Sayed v National Australia Bank

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Sayed v National Australia Bank [2020] NSWCA 334
Hearing dates: 29 September 2020
Decision date: 16 December 2020
Before: Basten JA at [1];
Payne JA at [126];
Emmett AJA at [127]
Decision:

(1)   Dismiss the appeal.

(2)   Order the appellant to pay the respondent’s costs in this Court.

Catchwords:

APPEALS – appeal from final judgment – review of interlocutory judgments – interlocutory judgments refusing amendments to pleadings

CIVIL PROCEDURE – pleadings – requirement for particularity – conclusory statements in pleadings alleging collusion, fraud and gross negligence by mortgagee in exercise of power of sale

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – challenge to sale process – claim that sale at undervalue – whether advertisements misleading

MORTGAGES AND SECURITIES – mortgages – power of sale – property with development consent – whether purchaser entitled to development plans

Legislation Cited:

Conveyancing Act 1919 (NSW), s 111A

Copyright Act 1968 (Cth), s 38

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7

Real Property Act 1900 (NSW), s 57

Cases Cited:

Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48

National Australia Bank Ltd v Sayed (No 2) [2012] NSWSC 20

National Australia Bank Ltd v Sayed [2012] NSWSC 1414

National Australia Bank v Sayed (No 3) [2015] NSWSC 1473

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 7) [2016] NSWSC 1437

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

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

Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254

Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263

Category:Principal judgment
Parties: Bilal (Bill) Sayed (Appellant)
National Australia Bank Ltd (Respondent)
Representation:

Counsel:
Appellant self-represented
Mr G Lucarelli (Respondent)
Mr A G Martin (Amicus)

Solicitors:
Appellant unrepresented
Dentons Australia Ltd (Respondent)
File Number(s): 2019/204489
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:

[2019] NSWSC 653

Date of Decision:
25 June 2019
Before:
McCallum J
File Number(s):
2010/135614

Judgment

  1. BASTEN JA: On 19 February 2010 National Australia Bank, as mortgagee in possession, sold a property at Corrimal, then owned by Mr Bilal (Bill) Sayed (the appellant) for an amount of $545,454. By way of a cross-claim in response to proceedings brought by the Bank for possession of other land, the appellant alleged that the property was sold at an undervalue, in breach of the Bank’s duty as mortgagee in possession.

  2. The proceedings gave rise to a number of interlocutory judgments, two of which are the subject of the present appeal. A final judgment dismissing the appellant’s claims was given by McCallum J in…

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Details
Case
[2020] NSWCA 334
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Sayed (the appellant) and National Australia Bank (the respondent) regarding the exercise of a power of sale under a mortgage. The appeal was brought from a final judgment of the Supreme Court of New South Wales, but it specifically sought to review interlocutory judgments that had refused the appellant leave to amend his pleadings.

The central legal issues before the Court of Appeal were whether the appellant should have been granted leave to amend his statement of claim to include allegations of collusion, fraud, and gross negligence by the mortgagee in the exercise of its power of sale, and whether the advertisements for the sale were misleading. A further issue related to whether a purchaser of the mortgaged property, which had development consent, was entitled to the development plans.

The Court of Appeal found that the proposed amendments to the pleadings lacked the necessary particularity to establish a proper cause of action. The allegations of collusion, fraud, and gross negligence were considered conclusory and not supported by sufficient factual averments. Similarly, the claim that the advertisements were misleading was not substantiated with sufficient detail. The court applied the principles governing the amendment of pleadings, emphasizing the need for proposed amendments to disclose a reasonably arguable case and to avoid prolixity or embarrassment. The court also considered the nature of the mortgagee's duty in exercising its power of sale, noting that it must act in good faith and take reasonable steps to obtain a proper price, but that this did not extend to providing development plans to a purchaser.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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