There is a further reason that orders 1 to 3 should be refused.
Section 58 of the Civil Procedure Act 2005 (NSW) is relevant. In Sayed (No. 6) I discussed the application of s 58 to Mr Sayed's then application to amend the cross-claim. Everything that I said there at [44]-[48] is relevant on the present application to amend the cross-claim. It also relevant to a consideration of the application to remove Dibbs Barker as NAB's solicitors, and to the leave sought to amend to add a claim by Mr Sayed against Dibbs Barker.
All of this material was available to Mr Sayed at a much earlier time. Despite at times being advised and assisted by solicitors and senior counsel the present application is only now being made well after the time the matter was set down for final hearing and only a few months before that final hearing. No explanation is provided for the delay in making the present application: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [102]-[103].
As a matter of discretion, even if other matters were established, I would decline to permit the amendments and to order the removal of the solicitors.
The matter should go to trial on the second further amended cross-claim filed 28 April 2017 and the defence thereto.
[2]
(4) Subpoenas
Mr Sayed seeks to issue two subpoenas. The first is addressed to Dibbs Barker Solicitors and seeks the following documents:
1. All documents referring or relating to property known as 263-267 and/or 267-2 A3 Rothery Road/St Corrimal, NSW being land formally known as to in Certificate of Title Folio Identifiers 4/804963, B/398475, 41/1106335 and 42/1106335 during the period January 2009 to 30 July 2010 including but not limited to:
a. Communications between DIBBS BARKER and:
i. National Australia Bank
ii. MERC Property
iii. Wollongong City Council
iv. MMJ North Corrimal NSW
v. Huxley & Partners Corrimal NSW
vi. Addison's Valuers
vii. Kohler Bird Valuers
viii. ALLMAIN Pty Ltd
ix. Bill Sayed
x. Richard Robert Taylor
xi. Realta Enterprises
xii. Robert Webley & Associates
xiii. Or any other agent, person or entity
b. Internal file, journal and/or notes
This subpoena must be seen in the light of the fact that Mr Sayed has issued four Notices to Produce addressed to NAB during the currency of the proceedings. Lawyers for NAB have said, without dissent from Mr Sayed, that from an early stage in the proceedings the mutual understanding between the legal representatives was that relevant documents would be produced in response to Notices to Produce rather than formal discovery to minimise costs.
The first Notice to Produce was issued by lawyers acting for Mr Sayed on 6 December 2011. It was largely concerned with the loan facilities in relation to the properties but also sought a copy of the contract for the sale of the Corrimal land.
The next Notice to Produce served by solicitors then acting for Mr Sayed was issued on 28 March 2012. It sought production of the following documents:
You are required to produce the following documents or things for inspection by the first defendant by 12 April 2012.
1. All:
a. files kept by National Australia Bank Limited referring to Bilal Sayed;
b. files kept by National Australia Bank Limited referring to Nicole Sayed;
c. Documents signed by Bilal Sayed;
d. Documents signed by Nicole Sayed;
e. application forms;
f. Documents provided by Bilal Sayed to National Australia Bank Limited, including but not limited to:
i. income tax returns of Bilal Sayed; and
ii. asset and liability statements of Bilal Sayed;
g. Documents provided by Nicole Sayed to National Australia Bank Limited, including but not limited to:
i. income tax returns of Nicole Sayed; and
ii. asset and liability statements of Nicole Sayed;
h. file notes, memoranda or any other Document recording information provided to National Australia Bank Limited by Bilal Sayed;
i. file notes, memoranda or any other Document recording information provided to National Australia Bank Limited by Nicole Sayed;
j. correspondence between employees of National Australia Bank Limited, including but not limited to Kylie Hancox and any other National Australia Bank Limited employee; and
k. correspondence between employees of National Australia Bank Limited and any other person or entity including but not limited to Kylie Hancox and any other person or entity;
concerned with, evidencing or relating to the financial accommodation provided to Bilal Sayed by National Australia Bank Limited on or about 21 June 2006, during the period between 1 April 2006 and 30 June 2006.
2. All Documents recording the lending criteria considered by National Australia Bank Limited in determining whether or not to provide the financial accommodation provided to Bilal Sayed and Nicole Sayed on or about 21 June 2006.
3. All property valuations prepared for National Australia Bank Limited, or for any person or entity on behalf of National Australia Bank Limited, during the period between 1 January 2006 and the commencement of these proceedings (28 May 2010) in respect of:
a. 267 to 273 Rothery Road, Corrimal, New South Wales being the land formerly referred to in Certificate of Title Folio Identifier 4/804963 and B/398475, and from about 28 December 2006, Folio Identifier 41/1106335 and 42/1106335 and any improvements to the land ("Corrimal"); or
b. 25 Gahans Road, Woonona, New South Wales being the land referred to in Certificate of Title, Folio identifier 3/1017140 and any improvements to the land ("Woonona");
and any notes, correspondence, instructions, draft reports or comments on such reports or draft reports.
