National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253 Hearing dates: 5 September 2016 Date of orders: 13 September 2016 Decision date: 13 September 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave is given to the First Defendant to file a Further Amended Cross-Claim in the form contained behind Tab 1 of the Court Book omitting paragraphs 25, 26, 27, particulars (i), (l) and (m) under paragraph 42 and the words "(and Mrs Sayed's interests)" in paragraph 42;

(2) The Further Amended Cross-Claim is to be filed within 14 days;

(3) The First Defendant is to pay the Plaintiff's costs of the application and the costs thrown away by reason of the amendment. Catchwords: PROCEDURE – amendment – further application to amend cross-claim – claim by mortgagor against mortgagee for exercise of power of sale – application to plead a further basis for breach of mortgagee's duty – breach if established would give mortgagee right against third parties – mortgagee out of time for bringing third party actions – mortgagee aware of facts forming basis for further claim for previous four years – no explanation for delay in seeking to amend – Civil Procedure Act s 58 – not just and reasonable to permit amendment

LIMITATION OF ACTIONS – third party claims – third party not joint tortfeasors with defendant – Limitation Act 1969 – inter-relationship between ss 26 and 74 – whether defendant barred from making third party claim

LIMITATION OF ACTIONS – postponement of the bar – fraud or mistake – third party claim by defendant for negligence and breach of contract - assertion of fraud or mistake on third parties' part by plaintiff – defendant not claiming fraud or mistake – negligence not equated with mistake – no postponement of the bar Legislation Cited: Civil Procedure Act 2005 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australia and New Zealand Banking Group Ltd v Pola [2013] NSWSC 1801 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 Creevey v Barrois [2005] NSWCA 264 Hillebrand v Penrith Council [2000] NSWSC 1058 National Australia Bank Ltd v Sayed (No 4) [2015] NSWSC 420 National Australia Bank v Sayed (No. 5) [2016] NSWSC 669 Nelson v Wyong Shire Council (1989) 68 LGRA 164 Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 Sinclair v Registrar-General [2010] NSWSC 173 Tekno Ceramics Pty Ltd v Zdenko Milat [2003] NSWCA 254 Category: Procedural and other rulings Parties: National Australia Bank Ltd (NAB) Bilal Sayed (Cross-Claimant) Representation: Counsel: G Lucarelli (NAB/Cross-Defendant) In person (Cross-Claimant)