Adelaide Bank Limited V John Abdelkodous & Anor [2011] NSWSC 32

Adelaide Bank Limited V John Abdelkodous & Anor [2011] NSWSC 32

The default judgment was set aside because the defendants' limited English, lack of legal advice, payments made under the loan, prompt action after obtaining legal advice, and supporting evidence provided a satisfactory explanation for delay and disclosed bona fide triable defences based on alleged forgery and fraud by the plaintiff's agent. The subpoenaed solicitor documents remained privileged because production without a claim by former solicitors was not authorised by the defendants and did not generally waive privilege, but privilege was waived for notes and statements resulting from conferences with Mr Abdelkodous on 3 April and 7 May 2009 because parts of those communications had...

Jurisdiction
Australia
Judgment Date
10 February 2011
Procedural Posture
Common Law Proceedings for Possession of Land Secured by Registered Mortgage / Interlocutory Applications to Set Aside Default Judgment, Assert Client/legal Privilege Over Subpoenaed Documents, and Amend the Statement of Claim
Outcome
Default judgment set aside; defendants' privilege motion allowed in part; plaintiff granted leave to amend the statement of claim and join additional defendants; costs orders made and Registrar General's costs reserved.
Legal Topics
['default Judgment' 'possession of Land' 'legal Professional Privilege' 'waiver of Privilege' 'subpoena' 'amendment of Statement of Claim' 'costs']
['practice and Procedure' 'evidence' 'real Property' 'banking and Finance'] ['default Judgment' 'possession of Land' 'legal Professional Privilege' 'waiver of Privilege' 'subpoena' 'amendment of Statement of Claim' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Proceedings for Possession of Land Secured by Registered Mortgage / Interlocutory Applications to Set Aside Default Judgment, Assert Client/legal Privilege Over Subpoenaed Documents, and Amend the Statement of Claim

Legal Issues

  1. 1 ['Whether the defendants had a satisfactory explanation for delay in seeking to set aside the default judgment.' 'Whether the defendants had a bona fide defence raising an arguable or triable issue.' "Whether client/legal privilege in subpoenaed documents from the defendants' former solicitor had been waived." 'Whether some privileged material could be adduced because the defendants had disclosed part of the same communications in affidavit evidence.' 'Whether the plaintiff should have leave to amend its statement of claim and join additional defendants.']

Ratio Decidendi

The default judgment was set aside because the defendants' limited English, lack of legal advice, payments made under the loan, prompt action after obtaining legal advice, and supporting evidence provided a satisfactory explanation for delay and disclosed bona fide triable defences based on alleged forgery and fraud by the plaintiff's agent. The subpoenaed solicitor documents remained privileged because production without a claim by former solicitors was not authorised by the defendants and did not generally waive privilege, but privilege was waived for notes and statements resulting from conferences with Mr Abdelkodous on 3 April and 7 May 2009 because parts of those communications had...

Court Disposition

Default judgment set aside; defendants' privilege motion allowed in part; plaintiff granted leave to amend the statement of claim and join additional defendants; costs orders made and Registrar General's costs reserved.

Orders

  • ['The default judgment obtained by the Adelaide Bank against the defendants on 8 September 2006 is set aside.' 'The Adelaide Bank is prohibited from taking any further action on the writ of possession which has been issued in respect of the Casula property.' "The defendants have leave and are to file their Defences...