4. All Documents referring or relating to any sale or proposed sale of Corrimal during the period between 13 March 2009 and 28 February 2010, including but not limited to:
a. contracts or proposed contracts for sale;
b. offers received by or on behalf of National Australia Bank Limited;
c. correspondence between National Australia Bank Limited and any other person or entity, including but not limited to:
i. MMJ North Pty Ltd;
ii. GregEllul;
iii. Realta Enterprises Pty Limited;
iv. Robert Webley & Associates.
d. agency agreements, including but not limited to agency agreements with MMJ North Pty Ltd;
e. file notes or memoranda.
5. All Documents referring or relating to the marketing for sale by any person or entity of Corrimal during the period between 13 March 2009 and 28 February 2010.
6. All Documents evidencing the extent to which National Australia Bank Limited considered:
a. any development approval relating to Corrimal; and
b. any valuation of Corrimal;
during the negotiations for sale and sale of Corrimal during the period between 13 March 2009 and 28 February 2010.
The third Notice to Produce served by solicitors for Mr Sayed on 18 July 2012 required production of the following documents:
You are required to produce the following documents or things for inspection by the first defendant by 2 August 2012.
1. All documents recording or referring to the date that NAB provided Greg Ellul with a copy of the "Third DA" referred to in paragraph 11 of the affidavit sworn by Greg Ellul on 5 June 2012 in these proceedings.
2. All documents recording or referring to enquiries made of Greg Ellul or any other employee of MMJ North Pty Ltd (or employed in the business known as MMJ North) prior to 2 April 2010 in respect of 267 to 273 Rothery Road, Corrimal, New South Wales being the land formerly referred to in Certificate of Title Folio Identifier 4/804963 and B/398475, and from about 28 December 2006, Folio Identifier 41/1106335 and 42/1106335 and any improvements to the land ("Corrimal"), including but not limited to the enquiries referred to in paragraph 20 of the affidavit sworn by Greg Ellul on 5 June 2012 in these proceedings.
3. All documents recording or referring to any communication between Greg Ellul or any other employee of MMJ North Pty Ltd (or employed in the business known as MMJ North) and Pasquale Lucchitti or anyone else on behalf of Realta Enterprises Pty Ltd in respect of Corrimal during the period from 1 October 2009 to date.
4. All documents recording or referring to the sale of the 8 villas/townhouses referred to in paragraph 36 of the affidavit sworn by Greg Ellul on 5 June 2012 in these proceedings, limited to:
a. the sale price; and
b. the identity of the purchasers.
5. All documents recording or referring to the unsold villas/townhouses on Corrimal, limited to:
a. all offers to purchase;
b. the identity of the people or entities that have offered to purchase;
c. any agreement, or arrangement for the transfer or acquisition of the villas/townhouses to or by any person or entity, including but not limited to Realta Enterprises Pty Limited, Richard Taylor or any person or entity on their behalf.
6. All documents recording or referring to any communication relating to Corrimal between NAB and:
a. Realta Enterprises Pty Ltd or anyone on its behalf; and
b. Richard Taylor or anyone on his behalf;
between 1 January 2007 and 2 April 2010.
7. All documents recording or referring to NAB's calculation of the amount alleged to be currently owing by Bilal Sayed and Nicole Sayed to NAB (other than the account statements provided by NAB on 17 July 2012).
8. The valuation of 25 Gahans Road, Woonona, New South Wales being the land referred to in Certificate of Title, Folio Identifier 3/1017140 and any improvements to the land ("Woonona") obtained for or on behalf of NAB by Valuation Exchange in about February 2010.
9. The file maintained by NAB in respect of its employment of Kylie Hancox including, but not limited to, all documents concerned with or evidencing:
a. conduct of Kylie Hancox in breach of NAB's policies;
b. commission or any other amount of money or non-monetary benefit received by Kylie Hancox as a consequence of Bilal Sayed and Nicole Sayed entering into the Woonona Loan and the Corrimal Loan (as defined in Mr Sayed's cross-claim);
c. the cessation of Kylie Hancox's employment with NAB.
10. All correspondence between any person employed at the Corrimal branch of NAB and Robert Webley in respect of Corrimal during the period from 1 October 2009 to date.
Finally, on 13 November 2015, after the resolution of the principal part of the proceedings and when only the cross-claim concerning the Corrimal land was extant, Mr Sayed issued a further Notice to Produce requiring production of the following documents:
You are required to produce the following documents or things to the court:
1. All documents referring to file MERC-581838, File NSW 794715189, Bilal Sayed and 263-267 / 267-273 Rothery Road/St Corrimal, NSW being land formally known as to in Certificate of Title Folio Identifiers 4/804963, B/398475, 41/1106335, 42/1106335 during the period January 2006 to May 2010 including but not limited to:
a. Communications between NAB employees Kylie Hancox, Katherine M Woods, Michelle Walker, Daniel Papadimitropoulos, Chris X Karaiskos, Theo T Efthymiou, Alexander Palmer, Melissa Thomas, Roslynn Robinson or any person or entity on their behalf or other person employed by NAB, and:
i. Bilal Sayed
ii. Robert Webley & Associates
iii.Pasquale Lucchitti
iv. Realta Enterprises
v. Design Workshop
vi. Robert Gizzy
vii. Richard Taylor
viii. MERC Property
ix. MMJ North
x. National Australia Bank Limited
xi. Or any other person or entity
2. "Notes", "Live Environment" or "Diary Comment" entries.
