National Australia Bank v Sgargetta
[2014] VCC 1883
•11 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST – BANKING & FINANCE DIVISION Case No. CI-12-02770
| NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) | Plaintiff |
| v | |
| ELLIOT SGARGETTA | Defendant |
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JUDGE: | His Honour Judge Cosgrave | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November, 21 November and 5 December 2014 | |
DATE OF RULING: | 11 December 2014 | |
CASE MAY BE CITED AS: | National Australia Bank v Sgargetta | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1883 | |
REASONS FOR RULING
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Subject: PRACTICE & PROCEDURE
Catchwords: PRACTICE & PROCEDURE – Application for stay on orders – Whether County Court has jurisdiction to grant a stay on orders of Court of Appeal – Refusal of Registrar to seal writ under rule 27.06(1) – Abuse of process – Application for re-trial – Fresh evidence – New evidence unlikely to produce opposite outcome.
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic)
Cases Cited:Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134; Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 159; Monroe Schneider Associates (Inc) & Anor v No 1 Raberem Pty Ltd & Ors (1992) 109 ALR 137; Palmer v Permanent Custodians Ltd [2009] VSCA 164; Re Klement [2013] VSC 683; Re Rich [2011] VSC 144; Talacko v Talacko (2011) VR 340; Wentworth v Rogers (No 5) (186) 6 NSWLR 534; Wollongong Corporation v Cowan (1955) 93 CLR 435.
Ruling: The applicant’s summons is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Segal | Gadens Lawyers |
| For the Defendant | In person |
HIS HONOUR:
Application
1 The applicant (“Sgargetta”) has issued a summons against the National Australia Bank (“NAB”) for a stay on the orders made by this court on 7 February 2014 and 17 February 2014 (“the County Court orders”), as well as on the orders of the Victorian Court of Appeal of 30 July 2014 (“the Court of Appeal order”), in respect of a decision of this court handed down on 7 February 2014 (“the previous proceeding”). Sgargetta asks that the stay have effect until:
· the previous proceeding is re-tried and determined by the County Court;
· a proposed new proceeding by Sgargetta against NAB, Melissa Thomas, an employee of NAB, and Adam Segal, a barrister (collectively “the respondents”) is heard and determined by the County Court; and
· the High Court of Australia has heard and determined Sgargetta’s application for special leave to appeal the decision of the Court of Appeal, which he filed on 11 August 2014.
2 In addition, Sgargetta seeks to review the refusal by the County Court Registry to issue a proposed proceeding against the respondents in which he claims damages due to the alleged perjury and/or unconscionable conduct and/or misleading and deceptive conduct of the respondents.
Background
3 In 2012, NAB issued proceedings in the County Court against Sgargetta for recovery of possession of a property that secured a home loan from NAB to Sgargetta. Sgargetta issued a counterclaim. After a trial in August 2013, in which Sgargetta was self-represented, this court found in favour of NAB, ordered Sgargetta to pay NAB the sum of $440,441.19 plus interest and costs on an indemnity basis, and dismissed Sgargetta’s counterclaim.
4 Sgargetta appealed to the Court of Appeal and also issued a summons seeking a stay of execution of the County Court orders. Due to an indication from the Court of Appeal that the matter would be brought on for hearing expeditiously, NAB advised that it would not seek to enforce the County Court orders pending determination of the appeal. The Court of Appeal heard the appeal on 27 May 2014. In a decision handed down on 30 July 2014, the Court of Appeal dismissed Sgargetta’s appeal and ordered that Sgargetta pay NAB’s costs of the appeal.
5 On 7 August 2014, Sgargetta filed a summons in the Court of Appeal for a stay on the County Court orders and the Court of Appeal order. This application was refused by the Court of Appeal on 22 August 2014. Sgargetta filed an application for special leave to appeal to the High Court on 11 August 2014.
