Supreme Court New South Wales Medium Neutral Citation: National Australia Bank Ltd v Melhem [2015] NSWSC 1008 Hearing dates: 24 July 2015 Date of orders: 24 July 2015 Decision date: 24 July 2015 Jurisdiction: Common Law Before: Davies J Decision: Davies J's orders of 22 July 2015 varied in the following terms: 1. In lieu of the documents ordered to be provided in category 7, the Plaintiff is to supply the sale price of the Wingen property and a breakdown of how the sale proceeds have been applied by NAB. All other orders made by Davies J on 22 July 2015 confirmed. Catchwords: PROCEDURE – claim for possession – early judicial directions – directions for production of documents by plaintiff prior to amended defence being filed - error by party in consenting to direction – consent beyond instructions – whether direction should be varied – documents directed to be provided going beyond issues between the parties – direction varied Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff) Rousell Antanios Melhem (First Defendant) Shiyan Eleanor Soh (Second Defendant) Representation: Counsel: E Hodgman (Plaintiff) No appearances (First and Second Defendants) Solicitors: DibbsBarker (Plaintiff) Self-represented (Defendants) File Number(s): 2014/127549 Judgment 1. This matter came before me on 22 July 2015. On that occasion Mr Napoli appeared for the Bank and the Defendants appeared in person. 2. The principal issue before me on that occasion was the Defence which had been filed by the Defendants and whether it disclosed a reasonable defence to the proceedings. Associated with that was an issue relating to a request that had been made by the Defendants for the supply of documents associated with the Banking arrangements between the Bank and the Defendants. 3. The Defendants had sought from the Bank eight categories of documents. An e-mail was provided detailing those categories. I was informed by Mr Napoli, who appeared for the Bank, that the Bank agreed to supply categories 2, 4 and 7 on condition that a proper defence was filed by the Defendants within seven days. 4. In the light of that statement to the Court and having looked at the other documents sought to be produced by the Defendants, I took the view that the Bank should only produce the documents in categories 2, 4 and 7. I made orders accordingly and for the filing of a fresh defence, having struck out the defence which was filed by the Defendants. 5. My Associate was subsequently contacted on that day by Mr Napoli, and an e-mail forwarded to her by him, indicating that Mr Napoli had inadvertently gone beyond his instructions in having agreed to supply the documents as identified in categories 2, 4 and 7. 6. The differences, as far as categories 2 and 4 were concerned were so subtle as not to be important. However, there was a significant difference in the documents sought by the Defendants in category 7 and those which the Bank had in fact given instructions should be provided. I did not enquire further about those documents because I was told the Bank agreed to provide them. 7. It now transpires that what the Bank agreed to provide in category 7 was the sale price of the Wingen property and a breakdown of how the sale proceeds have been applied. That is no doubt because one of the issues that the Defendants have raised is the precise amount that is owing to the Bank. The Wingen property was another property taken as security for the loans. 8. The Defendants' category 7 required production of the following; disbursements, copies of contract of sale, details of settlement proceeds, advertisement documents, all contracts made with listing agent relating to property 1- 3 Livingstone Road Wingen, New South Wales which NAB have sold off. 9. When I was informed of the error that had been made by Mr Napoli I had the matter re-listed today. My associate received two e-mails from the Defendants saying that the date that had been chosen by the Plaintiff's solicitors "without mutual consent on short notice", and the Defendants were not available to attend. In fact the date was chosen by me. Nevertheless the Defendants are not in attendance today. They oppose any variation being made to the orders that I made the other day. 10. In my view I should vary the orders I made. Many of the documents required by the Defendants in category 7 do not relate to any issue presently between the parties. The documents could only reasonably be used to mount some form of a claim against the Bank of a breach of the mortgagee's duty on a sale of the Wingen property. No such issue has been raised in the pleadings to justify the provision of those documents. There is, in any event, some doubt about whether such an issue would be able to be raised in these proceedings by reason of the Bank's documents signed about by the Defendants. 11. Accordingly, I will vary the order that I made the other day to direct the Bank to make available by the date I specified documents in categories 2 and 4 and in addition the sale price of the Wingen property and a breakdown of how the sale proceeds have been applied by NAB. My orders made on the 22nd are otherwise confirmed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2015