ASB Bank Limited v Sgargetta - [2018] NZHC 3333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000788

[2018] NZHC 3333

BETWEEN
ASB BANK LIMITED

Plaintiff/Respondent

AND

ELLIOT DANIEL SGARGETTA

Defendant/Applicant

Hearing: On the papers

Judgment:

14 December 2018

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 14 December 2018 at 2.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
MinterEllisonRuddWatts, Auckland

Copy to:
Mr E D Sgargetta

ASB BANK LTD v SGARGETTA [2018] NZHC 3333 [14 December 2018]

[1] This matter has been referred to me as Duty Judge. The trial Judge – Woodhouse J – has retired.

[2] On 13 December 2017, the plaintiff – ASB Bank Ltd (ASB) – was granted an order for summary judgment by Woodhouse J against the defendant – Mr Sgargetta – in the sum of $598,340.50 together with interest and costs.1 Directions were made to expedite the quantification of the interest and costs claimed.

[3] On 14 August 2018, Woodhouse J delivered a further judgment which, inter alia, found that ASB was entitled to indemnity costs and disbursements in the sum of
$119,019.30.2 The Court held that costs in this sum had been reasonably incurred.3

[4]Mr Sgargetta then applied for a stay of the judgments.

[5] On 17 August 2018, Woodhouse J issued a judgment dismissing the application for a stay of enforcement of the judgments, and confirming that ASB was entitled, pursuant to a guarantee given by Mr Sgargetta, to its actual legal expenses and disbursements, reasonably incurred, but excluding GST.4

[6] ASB then applied for further costs in relation to the unsuccessful application for a stay. It sought solicitor/client costs totalling $38,649.46, together with disbursements of $160 for filing and sealing fees. That these were the costs incurred was confirmed in an affidavit from Hazel Meikle-Downing.

[7] Mr Sgargetta responded with a memorandum dated 19 November 2018. Inter alia, he referred to a minute issued by Woodhouse J on 13 August 2018. He also argued that the costs claimed were unreasonable and excessive.

[8] The costs application was considered by Lang J as Duty Judge on 26 November 2018. By that time, Mr Sgargetta had applied for an extension of time to apply for the allocation of a hearing date to appeal Woodhouse J’s substantive decision of 13

1      ASB Bank Ltd v Sgargetta [2017] NZHC 3097.
2      ASB Bank Ltd v Sgargetta [2018] NZHC 2066.
3 At [16].
4      ASB Bank Ltd v Sgargetta [2018] NZHC 2061.

December 2017. Lang J declined to deal with the issue of costs on the stay application until such time as the outcome of the proceeding in the Court of Appeal was known.

[9] The Court of Appeal’s judgment was issued on 3 December 2018.5 The Court of Appeal allowed Mr Sgargetta an extension of time to apply for the allocation of a hearing date and to file a case on appeal, but declined his application for a stay.6

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.

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Details

Case: [2018] NZHC 3333
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of ASB Bank Limited v Sgargetta involves a dispute between ASB Bank Limited (the plaintiff) and Mr. Elliot Daniel Sgargetta (the defendant). The matter was originally heard in the High Court of New Zealand in Auckland, where ASB Bank was granted summary judgment against Mr. Sgargetta for a significant sum, together with interest and costs. The legal dispute then extended to the costs incurred by ASB Bank, which sought further costs related to an unsuccessful application for a stay by Mr. Sgargetta. The primary legal issues before the court were whether the costs claimed by ASB Bank were reasonable and if Mr. Sgargetta's conduct justified the higher costs incurred.

The court found that ASB Bank was entitled to be indemnified for its actual legal costs, provided they were reasonable. The judge considered various factors, including the lack of evidence filed by Mr. Sgargetta, his failure to prepare a common bundle, his numerous memoranda, and his breach of timetable obligations. The court determined that the rates charged by ASB Bank's counsel were reasonable, and the majority of the work was conducted by a solicitor and special counsel, ensuring cost efficiency. The judge concluded that the costs claimed by ASB Bank were reasonable and that it had a contractual entitlement to the same.

In light of these findings, the court ordered Mr. Sgargetta to pay ASB Bank $38,649.46 in costs, along with disbursements of $160. This decision affirms the bank's right to recover its legal expenses reasonably incurred due to the defendant's conduct during the proceedings. The ruling underscores the importance of adherence to procedural obligations and the potential financial consequences of non-compliance in legal proceedings.

Orders