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

Supreme Court New South Wales

Medium Neutral Citation: Adelaide Bank Limited V John Abdelkodous & Anor [2011] NSWSC 32 Hearing dates: Monday 7 February 2011 Decision date: 10 February 2011 Jurisdiction: Common Law Before: Hoeben J Decision: In relation to the defendants' motion of 19 May 2009 I make the following orders: (1) The default judgment obtained by the Adelaide Bank against the defendants on 8 September 2006 is set aside. (2) 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. (3) The defendants have leave and are to file their Defences and any Cross-Claims within 28 days of service upon their solicitors of the plaintiff's Amended Statement of Claim. (4) The defendants are to pay the plaintiff's costs of the motion to set aside the default judgment. Orders in respect of the defendants' motion of 21 December 2010 are as follows: (1) That the documents produced to the Court in these proceedings by Gregory Byles, pursuant to subpoena, except for notes of and statements prepared as a result of the conferences with Mr Abdelkodous of 3 April and 7 May 2009, not be adduced in these proceedings pursuant to ss118 and 119 of the Act. (2) That each party pay their or its own costs of the motion. Orders in respect of the plaintiff's motion are as follows: (1) The plaintiff has leave to file within 14 days the Amended Statement of Claim dated 4 February 2011 and exhibited at Tab 28 of the exhibit to the affidavit of Ms Magee sworn 4 February 2011. (2) The plaintiff has leave to join as defendants to the proceedings. (i) Combined Home Loans Pty Limited as the third defendant. (ii) Karl Damien as fourth defendant. (iii) Victor Abdelkodous as fifth defendant. (3) The costs of this motion and of the Amended Statement of Claim be costs in the cause. (4) The principal proceedings are to come before me for directions at 9.30am on Monday, 28 March 2011. Question of the Registrar General's costs reserved. Catchwords: PRACTICE AND PROCEDURE - interlocutory applications in proceedings for possession of land - application to set aside default judgment - whether satisfactory explanation for delay - whether bona fide defence available - subpoena addressed to former solicitor - confidential documents produced in answer to subpoena - no claim for legal professional privilege made at time of production - whether claim for privilege waived - application of s 122(2) Evidence Act 1995 (NSW) - legal professional privilege waived in part - application to amend statement of claim - costs. Legislation Cited: Evidence Act 1995 (NSW) Real Property Act 1900 Cases Cited: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341 DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [58] Emmanuel Paneras and Anor v Eastern Suburbs Property Development Pty Limited [2009] NSWSC 105 at [51] Grace v Grace [2010] NSWSC 1514 (Brereton J) Hamafam Pty Limited v Saadullah [2007] NSWSC 818 at [7] Kang v Kwan & Ors [2001] NSWSC 698 at [29] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Category: Procedural and other rulings Parties: Bendigo & Adelaide Bank Limited (Plaintiff) John Abdelkodous (First Defendant) Nadia Abdelkodous (Second Defendant) Representation: Counsel: Mr AJ McInerney (Plaintiff) Mr R Notley (Defendants) Mr A Rogers - Registrar General Solicitors: Gadens Lawyers (Plaintiff) Bransgroves Lawyers (First and Second Defendants) Mr K O'Keefe, Solicitor for the Registrar General (Cross Defendant) File Number(s): 2005/268447