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

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.
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.
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.
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.
The…

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 1437
Decision Date: 23 September 2016

CaseChat Overview and Summary

The case of National Australia Bank v Sayed (No. 7) was heard in the Supreme Court of Victoria, where the primary dispute centred on the admissibility and relevance of documents produced in response to a subpoena issued by a self-represented litigant. The bank sought to challenge the adequacy of documents produced by Mr Sayed, who had previously been granted leave to amend his cross-claim. The court was tasked with determining whether the documents provided were relevant to the amended cross-claim.

The legal issues that the court had to resolve included the scope and relevance of the documents produced in response to the subpoena, and whether the documents were pertinent to the issues specified in the amended cross-claim. The court was required to assess whether the self-represented litigant had complied with the procedural requirements set out in the rules of court, and whether the documents produced were sufficient to support the claims made in the amended cross-claim.

In reaching its decision, the court examined the procedural steps taken by the self-represented litigant in seeking leave to amend the cross-claim and the subsequent production of documents. The court found that the documents produced were not relevant to the issues specified in the amended cross-claim for which leave had been granted. Consequently, the motion to challenge the adequacy of the documents was dismissed. The court's decision underscored the importance of ensuring that the documents produced in response to a subpoena are directly related to the issues at hand and comply with the procedural requirements of the court.

Orders