National Australia Bank v Sayed (No. 6)

[2016] NSWSC 1253

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253

Hearing dates:

5 September 2016

Date of orders:

13 September 2016

Decision date:

13 September 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Leave is given to the First Defendant to file a Further Amended Cross-Claim in the form contained behind Tab 1 of the Court Book omitting paragraphs 25, 26, 27, particulars (i), (l) and (m) under paragraph 42 and the words “(and Mrs Sayed’s interests)” in paragraph 42;

 

(2) The Further Amended Cross-Claim is to be filed within 14 days;

 (3) The First Defendant is to pay the Plaintiff’s costs of the application and the costs thrown away by reason of the amendment.

Catchwords:

PROCEDURE – amendment – further application to amend cross-claim – claim by mortgagor against mortgagee for exercise of power of sale – application to plead a further basis for breach of mortgagee’s duty – breach if established would give mortgagee right against third parties – mortgagee out of time for bringing third party actions – mortgagee aware of facts forming basis for further claim for previous four years – no explanation for delay in seeking to amend – Civil Procedure Act s 58 – not just and reasonable to permit amendment

 

LIMITATION OF ACTIONS – third party claims – third party not joint tortfeasors with defendant – Limitation Act 1969 – inter-relationship between ss 26 and 74 – whether defendant barred from making third party claim

  LIMITATION OF ACTIONS – postponement of the bar – fraud or mistake – third party claim by defendant for negligence and breach of contract - assertion of fraud or mistake on third parties’ part by plaintiff – defendant not claiming fraud or mistake – negligence not equated with mistake – no postponement of the bar

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australia and New Zealand Banking Group Ltd v Pola [2013] NSWSC 1801
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Creevey v Barrois [2005] NSWCA 264
Hillebrand v Penrith Council [2000] NSWSC 1058
National Australia Bank Ltd v Sayed (No 4) [2015] NSWSC 420
National Australia Bank v Sayed (No. 5) [2016] NSWSC 669
Nelson v Wyong Shire Council (1989) 68 LGRA 164
Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289
Sinclair v Registrar-General [2010] NSWSC 173
Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254

Category:

Procedural and other rulings

Parties:

National Australia Bank Ltd (NAB)
Bilal Sayed (Cross-Claimant)

Representation:

Counsel:
G Lucarelli (NAB/Cross-Defendant)
In person (Cross-Claimant)

  Solicitors:
DibbsBarker (NAB/Cross-Defendant)
Self-represented (Cross-Claimant)

File Number(s):

2010/135614

Judgment

1. On 27 May 2016 I dismissed the First Defendant’s Notice of Motion filed 4 March 2016 which sought leave to file a further amended cross-claim: National Australia Bank v Sayed (No. 5) [2016] NSWSC 669. I indicated that the First Defendant, Mr Sayed, would not be prevented from filing a further amended cross-claim provided that it was consistent with my judgment and properly pleaded. Mr Hall SC who then appeared for Mr Sayed asked for two weeks to serve the form of a further amended cross-claim that would be sought to be filed. Mr Lucarelli of counsel for the Plaintiff, NAB, was then to have two weeks in which to consider the form of the pleading and to indicate whether there would be objection to its being filed.

2. When the matter returned to Court for directions on 24 June 2016 counsel for NAB said that NAB opposed the proposed further amended cross-claim being filed. Directions were given for the service of affidavits in respect of the further application by Mr Sayed to file the proposed further amended cross-claim and for the service of written submissions. The application was then adjourned to 5 September 2016 for hearing. It should be noted that I did not require Mr Sayed to file a further notice of motion. For clarity I note that Mr Sayed’s application was to file and serve the Further Amended First Cross-Claim that appears behind Tab 1 in the Court Book handed up at the hearing of the application on 5 September 2016.

3. The issue on the proposed pleading concerned claims made in relation to part of the Corrimal land being landlocked. The background is set out in Sayed (No 5).

Landlocked land

4. NAB entered into an Agreement for the Provision of Property Management Services with Mattisam Pty Ltd t/as Mortgage and Estate Realisation Company (MERC) on 22 October 2001. On 20 October 2009 MERC as Principal appointed MMJ North Corrimal on behalf of National Australia Bank as marketing agent for the Corrimal land.

5. The Corrimal land over which NAB had taken a mortgage was sold pursuant to that mortgage on 19 February 2010 to Realta Enterprises Pty Ltd for $545,545.45. Settlement took place on 4 April 2010. The land was subdivided into lots 41 and 42. Lot 41 had street frontage to Rothery Street. The western boundary of both lots 41 and 42 abutted residential properties for its entire length. The eastern boundary of lot 42, which ran in a north easterly direction, abutted the Northern Distributor freeway. The only access to lot 42 was over a right of way from Rothery Street seven and half metres wide. It was necessary thereafter to traverse a natural water course running through lot 42 over which there was an old bridge.

6. NAB does not dispute that from the point of view of legal title lot 42 was not landlocked. Rather, it says it was developmentally and effectively landlocked because its only access was the old bridge and that there was a DA, being DA 2005/1520 for remedial work on the watercourse (and the bridge), which expired 14 March 2011. NAB asserted that no work had been done pursuant to that DA within 12 months of its approval with the result that another DA dependent on DA 2005/1520 was at risk.

7. An email from MMJ to MERC dated 10 December 2009 should be set out so that a full understanding of NAB’s position can be understood. It relevantly reads:

The site is not a straight forward development site.

I believe that the valuers who have looked at the site on your behalf have not been privy to all, if any of the information that I have received from the solicitors, and my own investigations with Wollongong City Council.

Briefly there are three separate DA’s (sic) on the property.

DA 2005/1520 remedial work on the watercourse expires 14th March 2011.

DA 2006/1591 lot 41 dual occupancy. Deferred commencements. There is a major problem with this DA as it refers to the above DA 2005/1520. I have attached the front page. The work referred to in point (ii) has not been started and 12 months has expired. Council could theoretically knock back this DA. The developers are taking a risk that Council won’t.

DA 2006/1622 lot 42 2x2 bedroom and 2x3 bedroom villas 4x2 bedroom and 2x2 bedroom townhouses with parking for 22 vehicles expires 3rd April 2012. Also without the work on the watercourse this site will not exist as its only access is over the bridge that has to be constructed so effectively if it will become a landlocked site with no access and be totally worthless.

The up shot (sic) is that the estimate of the work on the watercourse and the access road to the bridge from the Rothery Road to enable vehicle access to lot 42 is estimated at between $300,000 and $350,000.

I doubt whether the valuers would have allowed for this as they would not have had the information on DA 2005/1520. I only realised after I received the first lot of information from the solicitors, as they did not realise that it existed until I pointed it out to them after requesting information from council. I received a disc with plans and specifications on the 4th December.

…

8. Mr Sayed disputed that lot 42 was landlocked and pointed to the existing bridge over the watercourse which enabled access to lot 42 from Rothery Street. It is, of course, not necessary to determine on this application whether lot 42 was landlocked. It is enough to assume that it was not and to consider, having regard to the various dates upon which events occurred, whether Mr Sayed should be permitted to make the claim based on that assumption.

9. The particular parts of the proposed pleading to which objection was taken were paragraphs 25, 26, 27 and particulars (i), (l) and (m) under paragraph 42. Those portions of the proposed pleading read as follows:

25.   In obtaining the quote dated 1 June 2009 Merc as agent for NAB wrongly instructed Mr Ellul that lot 42 was landlocked, in that access to lot 42 could only be obtained via lot 41. Mr Ellul was instructed to confirm that lot 42 was landlocked.

Particulars

Email 26 May 2009 Merc (Rosemary Decker) to MMJ North (Ellul)

26.   The quote dated 1 June 2009 included a statement by Mr Ellul that Lot 42 was "landlocked" and Mr Ellul, to the knowledge of NAB and of Merc, made his appraisal on the false basis that it was so landlocked.

