Sayed v National Australia Bank

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.