Elliot Daniel Sgargetta v National Australia Bank Ltd (ACN 004 044 937)
[2014] VSCA 189
•22 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0029
| ELLIOT DANIEL SGARGETTA | Applicant |
| v | |
| NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) | Respondent |
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| JUDGES: | OSBORN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 August 2014 |
| DATE OF JUDGMENT: | 22 August 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 189 |
| JUDGMENT APPEALED FROM: | Sgargetta v National Australia Bank [2014] VSCA 159 |
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STAY – Application for stay of order for possession of land pending determination of application for special leave to High Court – Principles applicable – Asserted grounds of special circumstance not established – No realistic prospect of special leave – Ongoing prejudice to mortgagee – Stay refused.
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| APPEARANCES: | Counsel | Solicitors |
| Appellant in person | ||
| For the Respondent | Mr S D Hay | Gadens Lawyers |
OSBORN JA:
BEACH JA:
On 30 July 2014 this Court dismissed an appeal by the applicant (Mr Sgargetta) against an order made in favour of the respondent (the Bank) by Judge Cosgrave in the County Court in February 2014.
The trial judge ordered that the Bank was entitled to possession of a property at Kalorama owned by Mr Sgargetta over which the Bank held a mortgage. He further dismissed a counterclaim by Mr Sgargetta and awarded costs in favour of the Bank.
The critical course of dealings between the parties was summarised by Whelan and Santamaria JJA in the conclusion to their judgment as follows:
124This dispute began because NAB made a mistake. It told Mr Sgargetta that on a sale of the security property he would have to pay out less than the correct payout figure. It corrected that mistake very shortly prior to the due date for settlement of that sale. The sale was pursuant to a contract Mr Sgargetta had made with his wife before either of the payout figures, correct or incorrect, had been provided.
125Mr Sgargetta reacted to the correction of NAB’s initial mistake by reporting NAB to [the Financial Ombudsman Service], cancelling the settlement, and ceasing all payments on the loan.
126Because Mr Sgargetta ceased all payments on the loan the debt escalated significantly.
127NAB delayed recovery proceedings for a period which is, at least in part, unexplained.
128After NAB took recovery proceedings, a settlement deed was entered into containing terms which were, on one view, favourable to Mr Sgargetta. But he was unable or unwilling to comply with a term of that deed which required him to provide to NAB a conditional letter of approval for finance on terms acceptable to NAB by a specified date. The parties negotiated but could not reach a new agreement, although comparatively little separated them.
129After a trial and the delivery of detailed reasons by the trial judge, NAB obtained judgment for the full amount it alleged to be due, obtained judgment for possession of the property, and obtained an order for costs against Mr Sgargetta.
130Mr Sgargetta then appealed. He had the assistance of pro bono counsel.
131Mr Sgargetta has not made good any of his grounds of appeal for the reasons we have given. His appeal must be dismissed.[1]
[1]Sgargetta v National Australia Bank Ltd [2014] VSCA 159, [124]-[131] (Whelan and Santamaria JJA).
It should be noted that the Court accepted unreservedly that the start of the conflict between the parties was an error by the Bank. This error has given rise to a continuing grievance on the part of Mr Sgargetta but for the reasons explained by their Honours was not determinative of the parties’ rights.
In reaching the conclusion which they did their Honours resolved the following fundamental issues between the parties:
(a)whether the appellant had, by 25 February 2013, complied with the obligation in the deed to provide a conditional letter of approval for finance on terms acceptable to NAB for an amount equal to or greater than $299,000;
(b)in the event that the appellant had not complied with that obligation, whether NAB was entitled to proceed with the hearing of the summons for final judgment and the proceedings generally;
(c)in the event that the appellant had complied with the obligation to provide the conditional letter, whether the appellant had, on 20 March 2013, taken a step ‘equal to performance’ of the obligation to pay NAB $299,000;
(d)whether the conduct of NAB with respect to the deed was unconscionable and contrary to s 21 of the [Australian Consumer Law];
(e)whether NAB contravened s 83 of the [National Consumer Credit Code] and, if so, what were the consequences of that contravention;
(f)whether there had been a ‘mistrial’ because the trial judge did not disclose ‘family shareholdings’ in NAB.[2]
[2]Ibid [78].
