Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank v Sayed (No. 5) [2016] NSWSC 669 Hearing dates: 13 May 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) The First Defendant’s Notice of Motion filed 4 March 2016 is dismissed
(2) The First Defendant is to pay the Plaintiff’s costs of the Motion.Catchwords: PROCEDURE – amendment – application to amend cross-claim – cross-claimant previously represented – proposed cross-claim drafted by cross-claimant acting for himself – failure to comply with rules for amendment – attempt to reintroduce matters expressly abandoned previously – attempt to plead matters previously determined in the proceedings adverse to the cross-claimant – res judicata - Anshun estoppel
DISCOVERY AND INTERROGATORIES – claim for client legal privilege – implied waiver – Evidence Act 1995 (NSW) s 122 – whether inconsistency between pleading and maintenance of confidentiality – no waiver demonstratedLegislation Cited: Australian Securities And Investments Commission Act 2001 (Cth)
Civil Procedure Act 1995 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Sayed v National Australia Bank Limited [2013] NSWCA 304
Telstra Corporation Ltd. v. BT Australia Pty. Ltd. (1998) 85 FCR 152; 156 ALR 634
Wayne Lawrence Pty. Limited v. Hunt & Ors. t/a Hunt Musgrave & Peach [1999] NSWSC 1044Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff)
Bilal Sayed (Cross-Claimant)Representation: Counsel:
Solicitors:
G Lucarelli (Plaintiff/Cross-Defendant)
M R Hall SC (Cross-Claimant)
DibbsBarker (Plaintiff/Cross-Defendant)
Direct access (Cross-Claimant)
File Number(s): 2010/135614
Judgment
-
The First Defendant, Bill Sayed, by a Notice of Motion filed 4 March 2016 seeks leave to file what in substance is a further amended cross-claim (“the proposed cross-claim”) and seeks the supply of unredacted versions of certain bank documents.
Background
-
On 21 June 2006, NAB advanced two loans to Mr and Mrs Sayed. NAB took as security a first registered mortgage over a vacant property in Corrimal (“Corrimal property”) and a first registered mortgage over Mr and Mrs Sayed’s residential home at Woonona.
-
On or about 1 October 2008, Mr and Mrs Sayed went into default under both loans. In May 2009, NAB took possession of the Corrimal property and subsequently sold it. The proceeds of the sale were insufficient to discharge the amount still outstanding on the secured debt.
-
By a Statement of Claim filed 28 May 2010 and subsequently amended on 3 February 2011, NAB claimed judgment for possession of the Woonona property, leave to issue a writ of possession to enforce such judgment and judgment for the sum of $488,881.32, together…
Keep reading for free
Create a free CaseChat account to read National Australia Bank v Sayed (No. 5) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] NSWSC 669
- Decision Date
CaseChat Overview and Summary
In addressing the issues, the court noted that Sayed's application to amend the cross-claim did not comply with the rules for amendment. The proposed amendment sought to reintroduce matters that had been expressly abandoned and to plead issues that had already been determined in the proceedings against Sayed. The court found that such an attempt was not permissible under the doctrine of res judicata and Anshun estoppel. Furthermore, the court held that there was no inconsistency between the pleadings and the maintenance of confidentiality, and therefore no implied waiver of client legal privilege had occurred. The court found that the principles of client legal privilege remained intact, as there was no evidence of an implied waiver under s 122 of the Evidence Act 1995 (NSW).
The court dismissed the application to amend the cross-claim, ruling that it did not comply with the necessary procedural requirements and that it sought to reintroduce matters that had been expressly abandoned. Additionally, the court found that Sayed's proposed cross-claim attempted to plead matters that had already been determined in the proceedings against him, which was not permissible under the doctrine of res judicata and Anshun estoppel. The court further held that there was no implied waiver of client legal privilege demonstrated by Sayed. The final orders of the court were that the application to amend the cross-claim was dismissed, and the cross-claim remained in its original form.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.