National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253

National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253

Leave to include the landlocking allegations was refused because Mr Sayed had been aware of the issue and had relevant documents since at least August 2012, gave no satisfactory explanation for not pleading the claim earlier, NAB had arguable claims against MERC and MMJ that would now be statute barred, and ss 55 and 56 of the Limitation Act 1969 (NSW) did not apply. The resulting prejudice and injustice to NAB meant it was not just and reasonable under s 58 of the Civil Procedure Act 2005 (NSW) to permit those amendments.

Jurisdiction
Australia
Judgment Date
13 September 2016
Procedural Posture
Application for Leave to File a Further Amended Cross Claim / Interlocutory Application for Amendment of Cross Claim
Outcome
Leave granted in part to file a Further Amended Cross-Claim, with the objected landlocking allegations and references to Mrs Sayed's interests omitted.
Legal Topics
['amendment of Pleadings' 'cross Claim' "mortgagee's Exercise of Power of Sale" "mortgagee's Duty to Obtain a Proper Price" 'third Party Claims' 'limitation Periods' 'fraud or Mistake Postponement of Limitation Period']
['civil Procedure' 'limitation of Actions' 'mortgage Law'] ['amendment of Pleadings' 'cross Claim' "mortgagee's Exercise of Power of Sale" "mortgagee's Duty to Obtain a Proper Price" 'third Party Claims' 'limitation Periods' 'fraud or Mistake Postponement of Limitation Period']

Case Brief

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Procedural Posture

Application for Leave to File a Further Amended Cross Claim / Interlocutory Application for Amendment of Cross Claim

Legal Issues

  1. 1 ['Whether the First Defendant should be given leave to plead further allegations that NAB breached its mortgagee duties by proceeding on a false basis that lot 42 of the Corrimal land was landlocked.' 'Whether the proposed amendments would prejudice NAB because any arguable claims by NAB against MERC or MMJ would now be statute barred.' 'Whether ss 55 or 56 of the Limitation Act 1969 (NSW) postponed any limitation bar by reason of fraud, deceit, concealment or mistake.' 'Whether the delay in seeking the amendment was satisfactorily explained and whether leave would accord with the dictates of justice under s 58 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

Leave to include the landlocking allegations was refused because Mr Sayed had been aware of the issue and had relevant documents since at least August 2012, gave no satisfactory explanation for not pleading the claim earlier, NAB had arguable claims against MERC and MMJ that would now be statute barred, and ss 55 and 56 of the Limitation Act 1969 (NSW) did not apply. The resulting prejudice and injustice to NAB meant it was not just and reasonable under s 58 of the Civil Procedure Act 2005 (NSW) to permit those amendments.

Court Disposition

Leave granted in part to file a Further Amended Cross-Claim, with the objected landlocking allegations and references to Mrs Sayed's interests omitted.

Orders

  • ['Leave is given to the First Defendant to file a Further Amended Cross-Claim in the form contained behind Tab 1 of the Court Book omitting paragraphs 25, 26, 27, particulars (i), (l) and (m) under paragraph 42 and the words "(and Mrs Sayed\'s interests)" in paragraph 42.' 'The Further Amended Cross-Claim is to be...