Sayed v National Australia Bank Limited

HIS HONOUR: I have before me an application by Mr Bill Sayed for a stay of orders made by Harrison AsJ on 16 April 2015. Mr Sayed appeared in person without legal assistance. The application is made under a summons filed on 15 August 2019 in proceedings 253854 of 2019. The respondent in those proceedings 253854 is National Australia Bank Limited (NAB). While the summons is expressed as a summons seeking leave to appeal, it is in fact an application for an extension of time to file a notice of appeal from the orders made by Harrison AsJ.

The matter initially came before me today for hearing of a notice of motion filed by Mr Sayed on 11 September 2019 in proceedings 204489 of 2019. By that motion, a stay of a writ of possession in relation to premises situated at Gahans Lane, Woonona was sought pending a directions hearing on 23 September 2019 in relation to the notice of appeal from orders made by McCallum J on 25 June 2019, which has been filed in those proceedings.

Mr Sayed has a dispute with NAB arising out of arrangements between NAB, on the one hand, and Mr Sayed and his former wife, on the other, involving loans by NAB to Mr Sayed and his wife. The loans were secured over the Woonona property and over a property at Corrimal. The Corrimal property, consisting of two adjoining lots, was sold by NAB as mortgagee in possession. That sale gave rise to a claim by Mr Sayed against NAB, alleging breach of its obligations as a mortgagee in possession exercising its power of sale.

The claim was made by Mr Sayed as a cross-claim in proceedings brought by NAB against him claiming possession of the Woonona property. The proceedings were listed for hearing before Adams J. However, the issues raised by the claim for possession were resolved by what was described as an “in-principle agreement”, which was entered into on 23 August 2012 between NAB, on the one hand, and Mr Sayed and his wife, on the other. The in-principle agreement resolved the dispute that was to be heard by Adams J.

Subsequently, NAB brought proceedings against Mr Sayed and his wife for orders that the in-principle agreement be specifically performed and Mr Sayed filed his cross-claim in those proceedings. On 16 April 2015, for reasons given on that day, Harrison AsJ ordered that the in-principle agreement be specifically performed. Her Honour declined to grant a stay of that order and declined to grant expedition of the cross-claim filed by Mr Sayed.

On 1 September 2015, Mr Sayed was served with a notice to vacate by the Sheriff of New South Wales pursuant to an order for possession of the Woonona property. On 7 October 2015 the Woonona property was vacated by Mr Sayed and his family. However, Mr Sayed asserts that on the following day he returned to the Woonona property. It appears that he has remained in possession since that time.

Ultimately, Mr Sayed’s cross-claim came on for hearing before McCallum J, sitting in the Common Law Division. On 25 June 2019, for reasons given on that day, McCallum J ordered that Mr Sayed’s cross-claim be dismissed and that he pay NAB's costs. On 2 July 2019 Mr Sayed filed a notice of intention to appeal from the orders made by McCallum J.

On 22 July 2019, Mr Sayed received a notice of motion seeking orders that, pursuant to the orders made by Harrison AsJ on 16 April 2015, judgment for possession of the Woonona property be entered in favour of NAB and that a writ for possession be issued. The motion came before McCallum J on 26 July 2019 when, for reasons given on that day, her Honour ordered that upon the issue of a writ for possession, the writ not be executed before 26 August 2019. There has been no appeal from the orders of 26 July 2019.

After Mr Sayed filed his application of 15 August 2019 for an extension of time to appeal from the orders made by Harrison AsJ, he made several misconceived applications to the Common Law Division for a stay of the writ for possession of the Woonona property. Applications made by him to Ierace J on 22 August 2019 and to Ian Harrison J on 6 September 2019 were dismissed.

It is against that background that Mr Sayed now applies to the Court of Appeal for a stay of the writ for possession, pending the hearing of the two proceedings that he has now instituted in the Court of Appeal. The application for an extension of time is supported only by an appeal summary filed by Mr Sayed and an affidavit of Mr Sayed affirmed 11 September 2019.

The substance of Mr Sayed’s complaint about the orders made by Harrison AsJ is that, sometime after those orders had been made, he realised that there was material that he says should have been produced by NAB under a notice to produce served prior to the proceedings that were listed before Adams J. He asserts that, had that material been produced, he would not have entered into the in-principle agreement and that, accordingly, the orders made by Harrison AsJ should not have been made.

However, there is presently no evidence before me from which a finding could be made that there are documents that might have been material to the question of whether the in-principle agreement should have been made, that should have been produced prior to the time when the in-principle agreement was entered into. While Mr Sayed has referred to evidence of email communications between NAB and him and between their respective lawyers relating to the production of documents, the emails do not appear to me to support in any way his contention that relevant materials were available to NAB that were not produced to him.

Significantly, there is no evidence to explain why there was no application prior to August 2019 for an extension of time to appeal from the orders made by Harrison AsJ, other than assertions from the bar table that Mr Sayed did not appreciate that relevant documents had not been produced. Even so, there is no explanation for what seems to me to be a significant delay from the time in early 2018 when Mr Sayed says that he realised that documents should have been produced had not been produced. In all of the circumstances, I am not persuaded that any basis has been advanced at present as to why an extension of time to appeal is likely to be granted by the Court of Appeal.

The draft notice of appeal filed with the application for an extension of time asserts that there has been a substantial miscarriage of justice, which gave NAB an unfair advantage in negotiating the in-principle agreement and an unfair advantage in the hearing before Harrison AsJ. As I have said, there is no material to support those assertions. The summary in support of the application for an extension of time does not advance the matter any further. On the basis of the material before me, I am not satisfied that there is any prospect of a successful appeal from the orders made by Harrison AsJ, assuming an extension of time were granted.

In relation to the orders of McCallum J dismissing the cross-claim, the proposed notice of appeal raises some 16 grounds. Mr Sayed has provided no material in support of the contentions to be advanced in support of those grounds. In the circumstances, I cannot be satisfied that there is any real prospect of success of the appeal brought from McCallum J’s orders of 25 June 2019, dismissing Mr Sayed’s cross-claim. In any event, it is by no means clear how that would bear on the question of a stay of the writ of possession. The claim made in the cross-claim dismissed by McCallum J is that the exercise of the power of sale of the Corrimal property involved a breach of the duty that NAB, as mortgagee in possession, owed to Mr Sayed and his wife, as mortgagor. That may have resulted in an order for equitable compensation against NAB. However, it does not seem to me to have any bearing on the question of whether or not there should be a stay of the writ for possession of the Woonona property. I am not persuaded, therefore, that any stay is appropriate.

The indication is that the writ of possession will be executed tomorrow, on 12 September 2019. Whether Mr Sayed wishes to make some further application, after he has put together material that he says might support a contention that there are some prospects of success in the proceedings involving the orders of Harrison AsJ, is a matter for him. That, however, is a matter for another day.

Accordingly, I propose to order that the notice of motion of 11 September 2019 be dismissed. I also propose to order that the application for a stay in proceedings 2019/253854 made ore tenus be dismissed.