Sgargetta v ASB Bank Limited - [2025] NZCA 569

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA575/2023
CA838/2024
[2025] NZCA 569

BETWEEN	ELLIOT SGARGETTA Applicant
AND	ASB BANK LIMITED First Respondent ANDREW JOHN HAWKES AND VIVIAN JUDITH FATUPAITO Second Respondents

Court:	Katz and Palmer JJ
Counsel:	Applicant in person A E Simkiss and J J K Spring for First Respondent in CA575/2023 No appearance for First Respondent in CA838/2024 A D Marsh for Second Respondent in CA838/2024 No appearance for Second Respondent in CA575/2023
Judgment: (On the papers)	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…

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: [2025] NZCA 569
Decision Date: 29 October 2025 at 3.30 pm

CaseChat Overview and Summary

Sgargetta v ASB Bank Limited concerns two applications made by Mr Elliot Sgargetta, an applicant in person, against ASB Bank Limited and Mr Andrew John Hawkes. The first application, CA575/2023, pertains to an extension of time to file a case on appeal, while the second, CA838/2024, requests leave to appeal a decision of the High Court that declined Mr Sgargetta's application for an order extending the time period for service of his notice of proceeding and statement of claim on Mr Hawkes. Both applications were declined by the Court of Appeal of New Zealand.

The legal issues before the Court involved whether a further extension of time should be granted for Mr Sgargetta to file his case on appeal, and whether leave to appeal the High Court's decision should be granted. The Court considered factors such as the length of delay, reason for delay, conduct of the parties, prejudice or hardship to the respondents, and the significance of the issues raised by the proposed appeal. The Court also examined the principles relevant to an application for leave to appeal an interlocutory decision under s 56(5) of the Senior Courts Act and the criteria for appeals from discretionary decisions.

The Court found that Mr Sgargetta had not provided sufficient evidence to suggest that he had obtained legal aid for his appeal, and his claims of privacy regarding his communications with Legal Aid Services were unconvincing. The Court noted that Mr Sgargetta had shown repeated disregard for court deadlines in this litigation, and the delay had not been adequately explained. Furthermore, the Court found no arguable errors of law or fact in the service decision and agreed with the Judge's reasons for declining leave. The interests of finality in litigation did not favour a further extension, and the overall circumstances did not warrant incurring further delay.

As a result, the Court declined both applications and ordered that Mr Sgargetta must pay one set 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.

Orders