Sgargetta v ASB Bank Limited
[2025] NZCA 569
•29 October 2025 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA575/2023 |
| BETWEEN | ELLIOT SGARGETTA |
| AND | ASB BANK LIMITED |
| Court: | Katz and Palmer JJ |
Counsel: | Applicant in person |
Judgment: | 29 October 2025 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the case on appeal in CA575/2023 is declined.
BThe application for leave to appeal in CA838/2024 is declined.
CThe applicant must pay one sets of costs to each of the first respondent in CA575/2023 and the second respondent in CA838/2024 for a standard application on a band A basis, together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
Mr Sgargetta applies for:
(a)an extension of time to file the case on appeal in CA575/2023 pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the r 43 application); and
(b)leave to appeal a decision of the High Court declining his application for an order extending the time period for service of his notice of proceeding and statement of claim on the first-named second respondent, Mr Hawkes, in CA838/2024 (the leave application).
The r 43 application is opposed by ASB Bank Ltd (ASB), the respondent in CA575/2023. The leave application is opposed by Mr Hawkes, the first-named second respondent in CA838/2024. The second-named second respondent, Ms Fatupaito, is not participating in the leave application. It appears that she was not served with the underlying High Court proceedings to which the application relates.
Background
This litigation has a lengthy history, dating back to 2017. It arises out of an unlimited deed of guarantee and indemnity given by Mr Sgargetta to ASB in respect of loans made by ASB to Sleep Overs Ltd, a company of which Mr Sgargetta was the director. In the High Court, Woodhouse J granted summary judgment to ASB in the sum of $598,340.15.[1] That decision was upheld by this Court in 2021.[2] Amongst other things, this Court found Mr Sgargetta’s claim that the secured properties had been sold at an undervalue to be untenable.[3]
[1]ASB Bank Ltd v Sgargetta [2017] NZHC 3097 at [65(a)].
[2]Sgargetta v ASB Bank Ltd [2021] NZCA 459 [CA appeal against summary judgment] at [67].
[3]At [60].
Mr Sgargetta subsequently filed further proceedings in the High Court against ASB and the receivers of Sleep Overs (Mr Hawkes and Ms Fatupaito), in or about February 2022. He advanced three causes of action:
(a)ASB breached its statutory duty to obtain the best price reasonably obtainable.[4]
(b)ASB was aware of Sleep Overs’ syndication model and therefore was obliged to assist with or not block the plans to syndicate the secured properties.
(c)ASB was liable for the alleged breach by the receivers of their duty to obtain the best price reasonably obtainable.[5]
[4]Property Law Act 2007, s 176(1)(c).
[5]Receiverships Act 1993, s 19.
Associate Judge Gardiner struck out the proceedings on the basis that the first and third causes of action were an abuse of process by seeking to relitigate matters settled in this Court in 2021, and the second did not disclose a tenable cause of action (the strike-out judgment).[6] Mr Sgargetta appealed to this Court.
[6]Sgargetta v ASB Bank Ltd [2023] NZHC 2413 at [85]–[86].
On 6 December 2023, the Deputy Registrar declined to dispense with security for costs for Mr Sgargetta’s appeal. Pursuant to r 43 of the Court of Appeal (Civil) Rules, Mr Sgargetta was required to file his case on appeal and apply for the allocation of a hearing date by 18 January 2024. However, on that date Mr Sgargetta instead applied for an extension of time under r 43, and also made a second application that security for costs be dispensed with. The primary ground advanced was that he had been granted legal aid and his lawyer, Mr Michalik, was away until 23 January 2024.
Mr Michalik subsequently advised the Court and opposing counsel, however, that the legal aid grant in which he was involved as Mr Sgargetta’s counsel was directed to other matters and did not encompass acting for him on his appeal of the strike out judgment.
On 6 March 2024, Legal Aid Services confirmed to the Deputy Registrar that they had only received a legal aid application for Mr Sgargetta for the High Court proceedings, which had been approved, but that no application had been received for Mr Sgargetta for this appeal. The Deputy Registrar declined the second application for security for costs on 27 March 2024.
This Court subsequently (on 29 July 2024):[7]
(a)granted an extension of time for Mr Sgargetta to seek a review of the Deputy Registrar’s decision to decline to dispense with security for costs; and
(b)granted Mr Sgargetta’s r 43 application for an extension of time to file his case on appeal and apply for a fixture.
[7]Sgargetta v ASB Bank Ltd [2024] NZCA 347 at [39]–[40].
In support of the r 43 application Mr Sgargetta advised that the reason for the delay was his lack of legal aid and evidence issues caused by ASB.[8] The Court found that the issue of whether an extension of time should be granted was finely balanced.[9] It noted, however, that it did not appear that an extension of time would cause prejudice or hardship to ASB[10] and concluded that:
[38] It does not appear however that the appeal has obvious merit. The Associate Judge used sound reasoning to strike out the appellant causes of action as an abuse of process of the Court and because the second cause of action did not disclose a tenable cause of action. However, we are not satisfied the appeal is obviously hopeless. Given the extension of time relates to procedural requirements Mr Sgargetta sought to fulfil within time, we consider the interests of justice favour granting the extension.
[8]At [35].
[9]At [34].
[10]At [37].
An extension of time for filing the case on appeal was granted for a further 20 working days.[11]
[11]At [39].
On 19 September 2024, this Court declined Mr Sgargetta’s application to review the 6 December 2023 and 27 March 2024 decisions of the Deputy Registrar (declining to dispense with security for costs) on the basis that Mr Sgargetta’s appeal had little merit and there was insufficient evidence that he was legally aided.[12]
[12]Sgargetta v ASB Bank Ltd [2024] NZCA 468 [CA review of Registrar’s decision] at [8]–[9].
As Mr Sgargetta had still not filed his case on appeal, the proceeding was deemed abandoned on 27 September 2024, pursuant to r 43(1).[13]
[13]Court of Appeal (Civil) Rules 2005.
On 4 October 2024, Mr Sgargetta made an informal application for an extension of time to file the case on appeal and for security for costs to be deferred or set aside to this Court under r 43(1B). The application was not accepted for filing as it was outside the three-month period.
Mr Sgargetta subsequently filed a formal application to extend the time to file his case on appeal on 20 January 2025 — purportedly under r 43(1B)(a), but we treat it as having been made under the correct rule, which is r 43(2).
CA575/2023 — Application for extension of time to file the case on appeal
The issue we must determine is whether a further extension of time to file the case on appeal should be granted.
Relevant legal principles
The factors for consideration are those set out in Almond v Read:[14]
(a)the length of the delay;
(b)the reason for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[14] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40]; and Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4]. This Court in Yarrow explained that, although the Supreme Court was dealing with r 29A in Almond v Read, and not r 43, the same principles apply.
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[15] There will be some instances in which the merits will be overwhelmed by other factors, such as the length of the delay and prejudice to the respondent, and so will not require consideration.[16] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[17]
Mr Sgargetta’s submissions in support of the r 43 application
[15]Almond v Read, above n 14, at [39(c)].
[16]At [39(a)].
[17]At [38].
In his notice of application Mr Sgargetta stated that there had been delay in obtaining supporting evidence from ASB and, further, that his original legal aid application had been “misfiled” as a High Court matter and had therefore lapsed, but that he had now “re-applied” for legal aid. He sought an extension of time to enable legal aid to be confirmed.
Two months later, his submissions in support of the application (dated 20 March 2025) relied on the same grounds and stated further that:
It was only recently that [Legal Aid Services] had resolved the issue and has required the Appellant to obtain a new legal practitioner for this matter. The Appellant is unable to provide material shared between [Legal Aid Services] and himself due to privacy reasons, but once a legal practitioner has been retained, he will be able to substantiate that the file is still active and alive with [Legal Aid Services].
Mr Sgargetta advised that he was in consultation with legal practitioners to find someone prepared to undertake his appeal and hoped that this could “be done within a week from the date of these submissions” (namely, by 27 March 2025).
No further update was received until 29 October 2025 (the date of delivery of this judgment). Specifically, after Mr Sgargetta was advised that judgment would shortly be delivered, he forwarded copies of two emails to the Registry. One is from a barrister to Mr Sgargetta, dated 15 October 2025. Most of the content of the email is redacted, but the final paragraph advises that a memorandum be filed in Court after Mr Sgargetta has applied for legal aid, confirming that the barrister has agreed to act in the event that legal aid is granted. The other email is from Mr Sgargetta to Civil Legal Aid, dated 1 October 2025 (two weeks previously). It states that he has found a barrister to “take on this matter”, but that the barrister has raised concerns about how Mr Sgargetta had completed the legal aid form. Mr Sgargetta asks for confirmation as to what is required.
Our view
This Court’s decision of 19 September 2024 found that Mr Sgargetta was not legally aided in this appeal.[18] Mr Sgargetta has not provided any evidence to suggest that that position has since changed. He initially asserted that he had applied for legal aid, while declining to provide copies of the relevant correspondence. Shortly before the scheduled delivery of this judgment he provided two, very recent, emails. They do not establish, however, that legal aid has been granted. Indeed, those emails raise more questions than they answer. The barrister’s email suggests that in his view, as at 15 October 2025, Mr Sgargetta had not yet applied for legal aid. Mr Sgargetta’s claims of “privacy” in respect of his communications with Legal Aid Services (with the exception of one recent email) are unconvincing. He could readily have provided copies of any relevant communications, with any personal information redacted. He has failed to do so. The two recent emails reinforce the conclusion that Mr Sgargetta is not currently legally aided in this appeal, and we proceed on that basis. The most that can be said is that Mr Sgargetta has very recently found counsel willing to act for him, conditional on a legal aid application being made and granted. This is despite Mr Sgargetta’s advice of 20 March 2025 that he envisaged finding counsel within a week.
[18]CA review of Registrar’s decision, above n 12, at [9].
As counsel for ASB submitted, Mr Sgargetta has shown repeated disregard for court deadlines in this litigation. He has already been granted one extension for filing his case on appeal but failed to comply with the extended deadline. The delay has not been adequately explained. To the extent that any reasons have been provided, they are unsupported by evidence. Nor has Mr Sgargetta explained the lengthy delay in making the current (second) r 43 application — almost four months after the appeal was deemed to have lapsed.
No issue of public or general importance is raised by the appeal. Proceedings have now been on foot for some eight years, and the interests of finality in litigation do not favour a further extension. Further, as this Court has noted previously, the appeal lacks obvious merit and the underlying proceedings appear to largely be an attempt to relitigate matters already determined by the High Court, and confirmed in this Court on appeal.
Taking all of these matters into account, it is our view that the r 43 application should be declined.
CA838/2024 — Application for leave to appeal
The second application before us is an application for leave to appeal a decision by Judge Gardiner not to extend the time for serving Mr Sgargetta’s High Court proceedings on Mr Hawkes.
The High Court decision regarding service
Although Mr Sgargetta’s collateral February 2022 proceedings were served on ASB within time, they were not personally served on Mr Hawkes until 1 December 2023, and do not appear to have been personally served on Ms Fatupaito at all.[19] This resulted in the claim against the receivers being automatically discontinued because service was not effected within 12 months.[20]
[19]Sgargetta v ASB Bank Ltd [2024] NZHC 2109 [HC service judgment] at [17].
[20]High Court Rules 2016, r 5.72(2).
Mr Sgargetta then applied for an order extending the time for service. On 31 July 2024, Judge Gardiner found that Mr Sgargetta had not made reasonable efforts to effect personal service, nor was there “other good reason” to make an order (the service judgment).[21] The Judge considered it relevant that granting the application would deprive Mr Hawkes of an available limitation defence.[22] She further noted that this Court had previously found that there was no merit to Mr Sgargetta’s underlying allegations about the receivers.[23] The application was accordingly declined.
The High Court leave decision
[21]HC service judgment, above n 19, at [39] and [41]–[46]; and High Court Rules, r 5.73(2).
[22]At [44].
[23]At [45], citing CA appeal against summary judgment, above n 2, at [56]–[60].
Mr Sgargetta applied to the High Court for leave to appeal the service judgment, pursuant to s 56(5) of the Senior Courts Act 2016. On 22 November 2024, Gardiner J declined that application.[24] She acknowledged that the service judgment was of substantial importance to Mr Sgargetta, because its practical effect was to end his claim against Mr Hawkes.[25] The Judge found, however, that Mr Sgargetta had not identified any arguable error of law or principle in her decision.[26] Specifically:
(a)In response to Mr Sgargetta’s argument that the Judge had erred by not directing him to apply for an extension of time during 2023, the Judge noted it was not the Court’s role to provide advice. In any event, there was no prejudice as the Court had treated the extension application as if it had been made in April 2023.[27]
(b)The Judge also rejected Mr Sgargetta’s argument that the Court had erred by not finding that Mr Hawkes was “deemed” to have been served in January 2023, because he had been informed about the proceedings by ASB at that time. This submission was held to be untenable, as the High Court Rules 2016 require personal service unless substituted service is ordered.[28] General awareness that one has been named a party does not provide a basis for deemed service.[29]
(c)Finally, it was submitted that the Judge erred by not giving enough weight to a 7 February 2023 email from the High Court Registry suggesting that service by post was adequate. The Judge had considered that email but was not persuaded that Mr Sgargetta would have completed personal service within 12 months even if the Registry had responded differently. Further, a complaint about the weight given to a matter does not typically provide a basis for appealing a discretionary decision unless the decision is plainly wrong.[30]
[24]Sgargetta v ASB Bank Ltd [2024] NZHC 3516 [HC leave judgment] at [20]. At the time of this judgment, Gardiner J had been appointed a Judge of the High Court.
[25]At [13].
[26]At [15].
[27]At [16].
[28]See High Court Rules, r 5.71(1).
[29]HC leave judgment, above n 24, at [17].
[30]At [18].
In assessing the overall interests of justice, the Judge weighed the fact that the judgment ended Mr Sgargetta’s claim against Mr Hawkes against the fact that the proposed appeal and the underlying claim were without merit, given that this Court had already determined that there was no tenable claim against the receivers. Granting leave would require Mr Hawkes to incur further expense defending an (unmeritorious) appeal relating to events that occurred about eight years ago.[31]
[31]At [19].
The Judge accordingly concluded that Mr Sgargetta had not identified an arguable error of law or fact and the interests of justice would not be served by granting leave.
Mr Sgargetta now seeks leave to appeal the service decision to this Court.
Relevant legal principles
The relevant principles in relation to an application for leave to appeal an interlocutory decision under s 56(5) of the Senior Courts Act are set out in Greendrake v District Court of New Zealand:[32]
(a)A high threshold exists.
(b)The applicant must identify an arguable error of law or fact.
(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.
(d)The circumstances must warrant incurring further delay.
(e)The ultimate question is whether the interests of justice are served by granting leave.
[32]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
Further, the service judgment involved a discretionary decision. The criteria for appeals from discretionary decisions were summarised by this Court in May v May as follows:[33]
No authority requires to be stated for the proposition that in considering an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.
Mr Sgargetta’s submissions in support of the leave application
[33]May v May (1982) 1 NZFLR 165 (CA) at 169–170; see also Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8]; and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
Mr Sgargetta raises several grounds of appeal, including that:
(a)The minutes released by Gardiner J in relation to service requirements prior to the judgment failed to advise Mr Sgargetta of the requirements for an extension of time.
(b)The Judge failed to consult the court file before issuing the minutes and judgment.
(c)The Judge erred in not directing Mr Sgargetta to apply for an extension of time in 2023 and instead directed him to effect personal service. Had he been advised to apply for an extension of time when this matter first appeared before the Court, the extension would have been made in time.
(d)The Judge erred by not finding that service was effected on Mr Hawkes based on evidence that Mr Hawkes had been informed of the proceedings by ASB.
(e)The Court should have applied r 6.8 of the High Court Rules for substituted service.
(f)The Judge failed to place sufficient weight on an email sent by the Registry on 7 February 2023 which stated that service by post was adequate.
Our view
We find no arguable errors of law or fact in the service decision. We agree with the Judge’s reasons for declining leave (as summarised at [30] above). Mr Hawkes was not served in time and, even if he was aware of the claims, this does not constitute personal service. Rule 6.8 (substituted service) does not apply as there is no evidence Mr Sgargetta made reasonable attempts to personally serve Mr Hawkes. Further, the Judge was entitled to place significant weight, in the exercise of her discretion, on the fact that the appeal lacks merit, as Mr Sgargetta appears to be attempting to relitigate claims that have already been determined. Nor does the appeal raise any question of law of sufficient importance to justify the cost of an appeal. Finally, the interests of finality weigh against a grant of leave. This application relates to matters that have been ongoing for eight years now. The overall circumstances do not warrant incurring further delay. It is accordingly our view that the application should be declined.
Result
The application for an extension of time to file the case on appeal in CA575/2023 is declined.
The application for leave to appeal in CA838/2024 is declined.
The applicant must pay one sets of costs to each of the first respondent in CA575/2023 and the second respondent in CA838/2024 for a standard application on a band A basis, together with usual disbursements.
Solicitors:
MinterEllisonRuddWatts, Auckland for First Respondent in CA575/2023
Hill Lee & Scott, Christchurch for Second Respondent in CA838/2024
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