National Australia Bank v Sayed (No. 8) [2017] NSWSC 89

National Australia Bank v Sayed (No. 8) [2017] NSWSC 89

Paragraphs 42 and 43 were struck out because they incorporated allegations concerning matters, principally the Woonona property, that had already been dealt with and were barred by res judicata or Anshun estoppel. Paragraph 32 and the words in particular 33(k) concerning land locking were struck out because the land-locking issue had already been decided adversely to Mr Sayed and could not be raised again. Mr Sayed was permitted to bring a notice of motion seeking amendment to plead permissible matters concerning the Corrimal property or to re-plead without land-locking references.

Jurisdiction
Australia
Judgment Date
15 February 2017
Procedural Posture
Common Law Proceeding; Procedural Ruling on Pleadings and Strike Out / Directions Hearing / Application to Strike Out Parts of Further Amended First Cross Claim
Outcome
Parts of the cross-claim were struck out; Mr Sayed was given liberty to seek amendment by notice of motion; no order as to costs for the appearance.
Legal Topics
['pleadings' 'strike Out' 'res Judicata' 'anshun Estoppel' 'unconscionable Conduct' 'leave to Amend']
['civil Procedure'] ['pleadings' 'strike Out' 'res Judicata' 'anshun Estoppel' 'unconscionable Conduct' 'leave to Amend']

Case Brief

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Procedural Posture

Common Law Proceeding; Procedural Ruling on Pleadings and Strike Out / Directions Hearing / Application to Strike Out Parts of Further Amended First Cross Claim

Legal Issues

  1. 1 ['Whether paragraphs 42 and 43 of the cross-claim, incorporating earlier pleadings about unconscionable conduct principally concerning the Woonona property, should be struck out because those matters had already been determined adversely to the cross-claimant.' 'Whether paragraph 32 and particular 33(k) of the cross-claim concerning land locking should be struck out because the land-locking issue had already been determined adversely to the cross-claimant.' 'Whether Mr Sayed should be permitted to seek amendment of the cross-claim to plead matters concerning unconscionable conduct in relation to the Corrimal loan and Corrimal mortgage, or to re-plead paragraph 32 without reference to land locking.']

Ratio Decidendi

Paragraphs 42 and 43 were struck out because they incorporated allegations concerning matters, principally the Woonona property, that had already been dealt with and were barred by res judicata or Anshun estoppel. Paragraph 32 and the words in particular 33(k) concerning land locking were struck out because the land-locking issue had already been decided adversely to Mr Sayed and could not be raised again. Mr Sayed was permitted to bring a notice of motion seeking amendment to plead permissible matters concerning the Corrimal property or to re-plead without land-locking references.

Court Disposition

Parts of the cross-claim were struck out; Mr Sayed was given liberty to seek amendment by notice of motion; no order as to costs for the appearance.

Orders

  • ['Paragraphs 32, 42 and 43 of cross-claim are struck out.' 'The words in paragraph 33(k) "including MMJ\'s assumption of land locking" in the cross-claim are struck out.' 'Any application to amend cross-claim to be made by Notice of Motion such Notice of Motion to be filed by 15 March 2017 and made returnable before...