National Australia Bank v Sayed (No. 9) - [2017] NSWSC 389

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 particularisation
Legislation 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 534
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/Cross-Defendant)
Self-represented (Cross-Claimant)

File Number(s): 2010/135614

Judgment

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

The background is set out in my judgment National Australia…

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 389
Decision Date: 13 April 2017

CaseChat Overview and Summary

The National Australia Bank filed possession proceedings against Sayed, who was in default under a mortgage. Sayed responded with a cross-claim alleging breaches of the bank's duties under the mortgage, including failure to account and failure to mitigate loss. The bank sought to strike the cross-claim as an abuse of process and for lack of particularisation. Sayed then applied to amend the cross-claim, which the bank opposed on the basis of estoppel and abuse of process. The court was required to determine whether the cross-claimant was estopped from pleading further claims, and whether the further application to amend the cross-claim constituted an abuse of process. The court also needed to consider the bank's argument that the cross-claim lacked particularisation and was therefore defective.

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