Issues (a), (b), (d), (e) and (f) were determined against Mr Sgargetta. It followed issue (c) did not strictly arise.
Mr Sgargetta now seeks a stay both of the orders of the trial judge and of the Court of Appeal pending the outcome of an application for special leave to appeal to the High Court.
The principles governing such a stay were recently summarised by this Court in Phillips v Southage Pty Ltd:
27The principles governing a stay of execution pending the hearing and determination of an appeal are well established and were summarised by Dodds-Streeton JA in Maher v Commonwealth Bank.[3] The Court has a wide discretion which is not circumscribed by rigid rules. It should take into account all the circumstances of the case. That said, a successful party to litigation is presumed to be entitled to the benefit of the judgment obtained and is entitled to a presumption that the judgment is correct. So, an applicant must demonstrate that special circumstances exist before a stay pending appeal will be granted. Such circumstances may arise where the appellant might be deprived of the fruits of the appeal if a stay of execution were not granted; in other words, where the refusal of a stay might render the appeal nugatory. A stay should not be granted unless there is at least an arguable ground of appeal.
28As to this Court’s jurisdiction to order a stay pending an application for special leave to appeal to the High Court, it is well established that that can be done. Like stays more generally, the jurisdiction to grant a stay pending an application for special leave will not be exercised unless there are special circumstances. Again, preservation of the subject matter of the litigation is a relevant consideration. Other relevant considerations include the prospects of special leave being granted, whether a stay will cause loss to the respondent, and where the balance of convenience lies. The presumptions that the respondent is entitled to the benefit of the judgment and that the judgment is correct continue to apply.[4]
[3][2008] VSCA 122.
[4][2014] VSCA 17, [27]-[28] (citation in original) (Whelan and Santamaria JJA).
In our view, there are no special circumstances justifying the stay sought in this case and the Bank is entitled to the benefit of the County Court judgment affirmed on appeal by this Court.
The stay application is supported by an affidavit sworn by Mr Sgargetta on 15 August 2014. It raises a series of allegations which are said to constitute exceptional circumstances which will be dealt with in turn:
a)The pro bono scheme that is now in place within the courts system which has been established to assist the ‘court’ and although a valuable resource there are some serious and significant issues within its operations, that are causing negligence and serious problems for the self-represented in the completeness of addressing all matters of legal proceedings and litigation. This will be expanded in detail on these issues and how it has destroyed Sgargetta’s matter completely and wholeheartedly.[5]
[5]Affidavit of Elliot Sgargetta sworn 15 August 2014, [1].
Mr Sgargetta was represented pursuant to the Victorian Bar pro bono scheme on the appeal.
The allegations made with respect to representation lack specificity and do not raise an intelligible ground of special circumstances. The basis on which counsel represented the appellant is set out clearly at paragraphs 5 and 6 of the Court of Appeal decision. In turn, the decision resolves not only matters addressed by counsel but also matters which were neither abandoned nor the subject of counsel’s submissions but raised by Mr Sgargetta’s grounds.
b)Therefore the Judgment itself is not only flawed but deemed inadequate, and with permitting evidence that can be presented now to determine that it has many untruths, inaccuracies and deficiencies is critical to this matter.[6]
[6]Ibid.
Further, there is no basis in the documentation to conclude that pro bono counsel acted otherwise than properly, competently and professionally. As we read the appeal transcript they materially assisted Mr Sgargetta and addressed the real issues in the case.
No flaw in the judgment is identified and no proper basis for fresh evidence articulated. Further, it may be noted that on the appeal itself the Court received fresh evidence and there is no realistic prospect in our view that the High Court will receive further evidence.
c)That significant borrowings that merge both 1 Driffield Cres, Sassafras and 92 Old Coach Rd, Kalorama homes that a large percentage relate to this matter, that without a Stay would result immediately in;
i.The sale of Elliot Sgargetta’s home, therefore his family being rendered homeless.
ii.Facing severe health and wellbeing damages that will be life threatening and irreversible if advanced and provoked with such adversity.
iii.That Sgargetta’s wife who is now pregnant will potentially also be facing serious health complications as a result of such adversity.
iv.The irreversible destruction of Sgargetta’s family income earnings and assets thus destroying their livelihood, future financial capacities and prospects for their children along with serious concerns of strain on Elliot Sgargetta’s marriage, family life and overall wellbeing. Please see exhibits and submissions enclosed.
v.All this will now result in bankruptcy for Sgargretta as Nab (sic) have deemed paying approx. $300,000 just in legal costs on a $24,000 matter where Nab (sic) confirmed was ‘their’ mistake and were willing to accept $299,000 in November 2008 and again willing to accept $299,000 up to 15 April 2014. One must logically establish that there is more to this then (sic) just a mortgage fee dispute for the Nab (sic), and this conduct has been appalling, belligerent and wasteful in every regard.[7]
[7]Ibid.
