National Australia Bank v Sayed (No. 5) - [2016] NSWSC 669

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 demonstrated
Legislation 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 1044
Category: Procedural and other rulings
Parties: National Australia Bank Ltd (Plaintiff)
Bilal Sayed (Cross-Claimant)
Representation:
Counsel:
G Lucarelli (Plaintiff/Cross-Defendant)
M R Hall SC (Cross-Claimant)
Solicitors:
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…

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: [2016] NSWSC 669
Decision Date: 27 May 2016

CaseChat Overview and Summary

The case before the court involved a dispute between the National Australia Bank and Sayed. The nature of the dispute was focused on an application by Sayed to amend a cross-claim he had made in the proceedings. Sayed had previously been represented by legal counsel, but the proposed cross-claim had been drafted by Sayed acting for himself. The court was tasked with deciding whether the application to amend the cross-claim complied with the rules for amendment, whether it attempted to reintroduce matters that had been expressly abandoned previously, and whether it sought to plead matters that had been previously determined in the proceedings against Sayed's interests. Additionally, the court had to consider whether there had been an implied waiver of client legal privilege under the Evidence Act 1995 (NSW).

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