27.   NAB knew that both Merc and Mr Ellul were proceeding on the basis that Lot 42 was so landlocked.

Particulars

Telephone conversation on 22 July 2009, believed to have been at 1.40 p.m., between "Alex from NAB" and an employee of Merc. Alex asked, in substance "if we were selling as one property (ie both lots together)". The employee of Merc said in substance "yes as large parcel at rear is landlocked and can only be accessed by small parcel at front.

…

42.   NAB wilfully and recklessly sacrificed Mr Sayed's interests (and Mrs Sayed's interests) as mortgagors in the Sale and the circumstances surrounding the Sale in that it failed to take reasonable precautions to obtain a proper price for Corrimal.

…

i.   Placing the property with the agent who provided the lowest estimate of the price achievable knowing, or recklessly failing to inform itself, that that estimate was given on a false basis, namely "landlocking" and failing to instruct that agent to seek to sell the property within the range indicated by the independent valuations.

…

l.   Failing to obtain advice from someone Qualified and capable of ascertaining whether lot 42 was landlocked, or disregarding such advice if obtained.

(m)   Failing to check the claims that Lot 42 was landlocked, even after the selling agent identified it as a significant reason why the property should be sold at a price well below the valuation advice received by NAB.

Submissions

10. NAB’s opposition to those portions of the proposed pleading was based on the assertion by NAB that if it breached its duties as mortgagee by wrongly assuming lot 42 was landlocked, NAB had now lost the ability to cross-claim against those agents who gave NAB that allegedly wrong advice.

11. NAB submitted that, as a matter of discretion, leave should not be given to Mr Sayed to include the landlocked land claim. Matters that informed the exercise of that discretion included the fact that Mr Sayed had had available to him since 2012 documents showing that it was NAB’s understanding that lot 42 was landlocked, that NAB had arguable claims against MERC and MMJ for breach of contract and negligence respectively and that by reason of the Limitation Act 1969 (NSW) NAB was now statute barred from making such claims.

12. Mr Sayed submitted that NAB had no claim against MERC and that if it had any right to bring a cross-claim such cross-claim could only be brought against Dibbs Barker, its present solicitors who acted for NAB at the time of the sale of the Corrimal land. Mr Sayed submitted that from August 2012 until April 2015 NAB had blocked the cross-claim proceeding by Mr Sayed which caused any cross-claim NAB had to become statute barred. Mr Sayed submitted that Dibbs Barker has and has always had a conflict of interest in relation to representing NAB in these proceedings because it was Dibbs Barker who gave to NAB the legal advice about the landlocking.

13. Mr Sayed submitted that there was no delay on his part in bringing forward the proposed pleading. It was he who had attempted to bring the matter back to Court on a number of occasions but NAB avoided doing so by taking the action it did to enforce the Deed of Settlement (referred to at [16]-[19] of Sayed (No. 5)) and thereafter sought specific performance of the In Principle Agreement (referred to at [20] of Sayed (No. 5)).

14. Mr Sayed submitted that NAB may not be statute barred if the actions of MMJ were found to be fraudulent. In that regard Mr Sayed submitted that he wanted to bring a further cross-claim against MERC, MMJ, the buyer and the architect alleging fraud and collusion. Mr Sayed submitted that he relied on the MERC journal (Tab 8 to exhibit BS 11) which was obtained only in late January 2016. He said that he then moved with expedition to bring the matter back before the Court in the new law term in 2016.

Consideration

15. I accept NAB’s submission that the three matters (referred to at [11]) are the matters which inform the discretion to allow the proposed pleading to be filed.

(a)   Mr Sayed’s knowledge

16. The affidavit of Emma Jane Hodgman sworn 19 July 2016 identified documents produced by NAB in answer to a Notice to Produce dated 28 March 2012. A selection of those documents was identified in the affidavit, and the affidavit disclosed that Mr Sayed and/or his then solicitors Swaab Attorneys had these documents in April 2012. These documents demonstrate that NAB and its agents believed in 2009 and 2010 before the sale of the Corrimal land that lot 42 was landlocked. The documents discussed the need to sell the two lots together for that reason.