The assertions made are not properly evidenced. The Bank seeks to sell up a property which is not Mr Sgargetta’s family home. The Bank has produced evidence that it is currently for rent as holiday accommodation. There is no proper evidence of the health consequences asserted and there is no proper evidence of financial hardship.
d)That Melissa Thomas (NAB Late Stage Mortgage Manager) has provided statements in her testimony that have now been established to contravene certain legislation and is now under serious investigation by the appropriate regulators. Furthermore the only matter that was argued out of the 26 items in my Notice Of Appeal in the hearing on the 27 May 2014 was that of the tendering of the payment of $299,000 which was successful and has now been determined to have occurred, thus we now have established that NAB and their counsel blatantly lied and deceived the court.[8]
[8]Ibid.
This assertion seeks to re-agitate an aspect of the facts considered both by the trial judge and at the unsuccessful appeal. Amongst other things, Whelan and Santamaria JJA determined that the Bank was entitled to enforce the mortgage following breach of the terms of the settlement deed by Mr Sgargetta. The tender relied on could not cure this. The assertions now made are conclusory in nature, tendentious and do not evidence special circumstances.
e)The presiding judges of the Appeal Hearing reasonably and responsibly should have adjourned the matter so that the hearing could be completed entirely and appropriately. The pro bono barrister had made it abundantly clear that he was given no time to review the material by the court and will not abandon the other submissions as they were prepared by a previous pro bono barrister of the court, but again had no time to properly prepare in order to argue them in the hearing.
We have had 8 pro bono barristers all confirm that there is no doubt NAB broke the law but because there has been no other case to reference, the work level is extremely high. Further to this was the statement by the trial judge that we are in ‘virgin territory’.[9]
[9]Ibid.
The assertions made in this sub-paragraph seek to agitate the manner in which the case was presented on appeal. The facts are contested. Mr Sgargetta was represented at the appeal and the basis on which the Court dealt with his grounds of appeal make clear that it was not restricted to the matters urged by counsel. We are not satisfied that there was any arguable want of procedural fairness at the hearing. The assertion made is conclusory, tendentious and not properly evidenced.
f)Court supplied barristers failed in their duty to legally tender our bank cheque of $299,000, and failed to include it in Sgargetta’s amended defence/counterclaim, and failed to identify the specific codes in which NAB have breached, thus all critical facts of truth were dismissed in trial and in the judgment, that were vital to this matter and caused a spiralling of issues.[10]
[10]Ibid.
The significance of tender of the bank cheque was considered carefully and at length both by the trial judge and the Court of Appeal.
g)That Adam Segal-NAB counsel under the instructions of Peter Fieldhouse & Melissa Thomas lied in court pertaining to the bank cheque of $299,000 of it ever ‘otherwise’ being provided to them. We will show compelling evidence now confirming to this dishonestly and legal tactic to block matters of truth and fact on wider scale which is simply unconscionable and incomprehensible. Such conduct impinges upon the genuine fabric and spirit of resolution in our community, and shakes loose the integrity and clouds truth and justice within our judicial system. This type of conduct must be reprimanded and addressed urgently.[11]
[11]Ibid.
The assertion is tendentious and unsubstantiated.
h)Where (sic) the Appeal to the High Court to be successful, as is anticipated, the direct and potential damages would be irreversible if a Stay were not granted now, therefore it would be irresponsible and unethical for the court to not grant a Stay pending Appeal, in good conscience if there is clear and present exceptional and serious harm that will result.
A life threatening illness, an inadequate appeal hearing, negligent or unsatisfactory pro bono court assistance/process, proven dishonesty with the respondent, respondent breaching the legislation, a likely precedent to be made regarding the NCCP legislation and a pregnant wife fits such a requirement.[12]
[12]Ibid.
