National Australia Bank Limited v Skoczek [2017] NSWSC 332

National Australia Bank Limited v Skoczek [2017] NSWSC 332

Leave to file the proposed cross-claim and proposed defence was refused because, viewed against the history of earlier pleading opportunities, the proposed pleadings were not sufficiently clear, precise or properly particularised. The proposed cross-claim did not adequately plead a basis on which NAB or Advantedge was party to or liable under the Mortgage Management Agreement or obliged to pay trailing commissions, and did not sufficiently identify how cessation of commissions breached the pleaded credit contracts or the alleged MSLA. The proposed defence repeatedly failed to specify whether allegations concerned original agreements or later variations, did not adequately plead breaches,...

Jurisdiction
Australia
Judgment Date
28 March 2017
Procedural Posture
Notice of Motion by the Defendants Seeking Leave to File a Second Further Amended Defence and a Second Further Amended Statement of Cross Claim / Interlocutory Application Concerning Pleadings
Outcome
The defendants were refused leave to file the proposed amended cross-claim and proposed defence; they were directed to serve a further draft proposed defence and cross-claim; the motion was otherwise dismissed with costs against the defendants.
Legal Topics
['pleadings' 'leave to Amend Defence and Cross Claim' 'loan Agreements' 'guarantee and Mortgage' 'trailing Commissions' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'national Credit Code Hardship and Unjust Transaction Provisions' 'contracts Review Act 1980' 'yerkey V Jones and Garcia Principle']
['civil Procedure' 'banking and Finance' 'consumer Credit' 'equity'] ['pleadings' 'leave to Amend Defence and Cross Claim' 'loan Agreements' 'guarantee and Mortgage' 'trailing Commissions' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'national Credit Code Hardship and Unjust Transaction Provisions' 'contracts Review Act 1980' 'yerkey V Jones and Garcia Principle']

Case Brief

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Procedural Posture

Notice of Motion by the Defendants Seeking Leave to File a Second Further Amended Defence and a Second Further Amended Statement of Cross Claim / Interlocutory Application Concerning Pleadings

Legal Issues

  1. 1 ['Whether the defendants should be granted leave to file the proposed amended cross-claim.' 'Whether the defendants should be granted leave to file the proposed defence.' 'Whether the proposed pleadings sufficiently identified the material facts, agreements, parties bound, timing, breaches and statutory or equitable bases for relief.' 'Whether the proposed claims concerning trailing commissions, the Mortgage Management Agreement, the loan agreements, guarantee and mortgage were sufficiently pleaded against NAB and Advantedge.']

Ratio Decidendi

Leave to file the proposed cross-claim and proposed defence was refused because, viewed against the history of earlier pleading opportunities, the proposed pleadings were not sufficiently clear, precise or properly particularised. The proposed cross-claim did not adequately plead a basis on which NAB or Advantedge was party to or liable under the Mortgage Management Agreement or obliged to pay trailing commissions, and did not sufficiently identify how cessation of commissions breached the pleaded credit contracts or the alleged MSLA. The proposed defence repeatedly failed to specify whether allegations concerned original agreements or later variations, did not adequately plead breaches,...

Court Disposition

The defendants were refused leave to file the proposed amended cross-claim and proposed defence; they were directed to serve a further draft proposed defence and cross-claim; the motion was otherwise dismissed with costs against the defendants.

Orders

  • ['Refuse leave to the defendants to file an Amended Cross-Claim in the form of pages 48 to 57 of the affidavit of Tadeusz Skoczek sworn 24 February 2017.' 'Refuse leave to the defendants to file a defence in the form of pages 58 to 70 of the affidavit of Tadeusz Skoczek sworn 24 February 2017.' 'Direct that on or...