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

1. 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.

2. 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.

3. 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 Anshun (1981) 147 CLR 589) estoppel.

4. Mr Sayed appeared to recognise that those matters are no longer on the table because the declaration sought in the present cross-claim is only one that alleges the bank engaged in unconscionable conduct in relation to the Corrimal loan and the Corrimal mortgage. It appears that the incorporation of paragraphs that relate to the Woonona property has been made in error. In any event, paragraphs 42 and 43 should be struck out but Mr Sayed should be given leave to amend to plead whatever matters he wishes in support of the declaration of unconscionable conduct concerning the Corrimal property.

5. The land locking was an issue that I dealt with in National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253. I held in that judgment that the issue of landlocking could not now be raised by Mr Sayed for the reasons that I there gave.

6. Paragraph 32 and the particulars to paragraph 33, that is particular (k), again appear to have been included in error. Mr Sayed said that he believed he was entitled to file the cross-claim containing those matters because specific objection had not been made to them when the issue of land-locking was debated. However the error arose, those paragraphs are inconsistent with the judgment I gave. Paragraph 32 must be struck out and the phrase, "including NMJ's assumption of land locking in particular (k) to paragraph 33 should similarly be struck out.

7. If Mr Sayed is making some other point in paragraph 32, and the drafting suggests that he might be, he should also be permitted to re-plead that paragraph but to exclude any reference to the land-locking.

8. Any application to amend the cross-claim in relation to these two matters should be made by notice of motion filed on 15 March 2017 and made returnable before me on 17 March at 2.00pm, and in that regard I will abridge the time for service on the notice of motion so that the matter can be dealt with on 17 March.

9. I do not consider that there should be any order for costs to either party in relation to this. Both parties are in the present position they are in as a result of an oversight so that as far as any further costs orders of the proceedings generally are concerned, no costs should be ordered in respect of today's appearance. I will deal with the question of costs of any proposed amendment on 17 March 2017. The parties are at liberty to apply on two days' notice in the meantime.

**********

Decision last updated: 16 February 2017