The assertions made as to irreversible harm are conclusory and not properly substantiated by evidence.
i)The seriousness of this matter has now received the interest of the media which is an important element to the High Court Of Australia application.[13]
[13]Ibid.
Such interest of the media in the history of the matter as may exist does not of itself establish that an issue of public interest is now at stake in the sense relevant to a special leave application. In our view, there is no sensible basis on which it could be concluded that this is a case raising such an issue.
j)Complaints have now been lodged to the Chief Justice, Attorney General and Legal Commissioner in regard to the overall conduct endured in this matter.[14]
[14]Ibid.
Nor can repetition of complaints concerning the process of litigation demonstrate the ultimate outcome was wrong.
The applicant has also lodged initial written submissions which traverse aspects of the matters litigated on appeal and aspects of the course of the proceeding. Once again, the document is replete with tendentious assertions. We are not satisfied any of the matters raised could be said to be seriously arguable, or to constitute special circumstances in the requisite sense.
For completeness however, it is necessary to address a final set of written submissions dated 20 August 2014 entitled ‘Why a stay is critically required.’
These final submissions first make complaints about the payout notice. We accept that Mr Sgargetta feels a genuine grievance with respect to the erroneous notice he initially received. Nevertheless that notice was overtaken by the settlement agreement forming the core of the matters agitated on appeal. In our view, none of the matters agitated raise any serious doubt as to the correctness of the decision made on appeal. No actionable acts of reliance based upon the payout notice have been articulated and no claim of this kind was raised below:[15]
76There was no claim of a contravention of either of these provisions[16] at trial. There is nothing about them in the amended defence and counterclaim. The trial judge makes no reference to them in his reasons. It is too late to raise them on appeal.[17]
77.In any event, Mr Sgargetta’s real complaint is as to the correcting statement not the incorrect initial advice. Unless some action was taken on the incorrect statement, before the correcting one, it is difficult to see how any claim for misleading conduct could be advanced. For present purposes, it suffices to say no such claim was advanced. It cannot be aired for the first time on appeal.
[15]Sgargetta v National Australia Bank Ltd [2014] VSCA 159, [76] (Whelan and Santamaria JJA).
[16]Section 53 of the Trade Practices Act 1974 (Cth) and s 23 of the Australian Consumer Law which is contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth).
[17]Metwally v University of Wollongong (1985) 60 ALR 68, 71. See also Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 284 citing the early Australian authority of Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1, 24–5. (citation in original)
The final submissions then address the history of the matter prior to the settlement deed. Once again this is on its face irrelevant and the assertions made do not raise any seriously arguable issue which could be said to vitiate the decision of the Court of Appeal. Insofar as the applicant seeks to raise the issue of the Bank’s economic costs, this has not previously been raised and cannot now be.
The final submissions then make allegations of dishonesty on the Bank’s part with respect to the tender of $299,000.
The circumstances and consequences of the tender are fully dealt with in the judgment of the Court of Appeal.
The submissions then address alleged personal consequences of the failure to grant a stay. No proper evidentiary basis has been established for these assertions. Although we accept unreservedly that the loss of this proceeding has caused and will cause Mr Sgargetta and his family significant emotional stress, we do not accept the further consequences asserted to flow from the refusal of a stay have been established.
Lastly, the final submissions list a series of points which further elaborate the matters in the affidavit to which we have already referred. In our view, they raise nothing new which could be regarded as giving rise to special circumstances in the relevant sense.
Next, although we do not propose to analyse the proposed grounds of appeal to the High Court insofar as they are intelligible, there is in our view no realistic prospect of special leave being granted in this matter.
Lastly, we are satisfied by the affidavit filed on its behalf that a stay will cause material prejudice to the Bank because it is probable the effluxion of time will, as the result of ongoing interest, incrementally increase the applicant’s debt beyond the value of the security the Bank seeks to enforce.
In summary, no proper basis has been established for arguing special circumstances exist. The proposed application for special leave to appeal to the High Court is in our opinion hopeless and the Bank will suffer ongoing prejudice if the stays are granted.
Accordingly, we would refuse the stays sought and dismiss Mr Sgargetta’s summons dated 7 August 2014.
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