6 On about 2 September 2014, Sgargetta attempted to file a writ in the County Court (“the proposed writ”) to bring proceedings against NAB, Thomas and Segal . Thomas was the Operational Manager of Late Stage Mortgage Collections at NAB, and a witness at the trial of the previous proceeding. Segal was counsel acting for NAB in the previous proceeding. Sgargetta claimed $3.833 million in damages arising from the perjury and/or unconscionable and/or misleading conduct of the respondents. The issue giving rise to Sgargetta’s complaint concerned the evidence and conduct of NAB and its representatives in relation to Sgargetta’s alleged tender of a cheque for $299,000 to NAB in March 2013. Sgargetta claimed that the bank’s allegedly fraudulent conduct and perjured evidence should invalidate the outcome of the previous proceeding and justify a re-trial.
7 The Registrar refused to seal the writ under rule 27.06(1) of the County Court Civil Procedure Rules 2008 (Vic) (“the Court Rules”), on the grounds that proposed writ would be irregular or an abuse of process of the court. Sgargetta seeks to appeal that decision.
8 On 14 November 2014, Sgargetta attended court to argue for the stay and to address the issue of the Registrar’s refusal to issue the proposed writ. He handed up material to the court during the hearing and made oral submissions. While I indicated on the day that I would not grant a stay, I reserved my decision on the rest of the application. When I returned to court on 21 November to give judgment, Sgargetta complained that he had not been given an opportunity to make submissions to the court regarding the Registrar’s refusal to issue the proposed writ. While I considered that Sgargetta had been given such an opportunity, I nonetheless adjourned the matter to a date convenient to Sgargetta so that he could make further submissions. Accordingly, on 5 December 2014, Sgargetta addressed the court at length on the alleged perjury, unconscionable and/or misleading conduct and the Registrar’s error in failing to issue the proposed writ. This followed the filing of written submissions earlier in the week. In addition, at the hearing Sgargetta handed up further written submissions to the court and spoke to those submissions. On 8 December 2014 at about 11.04am, the court received a further email from Sgargetta. I do not understand all the contents of the email. Even if I did, because the email was not canvassed in open court and the NAB was not given the opportunity to respond to the email, I have not taken it into account in making this decision.
Issues
9 The following issues arise on this application:
(a) Whether there should be a re-trial of the previous proceeding based on the alleged perjury and unconscionable and/or misleading conduct.
(b) Whether Sgargetta can issue the proposed new proceeding suing the respondents for perjury and/or unconscionable conduct and/or misleading conduct.
(c) Whether this court can or should grant a stay in relation to:
(i) the County Court orders; and/or
(ii) the Court of Appeal order.
(a) Should there be a re-trial of the previous proceeding based on the alleged perjury and unconscionable and/or misleading conduct?
10 Sgargetta’s allegations regarding perjury and unconscionable and/or misleading conduct concerned the question of tender and what NAB and its witnesses or representatives did or told the court about it in March 2013.
(i) Legal Principles
11 The principles regarding applications to set aside judgments procured by fraud are clear. The main points were summarised by Kirby P (as his Honour then was) in Wentworth v Rogers (No 5):[1]
“In summary, [the applicant] must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of the witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment”.
[1](1986) 6 NSWLR 534 at 539, summarising his Honour’s discussion of applicable principles at 538-9
12 The essence of such action is an allegation of fraud.[2] The allegation must be properly particularised and established by the level of proof required of such an allegation. The party impeaching the judgment must prove the recent discovery of something material which, either alone or in conjunction with other facts already known, would provide a reason to set aside the judgment.[3]
[2]Ibid
[3]Ibid at [65]
13 Evidence that a judgment is affected by fraud committed at trial is ordinarily evidence discovered after judgment. Such evidence is subject to the principles governing the grant of a new trial on the ground of discovery of new evidence, such principles being enunciated by the High Court in Council of the City of Greater Wollongong v Cowan.[4] The High Court noted that the discovery of fresh evidence is rarely a ground for a new trial unless well-known conditions are established, namely:
[4](1955) 93 CLR 435
(a) it must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that an opposite result would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary; and
(b) reasonable diligence must have been exercised to procure the evidence which the unsuccessful party failed to adduce at the first trial.[5]
In other words, a judgment will not be set aside if the fresh evidence was unlikely to produce a different outcome or the party seeking to impugn the judgment had a reasonable chance to adduce the fresh evidence at trial and did not do so. These principles have been accepted in more recent authorities as accurately stating the law.[6]
[5]Ibid at 444
[6]See, eg, Talacko v Talacko (2011) 31 VR 340; Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134; Monroe Schneider Associates (Inc) & Anor v No 1 Raberem Pty Ltd & Ors (1992) 109 ALR 137.