3. A statement of account for the Corrimal loan from establishment in 2006, showing payments, interest, enforcement costs and any other amount applied used to account for the "Balance" or "shortfall" at settlement in 2010.
4. Specific documents referred to in Defence to Amended First Cross Claim 7 October 2015:
a. Paragraph 6. (a) Mortgage Document number AC481820
b. Paragraph 13. (a) Letter from MMJ North to MERC dated 1 June 2009
c. Paragraph 14. (a) Letter from MMJ North to MERC dated 1 June 2009
d. Paragraph 19. (a) Email from Brendon Sexton to Alexander Palmer and Theo Efthymiou dated August 2009
e. Paragraph 21. (a) Letter from Roslynn Robinson to Alexander Palmer dated 2 October 2009
f. Paragraph 22. (a) Letter from MERC to MMJ North dated 20 October 2009
g. Paragraph 23. (b) Correspondence between Kells Lawyers and Dibbs Barker dated 14 & 30 July, 3 & 4 August 2009
h. Paragraph 24. (a) Correspondence between Robert Webley & Associates and NAB dated 15 & 18 September 2009
i. Paragraph 28. (a) Document/Contract setting out terms for the sale of the Corrimal properties dated 19 February 2010
5. Letter from Dibbs Barker to Richard Robert Taylor dated 22 February 2010
6. All documents/material/Folders forming the 'Exhibit' for the contract of sale of 267 & 273 Rothery St Corrimal NSW
At all times when these Notices to Produce were served Dibbs Barker were acting for NAB. Indeed, in respect of the first three Notices to Produce, those Notices were addressed to NAB at Dibbs Barker.
In addition, subpoenas have already been issued on Mr Sayed's behalf to MMJ North Pty Ltd (2 subpoenas), Robert Webley (2 subpoenas), Realta Enterprises Pty Ltd, MMJ Real Estate and Addison's Advisory Group.
In my opinion, no further purpose is served by granting leave to Mr Sayed to serve the subpoena he now seeks leave to serve on Dibbs Barker. NAB was required to produce in answer to the Notices to Produce documents that were in its possession or control, and that would include documents in the possession of Dibbs Barker. It is apparent from the production of documents already made that the documents included those in the actual possession of Dibbs Barker. The affidavit of Alexandra Felicity Kirby of 10 May 2016, and the dispute and judgment (Sayed (No. 5)) that resulted from that affidavit, demonstrate that that was so. Any communications between Dibbs Barker and the persons and entities specified in the subpoena now sought to be issued clearly fell within one or more of the Notices to Produce issued 28 March 2012, 18 July 2012 and 13 November 2015.
NAB and Dibbs Barker would be under a continuing obligation if further documents were located in circumstances where formal discovery was in place. Dibbs Barker would understand that where Notices to Produce were agreed to be used in lieu of discovery that a similar obligation would exist if further documents were discovered after production in answer to those Notices to Produce.
Mr Sayed, in a written submission lodged after I reserved judgment, and lodged in response to an email from counsel for NAB detailing the earlier Notices to Produce, asserts: (a) that it would now seem there was no compliance with paragraphs 4 and 5 of the Notice to Produce dated 28 March 2012 because "it should have included the MERC file which it did not"; (b) that there was no compliance with the Notice to Produce dated 18 July 2012; and (c) in relation to the Notice to Produce dated 13 November 2015, that NAB argued it had complied by its earlier production and that Mr Sayed was trying to obtain documents already supplied to Swaab (his former solicitors) over which they held a lien, whereas, according to Mr Sayed, the Notice to Produce dated 13 November 2015 was materially different from the Notice issued on 28 March 2012.
No issue of non-compliance by NAB with Notices to Produce has previously been raised before me apart from the dispute concerning redacted documents dealt with in Sayed (No 5). Non-compliance (if such be the case) is not dealt with by issuing further Notices or Subpoenas but by challenging the extent of the production. If non-compliance is still an issue, that matter will be listed before me to resolve.
Unnecessary expense would now be incurred if Mr Sayed was given leave to issue the subpoena to Dibbs Barker in circumstances where no useful benefit would be served by requiring Dibbs Barker again to go through their files to comply with the subpoena.
Leave to issue the subpoena to Dibbs Barker is refused.
