National Australia Bank v Sayed (No. 13) [2018] NSWSC 325

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank v Sayed (No. 13) [2018] NSWSC 325 Hearing dates: On the papers Date of orders: 15 March 2018 Decision date: 15 March 2018 Jurisdiction: Common Law Before: Davies J Decision: Leave to issue the further subpoena to MERC is refused Catchwords: PROCEDURE – subpoenas – application by litigant in person to issue further subpoena to an agent of the plaintiff to produce documents – proposed evidence outside pleadings and issues – subpoena amounting to a fishing expedition – width of production oppressive – leave refused Legislation Cited: Nil Cases Cited: National Australia Bank v Sayed (No. 10) [2018] NSWSC 108 National Australia Bank v Sayed (No. 12) [2018] NSWSC 283 Category: Procedural and other rulings Parties: National Australia Bank Ltd (Plaintiff/Cross-Defendant) Bilal Sayed (Cross-Claimant) Representation: Counsel: G Lucarelli (Plaintiff/Cross-Defendant) In person (Cross-Claimant)

Solicitors: DibbsBarker (Plaintiff/Cross-Defendant) Self-represented (Cross-Claimant) File Number(s): 2010/135614 Publication restriction: Nil

Judgment 1. On 13 March 2018 by an email sent to my Associate, Mr Sayed seeks leave to issue a subpoena to MERC requiring them to produce the following documents: 1. A copy of each "Appointment of a real estate agent" document which assigned MMJ North as the real estate agent prior to December 2009. 2. A copy of each "Appointment of a real estate agent" document that was assigned to any real estate agent in Wollongong NSW prior to December 2009. 1. The email was copied to the solicitor for the Bank. The solicitor for the Bank forwarded an email to my Associate on 14 March 2018 opposing the grant of leave to issue the subpoena on two grounds. First, it was submitted that the subpoena was oppressive. Particular attention was directed to the width of the subpoena in paragraphs 1 and 2 requiring production of the agency agreements "prior to December 2009" without limitation and, additionally in relation to paragraph 2, that it required production of agreements with any real estate agent in Wollongong prior to December 2009. 2. The second basis for opposing the leave to issue the subpoena was that it was said to amount to a fishing expedition. The Bank submitted that Mr Sayed wanted to trawl through agency agreements for unrelated sales in the hope that something of use would turn up. 3. In response, Mr Sayed said that while reviewing the evidence he had found a few discrepancies relating to MMJ North (Greg Ellul) and MERC. He said that MERC as the principal for NAB obtained three property value appraisals from agents in the Northern suburbs of Wollongong for the Corrimal properties. Those appraisals were from Greg Ellul at MMJ North in Corrimal, Greg Truebody at MMJ North in Bulli, and Tony Sloane at Huxley & Partners. 4. Mr Sayed said further that Greg Ellul was the director of MMJ North offices at both Corrimal and Bulli. He noted that Greg Truebody had given the lowest appraisal and was then appointed to sell by MERC, but that it was Greg Ellul who had the carriage of the sale. Mr Sayed said that he was investigating whether MERC gave preference to MMJ North or MMJ in general for the Wollongong area, and required a subpoena to discover that. 5. The short answer to Mr Sayed's application is that the matters he has raised are well outside the particulars of negligence in the Second Further Amended First Cross-Claim and the pleading in that document. 6. I pointed out in National Australia Bank v Sayed (No. 10) [2018] NSWSC 108 at [62] and National Australia Bank v Sayed (No. 12) [2018] NSWSC 283 more generally, that matters in respect of which Mr Sayed had sought other subpoenas went well beyond the pleading and particulars in the Second Further Amended First Cross-Claim. It is difficult to see how the suggestion of MERC giving preference to MMJ North or MMJ in general can be related to any of the particulars in the cross-claim. The notion of "giving preference" to particular agents appears to me to be related to Mr Sayed's repeated attempts to bring within the cross-claim fraud, collusion and other wrongdoing by Mr Ellul and MERC. The cross-claim is concerned only with whether the Bank sold the Corrimal land at an under-value. 7. Moreover, it seems clear from what Mr Sayed has indicated in his second email that he is fishing for information that he does not have. Subpoenas may not be issued for such purposes. 8. Further, I agree with the submission of the Bank that the width of the subpoenas are, in any event, oppressive because of the period of time and the area of enquiry. 9. I note that Mr Sayed has previously issued a subpoena to MERC on 12 November 2015 which focussed much more appropriately on the issues in the proceedings. 10. Whilst I acknowledge the difficulties a litigant in person faces, Mr Sayed has been told repeatedly in judgments I have delivered, and in exchanges in court at various times, that his evidence must be confined to matters pleaded and particularised in the Second Further Amended First Cross-Claim. The Court does not have the resources to be issuing judgments constantly re-iterating the same matters. 11. There is the further matter, already discussed in Sayed (No. 12) that the matter has been fixed for trial on the basis of the evidence already identified by Mr Sayed at the end of 2016. Mr Sayed has made numerous applications to amend and widen the scope of the cross-claim, sometimes with legal representation and sometimes not. The issues to go to trial are those now pleaded and particularised in the Second Further Amended First Cross-Claim filed 28 April 2017. That form of the cross-claim was the final outcome from those applications. The proceedings commenced in 2010. It is entirely unacceptable that the hearing of this matter now fixed for 30 April 2018 should be derailed by any further attempts to lead evidence of matters outside the scope of the cross-claim. 12. By reason of the matters in [11] and [12] above, any further applications to issue subpoenas to lead evidence not within the cross-claim's boundaries will be rejected with no further reasons for judgment being provided. 13. Leave to issue the further subpoena to MERC is refused.