National Australia Bank v Sayed (No. 11)
[2018] NSWSC 181
•23 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank v Sayed (No. 11) [2018] NSWSC 181 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. Cross-Claimant’s Notice to Produce dated 20 February 2018 is set aside.
2. Cross-claimant’s oral application re non-compliance with notices to produce is dismissed.
3. Cross-Claimant to pay costs Plaintiff’s costs of 23 February 2018 on an indemnity basis.
4. Order that the cross-claimant is not to file or serve any further documents without leave from Davies J or a judge of the Court.Catchwords: PROCEDURE – discovery and interrogatories – Notices to Produce – alleged non-compliance – party asserting non-compliance fails to identify documents or types of documents not produced – no non-compliance demonstrated – application dismissed Cases Cited: National Australia Bank v Sayed (No. 10) [2018] NSWSC 108 Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff/Cross-Defendant)
Bilal Sayed (Cross-Claimant)Representation: Counsel:
Solicitors:
G Lucarelli (Plaintiff/Cross-Defendant)
In person (Cross-Claimant)
DibbsBarker (Plaintiff/Cross-Defendant)
Self-represented (Cross-Claimant)
File Number(s): 2010/135614 Publication restriction: Nil
Judgment
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On 15 February 2018 I delivered judgment on a Notice of Motion filed by Mr Sayed on 28 November 2017, National Australia Bank v Sayed (No. 10) [2018] NSWSC 108. One of the prayers in that Notice of Motion was for leave for Mr Sayed to issue a subpoena to DibbsBarker, the solicitors for the Bank, and another subpoena to a company called Allmain Pty Ltd.
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In my judgment I refused leave for the issue of the subpoena to Allmain for the reasons I there gave. In short I did not consider that there was any issue on the pleadings concerning Allmain. I also refused leave for Mr Sayed to issue the subpoena to DibbsBarker on the bases that four Notices to Produce had been served by him and his solicitors at various times seeking similar or identical production of documents.
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When that motion was before me for hearing, it was ascertained that Mr Sayed sought to issue a subpoena to DibbsBarker because he maintained that there had not been proper and complete production of documents required in the four Notices to Produce. In my judgment I said that it was not appropriate to issue a subpoena to deal with an issue of non-compliance of an earlier subpoena or Notice to Produce. Accordingly, the issue of the asserted non-compliance was listed for hearing before me today. I directed that Mr Sayed was to notify the Bank what documents he said had not been produced, and the Bank could thereafter respond. That was an attempt to narrow the issues to be determined today.
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Mr Sayed sent an e-mail on 20 February 2018 which purported to comply with that direction. There were only three specific complaints. The first was that there had not been production of the MERC journal that was ultimately obtained in about 2015. That, however, was a matter which has passed into history for present purposes because that journal has been produced and, as Mr Sayed asserts, it is one of the most significant documents in the proceedings.
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The second concerned documents in relation to Allmain Pty Ltd. I held in my judgment of 15 February that those documents are not relevant and should not be produced.
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The third concerned a letter from the Bank to Richard Taylor of 22 February 2010. Mr Taylor was a business partner of Mr Sayed who was an owner with him of the Corrimal land. That document has been located by the Bank, although at this stage the Bank does not know if it has already produced this document The letter has now been produced. It does not, in any event, appear to me to have any relevance to the issues in the proceedings.
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On 21 February DibbsBarker forwarded an e-mail to Mr Sayed saying that they were having difficulty identifying the documents that he asserted the Bank had not produced that it ought to have produced in answer to the Notices to Produce. The e-mail asked him to provide them with a list of documents or types of documents in the Bank's possession which had not been produced. Mr Sayed said that he believed that he responded to that e-mail by identifying the documents. The Bank says it did not receive that e-mail in reply and certainly it was never copied to my associate as earlier e-mails had been.
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On 20 February, and in the face of admonitions I had given to Mr Sayed that he was not to file or serve documents without my leave because the proceedings were being case managed by me, he served yet another Notice to Produce on the Bank. That document required production of the following documents:
You are required to produce the following documents or things for inspection by the cross claimant by 5 March 2018.
1. All documents not already produced by NAB and concerned with, evidencing or relating to the possession, marketing, sale and transfer of the property 267 to 273 Rothery Road, Corrimal, New South Wales being the land formerly referred to in Certificate of Title Folio Identifier 4/804963 and B/398475, and from about 28 December 2006, Folio Identifier 41/1106335 and 42/1106335 and any improvements to the land ("Corrimal");
a. files kept by National Australia Bank Limited;
b. files kept by Dibbs Barker;
c. files kept by ALLMAIN (sic)
Mr Sayed says now that the documents he identified in his reply to DibbsBarker’s e-mail of 21 February are the documents identified in this Notice to Produce of 20 February 2018.
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One of the groups of documents that that Notice to Produce requires are files kept by Allmain. Otherwise the Notice to Produce requires the production of documents by the Bank “not already produced” in answer to the earlier Notices to Produce. This is not the identification of particular documents for a non-compliance application. As I noted in my judgment at [55], the Bank has a continuing obligation, as it has acknowledged in e-mails, to produce any further documents it finds in response to Notices to Produce already served.
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Mr Sayed is not able to point to any other particular document or group of documents that he says have not been produced by the Bank. He has focused on the MERC journal. He says in that regard that the failure of the Bank to produce it at an earlier time probably disadvantaged him in the settlement of the part of the proceedings not concerned with the sale of the Corrimal land. That is not anything I can deal with on the present application or, indeed, at all.
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In my opinion Mr Sayed has not identified any particular documents which the Bank failed to produce that it ought to have produced. Accordingly, the present application is dismissed. The Notice to Produce dated 20 February 2018 is set aside. I reiterate that Mr Sayed is not to file or serve any documents not authorized by me in these proceedings or by a judge of this court if I am not available.
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The Bank sees indemnity costs.
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This was a hopeless application. When I gave judgment refusing Mr Sayed leave to issue the subpoenas, the following exchanges took place between Mr Sayed and me:
Mr Sayed, I have refused you the right to issue the two subpoenas you have asked for, but I have noted what you have said in your email on Monday where you say there has not been full compliance with the existing notices to produce. If you want to press that matter, you will need to bring the matter back before me with some evidence to justify why you say there has not been full compliance. It is not a matter of speculating about there might be documents that they haven't produced. I need to have some sort of evidence that in fact there has been a failure to comply.
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DEFENDANT: Yes I already have the folders itemised with all the documents that they provided. All I have to do is organise a schedule and just identify where the documents came from, then I can just show your Honour that they didn't comply.
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HIS HONOUR: I think what I should require Mr Sayed is to do is to provide a list to Dibbs Barker of the documents, or a description of the type of documents that he says have not been produced in answer to the existing notices. You can then look at that. If you want to argue that they are irrelevant to the issues, then that can be done.
LUCARELLI: That would be suitable, your Honour.
HIS HONOUR: Mr Sayed, I think in the first instance you ought to send a letter or email to the bank telling them what the documents are that you say were required to be produced in the notices you issued, and that have not been provide.
DEFENDANT: I will do that this afternoon.
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Mr Sayed could not have been in any doubt about what was required of him. Instead, the approach he took in that improperly issued Notice to Produce of 20 February 2018 and today was simply to ask for any documents that the Bank had not already produced. I had already ruled against him on documents relating to Allmain. The complaint about the MERC journal was entirely misconceived.
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Mr Sayed should pay the costs of today on an indemnity basis.
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Decision last updated: 23 February 2018