Sayed v National Australia Bank Limited

[2020] NSWCA 177

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sayed v National Australia Bank Limited [2020] NSWCA 177

Hearing dates:

4 August 2020

Date of orders:

4 August 2020

Decision date:

04 August 2020

Before:

Emmett AJA

Decision:

1.   The summons dated 15 August 2019 in proceedings 2019/253854 be dismissed.

2.   The applicant on the summons referred to in Order 1 pay the costs of the respondents.

3.   Any question of varying the order for costs to seek a gross lump sum costs order be reserved to the respondents, any such application to be made within 14 days.

4.   The notice of motion filed 29 June 2020 in proceedings 2019/253854 be dismissed.

5.   The costs of the notice of motion referred to in Order 4 be the costs of the parties in proceedings 2019/253854.

6.   Each of the parties to notify the other in writing, with a copy to associate to Emmett AJA, the evidence intended to be relied upon in support of or in opposition to the motion filed on 25 May 2020 in proceedings 2019/204489 by no later than 4pm on 5 August 2020, and the parties to indicate by 9am on 6 August 2020 any objections to any of that evidence.

Catchwords:

CIVIL PROCEDURE — Time — Extension of time

— Summons seeking leave to file a notice of appeal out of time

CIVIL PROCEDURE — Notice of motion — Orders sought to restrain conduct that has already occurred

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 36.15(1)

Cases Cited:

Harrison v Schipp (2002) 54 NSWLR 612

Category:

Procedural and other rulings

Parties:

Bill Sayed (Applicant)
National Australia Bank Limited (First Respondent)
Nicole Susan McArthur (Second Respondent)

Representation:

Counsel:
Applicant in person
G Lucarelli (First Respondent)
C Dobbs (Second Respondent)

Solicitors:
Dentons (First Respondent)
Robertson Saxton Osborne Lawyers (Second Respondent)

File Number(s):

2019/253854; 2019/204489

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 420

Date of Decision:

16 April 2015

Before:

Harrison AsJ

File Number(s):

2010/135614

ex tempore Judgment

1. HIS HONOUR: By a summons dated 15 August 2019 in proceedings 2019/253854, Mr Bill Sayed purported to seek leave to appeal from orders made by Harrison AsJ on 16 April 2015, although the summons that was filed also sought leave to file a notice of appeal out of time. Mr Sayed now acknowledges that the summons was misconceived in the sense that leave to appeal would not have been required if filed within time and he intended to apply for an extension of time within which to file a notice of appeal from the orders made on 16 April 2015.

2. The orders made on 16 April 2015 were that the parties to an “in principle” agreement dated 23 August 2012 specifically perform that agreement. The parties to the agreement were Mr Sayed and his then wife of one part, and National Australia Bank Limited (the Bank) of the other part. The Bank is the respondent to the summons.

3. In essence, Mr Sayed asserts that he entered into the “in principle” agreement on the basis of a misapprehension. The precise misapprehension is not clear. However, he asserts that the Bank failed to comply with notices to produce that were served on his behalf in connection with proceedings originally brought by the Bank against him in the Common Law Division relating to the enforcement of mortgages over two properties on the south coast of New South Wales. Mr Sayed asserts that the Bank failed to produce documents that were covered by the notices to produce, but which were in its possession. He says that had the documents been produced he would not have entered into the “in principle” agreement.

4. Mr Sayed has not produced any draft notice of appeal that he would seek to file if an extension of time were granted. Rather, he points to a document entitled “Summons Seeking Leave to Appeal Summary” that was filed at the same time as the summons. In that document, Mr Sayed does not purport to draw attention to any error on the part of Harrison AsJ in her Honour’s reasons for making the orders of 16 April 2015. Rather, Mr Sayed’s complaint appears to be as I have just outlined.

