NAB v Sgargetta - [2015] VSC 537

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

S CI 2015 05039

NATIONAL AUSTRALIA BANK	Plaintiff
v
DENNIS SGARGETTA	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 SEPTEMBER 2015
DATE OF RULING:	28 SEPTEMBER 2015 (Revised 12 October 2015)
CASE MAY BE CITED AS:	NAB v SGARGETTA
MEDIUM NEUTRAL CITATION:	[2015] VSC 537

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CAVEAT – Removal – Whether appropriate interest claimed on grounds stated – Whether adjournment futile – Mortgagee in possession seeking to complete sale – Section 90(3) Transfer of Land Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Segal	Gadens
For the First Defendant	In person
For the Second Defendant	No appearance

HIS HONOUR:

The plaintiff (NAB) brings an application under s 90(3) of the Transfer of Land Act1958 (Vic) to summarily remove the first defendant’s caveat to enable NAB to settle the contract for the sale of land situated at 92 Old Coach Road, Kalorama, Victoria by it as mortgagee in possession. Mr Sgargetta’s son, Elliot Daniel Sgargetta (‘Mr Sgargetta Jnr’) is the registered proprietor.

For the following reasons, the caveat will be removed.

Background

Since 21 February 2007, NAB has had a first registered mortgage over the property. Pursuant to a written agreement dated 10 December 2007, NAB agreed to provide Elliot Daniel Sgargetta with financial accommodation by way of a NAB Choice Package Fixed Rate Home Loan.

On 8 June 2012, NAB commenced a County Court proceeding against Elliot Daniel Sgargetta seeking possession of the property and judgment for the total amount owing under the Loan Agreement. On 17 February 2014, it obtained judgment for possession of the property and for debt in the sum of $440,441.19 plus interest and costs. An appeal to the Court of Appeal was dismissed and an application for special leave to appeal to the High Court of Australia was refused.

On 25 November 2014, NAB took possession of the property.

Presently, Elliot Daniel Sgargetta remains in default under the mortgage and is indebted to NAB in the amount of $514,791.28, excluding enforcement expenses. This sum exceeds the sale price noted in the Contract of Sale. On 21 April 2015, this Court removed a caveat lodged over the property by Elliot Daniel Sgargetta’s wife. On 12 August 2015, the first defendant lodged the subject caveat over the property asserting a ‘part performed oral agreement’ with Elliot Daniel Sgargetta.

In his affidavit sworn 27 September 2015, the first defendant stated in relation to his caveat:

In relation to my caveatable interest I advised that in the amount of $8000 as at 24 June 2013 is owing by Elliot Daniel Sgargetta of 1 Driffield Crescent, Sassafras, VIC, to myself and was evidenced at the 26/08/2013 trial of NAB v ED Sgargetta. An additional $138,341.90 as at 12 August 2015 for services and attendances regarding the legal claims that ED Sgargetta has had against the NAB has also been rendered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NAB v Sgargetta

Details

AGLC: NAB v Sgargetta [2015] VSC 537
Case: [2015] VSC 537
Decision Date: 28 SEPTEMBER 2015 (Revised 12 October 2015)

CaseChat Overview and Summary

The case of NAB v Sgargetta involved the National Australia Bank (NAB) as the mortgagee in possession and the Sgargetta family contesting the removal of a caveat from a property. The dispute centred around the bank's attempt to complete the sale of a property that was subject to a caveat by the Sgargetta family. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the bank had claimed an appropriate interest on the grounds stated and if the adjournment of the sale proceedings would be futile. The legal issues revolved around the interpretation and application of section 90(3) of the Transfer of Land Act 1958. This section allows the court to remove a caveat if it appears that the caveator has no reasonable cause of action or defence to the matter in question.

The court held that the bank had indeed claimed an appropriate interest, and the Sgargetta family's opposition to the removal of the caveat was without merit. The decision to adjourn the sale was deemed futile, as the caveat did not represent a reasonable cause of action. Consequently, the court ordered the caveat to be removed, allowing the bank to proceed with the sale of the property. The ruling underscored the importance of the caveator demonstrating a valid legal interest or defence when opposing the removal of a caveat.

Orders