14 While the court has jurisdiction to set aside a judgment affected by fraud where the application for a new trial is made in the original proceeding, it is preferable that the party seeking to set aside a judgment initiate a fresh proceeding. The advantage of this is that the precise allegations of fraud can be pleaded in the statement of claim filed at court.
(ii) Consideration
15 Issues (a) and (b) are related. The basis for the re-trial and the claim by the applicant for $3.833 million in damages arises from the respondents’ alleged perjury and/or unconscionable and/or misleading conduct. During the hearing in the Court of Appeal, the Court allowed Sgargetta to introduce new evidence in relation to his alleged tender of a cheque for $299,000 to NAB. This evidence was not presented to this court at trial.
16 At trial, Sgargetta and NAB provided conflicting evidence about whether Sgargetta tendered a cheque for $299,000 by 15 April 2013 in satisfaction of a Deed of Settlement entered between the parties in February 2013. Sgargetta submitted that he tendered such cheque and NAB rejected the tender. NAB submitted there was no formal tender of a cheque.
17 During the hearing of the trial, Sgargetta asserted that he made attempts through his former counsel, Mr Shirrefs, to tender a cheque to NAB. In particular, Sgargetta alleged that:
(a) Shirrefs phoned Segal on 18 March 2013, confirming the availability of a cheque in satisfaction of the Deed of Settlement;
(b) a cheque was produced in court at the hearing of the plaintiff’s application for summary judgment on 20 March 2013 before his Honour Judge Anderson; and
(c) a copy of the cheque was emailed to NAB on 3 April 2013.
18 Sgargetta argued that when the cheque was produced in court on 20 March 2013, it was “rejected” by Segal as counsel for NAB at the hearing. According to Sgargetta, Segal told Judge Anderson that he was instructed not to accept the cheque in court.
19 At trial, Sgargetta did not seek to call Shirrefs to give evidence to support his case.
20 Whilst it acknowledged there were some without prejudice negotiations between the parties, NAB denied the occurrence of any tender. At trial I reviewed the transcript of the hearing before Judge Anderson on 20 March 2013. I could not identify in the transcript any:
(a) formal tender by or on behalf of Sgargetta of a cheque for $299,000; or
(b) rejection of such tender by NAB.
I concluded that Sgargetta’s evidence was inconsistent with, and not supported by, the evidence as disclosed in the transcript.
21 Further, I noted in my judgment that:
· as a layman, Sgargetta possibly did not appreciate the difference between open and without prejudice communications, and the technical aspects of the legal doctrine of tender;
· there was no plea of tender in the final version of Sgargetta’s defence and counterclaim which was prepared by two members of counsel; and
· Sgargetta did not call counsel to give evidence at trial to support the factual allegations which he made.
Accordingly, I found that Sgargetta did not establish that he tendered a cheque for $299,000 on 20 March 2013.
