Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank v Sayed (No. 9) [2017] NSWSC 389 Hearing dates: 7 & 10 April 2017 Date of orders: 13 April 2017 Decision date: 13 April 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave is granted to the Cross-Claimant to amend the Further Amended Cross-Claim filed 25 October 2016 in the manner sought in the form of the cross-claim annexed to the affidavit of Bill Sayed sworn 28 March 2017 (to be entitled Second Further Amended Cross-Claim) in the following respects:
(a) by omitting prayers 2, 4 and 5 in the section headed “Relief Claimed”;
(b) by omitting paragraph 5;
(c) by the addition of the words in paragraph 6;
(d) by the substitution of the LPI number in paragraph 7;
(e) by the addition of the words in paragraph 28;
(f) by the addition of the words in paragraph 31;
(g) by omitting paragraph 32;
(h) by the addition of words to particular (c) under paragraph 33;
(i) by the addition of the word “rejected” in particular (n) under paragraph 33;
(j) by the substitution of the words in paragraphs 35, 36, 37 and 39.(2) The Second Further Amended Cross-Claim is to be filed and served by 28 April 2017.
(3) The Cross-Claimant is to pay the costs thrown away by reason of the amendment.
(4) The Cross-Claimant is to pay the costs of the Notice of Motion filed 28 March 2017.Catchwords: PROCEDURE – pleadings – amendment – possession proceedings – cross-claim by mortgagor for breach of mortgagee’s duties – further application to amend cross-claim – whether cross-claimant estopped from pleading further claims – whether abuse of process
PROCEDURE – pleadings – fraud – need for proper particularisationLegislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491
Forsyth v Blundell (1973) 129 CLR 477
National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420
National Australia Bank v Sayed (No. 5) [2016] NSWSC 669
National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253
National Australia Bank v Sayed (No. 8) [2017] NSWSC 89
Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80
Redgrave v Hurd (1882) 20 Ch D 1
Sayed v National Australia Bank Limited [2013] NSWCA 304
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff/Cross-Defendant)
Bilal Sayed (Cross-Claimant)Representation: Counsel:
Solicitors:
G Lucarelli (Plaintiff/Cross-Defendant)
In person (Cross-Claimant)
DibbsBarker (Plaintiff/Cross-Defendant)
Self-represented (Cross-Claimant)
File Number(s): 2010/135614
Judgment
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The First Defendant/Cross-Claimant, Bill Sayed, applies by Motion filed 28 March 2017 to amend his cross-claim yet again. Many but not all of the proposed amendments are opposed but all of the substantive amendments are opposed.
The background
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The background is set out in my judgment National Australia…
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- Case
- [2017] NSWSC 389
- Decision Date
CaseChat Overview and Summary
The court held that the cross-claimant was not estopped from pleading further claims, as the previous cross-claim did not put the bank on notice of the additional claims. The court also rejected the argument that the further application to amend the cross-claim constituted an abuse of process, finding that the bank had not suffered any prejudice or unfairness. The court held that the cross-claim did not adequately particularise the allegations of fraud, and that the bank was entitled to more specific details in order to respond appropriately. The court ordered Sayed to amend the cross-claim to include proper particularisation of the fraud allegations within a specified timeframe.
The final orders of the court included the dismissal of the bank's application to strike the cross-claim, with leave to apply for strike-out if the cross-claim was not amended to include proper particularisation of the fraud allegations. The court also ordered Sayed to amend the cross-claim to include proper particularisation of the fraud allegations within a specified timeframe. The case underscores the importance of proper particularisation in pleadings, particularly in cases involving allegations of fraud, and the need for cross-claimants to ensure that their claims are adequately supported by specific and detailed allegations.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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