17. Mr Sayed said that when Swaab Attorneys ceased to act for him they retained his documents. The inference was that these particular documents were amongst those retained although that was not expressly said. Nor did Mr Sayed submit that he had not seen these documents in 2012 after they were sent to Swaab Attorneys or at any time thereafter. Indeed, his written submissions say this:

19.   Mr Sayed relies on the MERC journal which was obtained in late January 2016 and other material evidence to form amendments to the cross-claim now before the Court.

20.   Mr Sayed may have had some material in his possession which contained “landlocking” references for a period of three years however there were no proceedings on foot whereby it was necessary to collate it for evidence in a cross- claim.

18. During oral submissions Mr Sayed said that the only time he got the documents referring to the landlocked land was just before the proceedings that were heard by Adams J in August 2012. He said, however, that landlocking “was not an issue at that point”. I do not understand what that means because it is Mr Sayed who has chosen to make it an issue in the proposed pleading. He could have made it an issue at any time from August 2012. He placed some significance on obtaining the MERC journal in January 2016 but the part he relied on when making submissions was the email from MERC to NAB dated 26 May 2009 (Tab 3 to the affidavit of Ms Hodgman).

19. I am entirely satisfied that Mr Sayed was aware of the landlocking issue before late January 2016 when he obtained the MERC journal. There is no doubt that relevant documents and information were in the possession of Swaab Attorneys who were then acting for Mr Sayed. On his own admission he saw the documents by August 2012. He could have sought to amend his cross-claim at any time thereafter. His assertion that it was not until he saw the journal that he realised the landlocking issue was something of substance is not an adequate explanation for failing to make the claim earlier when the documents he had seen clearly identified the issue.

20. Mr Sayed’s complaint about the Bank’s actions between August 2012 when the matter was before Adams J and October 2014 when NAB filed its Notice of Motion seeking specific performance of the In Principle Agreement provides no basis for suggesting that it was not available to him to seek to plead a cross-claim that included the landlocked land point at any time up to February 2016. The whole point of Mr Sayed’s resistance to what was sought by NAB before Rein J and subsequently in the Court of Appeal was to ensure that his rights under any cross-claim against the Bank relating to its sale of Corrimal were preserved outside the In Principle Agreement. I noted as much in Sayed (No. 5) at [21].

21. However, even if there was a basis upon which it might have been inappropriate for Mr Sayed to put forward an amended cross-claim including the landlocked land point before the conclusion of either the Court of Appeal’s determination or the claim for specific performance (National Australia Bank Ltd v Sayed (No 4) [2015] NSWSC 420), all of those matters were concluded by the judgment of Harrison AsJ on 16 April 2015. Thereafter Mr Sayed did not make any claim in relation to the landlocked land point despite being given leave to file an amended cross-claim on 18 August 2015. Finally, his Notice of Motion to amend the cross-claim again was not filed at the earliest opportunity after January 2016 when he says that he first saw the MERC journal. Rather, the Motion was filed on 4 March 2016 being more than six years after the date of exchange of contracts to sell the Corrimal land.

22. This matter tells in favour of NAB.

(b)   NAB’s causes of actions against its agents

23. Clause 2 of the Agreement between NAB and MERC relevantly provided:

2.1   The National engages the Supplier to provide the Services to the National, and the Supplier agrees to provide the Services to the National.

2.2   The Supplier must:

(a)   provide the Services in accordance with this Agreement and with the level professional skill, care, planning, supervision, control and judgement which may be expected of a professional organisation experienced in performing services of the type and complexity of the services;

…

24. The “Services” were set out in Schedule B1. Clause 1.1 relevantly provided:

This clause specifies the intent of the Agreement and the purpose of the relationship between the parties where it relates to property administration services. The supplier intends to:

(a)   provide property management services to the National in a timely and efficient manner;

(b)   manage all associated requirements relating to property inspection, maintenance, marketing and sale in the most effective manner; and

…

25. If, as Mr Sayed asserts, he pleaded and established that the land was not landlocked NAB would have an arguable cause of action against MERC for breach of contract. Whether or not NAB would have, additionally, a cause of action in negligence against MERC is not clear: Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 at [127]-[130]. If NAB had such a claim in negligence the limitation period would ordinarily run from the date of the contract for sale of the Corrimal property on 19 February 2010. Any breach of contract by MERC may have occurred earlier, perhaps by 2 October 2009, when MERC submitted a marketing recommendation to NAB which referred to lot 42 being landlocked.

26. NAB is unlikely to have a contractual claim against MMJ and would likely be confined to a cause of action in negligence. Again, the date of exchange of contracts for the Corrimal land is likely to be the date on which damage was first suffered by NAB.

27. Whilst Mr Sayed asserts that the only cause of action NAB would have is one against its solicitors, he provides no basis for showing the absence of a claim against MERC or MMJ. Prima facie, and on the assumption lot 42 was not landlocked, an email from MERC to NAB dated 26 May 2009 and a letter from MERC to NAB dated 2 October 2009 (Tabs 3 and 5 to the affidavit of Ms Hodgman respectively) provide the basis for a claim against MERC, and a letter from MMJ to MERC dated 1 June 2009 (Tab 4 to the same affidavit) provides the basis for a claim against MMJ.

25. The matter also tells in favour of NAB.

(c)   The limitation period

29. Sections 26 and 74 of the Limitation Act are relevant to claims made by a defendant against third parties. Those sections provide:

26 Contribution between tort-feasors

(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of:

(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and

(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is:

(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages, or

(b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a cause of action for the damage for which the cause of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims—the date on which the agreement is made.

(3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought.

(4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

…

74 Set off etc

(1) Where, in an action (in this section called the principal action), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act:

(a) is a separate action, and

(b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable:

(i) the date on which the person becomes a party to the principal action, and

(ii) the date on which the person becomes a party to the claim.

(2) This section extends to a claim by way of set off made by a defendant under the Civil Procedure Act 2005, even if one or more of the debts giving rise to the set off became due and payable after the date on which the defendant became a party to the principal action, so long as at least one of those debts became due and payable on or before that date.

30. In the first instance s 14 of the Limitation Act prescribes a six year limitation period running from the date on which the cause of action first accrues to NAB for a claim on a cause of action founded in contract or tort.

31. Section 26(1)(b) effectively provides for a ten year limitation period for an action on a cause of action for contribution under s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). However, any claim made by NAB against MERC or MMJ would not be such a claim because Mr Sayed would not himself have a claim against MERC or MMJ: Australia and New Zealand Banking Group Ltd v Pola [2013] NSWSC 1801 at [359] to [383].

32. In Nelson v Wyong Shire Council (1989) 68 LGRA 164 Giles J considered the interrelationship between ss 26 and 74. His Honour said (at 168):

Section 74 deals with three situations.

In the first situation where the defendant cross claims (to use the present term) against the plaintiff, a counter claim is put in the same position as a set off in that lapse of time will not bar the counter claim unless the relevant period expired prior to the plaintiff bringing the proceedings against the defendant. In the second situation where the defendant cross claims against someone not already a party to the proceedings, and who became a party to the proceedings when he becomes “a party to the claim”, that is, joined as cross-defendant to the cross claim, time runs in favour of that cross-defendant until he is so joined. In these two situations apparently it was felt right that by bringing the proceedings the plaintiff should be taken to have stopped time running in his favour for any proper cross claim back against him by the defendant, but not right that by bringing the proceedings within which the cross claim might be brought the plaintiff should also stop time running in favour of potential third parties. The third situation of a cross claim by the defendant against a co-defendant, that is someone already a party to the proceedings but not the plaintiff, is treated in the same manner as the first situation, so that the plaintiff by bringing the proceedings also stops time within which the cross claim must be brought running in favour of the co-defendant.