The second subpoena is addressed to Allmain Pty Ltd. It seeks the following documents:
1. All documents referring or relating to file 1194, 263-267 and/or 267-273 Rothery Road/St Corrimal, NSW being land formally known as to in Certificate of Title Folio Identifiers 4/804963, B/398475, 41/1106335 and 42/1106335 during the period January 2009 to 1 November 2017 including but not limited to:
a. Communications between ALLMAIN and:
i. National Australia Bank
ii. MERC Property
iii. Dibbs Barker Solicitors
iv. MMJ North Corrimal NSW
v. Huxley & Partners Corrimal NSW
vi. Addison's Valuers
vii. Kohler Bird Valuers
viii. Robert Webley & Associates
ix. Wollongong City Council
x. Or any other agent, person or entity
b. File or Journal notes
c. Property Valuations
d. Notes of telephone conversations between ALLMAIN and
i. National Australia Bank
ii. MERC Property
iii. Dibbs Barker Solicitors
iv. MMJ North Corrimal NSW
v. Huxley & Partners Corrimal NSW
vi. Addison's Valuers
vii. Kohler Bird Valuers
viii. Robert Webley & Associates
ix. Wollongong City Council
x. Or any other agent, person or entity
When I enquired who Allmain was I was told it was the entity referred to as the "alternative principle (sic) agent" in paragraph 30 of the Second Further Amended Cross-Claim which pleads:
NAB after having rejected the tender offers and taking further steps to reassign Corrimal to an alternative principle (sic) agent, on or about 19 February 2010 NAB sold Corrimal for $545,545.45 to Realta Enterprises Pty Limited (CAN 090 415 919), which was a third party unrelated to Mr Sayed ("the sale").
In answer to that pleading, NAB admitted contracts for sale were exchanged on 19 February 2010 for the sum of $545,454.54 (sic) but did not otherwise admit the paragraph.
The reference to "taking further steps to reassign Corrimal to an alternative principle (sic) agent" is not taken any further in the pleading. There is no particular of negligence associated with the taking of "further steps", nor is there any further mention about an alternative principal agent. The "further steps" are not identified. In those circumstances it cannot be said that there is any issue in the proceedings that relates to Allmain. On the face of it, no document in Allmain's possession or control is relevant to the issues in the proceedings. At its highest, the subpoena amounts to a fishing expedition.
Leave to issue the subpoena to Allmain is refused.
[3]
Conclusion
The notice of motion filed 28 November 2017 should be dismissed. No further notices of motion are to be filed in the proceedings without my leave. Mr Sayed has been told twice in the past that where proceedings are being case-managed motions are not to be filed without leave. He was so informed in an email by my Associate on 28 August 2016 and by me at a directions hearing on 5 September 2016.
Accordingly, I make the following orders:
(1) Dismiss the notice of motion filed 28 November 2017.
(2) The cross-claimant is to pay the cross-defendant's costs of the notice of motion.
(3) No further notices of motion are to be filed or served without my leave or without the leave of a judge of the Court.
[4]
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: 15 February 2018
These proceedings commenced on 28 May 2010. The National Australia Bank claimed judgment for possession of a property owned by Mr and Mrs Sayed in Gahans Lane, Woonona. On 22 August 2011 Mr Sayed filed a defence and cross-claim against the Bank.
By an amended first cross-claim filed 18 August 2015 Mr Sayed sought declarations; first, that NAB breached its duty to act in good faith in exercising a power of sale over another property he owned, consisting of two adjoining lots, in Rothery Road, Corrimal that also secured NAB's debt; and secondly, that NAB acted unconscionably in relation to the Corrimal loan and mortgage. The substance of the claim was that the Corrimal property had been sold at an undervalue.
The proceedings were listed before Adams J on 20 August 2012. Negotiations took place between the parties and their lawyers to settle the proceedings. Those negotiations led to the signing of what was called an In Principle Agreement dated 23 August 2012. An issue arose as to whether the Agreement included a settlement of the cross-claim concerning the sale of the Corrimal property. In National Australia Bank v Sayed (No. 5) [2016] NSWSC 669 I noted the Court of Appeal's decision that the In Principle Agreement excluded the claim that Mr Sayed was making in respect of the Corrimal property but included matters concerned with the Woonona property: Sayed v National Australia Bank Limited [2013] NSWCA 304.
By a notice of motion filed 4 March 2016 Mr Sayed sought leave to file a further amended cross-claim and sought the supply of unredacted versions of certain bank documents. The first issue I had to determine was the extent of the claims in the proposed amended cross-claim Mr Sayed wished to file. In Sayed (No. 5) I refused leave for the proposed cross-claim to be filed because it did not comply with r 19.5 Uniform Civil Procedure Rules 2005 (NSW) and because it sought to plead a number of matters that, for reasons I there gave, could not be pleaded. The result was that Mr Sayed could claim in respect of an alleged sale at an undervalue of the Corrimal property, but not in relation to the loan or security associated with the Woonona property. However, I did not preclude Mr Sayed from advancing a properly pleaded further amended cross-claim.
I also held that privilege had not been waived over the documents which were otherwise protected from disclosure by client legal privilege.
On 5 September 2016 I heard a further application from Mr Sayed for leave to file a further amended first cross-claim. I did not require Mr Sayed to file a further notice of motion to do so, and I identified that the proposed further amended first cross-claim was the document behind Tab 1 in the court book handed up at the hearing of the application: National Australia Bank v Sayed (No. 6) [2016] NSWSC 1253.
