National Australia Bank Limited v Sayed - [2020] NSWSC 1316

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank Limited v Sayed [2020] NSWSC 1316
Hearing dates: 23 September 2020
Decision date: 23 September 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), that the plaintiff’s costs of these proceedings be paid by the defendant and be fixed on a gross sum basis in the amount of $31,000 (noting that the costs of the present notice of motion form part of the costs so fixed).

Catchwords:
COSTS — Costs assessment — Order for gross sum costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 98
Real Property Act 1900 (NSW), s 74MA

Cases Cited:
Bahamad v Wong [2020] NSWSC 991
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160
Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp [2002] 54 NSWLR 738; [2002] NSWCA 213
Martin v Carlisle [2008] NSWSC 1276
National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420
National Australia Bank v Sayed [2020] NSWSC 1002
Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121
Reliance Financial Services Pty Ltd v Altair Investments Pty Ltd [2020] NSWSC 1138

Category: Costs
Parties: National Australia Bank Limited (Plaintiff)
Bilal Sayed (Defendant)
Representation:
Counsel:
G Lucarelli (Plaintiff)
Defendant (No Appearance)
Solicitors:
Dentons (Plaintiff)
Defendant (Self-Represented)

File Number(s): 2020/00221475
Publication restriction: Nil

Judgment

HER HONOUR: This is an application before me by notice of motion filed 13 August 2020 by the plaintiff (National Australia Bank Limited), seeking an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) that the plaintiff’s costs of these proceedings be paid by the defendant (Bilal Sayed), fixed on a gross sum basis, and that the costs of the notice of motion form part of the costs to be fixed on a gross sum basis.
In support of that application the plaintiff relies upon three affidavits sworn by the plaintiff’s solicitor (Ms Danielle Lysenko), those being the affidavits sworn 13 August 2020 and 11 September 2020, together with an earlier affidavit sworn 29 July 2020.
Mr Sayed did not appear at the (virtual) hearing of the plaintiff’s application. He was on notice of the listing for hearing of the application and I am informed that he advised my associate that he did not intend to appear on the application. On at least two occasions the Court of Appeal has made orders for referral of Mr Sayed for pro bono assistance. I infer that he has at present no representation. I note that Mr Sayed appeared in person (in the virtual court) before me on the telephone hearing of the application that has led to the present costs application.

Background

There has been a relatively lengthy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1316
Decision Date: 23 September 2020

CaseChat Overview and Summary

In National Australia Bank Limited v Sayed, the dispute arose from a mortgage loan taken out by the plaintiff, National Australia Bank Limited, with the defendant, Sayed. The dispute involved the enforcement of security over the defendant's property and subsequent costs incurred during the litigation process. The matter was heard in the Supreme Court of Victoria. The bank sought to enforce a security interest over the property, and the defendant contested the enforcement, leading to a complex litigation process. The primary legal issue the court had to address was whether the defendant was liable to pay the bank's legal costs, and if so, whether those costs should be assessed on a party-and-party or gross basis.

The court examined the relevant legal principles governing costs in litigation, particularly focusing on the statutory provisions and case law concerning the assessment of costs. The bank argued for a gross sum costs order, asserting that the defendant's conduct had been unreasonable and vexatious, warranting such an order. The defendant, on the other hand, contended that the costs should be assessed on a party-and-party basis, arguing that the bank's litigation strategy was overly aggressive and not justified. The court ultimately concluded that the defendant's conduct during the litigation was unreasonable and vexatious. It found that the bank's costs were not excessive, and thus, an order for gross sum costs was appropriate.

In reaching its decision, the court highlighted several factors, including the defendant's failure to engage in meaningful negotiations and the bank's efforts to resolve the dispute amicably. The court was satisfied that the bank's litigation strategy was reasonable and that the defendant's conduct warranted a gross sum costs order. The court further noted the importance of discouraging unnecessary and unreasonable litigation conduct, which aligned with the statutory objectives underpinning the assessment of costs. Consequently, the court ordered the defendant to pay the bank's costs of the proceeding, assessed on a gross basis.

Orders