33. In Creevey v Barrois [2005] NSWCA 264 the Court of Appeal at [47]:

The Court’s attention was drawn to a number of authorities, although none was definitive of the construction issues under consideration. In the earliest, Nelson v Wyong Shire Council (1989) 68 LGRA 164, Giles J considered the inter-relationship of ss 26 and 74 of the Limitation Act, holding that the effect of s 74 was, in effect, to allow the limitation period provided by s 26(1) to be avoided where a cross-claim was made against a person already party to the proceedings, where that person had been joined prior to the expiration of the limitation period for a claim of contribution by another party. For present purposes, his Honour’s reasons do no more than affirm that s 74 will provide no benefit to a cross-claimant, where the proposed cross-defendant is a third party, not earlier joined in the proceedings.

34. The effect of these decisions is that the limitation period did not stop running against MERC and MMJ with the result that any proceedings against them on a cross-claim needed to be commenced prior to 19 February 2016. That was not possible because Mr Sayed had not signalled any intention to make a claim based on the landlocked land point nor had he filed a motion seeking leave to amend the cross-claim to do so.

35. Mr Sayed submitted that the actions may not be statute-barred if the actions of MMJ were found to be fraudulent or if MERC made mistakes. He made reference to ss 55 and 56 of the Limitation Act. Those sections provide:

55 Fraud and deceit

(1)    Subject to subsection (3) where:

(a) there is a cause of action based on fraud or deceit, or

(b) a cause of action or the identity of a person against whom a cause

of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

(2)    Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.

(3)   For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if:

(a) the person is a party to the fraud deceit or concealment, or

(b) the person is, in relation to the cause of action, a successor of a

party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs.

(4)    Where property is, after the first occurrence of fraud deceit or

concealment, purchased for valuable consideration by a person who is not a party to the fraud deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud deceit or concealment has occurred, subsection (1) does not, in relation to that fraud deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through the purchaser.

56 Mistake

(1)    Subject to subsection (3), where there is a cause of action for relief from the consequences of a mistake, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the mistake does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person.

(2)    Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.

(3)    Where property is, after a transaction in which a mistake is made, purchased for valuable consideration by a person who does not, at the time of the purchase, know or have reason to believe that the mistake has been made, subsection (1) does not apply to a limitation period for a cause of action for relief from the consequences of the mistake against the purchaser or a person claiming through the purchaser.

36. As far as fraud is concerned, NAB does not assert fraud on the part either of MERC or MMJ. If it has a claim the claim is for breach of contract and/or negligence. The only person who has raised fraud is Mr Sayed and he does not do so in his proposed pleading. He said in submissions that it is NAB’s responsibility to raise fraud and collusion. NAB does not wish to do so and probably has no basis to do so.

37. Similarly, any claim by NAB does not rely on a mistake. It relies on a breach of contract and/or negligence. A negligent act cannot be equated with a mistake in s 56. In Hillebrand v Penrith Council [2000] NSWSC 1058 the claim against the council was one for negligence for the sale of the plaintiffs’ land for non-payment of rates. The land was conveyed in 1993 but the plaintiffs did not find out about the sale until 1997. The proceedings commenced in 2000. They were out of time unless 1997 was the time the cause of action first accrued. It was in those circumstances that the plaintiffs invoked s 56 of the Limitation Act.

38. Justice Austin said:

[45] In response to a question by me during the course of argument on 14 November, counsel for the plaintiffs said that he wished to rely upon s 56 of the Limitation Act, though he was unable to make any submission in respect of it at that stage.

[46] Section 56 has the effect that where there is ‘a cause of action for relief from the consequences of a mistake’, the time which elapses after the limitation period commences to run and before the day upon which the plaintiff first discovers (or may with reasonable diligence discover) the mistake does not count in the reckoning of the limitation period.

[47] If this section were applicable, it would have the effect that the cause of action in paragraphs 15 to 18 would commence to run no earlier than 1997 (on the plaintiffs' version of the facts), or no earlier than July 2000 (on the assumption the Council invited the Court to make).

[48] In my opinion, however, this section does not apply. It is applicable only where the cause of action seeks relief from the consequences of a mistake. The cause of action in the present case seeks relief from the consequences of negligence rather than a mistake. It is true that the particulars of the negligence relied upon involve the assertion that the Council made mistakes including the mistake of confusing Lots 17 and 20 in Plan 610 with Lots 17 and 20 in Plan 967412, but the gist of the cause of action is negligence rather than mistake.