22 Before the Court of Appeal, Sgargetta sought to adduce evidence from Mr Cole. Cole acted as counsel for Sgargetta with Shirrefs. He deposed that a bank cheque of $299,000 was offered to NAB outside court on 20 March 2013. The Court of Appeal found the evidence was credible and if Sgargetta’s submissions concerning compliance with the provision of the Deed of Settlement requiring a conditional offer of finance were accepted (which they were not), the evidence proposed to be relied upon could have resulted in an opposite outcome.[7]
[7]Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 159 at [39]
23 Sgargetta wished to rely on the offer of the bank cheque to support a submission that he had complied with clause 2.1(b) of the Deed of Settlement entered into by the parties on 5 February 2013. The Court of Appeal set out in its judgment the relevant provisions of the Deed of Settlement as follows:
“Background
…
G. NAB has filed a Summons seeking to have the Defence and Counter Claim struck out and for summary judgment to be entered in favour of NAB in the Proceedings …
H. NAB’s Summons is listed for hearing on 1 March 2013.
…
Operative Provisions
…
2.0 Refinance
2.1 NAB will agree to adjourn the hearing of its Summons, provided the following conditions are complied with, time being of the essence:
(a) By 5.00 pm on 25 February 2013 Mr Sgargetta must provide to NAB’s solicitors, Gadens Lawyers, a conditional letter of approval for finance on terms acceptable to NAB and for an amount equal to or greater than $299,000;
(b) by 5.00 pm on 15 April 2013 Mr Sgargetta must:
(i) pay NAB the sum of $299,000 in cleared funds; and
(ii)withdraw his Defence and Counter Claim in the Proceedings; and
(c) Mr Sgargetta must otherwise comply with the terms and conditions of this Deed.
2.2 Provided the conditions in clause 2.1 above are complied with, NAB will:
(a)accept $299,000 in full and final satisfaction of the amount owed by Mr Sgargetta under the Home Loan Facility, the Mortgage and any claims in the Proceedings;
(b) discontinue the Proceedings on the basis that each party pays its own costs; and
(c) provide to Mr Sgargetta:
(i) an original and duly executed discharge of the Mortgage in registrable form; and
(ii) the original Certificate of title for the Property.
3.0 Consequences of any default by Mr Sgargetta
If Mr Sgargetta defaults under clause 2 above, or any other terms of this Deed, time being of the essence, NAB will immediately be entitled to proceed with the hearing of its Summons and the proceedings generally.”
24 Having reviewed the fresh evidence and allowed it to be relied upon, the Court of Appeal concluded that, but for a critical qualification, what occurred on 20 March 2013 would either have constituted conduct equal to performance of clause 2.1(b), or have unequivocally demonstrated that Sgargetta was willing and able to perform under the Deed.[8] Sgargetta relies heavily on this statement by the Court of Appeal[9] and now contends before this court that:
[8]Ibid at [95]
[9]Sgargetta quoted the relevant paragraph in his material but omitted to include the critical qualification made by the Court.
(a) the Court of Appeal effectively overturned the finding made in the previous proceeding about the tender of the $299,000 on 20 March 2013;
(b) the payment of the $299,000 on 20 March 2013 meant that the proceedings really settled the litigation at that time; and
(c) insofar as the evidence regarding the tender was not adduced until the appeal hearing, this was due to the perjured evidence and unconscionable conduct of NAB, its employee Ms Thomas and/or Segal.
25 As a result of Sgargetta’s interpretation of the Court of Appeal decision, he considered that he had good grounds both to sue the respondents claiming approximately $3.833 million and to have the previous judgment set aside and/or to have a re-trial.
