Honour. However the more substantive issue raised by the first defendant was that the verified lists which had been provided did not constitute complete discovery. 8In advancing this position, counsel for the first defendant made reference to a number of documents which, in counsel's submission, were known to exist but which had not been discovered. Counsel also pointed out that in circumstances where the first defendant was the estate of a deceased solicitor, and in circumstances where another relevant party was also deceased, the first defendant relied upon the process of discovery to a greater extent than might otherwise be the case, so as to properly prepare its case for hearing. 9All of that said however, and upon inquiry from me, counsel for the first defendant did not submit that the asserted deficiencies in discovery prejudiced the first defendant to the point where the hearing could not proceed on 8 October. 10Mr McKeand SC, who appeared for the plaintiffs, submitted (on instructions) that the plaintiffs had discovered all of the documents which were in their possession or under their control. He frankly acknowledged the existence of other documents, but informed me that he was instructed that such other documents as might exist were not in the possession, or under the control, of the plaintiffs. He submitted that in these circumstances the plaintiffs had complied with their obligations as to discovery. 11I observed at that time that in the absence of anything being put to the contrary, I proposed to proceed on the basis that what senior counsel had put from the bar table was accurate. Counsel for the first defendant did not make any submission that a contrary approach should be adopted. In those circumstances, I took the view that it was not appropriate in the exercise of my discretion to dismiss the proceedings as the first defendant had sought. 12In coming to that decision I had regard to the fact that the first defendant did not point to any specific prejudice in being able to proceed with the hearing on 8 October. I also took into account a number of matters which were the subject of comment by McCallum J in her earlier judgment, including the fact that the plaintiffs had apparently paid a significant sum to a former solicitor, in circumstances where the magnitude of the sum paid did not appear to be reflected in the work done. I concluded that to dismiss the proceedings in those circumstances would be somewhat draconian. 13When I had communicated my decision to the parties Mr McKeand sought leave, pursuant to r. 7.29(2) of the Uniform Civil Procedure Rules, to file a notice of ceasing to act. He also sought leave to file an affidavit of Agita Antoon, solicitor, of 2 October 2013. After I had provided counsel for each of the first defendant and the third defendant with an opportunity to read that material, they each indicated that there was no objection to it. No submissions were made in opposition to the order which was sought by Mr McKeand. 14The affidavit of Ms Antoon disclosed that she had been acting for the plaintiffs since about 22 September 2013. Annexed to her affidavit was a copy of her costs agreement which had been executed by both plaintiffs and which made provision for an initial payment of $19,000 on account of costs and disbursements, and a further payment of $50,000 by 3 October 2013. Ms Antoon deposed to the fact that the first amount had been paid but the second had not. Specifically, in paragraph 5 of her affidavit, she deposed to a conversation with the first plaintiff, the effect of which was that he had advised her that he would be unable to pay the second of the amounts for which provision was made in the costs agreement. Ms Antoon informed the first plaintiff at that time that in those circumstances her firm would not be able to act in the matter any longer. 15In support of the order sought Mr McKeand referred me to a decision of Gzell J in Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171. In that case his Honour (at [14]) observed (by reference to the annotations to r. 7.29 appearing in Ritchie's Uniform Civil Procedure New South Wales) that there is authority for the proposition that a failure by a client to provide funds to cover disbursements is good cause for the termination of a retainer (see Wadsworth v Marshall (1832) 2 Cr & J 665, Robins v Goldingham (1872) LR 13 Eq 440; Warmingtons v McMurray [1937] 1 All ER 652). 16In these circumstances, and absent any submissions to the contrary from the first or the third defendants, leave was granted to Ms Antoon to file a notice of ceasing to act. 17When the decision to grant leave to Ms Antoon was communicated to the parties, counsel for the first defendant then made a further application for the dismissal of the proceedings. As had been the case with the earlier application, the first defendant's position was supported by the third defendant. 18In making that application, counsel for the first defendant relied not only on the inadequacy of discovery which was relied upon in support of the first application, but also upon the withdrawal of the plaintiffs' legal representatives. 19The first plaintiff, who appeared before me representing himself, indicated to me that he had paid a substantial sum of money to his previous solicitors. That, of course, was evident from the material which was already before me, and was a matter to which McCallum J had specifically referred in her earlier judgment I inferred that the first plaintiff may be putting to me that to dismiss the proceedings in those circumstances would be unfair. That was a matter I had taken into account when determining the first application. 20I inquired of the first plaintiff whether he proposed to proceed in the matter by representing himself and he indicated to me that he did. Although the second plaintiff was not present, I assumed that this was her intention as well. 21In response, counsel for the first defendant drew my attention to the fact that if the matter were to proceed to hearing I would be called upon to decide an issue of whether the plaintiffs should have leave to rely upon further affidavit material. As I understood it, that submission was put as a further basis in support of the application that the proceedings be dismissed. 22Having considered the matter I came to the view that the further application that the proceedings be dismissed should also be refused. To the extent that reliance was placed in support of that application on the inadequacy of the plaintiffs' discovery, that position was somewhat misconceived. I had already taken that matter into account in determining the first of these applications, and nothing had occurred in the intervening period which altered the position in that regard. 23The catalyst for the further application to dismiss the proceedings was the change in the plaintiffs' representation. The question of whether or not the plaintiffs are represented did not bear upon the question of whether the proceedings should be dismissed, nor did the question of whether the plaintiffs should be granted leave to rely upon further affidavit material. 24Whilst is it unfortunate, from a number of points of view, that the plaintiffs will not be represented at the hearing, that fact, be it alone or in combination with the other factors which were relied upon, does not warrant the proceedings being dismissed. 25Accordingly, the further application for dismissal of the proceedings brought by the plaintiffs is dismissed. 26The trial date of 8 October 2013 is confirmed.