National Australia Bank v Sayed (No. 5) [2016] NSWSC 669

National Australia Bank v Sayed (No. 5) [2016] NSWSC 669

The proposed cross-claim could not be filed because it did not comply with r 19.5 and retained unsatisfactorily pleaded material. Although a properly pleaded claim concerning Lot 42 could be permitted, the Woonona and cross-collateralisation matters could not be reintroduced because they were settled or determined by the In Principle Agreement and the judgment in Sayed (No 4), were res judicata or barred by Anshun estoppel, and had been expressly abandoned without explanation. NAB had not waived client legal privilege because its Defence to the Amended First Cross-Claim did not rely on a state of mind or belief informed by legal advice, and maintaining privilege was not inconsistent or...

Jurisdiction
Australia
Judgment Date
27 May 2016
Procedural Posture
Common Law; Procedural and Other Ruling / Notice of Motion by the First Defendant Filed 4 March 2016 Seeking Leave to File a Further Amended Cross Claim and Supply of Unredacted Bank Documents
Outcome
The First Defendant's Notice of Motion filed 4 March 2016 was dismissed with costs.
Legal Topics
['amendment of Cross Claim' 'client Legal Privilege' 'implied Waiver' 'res Judicata' 'anshun Estoppel' 'mortgagee Power of Sale' 'discovery']
['civil Procedure' 'evidence' 'banking and Finance'] ['amendment of Cross Claim' 'client Legal Privilege' 'implied Waiver' 'res Judicata' 'anshun Estoppel' 'mortgagee Power of Sale' 'discovery']

Case Brief

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Procedural Posture

Common Law; Procedural and Other Ruling / Notice of Motion by the First Defendant Filed 4 March 2016 Seeking Leave to File a Further Amended Cross Claim and Supply of Unredacted Bank Documents

Legal Issues

  1. 1 ['Whether leave should be granted to file the proposed further amended cross-claim' 'Whether claims concerning the Woonona property and cross-collateralisation could be reintroduced after the In Principle Agreement, the judgment in National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420, and their earlier abandonment' 'Whether the proposed pleading complied with r 19.5 of the Uniform Civil Procedure Rules 2005 (NSW)' 'Whether NAB had lost client legal privilege over redacted parts of nine documents by implied waiver under s 122 of the Evidence Act 1995 (NSW)']

Ratio Decidendi

The proposed cross-claim could not be filed because it did not comply with r 19.5 and retained unsatisfactorily pleaded material. Although a properly pleaded claim concerning Lot 42 could be permitted, the Woonona and cross-collateralisation matters could not be reintroduced because they were settled or determined by the In Principle Agreement and the judgment in Sayed (No 4), were res judicata or barred by Anshun estoppel, and had been expressly abandoned without explanation. NAB had not waived client legal privilege because its Defence to the Amended First Cross-Claim did not rely on a state of mind or belief informed by legal advice, and maintaining privilege was not inconsistent or...

Court Disposition

The First Defendant's Notice of Motion filed 4 March 2016 was dismissed with costs.

Orders

  • ["The First Defendant's Notice of Motion filed 4 March 2016 is dismissed" "The First Defendant is to pay the Plaintiff's costs of the Motion."]