ASB Bank Ltd v Sgargetta

[2017] NZHC 3097

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-788 [2017] NZHC 3097

BETWEEN

ASB BANK LIMITED

Applicant

AND

ELLIOT DANIEL SGARGETTA Respondent

Hearing:	4 September 2017
Appearances:	A E Simkiss and JJK Spring Respondent in person
Judgment:	13 December 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 13 December 2017 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Ms A E Simkiss and Mr JJK Spring, Minter Ellison Rudd Watts, Solicitors, Auckland

Mr E D Sgargetta

ASB BANK LTD v SGARGETTA [2017] NZHC 3097 [13 December 2017]

[1]      The plaintiff, ASB Bank Ltd (ASB), seeks summary judgment against the defendant,  Mr  Sgargetta,  in  reliance  on  an  unlimited  deed  of  guarantee  and indemnity in respect of loans made by ASB to Sleep Overs Ltd (in receivership and liquidation) (Sleep Overs). The claim is for $598,340.15, together with interest.

[2]      Mr Sgargetta opposes the application for summary judgment and also seeks discovery.

Procedural issues

[3]      Mr Sgargetta has acted on his own behalf.  The documents originally filed by Mr Sgargetta did not comply with the High Court Rules and, as noted by Edwards J in a minute for the first case management conference, were unintelligible.1    There were directions that Mr Sgargetta file and serve documents which comply with the High Court Rules, by 3 July 2017.  That did not happen.  Although Mr Sgargetta’s response to his default was unsatisfactory, the time was extended to 21 July 2017.2

Further difficulties arising out of Mr Sgargetta’s responses were noted in successive minutes.   It is unnecessary to record any aspects of those further minutes, save to note that in the penultimate minute, of 17 August 2017, Wylie J noted that Mr Sgargetta had filed a further memorandum which was “an abuse of process and vexatious”.3

[4]      On 28 August 2017, Mr Sgargetta sent to the court, by email, a fresh set of documents in opposition and, as with the earlier documents, a counterclaim. As well as being over a month beyond the extended date for filing, these documents were not properly filed and again did not comply with the High Court Rules.   These are the documents which Mr Sgargetta sought to rely on at the hearing.

[5]      At  the  commencement  of  the  hearing  Ms  Simkiss,  counsel  for  ASB, submitted that the Court should refuse to accept the documents for filing because

there were deficiencies in them which were “gross and palpable and … incapable of

1      ASB Bank Ltd v Sgargetta HC Auckland CIV-2017-404-788, 7 June 2017 (minute of Edwards J).

2      ASB Bank Ltd v Sgargetta HC Auckland CIV-2017-404-788, 10 July 2017 (minute of Venning J).

3      ASB Bank Ltd v Sgargetta HC Auckland CIV-2017-404-788, 17 August 2017 minute of Wylie J).

leading to legal consequences”.4    In addition to the deficiencies in the documents, Ms Simkiss referred to earlier minutes directing Mr Sgargetta to pay applicable filing fees or…