39. In Sinclair v Registrar-General [2010] NSWSC 173 Rein J considered the same issue. He made reference to Hillebrand and went on to say:

[34] The only detailed consideration of a provision very similar to s 56 is found in Phillips-Higgins v Harper [1954] 1 QB 411. In Phillips-Higgins, the plaintiff mistakenly failed to realise that she had been (on her case) underpaid, and that money was due to her. Pearson J (as his Lordship then was), interpreting s 26(c) of the now repealed Limitation Act 1939 (UK), held that that plaintiff’s claim was properly characterised as one to recover moneys due to her under a contract, not one for relief from the consequences of a mistake (at 418-419). Pearson J provided three examples of actions which would be caught by the Limitation Act 1939 (UK): an action for money paid in consequence of a mistake; an action for rescission or rectification of a contract entered into in consequence of a mistake; and a reopening of an account settled in consequence of a mistake (at 418). Phillips-Higgins has been followed in Australia in Wheatley v Bower [2001] WASCA 293 at [111], [119] per Malcolm CJ (Kennedy and Wallwork JJ agreeing), in which it was held that a partner’s claim against his former partners that debts owed to him had not been paid was statute-barred, and that the Western Australian equivalent of s 56 was not applicable.

...

[36] In Trewin v Flower [1965] NZLR 8, the Court reached the same conclusion as in Phillips-Higgins, but by a different route, and I do not think that it provides assistance on the present issue.

[37] As a matter of first impression, a claim for statutory compensation based on loss or damage arising as a result of the operation of the Real Property Act does not appear to be a claim for relief from the consequences of a mistake. The cause of action is one for money recoverable by virtue of an enactment, although in this case the damage is claimed to arise from an error, misdescription or omission, and that is why, as Ms Richards accepted, s 14(1)(d) of the Limitation Act is relevant. Mistake is certainly not essential for s 129(1)(a), (b), (d) or (e) of the Real Property Act. Section 129(1)(c), (f) and (g) uses the words “error”, “misdescription” or “omission”, which could be characterised as a mistake, but s 129(1) requires the loss or damage to be the result of the operation of the Real Property Act, which adds an intermediate qualifier. Further, it would be an anomaly if a claim under s 129(1)(c), (f) or (g) of the Real Property Act were subject to s 56 of the Limitation Act, but a claim under s 129(1)(a), (b) or (d) of the Real Property Act were not.

[38] In Hillebrand, this Court did not accept that claimed mistakes by the defendant council changed a cause of action from being one in negligence to one for relief from the consequences of a mistake. It can be said here that the fact that there was an error or omission by the Registrar-General (accepting this as equivalent to a mistake) does not take the cause of action out of being one for money recoverable by virtue of an enactment and make it a cause of action for relief from the consequences of a mistake. Although not considered in Hillebrand, there is another basis which can be discerned for the conclusion that s 56 is not available, and that is that the mistake referred to in s 56, from the consequences of which relief is sought, must be made by the plaintiff. The examples given by Pearson J are all of that kind. “Mistake” by a defendant per se does not itself found a cause of action – there must be some other characterisation available to make it actionable, such as negligence or misleading and deceptive conduct, which reinforces the view that the mistake required for s 56 must be the plaintiff’s mistake. If s 56 is read in the wide way for which the plaintiffs contend, then a claim for negligence (where the negligence can be characterised as a mistake made by the defendant) could be brought within s 56. As Hillebrand demonstrates, s 56 is not available in that context.

40. I agree with Rein J’s analysis. If negligence could be characterised as mistake for the purposes of s 56 that section would have the effect of undercutting the limitation period provided in s 14 of the Act. The result would be, contrary to cases such as Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 and many others, that discoverability was the touchstone for determining when time begins to run.

