National Australia Bank v Sayed (No. 7)

[2016] NSWSC 1437

Supreme Court

New South Wales

Medium Neutral Citation:	National Australia Bank v Sayed (No. 7) [2016] NSWSC 1437
Hearing dates:	23 September 2016
Date of orders:	23 September 2016
Decision date:	23 September 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Cross-Claimant’s Notice of Motion dated 4 May 2016 dismissed.  2. Cross-Claimant to pay the costs of the Motion and the costs associated with complying with the subpoena.
Catchwords:	PRACTICE AND PROCEDURE – subpoenas – subpoena issued by self-represented litigant – cross-claim by self-represented litigant – leave granted to amend cross-claim – issues limited after contested hearing to amend - documents produced – challenge by motion to adequacy of documents produced – documents unrelated to issues in amended cross-claim for which leave granted – motion dismissed
Category:	Procedural and other rulings
Parties:	National Australia Bank Ltd (NAB) Bilal Sayed (Cross-Claimant) Design Workshop (Subpoenaed Party)
Representation:	Counsel: Excused (NAB/Cross-Defendant) In person (Cross-Claimant) M Quintilliani (Subpoenaed Party)   Solicitors: DibbsBarker (NAB/Cross-Defendant) Self-represented (Cross-Claimant) Kells The Lawyers (Subpoenaed Party)
File Number(s):	2010/135614

Judgment

1. The Cross-Claimant issued a subpoena for production addressed to Design Workshop Australia on 31 March 2016. Design Workshop was the architect for Realtor Enterprises, the company that ultimately that purchased the Corrimal land. The subpoena, couched in very wide terms, asked for all documents relating to the Corrimal land, the subject of the ongoing Cross-Claim. There were delays in the production of the documents because conduct money was not served.

2. Design Workshop, whilst initially taking the view that the subpoena was oppressive because of its width, decided ultimately to produce a number of boxes of documents to the Court which it considers comply with the requirement of the subpoena. The Cross-Claimant disagreed and filed a Notice of Motion on 4 May 2016 seeking compliance with the subpoena.

3. The Cross-Claimant's affidavit of 2 August 2016 exhibits a number of documents that were produced in answer to the subpoena. The affidavit goes on to say in paragraphs 9 and 10 that when the Cross-Claimant had sorted the emails produced, he identified a number of them as having missing pages. Those emails were said to be between 14 and 18 November 2009.

4. It became clear during the hearing of the Cross-Claimant's Motion for compliance with the subpoena, that the documents which are said to be missing do not in fact go to any issue that appears in the form of the Cross-Claim that I gave leave to the Cross-Claimant to file on 13 September 2016. That Cross-Claim alleges a breach of the Bank's duty as a mortgagee to sell the Corrimal land for the best price reasonably obtainable. The Cross-Claimant made clear that the missing documents go to support a case that he wishes to make that there was collusion and fraud involving perhaps the Bank's solicitors, perhaps the purchaser, and perhaps Design Workshop itself. There is no such issue pleaded in the present Cross-Claim. For that reason, the Motion for compliance by the production of these alleged missing documents is misconceived.

5. The Claimant asks that instead of the Motion being dismissed, it should be adjourned until he has obtained leave to amend his Cross-Claim further to plead these matters of fraud and collusion. In all the circumstances I do not consider that is the appropriate way to proceed. Design Workshop has produced documents which it says answer the subpoena and which certainly appear to be any document relevant to the existing issues. If the Cross-Claimant is given leave to amend his Cross-Claim further to plead the new issues, he can then seek leave to issue any further subpoena which identifies with some specificity the documents said not to have been produced by Design Workshop, although documents in their possession. There is no further point in keeping the existing Notice of Motion on foot.

6. The Notice of Motion form made 2016 is dismissed and the Cross-Claimant should pay the costs of Design Workshop in respect of the subpoena and that Notice of Motion.

**********

Decision last updated: 10 October 2016