National Australia Bank v Sayed (No. 12)

In an email dated 5 March 2018 Mr Sayed seeks leave to issue subpoenas to two persons to give evidence at the trial which is fixed to commence on 30 April 2018. Those two persons are Robert Gizzi and Ivo Olbrecht.

In support of his application Mr Sayed relied on an affidavit he swore on 5 March 2018 where he said:

The affidavit then identifies two tender bids made. The first was by Pasquale Lucchitt from Realta Enterprises for $545,454.54. The second was from Robert Gizzi from Design Workshop Australia apparently witnessed by Ivo Olbrecht for a bid of $500,000. Mr Sayed says further that from documents under subpoena he had discovered that both Mr Gizzi and Mr Olbrecht acted as agents in the Corrimal property development for Pasquale Lucchitt from Realta Enterprises.

Mr Sayed went on to say:

The claims made in Mr Sayed’s affidavit are matters entirely outside the ambit of the Second Further Amended First Cross-Claim filed on 28 April 2017. The matters in the affidavit touch on matters which Mr Sayed has previously sought leave to rely on for yet a further amended cross-claim but in respect of which I have refused leave for reasons given in earlier judgments: National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253; National Australia Bank v Sayed (No. 10) [2018] NSWSC 108. The Second Further Amended First Cross-Claim contains no allegations of fraud, conspiracy or collusion that the matters in Mr Sayed’s affidavit of 5 March 2018 might suggest.

On 3 November 2016 I directed that Mr Sayed was to serve by 4.00pm on 23 December 2016 all further evidence both lay and expert in support of the Further Amended Cross Claim and a schedule identifying the lay and expert affidavits already filed and served to be relied upon, specifying the deponent and the date each affidavit was sworn. Although as at the date those directions were given, the cross-claim was in an earlier iteration, the amendments made by the cross-claim that came to be the Second Further Amended First Cross-Claim filed 28 April 2017 were minor as my judgments in National Australia Bank v Sayed (No. 8) [2017] NSWSC 89 and National Australia Bank v Sayed (No. 9) [2017] NSWSC 389 make clear.

Mr Sayed does not identify when he discovered the alleged fraudulent activity he asserts against Mr Ellul. However, at the outset of a hearing of an application by Mr Sayed to amend his cross-claim and to seek further production of documents under subpoena to Design Workshop on 5 September 2016, the issue was whether I should deal first with the subpoena issue or the proposed amendment to the cross-claim. The following exchanges occurred:

It is apparent that Mr Sayed has had the evidence to allege the collusion he now asserts in his 5 March affidavit since at least 5 September 2016, and probably since May 2016 when Mr Gizzi produced a large number of documents in answer to Mr Sayed’s subpoena. In his application argued on 5 September 2016 Mr Sayed did not seek to join those parties or make amendments asserting collusion except insofar as it related to the landlocking issue that I dealt with in Sayed (No. 6). His view was that the Bank should sue its agents in that regard.

For proceedings which commenced in this Court in 2010, and with the directions made in November 2016 to complete preparation of the evidence so that the matter can proceed to a hearing, it is entirely unacceptable that within two months of the hearing date Mr Sayed is seeking to broaden the scope of his claim by calling evidence from witnesses well outside the pleading in his cross-claim, which evidence he has known about for the last 18 months.

By an email dated 13 February 2018 sent to my Associate Mr Sayed sought leave to issue subpoenas against nine persons. In each case he indicated in the email whether such persons had already sworn an affidavit in the proceedings and by which party they were being called. I subsequently informed Mr Sayed at a directions hearing that in respect of persons who had sworn affidavits I was only prepared to issue subpoenas if they indicated they were not prepared to come to Court. I explained to Mr Sayed that if the person had sworn an affidavit for the Bank it was sufficient for him to give notice to the Bank that he required that person for cross-examination.

One person on Mr Sayed’s list was Robert Gizzi. The email indicated that Mr Gizzi had sworn an affidavit and that he was a witness for Mr Sayed. In fact, Mr Gizzi swore an affidavit on 19 September 2016 in response to a subpoena Mr Sayed had served on his company Design Workshop Australia. Most of the affidavit was concerned with the documents that Mr Sayed required to be produced pursuant to the subpoena. The affidavit otherwise only explained who Mr Gizzi was, in terms of his occupation and qualifications, and his relationship to Design Workshop Australia. The affidavit then went on to say:

I do not consider there is any evidence in Mr Gizzi’s affidavit relevant to the issues in the Second Further Amended First Cross-Claim. In the light of Mr Sayed’s affidavit of 5 March 2018 it seems clear that the only purpose for requiring Mr Gizzi’s attendance at the hearing is so that Mr Sayed can attempt to widen the issues to raise the matters of fraud and collusion that are outlined in his affidavit. Subject to the rules of evidence and the issues in dispute on the pleadings, Mr Sayed can tender any emails or documents concerning Mr Gizzi without Mr Gizzi being called. Leave to issue a subpoena to Mr Gizzi to give evidence should be refused.

Mr Olbrecht has not sworn an affidavit. He does not appear on Mr Sayed’s list of persons to be subpoenaed in his email of 13 February 2018. At the time Mr Sayed served his schedule of affidavits pursuant to my orders of 3 November 2016, there was no mention of Mr Olbrecht.

On 6 March 2018 in response to Mr Sayed’s email and affidavit of 5 March 2018, I directed my Associate to email Mr Sayed. In that email, at my direction, my Associate said this:

My Sayed replied the same day saying:

I have perused all of the transcripts for hearings in this matter since the commencement of 2016. The first and only mention of Mr Olbrecht is a person, referred to in the transcript as “Ivar Ulrich” on 23 February 2018. Mr Sayed said that that person was the engineer for Realta Enterprises who was the witness for the tender offer by Mr Gizzi. I accept that this person, by reason of Mr Sayed’s description of him, is Mr Olbrecht.

The emails and documents annexed to Mr Sayed’s affidavit of 5 March 2018 appear to have come principally from the subpoenaed documents produced by Design Workshop Australia. No documents from any other source have been recently produced. The Design Workshop documents were produced on 12 May 2016 as is disclosed in Mr Gizzi’s affidavit of 19 September 2016. There is no explanation from Mr Sayed why it has taken from that time until now to identify the relevance of Mr Olbrecht to Mr Sayed’s allegations in his 5 March affidavit.

In any event, Mr Olbrecht’s involvement appears only to be part of a claim that Mr Sayed now makes, that Mr Olbrecht and Mr Gizzi somehow colluded in relation to tenders lodged to purchase the Corrimal land and that this was associated with some fraud on Mr Ellul’s part. As I have indicated above, those matters do not form part of the claim in the Second Further Amended First Cross-Claim.

These proceedings were fixed in July 2017 for hearing for seven days on the basis of the affidavit material identified by Mr Sayed in his schedule served at the end of 2016. Quite apart from the evidence now sought to be led from Mr Gizzi and Mr Olbrecht being outside the pleading, it would be inappropriate to permit this evidence being given when the matter has been fixed for hearing for those seven days in circumstances where all of Mr Sayed’s evidence was to be completed and identified by December 2016. Both Sections 56 and 58 of the Civil Procedure Act 2005 (NSW) and what was said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 point strongly against such leave being given.

I make the following order: