IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000198
[2023] NZHC 2413
BETWEEN ELLIOT DANIEL SCARGETTA
Plaintiff
AND
ASB BANK LIMITED
Defendant
ANDREW JOHN HAWKES and VIVIAN JUDITH FATUPAITO
Second Defendants
Hearing: 2 August 2023 Appearances:
Plaintiff in Person
A E Simkiss / J J K Spring for the Defendants
Judgment:
1 September 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 1 September 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
MinterEllisonRuddWatts, Auckland
SCARGETTA v ASB BANK LTD [2023] NZHC 2413 [1 September 2023]
Introduction
[1] In 2017 this Court entered summary judgment for ASB Bank Limited (ASB) against Mr Sgargetta in reliance on an unlimited deed of guarantee and indemnity he had given for loans made by ASB to Sleep Overs Limited (in receivership and liquidation) (Sleep Overs).1 The judgment was for the shortfall between the outstanding loans and the net proceeds of the mortgagee sales of two properties over which ASB had security.
[2] Mr Sgargetta resisted summary judgment on various grounds, including that it was reasonably arguable that ASB was liable for the sale of the two properties at an undervalue. The Court rejected that argument and others put forward by Mr Sgargetta.
[3] Mr Sgargetta appealed. The Court of Appeal dismissed Mr Sgargetta’s appeal, finding that there was no sufficiently tenable defence that the properties were sold at an undervalue.2 The Court of Appeal also found that there was insufficient evidence to establish that Mr Sgargetta’s other defences were reasonably arguable.
[4] In February 2022, Mr Sgargetta filed this proceeding against ASB and the receivers of Sleep Overs. In the statement of claim he claims, across three causes of action, that:
(a)ASB and/or the receivers sold the properties at an undervalue in breach of their statutory duties to obtain the best obtainable price; and
(b)ASB represented, promised, or impliedly agreed to facilitate syndication of the properties by Sleep Overs, and then inhibited the syndication process.
[5]In each case Mr Sgargetta claims relief in the form of damages of over
$1 million.
1 ASB Bank Ltd v Sgargetta [2017] NZHC 3097 [HC judgment].
2 Sgargetta v ASB Bank Ltd [2021] NZCA 459 [CA judgment].
[6] ASB now applies to strike out all the causes of action as they relate to ASB, or alternatively for defendant summary judgment. If the Court declines to strike out all the causes of action or enter summary judgment, ASB seeks an order for security for costs against Mr Sgargetta in the amount of $150,000.
[7] ASB maintains that this Court and the Court of Appeal considered and determined the issues raised by Mr Sgargetta in his statement of claim, and his attempt to relitigate the same claims is an abuse of process. Alternatively, ASB claims that Mr Sgargetta has not pleaded any facts to support his claims. ASB also submits that Mr Sgargetta does…
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- Case
- [2023] NZHC 2413
- Decision Date
CaseChat Overview and Summary
The key issues considered by the Court were whether the claims were barred by res judicata and issue estoppel, whether the statement of claim disclosed a reasonably arguable cause of action, and whether Mr Scargetta had standing to bring the claims. The Court found that the claims were barred as they sought to relitigate issues already determined by the Court of Appeal, and that the statement of claim did not disclose a tenable cause of action for the second claim. The Court did not find it necessary to consider the issue of standing or the application for security for costs. The Court held that the claims were an abuse of process and failed to disclose a tenable cause of action, and consequently struck them out.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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