26 In my view, the application for a re-trial must fail for a number of reasons.
27 First, Sgargetta misunderstands the judgment given by the Court of Appeal. The Court was clear that Sgargetta was in breach of, or had not complied with, the terms of the Deed of Settlement at 20 March 2013 because he had not satisfied clause 2.1(a)[10]. Notwithstanding the terms of the judgment by the Court of Appeal,[11] Sgargetta refused to accept that he had failed to comply with the requirements of clause 2.1(a) of the Deed. Although relevant parts of the judgment were brought to his attention in argument, he was unwilling or unable to advance any reasoned argument to support his position that he had satisfied the requirements of clause 2.1(a). At the date of execution of the Deed of Settlement, the County Court had scheduled the hearing of NAB’s application for summary judgment for 1 March 2013. The Deed recited this fact. Accordingly, the terms of the Deed of Settlement reveal that there was a reason why the Deed provided for the obligation in clause 2.1(a) and why it required performance of that obligation before 1 March 2013. The Deed was also clear about the consequences of any non-compliance with the requirements of clause 2. It provided that, in the event of default, NAB would be entitled to proceed immediately with the hearing of the summons and the proceeding generally.[12]
[10]Ibid at [94] – [98]
[11]Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 159
[12]Ibid at [91]
28 The Court of Appeal found that, upon Sgargetta’s failure to provide by 5.00pm on 25 February 2013 to NAB’s solicitors a conditional letter of approval for finance on terms acceptable to NAB for an amount equal to or greater than $299,000, NAB was entitled to proceed in the manner set out in the Deed.[13]
[13]Ibid at [94]
29 The Court of Appeal said that because at 20 March 2013, Sgargetta was in breach of the Deed, the conclusion it reached regarding the performance of clause 2.1(b) had “no significance”.[14] Therefore, the admission of the fresh evidence had no effect upon the outcome of the appeal and, in particular, did not result in the Court of Appeal finding an error in the trial judgment.
[14]Ibid at [96]
30 Secondly, the Court of Appeal was of the view that the new evidence would not have made any difference to the outcome of the previous proceeding.[15] To that end, even if there were some unconscionable conduct by NAB or the other respondents as alleged, the decision would have been the same. Accordingly, there was no reason to override the public interest in the finality of litigation. A party should not be able to re-litigate the subject of an earlier trial by impugning the decision of the trial judge, especially when the Court of Appeal has taken new evidence into account but still dismissed the appeal.
[15]Ibid
31 Thirdly, the evidence which Sgargetta seeks to rely upon to establish the perjury and unconscionable and/or misleading conduct was available to him at the previous hearing. Indeed, it was canvassed at trial; Sgargetta made comments and/or submissions about it but, as set out above, he failed to prove his allegations. Then, notwithstanding the admission of the further evidence on appeal, the initial decision was upheld.
32 In short, I do not consider there is any proper basis to grant a re-trial of the proceeding assuming, for the purposes of argument, that I had the power to make such an order.
(b)Can Sgargetta issue the proposed new proceedings suing the respondents for perjury and/or unconscionable and/or misleading conduct?
33 In early September 2014, Sgargetta attempted to issue a writ in the court against the respondents claiming $3.833 million in damages. The County Court Registry declined to issue the proceeding pursuant to rule 27.06(1) of the Court Rules. Sgargetta has requested that a judge review that decision.
34 The proposed Writ, as amended, claims the following relief:
“1) That orders made on the 17 February 2014, 30 July 2014, and 22 August 2014 are vacated, And/or
2) A declaration that Defendant 1 was in breach of the deed of settlement dated 5 February 2013, And/or;
3) A declaration that the Defendants are guilty of perjury and unconscionable conduct, And/or,
4) That all previous orders made in regard to this file and case are vacated and a new trial to be fixed, And/or
5) The defendants pay costs and damages to the Plaintiff as stipulated or as the court may see fit”.
The accompanying Statement of Claim is irregular. It is not in the appropriate form and is not properly particularised.
35 The accompanying Statement of Claim makes, in summary, the following allegations:
· The Court of Appeal established that NAB committed perjury in relation to evidence that was critical to the outcome of the previous proceedings.
· The County Court decision in relation to clause 2.1(b) of the Deed of Settlement was different from that of the Court of Appeal, and therefore NAB’s conduct and evidence regarding clause 2.1(b) was unconscionable and constituted perjury.
· NAB breached the obligations of the Deed of Settlement by rejecting the bank cheque for $299,000.
· The parties have agreed that the Deed of Settlement was in effect as at 20 March 2013. Therefore, the payment of $299,000 in accordance with clause 2.1(b) was the only requirement to be satisfied.