I held in Sayed (No. 6) that Mr Sayed should not be permitted to claim in relation to his assertion that one of the blocks of land in Rothery Street, Corrimal was sold as landlocked land when in fact it was not so landlocked. My reasons for doing so can be briefly stated. If Mr Sayed was permitted to argue such a claim and was successful in doing so, NAB would be likely to have causes of action against its agent, MERC and MMJ. However, those claims would now be statute barred. Further, I held that Mr Sayed was aware of the landlocking issue by August 2012. Despite being so aware, he did not apply to amend his cross-claim until 4 March 2016. Any claims NAB might have had against MERC and MMJ needed to be commenced prior to 19 February 2016. There was no evidence of fraud or mistake that would extend the limitation period. Finally, no satisfactory explanation was provided by Mr Sayed for the delay in making the claim based on the landlocked land.
On 25 October 2016 Mr Sayed filed a further amended first cross-claim. In that pleading Mr Sayed included words in paragraph 32 that referred to landlocking and included particular (k) under paragraph 33 which similarly dealt with landlocking. Those matters were drawn to my attention at a directions hearing. I ordered that they be struck out for the reasons I there gave: National Australia Bank v Sayed (No. 8) [2017] NSWSC 89.
Mr Sayed filed a further notice of motion seeking leave to amend his cross-claim on 28 March 2017. I had given Mr Sayed leave to file this notice of motion limited to a clarification of the matters determined in Sayed (No. 8). However, Mr Sayed's notice of motion sought amendments beyond those for which I had given leave. I gave judgment in respect of that notice of motion on 13 April 2017 and by that judgment I gave leave to Mr Sayed to file a second further amended cross-claim with the amendments specified in the judgment: National Australia Bank v Sayed (No. 9) [2017] NSWSC 389. The Second Further Amended Cross-Claim was filed on 28 April 2017.
On 30 June 2017 I was satisfied that the proceedings were sufficiently prepared to permit the parties to obtain a hearing date. The parties were directed to approach the Listing Manager for a hearing of the cross-claim by no later than 4 July 2017, with an estimated hearing time of seven days. The parties subsequently obtained a date for hearing commencing 30 April 2018.
Without any leave to do so, Mr Sayed filed a notice of motion on 28 November 2017 seeking the following orders:
1. An order removing Dibbs Barker as acting solicitor for the cross respondent.
2. An order for the cross respondent to provide un-redacted documents as scheduled in the affidavit of Alexandra Felicity Kirby sworn 10 May 2016.
3. An order granting leave to the cross claimant to further amend the cross claim statement to include pleadings of 'Land Locking':
a. The cross respondent proceeded in the Corrimal sale under the belief that lots 41 and 42 were and/or would become landlocked therefore having a lower market value and could also not be sold separately
4. Leave granted to issue subpoena on:
a. Dibbs Barker
b. Allmain Pty Ltd
5. Any other order the court deems fit.
By reason of my conducting a criminal trial in December 2017 I was unavailable to hear the notice of motion. I directed that it be listed before the Duty Judge, particularly as the matter of any amendment to the pleadings needed to be resolved at a sufficient time before the substantive proceedings were listed for hearing. The Bank submitted to the Duty Judge, Walton J, that the Motion would take approximately a day to hear and, in any event, the matter was more appropriately dealt with by me because I had case-managed the proceedings to that point. For those reasons, the motion ultimately came before me for hearing on 9 February 2018.
The affidavit in support of the motion consisted only of the annexing of an email from Mr Sayed to the Bank's solicitors, Dibbs Barker, and that firm's reply. The email from Mr Sayed said this:
On 28 June 2016 by email I wrote to Ms Hodgman of Dibbs Barker, Melissa Thomas and Peter Fieldhouse of NAB in reply to an offer made by the NAB to settle proceedings, in my reply I identified and made an allegation of a conflict of interest between your firm Dibbs Barker and NAB;
I continue to hold both NAB and Dibbs Barker responsible for all the errors made during the Corrimal Possession & subsequent Sale at an undervalue which resulted in these proceedings, further it is my opinion that Dibbs Barker has and always had a conflict of interest with NAB in relation to this litigation and Dibbs Barker should withdraw immediately.
I note that your firm did not withdraw and also did not provide me with a reply to that allegation.
I still hold the strong view that there lies a conflict of interest because the evidence at hand clearly shows that Dibbs Barker provided advice to NAB for matters of access between the Corrimal lots and offers received which in turn affected the outcome of the sale, I believe that the advice given was defective and will be tested at the cross claim hearing in April 2018.
If during the cross claim hearing the evidence before the court shows that Dibbs Barker was negligent in its advice to NAB, then NAB may have a claim of professional negligence against Dibbs Barker and here lies the problem.
Dibbs Barker cannot ethically represent NAB in this matter when it also has an interest in the outcome of these proceedings which is (sic) not been sued by NAB.
