ASB Bank Limited v Sgargetta - [2018] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-788

[2018] NZHC 2061

BETWEEN
ASB BANK LIMITED

Plaintiff

AND

ELLIOT DANIEL SGARGETTA

Defendant

Hearing: 29 May 2018

Appearances:

JJK Spring and A E Simkiss for the Plaintiff Defendant in person (on the papers)

Judgment:

17 August 2018

JUDGMENT OF WOODHOUSE J

(Stay pending appeal)

This judgment was delivered by me on 17 August 2018 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:
Mr JJK Spring and Ms A E Simkiss, Minter Ellison Rudd Watts, Solicitors, Auckland Mr E D Sgargetta

ASB BANK LTD v SGARGETTA [2018] NZHC 2061 [17 August 2018]

[1] By judgment dated 13 December 2017 (the substantive judgment), I entered summary judgment for the plaintiff, ASB Bank Limited (ASB), against the defendant,
Mr Sgargetta.1

[2] Mr Sgargetta sought an order staying enforcement of the substantive judgment pending determination of an appeal against it.

[3] Mr Sgargetta elected not to appear at the hearing of his application for stay. Mr Sgargetta has acted on his own behalf throughout. He lives in Australia and was unable to attend the hearing. However, he filed written submissions in support, and a detailed response to submissions for ASB. In addition, and because Mr Sgargetta was unable to attend, a transcript of the oral hearing was completed and has been forwarded to the parties.

Preliminary issue (1): recusal

[4] Mr Sgargetta objected to my determining the application for stay because, in his submission, it is not appropriate that I determine whether there should be a stay pending an appeal against my own judgment. This is not a ground for recusal. Applications for stay pending an appeal, as a matter of practice and for good reason, are generally heard by the Judge who delivered the substantive judgment.

[5] There was also a general submission which, reduced to the particular, sought my recusal from this case if I have any direct or indirect shareholding or other interest in any New Zealand bank and if I have in the past acted as a legal practitioner for any bank. Those matters also do not provide grounds for my recusal.

Preliminary issue (2): withdrawal of judgment issued on 13 August 2018

[6] By 10 August 2018 I had completed a draft of a reasoned judgment to dismiss Mr Sgargetta’s application for stay. On 13 August 2018 I received a copy of a notice from the Court of Appeal that, pursuant to r 43 of the Court of Appeal (Civil) Rules 2005, Mr Sgargetta’s appeal had expired and was deemed abandoned as at 16 June 2018. The notice is dated 9 August 2018.

1 ASB Bank Ltd v Sgargetta [2017] NZHC 3097.

[7] Having received that notice I delivered, to the parties, a brief judgment recording that, given the notice from the Court of Appeal, there were no grounds for making an order for stay and the application…

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 2061
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, ASB Bank Limited brought a claim against Elliot Daniel Sgargetta for enforcement of a guarantee and indemnity agreement. ASB sought summary judgment, which was granted by Woodhouse J in a substantive judgment issued on 13 December 2017. Sgargetta sought a stay pending appeal of the substantive judgment. The appeal was out of time, and an extension of time was granted by the Court of Appeal, subject to conditions including the filing of a notice of appeal, payment of security for costs, and that if security for costs was required but not paid, the appeal would be struck out. Sgargetta failed to comply with the conditions, leading to the notice of abandonment of the appeal. Sgargetta sought a stay pending appeal, which was opposed by ASB. The court considered the usual factors for determining a stay pending appeal, including whether the appeal would be rendered nugatory, the apparent strength of the appeal, whether the appeal would proceed expeditiously, whether Sgargetta had a fair hearing, whether ASB would be injuriously affected by a stay, the effect on third parties, the absence of security from Sgargetta, any novelty or importance in the questions on appeal, and any public interest in the proceeding. The court found that the appeal would not be rendered nugatory, there was no merit in the appeal, the appeal had not been prosecuted expeditiously, Sgargetta had not been denied a fair hearing, ASB would not be injuriously affected by a stay, there was no effect on third parties, Sgargetta had not proposed to provide security, there was no novelty or importance in the questions on appeal, and there was no public interest in the proceeding. The overall balance of convenience was substantially in favour of ASB. Sgargetta's application for stay was dismissed, and ASB was entitled to recover its legal expenses and disbursements relating to the application for stay.

Final Orders:

1. Sgargetta's application for stay of enforcement of the substantive judgment is dismissed.
2. Expenses, excluding GST, reasonably incurred by ASB with its solicitors for legal fees and disbursements relating to Sgargetta's application for stay are recoverable from him.

Orders