· Segal, having been involved in the events of 20 March 2013, acted unconscionably by continuing to act as counsel for NAB in the trial of the previous proceedings.
36 Under rule 27.06(1) the Registrar may refuse to seal an originating process without the direction of the court where the Registrar considers that the proceeding to be commenced would be irregular or an abuse of process of the court. The court, upon application for judicial review of the Registrar’s decision, has the power to direct the Registrar to seal the originating process under Rule 27.06(3).
37 In the County Court, as in the Supreme Court, it is the usual practice for an application for a review of the Registrar’s decision under Rule 27.06(1) to be dealt with by a judge in chambers. The rule itself does not require, and does not involve, an adversarial adjudication after a hearing.[16] However, in this case the court has granted Sgargetta the indulgence of allowing this application to be heard in open court where he was permitted to make submissions in support of his application.
[16]Re Rich [2011] VSC 144
38 I will not direct the Registrar to seal the originating process. I consider that the refusal of the Registrar to seal the proposed writ was the correct decision for the following reasons.
39 First, the claim is largely based on a misunderstanding of the judgment of the Court of Appeal. Notwithstanding Sgargetta’s assertions to the contrary, the Court of Appeal made no express finding that any witness for, or representative of, NAB committed perjury or engaged in unconscionable and/or misleading conduct. The fact that the Court of Appeal received fresh evidence on the appeal and reached a different conclusion in respect of Sgargetta’s compliance with clause 2.1(b) of the Deed of Settlement does not necessarily mean that NAB’s conduct regarding that clause was unconscionable or misleading or that its evidence on the topic was perjured. Nor did the Court of Appeal find (as Sgargetta asserted) that NAB breached the Deed of Settlement in March 2013 by rejecting a bank cheque for $299,000. There is good reason not to allow a case to go forward when its foundation is critically flawed and inconsistent with an existing Victorian Court of Appeal judgment.
40 Secondly, notwithstanding that the Court of Appeal:
(a) received on the hearing of the appeal fresh evidence regarding the tender or payment of the $299,000 in March 2013; and
(b) held that what occurred on 20 March 2013 would have either constituted conduct equal to performance of clause 2.1(b) or have unequivocally demonstrated that Sgargetta was willing and able to perform in accordance with the Deed of Settlement,
it still decided that such a finding had “no significance” because at that date, Sgargetta was in breach of clause 2.1(a).[17]
[17]Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 159 at [96]
41 Finally, to the extent that Sgargetta relied upon allegations of unconscionable conduct, the allegations seemed to be that the NAB acted unconscionably in relation to the question of the tender of the cheque for $299,000 in not divulging the applicable details at trial or to the Court of Appeal and/or refusing to accept the cheque in March 2013 (notwithstanding Sgargetta’s non-compliance with clause 2.1(a) of the Deed). In its judgment, the Court of Appeal decided that the conduct of the NAB with respect to the Deed was not unconscionable.[18]
[18]Ibid at [99] – [103]
42 In those circumstances, I consider there is no utility in Sgargetta commencing the proposed proceeding. Even assuming that Sgargetta were to establish perjury and unconscionable conduct, the Court of Appeal has effectively said that the decision would still have been the same. If Sgargetta cannot establish that the alleged perjury and unconscionable conduct caused him loss and damage, the proceeding will have no point; it will be an abuse of process.
43 I am mindful that a court must exercise great care in denying someone the opportunity to commence a legal proceeding. However, the court is entitled to protect itself against an abuse of its process. Where the proposed proceeding has characteristics which mean it will fail, then such a proceeding constitutes an abuse of process.[19] It is inappropriate for the court and prospective defendants to devote resources and incur costs dealing with such matters.[20] Perhaps this is especially the case when the proposed claim is in such an irregular form.