I seek your urgent reply by way of affidavit from Ms Hodgman that no conflict exists, please be advised that unless an adequate reply is not (sic) received then I intend to file a notice of motion seeking an order that Dibbs Barker be removed as acting solicitor.
I am attaching a copy of the Affidavit of Alexandra Felicity Kirby sworn 10 May 2016 and a copy of the Journal Entries from MERC for your reference.
(emphasis in original)
The reply from Dibbs Barker said that the firm was not aware of any facts or circumstances creating any conflict of interest between the firm and NAB. They required Mr Sayed to set out in detail including by reference to documents, the facts, matters and circumstances that he asserted gave rise to an alleged conflict of interest.
When the matter came before Walton J as the Duty Judge, his Honour made procedural directions that required Mr Sayed to identify the matters on which he relied to support the removal of Dibbs Barker as NAB's solicitors. In a document dated 12 December 2017 Mr Sayed identified the following four affidavits on which he relied:
1. Murray Smith - 24 November 2015;
2. Alexandra Felicity Kirby - 10 May 2016;
3. Affidavit of Emma Jane Hodgman - 19 July 2016; and
4. Danielle Catherine Kuti - 5 September 2012.
Mr Sayed identified three judgments upon which he relied being the Court of Appeal's judgment, already referred to, concerning specific performance of the agreement reached, the judgment of Harrison AsJ in relation to specific performance of the In Principle Agreement: National Australia Bank v Sayed (No. 4) [2015] NSWSC 420, and my judgment in Sayed (No. 6).
Mr Sayed thereafter set out what he described as "Facts" and "Allegations" as follows:
Facts
1. Dibbs Barker Solicitors acted as an agent in roles as "Solicitor" and "Property Conveyancer" for the National Australia Bank "NAB" on the Corrimal repossession and sale between May 2009 and April 20 providing professional advice.
2. A shortfall occurred in the Corrimal sale.
3. Dibbs Barker Solicitors advised on the strategy and filed proceedings against the Sayed's in the Supreme Court in May 2010 on behalf of "NAB".
4. NAB are on record stating that legal proceedings would have not been filed if no shortfall existed.
5. Dibbs Barker Solicitor continue to represent "NAB" in these proceedings.
Allegations
1. Dibbs Barker Solicitors played a major role providing NAB with professional advice during the course of the Corrimal possession and sale which led NAB and its principle (sic) agent MERC to believe that the Corrimal Lots were "land-locked", could not be sold separately therefore rejecting an offer for the sale of one lot, that advice was defective.
2. Dibbs Barker Solicitors redacted documents and is claiming privilege on behalf of NAB whereby it can be shown that they are professional (sic) negligent when they acted as an agent during the course of the Corrimal possession and sale.
3. Dibbs Barker solicitors have abused its position acting as NAB's solicitor, steering the proceedings in directions to conceal its errors, not accepting amendments to clause 7a (2012) is one example, objecting to land-locking pleadings is another.
4. That Dibbs Barker solicitors recklessly and unethically continue to represent the National Australia Bank in this matter knowing haven (sic) provided defective professional advice during the course of the Corrimal possession and sale causing the Corrimal sale at undervalue to the detriment of the Sayed's.
Mr Sayed informed Walton J that orders 2 and 3 sought in the notice of motion were dependent on order 1 first being made. However, when the matter was argued before me, Mr Sayed said he was seeking all four orders in the notice of motion.
On 5 February 2018, the motion then having been fixed before me for hearing on 9 February 2018, Mr Sayed forwarded an email to Dibbs Barker saying that, if I made order 1 sought in the notice of motion, Mr Sayed would be seeking to amend the cross-claim to include Dibbs Barker as a second cross-defendant. He provided a proposed draft cross-claim seeking a declaration that Dibbs Barker was professionally negligent and engaged in unethical and unlawful conduct, and an order that they pay him damages arising from those matters. The pleading, apart from inserting two early paragraphs identifying Dibbs Barker, simply added some 13 paragraphs at the end asserting negligence by Dibbs Barker in the advice they gave to NAB in relation to the sale of the Corrimal land. The pleading asserted that if a shortfall had not occurred, such shortfall being the fault of Dibbs Barker, NAB would not have begun legal proceedings against Mr Sayed to recover further monies.
(1) Should the solicitors be removed?
In Kallinicos v Hunt [2005] NSWSC 1181 Brereton J said:
[33] As Young CJ in Eq pointed out in Belan v Casey, [15], until Prince Jefri [Prince Jefri Bolkiah v KPMG [1999] 2 AC 222] three bases were advanced for granting injunctions restraining solicitors from acting in proceedings. The first was a breach of confidence, where to permit the solicitor to continue to act (usually, though not invariably, against a former client) would involve a risk that the solicitor might use, or be bound to use, information which he or she held subject to a duty of confidence to the former client. The second was breach of a duty of loyalty, where acting against a former client was said to be inconsistent with the solicitor's fiduciary obligation of loyalty to that former client. The third was the court's inherent supervisory jurisdiction over solicitors.