41. Sections 55 and 56 have no application here.

42. This matter favours NAB.

The exercise of the discretion

43. Section 58 of the Civil Procedure Act 2005 (NSW) provides:

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

44. In the present case the two particular matters of significance in sub-s (2) are sub-paras (ii) and (vi).

45. Further, in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 the plurality judgment said of delay:

[102]   The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

[103]   The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings [Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at [152]]. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

46. In the present case there has been no satisfactory explanation for the delay by Mr Sayed in making the claim based on the landlocked land. Even if the proceedings in relation to the main claim were all-consuming and could be regarded as explaining why nothing was done from 2012 to early 2015, there was no explanation for the delay after delivery of judgment by Harrison AsJ on 16 April 2015, particularly in the light of the application to amend the cross-claim in August 2015.

47. In Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254 the plaintiff sought an extension of time pursuant to s 151D of the Workers Compensation Act 1987 (NSW) in which to bring an action for damages for personal injury occasioned to him in an accident. The defendant resisted the extension on the basis of actual prejudice, namely, consideration would have been given to joining another party who had some responsibility for the accident, and the limitation period had expired. The Court of Appeal reversed the decision of the primary judge who granted an extension and in doing so said this:

[41]   The third question is whether the appellant has established that its inability to sue McNamara by way of cross-claim, to recover indemnity or contribution, has occasioned it such prejudice, as to require the reversal of his Honour’s order. There was no dispute before his Honour, nor before this Court, that the effect of the relevant sections of the Limitation Act 1969 precluded the bringing of any action by Tekno against McNamara. On the facts of the accident, as alleged by Milat, there would have been a viable cross-claim, available to Tekno. At the time of the accident Milat was acting under the direction of Mr Maynard, a foreman employed by McNamara. He was lifting the metal tray, at the request of Mr Maynard, in order to assist Mr O’Brien, another employee of McNamara, in placing it in its correct position. It was Mr O’Brien who dropped his end of the tray and occasioned the injury to Milat. Clearly, Tekno would have had available a substantial claim for contribution. It would have had this claim available in June 1999, as the relevant limitation period did not expire until 17 September 2000. I am unable to agree that the loss of the right to seek contribution “should not be the basis upon which an application of this type should be refused.” Whether one regards the ability to bring a cross-claim for contribution or indemnity as an ordinary incident of the ability to have a fair trial, or whether the loss of it is to be regarded simply as an incident of prejudice arising from a NAB’s failure to sue a defendant within time, the result, in my opinion, is the same. The prejudice is obvious and significant. In the present case, it should have been taken into account by his Honour. His failure to do so, with respect, amounted to an error of principle in the exercise of his discretion. It means, in my view, that his Honour’s decision must be set aside and the discretion re-exercised by this Court. The re-exercising of the discretion, taking into account this element of prejudice, must, in my view, lead to the decision that it is not just and reasonable to extend the time for the bringing of this action.

48. The position in the present matter is relevantly identical to that in Tekno Ceramics. In my opinion, the fact that Mr Sayed had the material available to him to amend his cross-claim to bring a claim based on the landlocked land, the fact that there is no satisfactory explanation for not having done so prior to a date after the expiry of the Limitation Act for any cross-claim by NAB against potential tortfeasors, and the prejudice and injustice that will be suffered by NAB in those circumstances means that leave should not be given to Mr Sayed to include the portions in the proposed pleading which were objected to.

49. There is one further matter. Paragraph 42 of the proposed pleading includes the words “(and Mrs Sayed’s interests)”. As I pointed out in Sayed (No 5) at [7] Mrs Sayed is not a party to these proceedings and she has no legal interest in the outcome of these proceedings. Although NAB did not raise this matter on the present application those words should not be permitted to remain in any pleading filed.

50. I make these orders:

1. Leave is given to the First Defendant to file a Further Amended Cross-Claim in the form contained behind Tab 1 of the Court book omitting paragraphs 25, 26, 27, particulars (i), (l) and (m) under paragraph 42 and the words “(and Mrs Sayed’s interests)” in paragraph 42;

2. The Further Amended Cross-Claim is to be filed within 14 days;

3. The First Defendant is to pay the Plaintiff’s costs of the application and the costs thrown away by reason of the amendment.

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Decision last updated: 13 September 2016