[19]Re Rich [2011] VSC 144
[20]See Re Klement [2013] VSC 683, at [33]
44 I note that Sgargetta contends that the parties agreed that the Deed of Settlement was in effect as at 20 March 2013 and that the only outstanding requirement was for Sgargetta to make payment of the $299,000 in accordance with clause 2.1(b). The basis for that contention appears to be a comment by NAB’s counsel in opening the County Court trial where he said:
“[T]he defence and counterclaim which is pleaded by Mr Sgargetta’s counsel at the time was pleaded in March 2013. It was a plea for specific performance, which at that time was potentially available to Mr Sgargetta, but that at no time was there any tender, formal or otherwise …”[21]
On the hearing of the application before me, Sgargetta submitted that this constituted an acknowledgment by NAB that either clause 2.1(a) had been satisfied or NAB had waived any non-compliance with it so that Sgargetta was still able to satisfy the terms of the Deed of Settlement on 20 March 2013 by paying $299,000.
[21]Transcript of trial in County Court dated 26 August 2013, page 15
45 There are two difficulties with this submission. First, even if the quoted passage bears the meaning Sgargetta contends for, other parts of the opening address and evidence are directly contrary to the contention. In addition, NAB’s conduct of the trial is also inconsistent with the contention. NAB argued that Sgargetta did not produce to it a conditional letter of approval for finance on terms acceptable to the bank for a sum equal to or greater than $299,000. Viewing the evidence and submissions as a whole, Sgargetta’s contention is not made out.
46 Further, and more significantly, the trial in the County Court was not conducted on the basis that NAB had waived compliance with clause 2.1(a). Sgargetta did not identify, whether in the pleadings, evidence or argument where this issue was raised as a matter to be determined at trial. Consistent with general principle, if such an issue were not raised at trial, it cannot be raised now on appeal or in an application of this kind as a means to justify the impugning of the earlier judgment.
(c) Can or should the court grant a stay in relation to the orders of the County Court and/or the Court of Appeal?
47 At the hearing on 14 November 2014, I dismissed the application for a stay of the orders of this court and the Court of Appeal. In summary, I refused to grant the stay for two reasons. First, I considered that this court did not have the jurisdiction to grant a stay of orders made by the Court of Appeal. The Court of Appeal had already refused a stay of the orders made by the County Court in February this year.[22] At the hearing on 14 November 2014, Sgargetta purported to provide authority that a lower court may grant a stay on the orders of a higher court. The documents brought to my attention were in relation to a proceeding brought by Sgargetta in VCAT against NAB’s representatives arising out of their conduct in this case. On the material before me, I consider that:
[22]Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 189
a) there is no proper evidence of VCAT staying the orders of the County Court and/or the Court of Appeal;
b) even if there were such evidence, I do not consider that it would create or in some way enliven any jurisdiction in this court to grant the stay sought.
48 Secondly, even if I had jurisdiction, I would not have granted a stay. Sgargetta did not establish any special circumstances sufficient to justify the grant of the stay. In the absence of evidence that the particular property the subject of the possession order was irreplaceable in some way or of special significance,[23] then, especially when the grounds of appeal to the High Court are so weak,[24] it seemed to me reasonable to allow NAB to have the fruits of its judgment. In the unlikely event that Sgargetta obtained a grant of special leave from the High Court and succeeded on his appeal, then I consider that NAB has the financial resources to compensate Sgargetta for selling the property the subject of the possession order if it were later found that the sale of the property should not have occurred.
[23]Palmer v Permanent Custodians Ltd [2009] VSCA 164, especially at [60]-[65]
[24]Elliot Daniel Sgargetta v National Australia Bank [2014] VSCA 189, at [31] and [33]
Conclusion
49 Subject to hearing from the parties regarding the final form of order, I propose to make the following orders:
(a) The applicant’s summons filed 30 October 2014 be dismissed.
(b) The applicant’s application for a re-trial of the previous proceeding is dismissed.
(c) The refusal of the County Court Registry to issue the applicant’s proposed proceeding against the respondents is upheld.
(d) The applicant pay the respondents’ costs of the summons and application to be taxed on a standard basis in default of agreement.
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