National Australia Bank Ltd v Sayed (No. 2) [2012] NSWSC 20

National Australia Bank Ltd v Sayed (No. 2) [2012] NSWSC 20

The proposed pleadings could not proceed in their present form because the First Defendant's pleaded facts did not disclose an equitable unconscionability defence based on an anterior special disadvantage, and both Defendants' Consumer Credit Code pleadings failed to confront the conclusive presumption arising from the signed Business Purposes Declarations. However, the Defendants had identified arguable defences, including statutory unconscionability for the First Defendant and a Contracts Review Act defence for the Second Defendant, and it would be unduly harsh to shut them out. The Defendants were therefore permitted to provide further amended pleadings consistent with the judgment,...

Jurisdiction
Australia
Judgment Date
31 January 2012
Procedural Posture
Interlocutory Applications / Further Application on Notices of Motion by the Defendants for Leave to File Amended Defences and Cross Claims
Outcome
Defendants permitted to provide further amended pleadings in accordance with the judgment; costs thrown away ordered against the First and Second Defendants.
Legal Topics
['pleadings' 'amendment of Pleadings' 'equitable Unconscionability' 'statutory Unconscionability' 'special Disadvantage' 'business Purposes Declaration' 'consumer Credit Code' 'contracts Review Act Defence' 'costs Thrown Away']
['civil Procedure' 'banking and Finance' 'consumer Credit' 'equity'] ['pleadings' 'amendment of Pleadings' 'equitable Unconscionability' 'statutory Unconscionability' 'special Disadvantage' 'business Purposes Declaration' 'consumer Credit Code' 'contracts Review Act Defence' 'costs Thrown Away']

Case Brief

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Procedural Posture

Interlocutory Applications / Further Application on Notices of Motion by the Defendants for Leave to File Amended Defences and Cross Claims

Legal Issues

  1. 1 ['Whether the First Defendant should be permitted to plead a defence based on equitable unconscionability in paragraphs 31 to 48 of the proposed defence.' "Whether matters in paragraphs 31 to 45 of the First Defendant's proposed defence could remain as background to a statutory unconscionability defence under the Australian Securities and Investments Commission Act 2001." "Whether paragraph 9 of the First Defendant's proposed defence concerning the Business Purposes Declaration and the Consumer Credit Code could remain in its present form." "Whether the First Defendant's cross-claim alleging sale of the development property at an under-value should be heard with the Bank's possession claim." "Whether paragraph 5 of the Second Defendant's proposed defence could plead that the mortgage was regulated by Consumer Credit Legislation despite the Business Purposes Declaration." "Whether the Second Defendant's claimed relief concerning sale at under-value involved an impermissible double recovery or a legitimate set-off connected to cross-collateralisation." 'Whether, despite earlier warnings about defective pleadings, the Defendants should be permitted to provide further amended pleadings.' 'Whether the First and Second Defendants should pay costs thrown away by reason of the proposed amendments.']

Ratio Decidendi

The proposed pleadings could not proceed in their present form because the First Defendant's pleaded facts did not disclose an equitable unconscionability defence based on an anterior special disadvantage, and both Defendants' Consumer Credit Code pleadings failed to confront the conclusive presumption arising from the signed Business Purposes Declarations. However, the Defendants had identified arguable defences, including statutory unconscionability for the First Defendant and a Contracts Review Act defence for the Second Defendant, and it would be unduly harsh to shut them out. The Defendants were therefore permitted to provide further amended pleadings consistent with the judgment,...

Court Disposition

Defendants permitted to provide further amended pleadings in accordance with the judgment; costs thrown away ordered against the First and Second Defendants.

Orders

  • ['The Defendants are to provide pleadings amended in accordance with this judgment to the Plaintiff and to my Associate by 4.00pm 7 February 2012.' 'The Plaintiff is to inform the Defendants by 10 February 2012 if the further proposed pleadings are agreed.' 'If there is consent to the pleadings being filed they are...