[34] The first basis - breach of confidence - involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor was bound, by the contract of retainer and/or in equity, to maintain, even after termination of the retainer. It depends on ordinary contractual and equitable principles. The second was also framed as depending on ordinary equitable principles, said to be derived from a solicitor's fiduciary duty. Thus each of the first two bases involved the assertion of legal rights which might as easily arise in relationships other than between solicitor and client (for example, as in Prince Jefri, between accountant and client). The third basis was quite different, depending not at all upon equitable (or other) rights of the parties, but on the court's inherent supervisory jurisdiction over its officers, including its solicitors. It is that third basis for intervention that the plaintiffs seek to invoke in this case.
His Honour then examined the cases to see if Prince Jefri denied the availability of the court's supervisory jurisdiction to restrain a solicitor from acting against a former client other than where confidences were put in jeopardy. His Honour concluded:
[76] The foregoing authorities establish the following:-
…
• … [T]he court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.
• The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications].
• The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott].
• Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott].
• The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott].
(2) Redacted documents
In Sayed (No. 5) I dealt with the question of whether documents that had been redacted and produced in answer to a Notice to Produce should be provided in an unredacted form. I held that there had been no waiver of client legal privilege attaching to the documents. The matter was argued for Mr Sayed by Mr Hall SC.
Nothing in the evidence now relied upon by Mr Sayed provides any basis for a claim that privilege has been waived. Nor is there any other reason why those documents should be disclosed.
The present application amounts to an application under r 36.16(3) UCPR to set aside or vary any judgment or order. Especially where such a judgment or order has been made after a contested interlocutory application, it is necessary for the person seeking a variation of the order to show a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46; Levy v Bablis [2012] NSWCA 77; Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [11]-[12].
Mr Sayed submitted that a reading of the affidavit of Alexandra Kirby shows that the documents over which privilege is claimed were not communications between Dibbs Barker and NAB but, rather, were diary notes. The relevant documents are described in this way:
Diary note [date]. Communication between client, agent and legal adviser containing advice concerning [subject matter].
Section 118 of the Evidence Act 1995 (NSW) provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 117 defines confidential communication and confidential document as follows:
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it, or
(b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it, or
(b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
In Westpac Banking Corporation v Newey [2013] NSWSC 533, a case in which allegations were levelled against the solicitors acting for the opposing party not dissimilar to the allegations made on the present application, Pembroke J said:
[10] That leads me to the grounds relied upon for the injunction restraining Allens from acting for the plaintiff in these proceedings. The basis for such intrusive relief was said to be the requirements of the 'proper administration of justice'. Counsel for the second defendant referred me to many general statements of principle but the issue is essentially pragmatic and the relief is discretionary. This is particularly so having regard to the fact that the jurisdiction to restrain a solicitor acting for his or her client is exceptional and must be exercised with caution: Kallinicos v Hunt [2005] NSWSC 1181 at [76].
[11] This is not a case where the plaintiff's solicitors have any confidential information about or belonging to the defendants. Nor is it a case in which the plaintiff's solicitors have a direct pecuniary interest in the outcome. Nor is it possible to see that the defendants will suffer any prejudice at all if Allens continue to act for the plaintiff. None was identified. And although it was initially contended that a member of the firm of Allens would be a material witness, senior counsel for the plaintiff categorically disclaimed any need or intention to call the relevant member of the firm - except in the unlikely event of evidence from the defendants of a conversation with him that required a response.
[12] The factual basis for the second defendant's application was more nebulous. It was submitted that Allens must have an interest in justifying its own conduct; that Allens might theoretically be exposed to a claim by the plaintiff for loss suffered by it if this suit fails; that the proceedings will involve an evaluation of Allens' conduct; and that, in some way, an invisible line had been crossed. The plaintiff, on the other hand, submits that there is no real and sensible possibility of conflict between itself and its solicitors.
[13] I do not think that the second defendant's submissions sufficiently grasp the practical commercial reality. To start with, although it is obviously not determinative, the plaintiff itself does not perceive any conflict with Allens. In the circumstances of this case, it has no concern that Allens' supposed self-interest will detract from the firm's ability to faithfully, independently and objectively represent it in the proceedings. It is therefore a little difficult to understand why a fair-minded, reasonably informed member of the public would conclude that Allens should be restrained from acting for the plaintiff 'in the interests of the protection of the integrity of the judicial process'.
…
[17] The submissions for the second defendant heaped speculation on speculation, none of which I found convincing. Apart from the false contention that the solicitor would be placed in the predicament of having to defend himself, which I have already addressed, it was said that Allens must have an indirect financial interest in the outcome of the litigation and 'might' be exposed to suit. That was said to be because, if the plaintiff's claim failed, Allens 'could be expected' to face a claim from the plaintiff for the costs of the proceedings, and possibly for some indistinct and unquantifiable loss arising from the fact that the Clause 1(d) restraint against Gillis Delaney only operated in relation to claimants whose employment is or was terminated by Westpac, and not by St George.
