National Australia Bank v Sayed (No. 9) [2017] NSWSC 389

National Australia Bank v Sayed (No. 9) [2017] NSWSC 389

Leave to amend cross-claim is granted only in limited respects set out in the specific order; leave for amendments introducing fraud, gross negligence, or unconscionable conduct claims (relating to mortgagee's sale or issues already determined) is refused as inadequate, estopped, or an abuse of process.

Parties
Plaintiff/cross Defendant: National Australia Bank Ltd; Cross Claimant: Bilal Sayed
Jurisdiction
Australia
Judgment Date
13 April 2017
Procedural Posture
Possession Proceedings With Cross Claim / Interlocutory Application for Leave to Amend Cross Claim
Outcome
Leave partly granted; most amendments refused; costs awarded to cross-defendant.
Legal Topics
Pleadings, Amendment, Mortgagee's Duties, Possession, Cross Claim, Estoppel, Abuse of Process, Fraud, Proper Particularisation
Civil Procedure Pleadings Amendment Mortgagee's Duties Possession Cross Claim Estoppel Abuse of Process +2 more

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Parties

National Australia Bank Ltd

Plaintiff/cross Defendant

Bilal Sayed

Cross Claimant

Procedural Posture

Possession Proceedings With Cross Claim / Interlocutory Application for Leave to Amend Cross Claim

Legal Issues

  1. 1 Whether leave should be granted to amend the cross-claim
  2. 2 Whether cross-claimant is estopped or if amendment would constitute abuse of process
  3. 3 Whether claim of fraud or unconscionable conduct may be pleaded and whether particulars are adequate

Ratio Decidendi

Leave to amend cross-claim is granted only in limited respects set out in the specific order; leave for amendments introducing fraud, gross negligence, or unconscionable conduct claims (relating to mortgagee's sale or issues already determined) is refused as inadequate, estopped, or an abuse of process.

Court Disposition

Leave partly granted; most amendments refused; costs awarded to cross-defendant.

Orders

  • Leave is granted to amend the Further Amended Cross-Claim in specific respects detailed in the judgment.
  • Second Further Amended Cross-Claim to be filed and served by 28 April 2017.