5. However, Mr Sayed asserts that there was an agreement between the Bank and himself for the orders of Harrison AsJ to be stayed pending the outcome of a cross-claim brought by Mr Sayed against the Bank, which was the subject of orders made by McCallum J, and which is the subject of a notice of appeal in separate proceedings. The Bank’s first response to the application for an extension of time is that, in effect, Mr Sayed seeks to rely on fresh evidence and that it is not open to review a judgment after it has been entered on the ground of the discovery of fresh evidence. [1]

   1. See Harrison v Schipp (2002) 54 NSWLR 612 at 630 (Giles JA).

6. It seems to me that Mr Sayed’s appropriate remedy, if he were able to establish that there was a failure on the part of the Bank to produce documents in answer to the notices to produce, and that the production of those documents would have made a difference to his decision to enter into the “in principle” agreement, is to be found r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR):

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made irregularly, illegally or against good faith.”

7. As I understand the contentions that Mr Sayed seeks to advance, he wishes to assert that the judgment given by Harrison AsJ was given against good faith on the part of the Bank and therefore sufficient cause can be shown for setting aside that order. That relief, it seems to me, should be brought in the Common Law Division and not in this Court by way of appeal. In those circumstances, it seems to me that, whatever the merits may be of Mr Sayed’s application, and whatever substance there is in his complaint, the application for an extension of time for lodging a notice of appeal is misconceived, quite apart from the question of whether or not he has advanced sufficient reason for an extension of time.

8. Another response from the Bank to the application for an extension is that Mr Sayed elected not to challenge the decision of Harrison AsJ at a time after he became fully aware of the material that he complains was withheld by the Bank. Again, without going into the merits of those assertions, there is some suggestion in the material that is presently before me that Mr Sayed became aware no later than early 2016 of the contents of the material that he claims was withheld by the Bank. Be that as it may, that really is a question that would be determined on the hearing of any application to set aside the orders made by Harrison AsJ under UCPR r 36.15.

9. In the circumstances I am not persuaded that there is any utility in extending the time for Mr Sayed to file a notice of appeal from the orders made by Harrison AsJ in circumstances where he has not attempted, and does not seek, to point to any error on her Honour’s part, either of law or of fact, in making the orders for specific performance of the “in principle” agreement. The appropriate course, therefore, is to order that the application for an extension of time to file the notice of appeal from the orders made on 16 April 2015 should be dismissed.

10. Further, by notice of motion filed on 29 June 2020 in proceedings 2019/253854, Mr Sayed sought interim orders restraining the Bank from selling or exchanging contracts for property located at Woonona in New South Wales until the determination of the proceedings listed before me today. The sale of the Woonona property has now settled. Mr Sayed acknowledged that there was no utility in dealing with a motion to restrain something that has already occurred. Accordingly, that motion should be dismissed.

11. Two further motions were listed before me today in proceedings 2019/204489. The first is a motion filed by Mr Sayed on 25 May 2020 and the second is a motion filed by the Bank dated 29 July and filed on 30 July 2020. I propose that those motions be stood over to be heard by me on 6 August 2020.

12. The orders I make are:

1. The summons dated 15 August 2019 in proceedings 2019/253854 be dismissed.

2. I order the applicant on the summons in proceedings 2019/253854 to pay the costs of the respondents.

3. I reserve to the respondent any question of varying the order for costs to seek a gross lump sum costs order and any such application to be made within 14 days.

4. I order that the motion filed by Mr Sayed on 29 June 2020 in proceedings 2019/253854 be dismissed.

5. I order that the costs of the motion of 29 June 2020 be the costs of the parties in proceedings 2019/253854.

6. I direct each of the parties to notify the other in writing, with a copy to my associate, the evidence intended to be relied upon in support or in opposition to the motion filed on 25 May 2020 (2019/204489) by no later than 4pm on 5 August 2020, and the parties to indicate by 9am on 6 August 2020 any objections to any of that evidence.

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Endnote

Decision last updated: 19 August 2020