…
[22] The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction were granted, the integrity of the judicial process would be impaired. The basis for the second defendant's application existed only in the clouds, at an abstract theoretical level. The facts on which it relied were thin and the speculation on which it depended was unconvincing. On the other hand, the grant of an injunction must be grounded in pragmatism, reflecting the practical commercial reality, paying due regard to established legal principle and acknowledging norms of acceptable behaviour.
Fairly similar remarks to those made by Pembroke J could be made in the present matter. Mr Sayed does not point to any evidence suggesting any negligence on the part of Dibbs Barker, let alone unethical and unlawful conduct. Mr Sayed does not know what advice was given by Dibbs Barker to NAB at the time of the sale of the Corrimal property. He previously sought unredacted copies of documents, but I declined to order that the documents be unredacted because I was satisfied they were protected by client legal privilege and that there had been no waiver of the privilege in any pleading by NAB.
He submitted that it was clear from the affidavit of Alexandra Kirby and from the timeline he prepared as part of his submissions, with particular reference to the entries in July and August 2009, that the legal advice must have concerned the landlocking. However, even if that inference can be drawn it says nothing about any negligence or unlawful conduct on the part of the solicitors.
He said in submissions on the motion:
Well, putting the land locking thing aside, your Honour, there will be some discoveries about persons involvement in the sale at undervalue and it may well be discovered that DibbsBarker had a major role in that part and it may actually turn out to be that DibbsBarker bears some responsibility for that.
(emphasis added)
He then submitted that, when negotiations were being conducted at the time of the hearing before Adams J in 2012, the solicitors were arguing that the release provided for in clause 7(a) of the draft deed of settlement (see Sayed (No 5) at [17]) was a release which protected its agents MERC and MMJ. Mr Sayed compared that with what he said happened at the hearing regarding the claim in respect of landlocked land (Sayed (No 6), which he said was NAB wanting to sue MERC and MMJ. He submitted at that point that Dibbs Barker were only interested in protecting themselves, and he said:
I believe the redacted documents hold evidence of their liability.
Mr Sayed was not able to point to any evidence of negligence or unlawful acts on the part of Dibbs Barker. It was merely his belief. He certainly asserts that Dibbs Barker were negligent in relation to the landlocked issue, but the assertion appears to derive only from his belief in that regard. He sought to cross-examine Danielle Kuti on whose affidavit he relied in support of his motion. I declined to permit such cross-examination, not only because it was Mr Sayed himself who had read her affidavit on the motion but also because the cross-examination was likely to be a fishing expedition to obtain some evidence of wrongdoing by Dibbs Barker and, in any event, was almost certain to trespass into areas protected by client legal privilege.
As in Newey, it is relevant although not determinative that the plaintiff does not itself perceive any conflict with its solicitors or that any error concerning the landlocking was the fault of the solicitors. The present application is put on the basis of a conflict of interest between NAB and its solicitors. But, as in Newey, this is not a case involving a conflict of interest. At best, there is, as in Newey, a theoretical possibility of a claim by NAB against the solicitors if NAB is unsuccessful in defending Mr Sayed's cross-claim. With that goes an implied assertion that the solicitors have an interest in justifying their actions at the time of the sale of the land.
Another relevant consideration is the fact that, as I already determined in Sayed (No. 6) with regard to MERC and MMJ, the limitation period has long expired for NAB to be able to sue Dibbs Barker for any negligence or breach of retainer concerned with the sale of the Corrimal property.
There is no realistic sense of impropriety about the circumstances. There is nothing that sensibly justifies the conclusion that, unless an order was made removing the solicitors, the integrity of the judicial process would be impaired. In the circumstances, I do not consider that a fair-minded, reasonably informed member of the public would conclude that the solicitors should be restrained from acting for NAB "in the interests of the protection of the integrity of the judicial process".
The issue of the limitation period is also relevant to Mr Sayed's desire to sue Dibbs Barker himself. The time for doing so has expired. There is the further consideration relating to any such claim that it is difficult to see how any duty of care was owed by NAB's solicitors to Mr Sayed. In Bebonis & Anor v Angelos & Ors; Christopoulos & Anor v Angelos [2003] NSWCA 13; (2003) 56 NSWLR 127 Handley JA (Beazley and Heydon JJA agreeing) said at [42]:
… A solicitor acting for one party does not ordinarily owe a duty to another but exceptionally may do so if a responsibility to that party has been assumed.
In the present matter no responsibility was assumed towards Mr Sayed by the solicitors.
The application to remove the solicitors should be refused.
The diary notes are confidential documents and they record confidential communications. Section 118 brings about client legal privilege with respect to those documents. Mr Hall SC did not argue otherwise at the hearing of the motion for the provision of unredacted versions of those documents (Sayed (No 5)). He was undoubtedly correct in not doing so. All that was argued was whether privilege was waived. No evidence is put forward that casts any doubt on the maintenance of the privilege that was claimed and continues to be claimed. No change of circumstances is shown by Mr Sayed.