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:
Solicitors:
Appellant self-represented
Mr G Lucarelli (Respondent)
Mr A G Martin (Amicus)
Appellant unrepresented
Dentons Australia Ltd (Respondent)
File Number(s): 2019/204489 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 25 June 2019
- Before:
- McCallum J
- File Number(s):
- 2010/135614
Judgment
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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.
-
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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- Case
- [2020] NSWCA 334
- Decision Date
CaseChat Overview and Summary
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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