National Australia Bank v Sayed (No. 8) - [2017] NSWSC 89

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank v Sayed (No. 8) [2017] NSWSC 89
Hearing dates: 15 February 2017
Date of orders: 15 February 2017
Decision date: 15 February 2017
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Paragraphs 32, 42 and 43 of cross-claim are struck out.
2. The words in paragraph 33(k) “including MMJ’s assumption of land locking” in the cross-claim are struck out.
3. Any application to amend cross-claim to be made by Notice of Motion such Notice of Motion to be filed by 15 March 2017 and made returnable before Davies J at 2pm on 17 March 2017. Time for service of Notice of Motion abridged so Notice of Motion can be heard on 17 March 2017.
4. No order as to costs for today.
5. Liberty to apply on 2 days’ notice.

Catchwords: PROCEDURE – pleadings – strike-out – part of pleading dealing with matters already determined adversely to pleader
Cases Cited: National Australia Bank v Sayed (No. 5) [2016] NSWSC 669
National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Category: Procedural and other rulings
Parties: National Australia Bank Ltd (Plaintiff/Cross-Defendant)
Bilal Sayed (Cross-Claimant)
Representation:
Counsel:
G Lucarelli (Plaintiff/Cross-Defendant)
In person (Cross-Claimant)
Solicitors:
DibbsBarker (Plaintiff/Cros-Defendant)
Self-represented (Cross-Claimant)

File Number(s): 2010/135614

Judgment

At the directions' hearing on 10 February 2017, counsel for the plaintiff drew my attention to two matters in the Further Amended First Cross-Claim filed by Mr Sayed. The first matter concerned the issue of land locking in paragraph 32 and particular (k) under paragraph 33. The second issue concerned unconscionable conduct alleged in paragraphs 42 and 43 of the cross-claim. The Plaintiff submitted that the inclusion of those matters had already been dealt with adversely to the cross-claimant.
Argument in respect of these matters was adjourned to today to enable Mr Sayed, the cross-claimant, to have Mr Hall SC present to make submissions on his behalf as he had done in the past. However, Mr Hall was not present and Mr Sayed argued the matter for himself.
Paragraphs 42 and 43 purport to incorporate pleadings that were contained in an earlier defence filed by Mr Sayed to an Amended Statement of Claim on 13 February 2012. Those paragraphs plead matters in support of a claim of unconscionable conduct relating principally but not exclusively with the Woonona property. In National Australia Bank v Sayed (No. 5) [2016] NSWSC 669, I was considering what matters Mr Sayed should be permitted to raise in an amended cross-claim that he sought to bring. I traced the history of the proceedings and I concluded in that judgment that all matters relating to the Woonona property had been dealt with in the In-Principle Agreement referred to in the judgments of the Court of Appeal and Harrison AJ. Those matters were either res judicata or were no longer able to be pleaded as a result of an Anshun (Port of Melbourne Authorityv…

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: [2017] NSWSC 89
Decision Date: 15 February 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the case of National Australia Bank v Sayed (No. 8) involved a dispute between the National Australia Bank and Sayed, focusing on a claim for rectification of a mortgage document. The matter came before the court for a consideration of the bank's application to strike out parts of Sayed's pleadings, specifically those dealing with matters that had been determined adversely to Sayed in previous proceedings.

The court was required to determine whether the parts of Sayed's pleadings that reiterated matters already decided against him in earlier litigation could be struck out under the court's inherent jurisdiction to control its own procedure. The issue centered around the principles governing the striking out of pleadings and whether those principles permitted the exclusion of arguments that had already been conclusively decided by a competent court.

The court found that it had the authority to strike out parts of a pleading that dealt with issues that had already been conclusively determined against the pleader. In this instance, the court held that the relevant parts of Sayed's pleadings were repetitive and dealt with issues that had been resolved unfavourably for him in prior litigation. The court exercised its discretion to strike out these parts, concluding that they did not need to be addressed again and that their inclusion in the pleadings was an abuse of the court process. The court's decision was based on the need to manage its own procedures efficiently and to avoid unnecessary duplication of effort in addressing issues that had already been definitively resolved.

The court ordered that the parts of Sayed's pleadings that dealt with matters already determined adversely to him be struck out, and the case proceeded with the remaining issues. The court's decision underscored the importance of procedural fairness and efficiency in litigation, particularly in cases where issues have already been litigated and determined.

Orders