VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL

No. C6955/2014
BETWEEN

Applicant
ELLIOT DANIEL SGARGETTA

And

NATIONAL AUSTRALIA BANK LTD ACN 004 044 927

Respondent 1

GADENS PTY LTD ACN 100 963 308

Respondent 2

MELISSA MAREE THOMAS

Respondent 3

ADAM SEGAL

Respondent 4

PETER FIELDHOUSE

Respondent 5

KEVIN PRINGLE

Respondent 6
STATEMENT OF CLAIM
(Amended)

Date of Document: 3 March 2015

Solicitor Code:

Filed on behalf of:

Tel:

Prepared by: Elliot Sgargetta

Fax:

The applicable offences, breaches and misconduct for

application: - Settlement Deed - 5 February 2013

1) False and Misleading Representations 2) Misleading and Deceptive Conduct 3) Unfair Terms in a Contract 4) Negligence
> Legislation Australian Consumer Law Act Sec.18, 19, 23, 24, 29, 151
Corporations Act 2001 Sect 1041e
Civil Procedure Act 2010 Sec 17, 21 & 14
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National Consumer Credit Protection Act Sec.76 , 77 & 78

Wrongs Act 1958 Sect 43, 59 & 50

Foreword:

This application is in regard to a settlement deed contract that was solely drawn by the respondents.
It is contended and evidenced that it was unfairly, deceptively and misleadingly drawn and
operated, with missing and varying crucial terms that caused a serious dispute amongst the parties
which has resulted in this clause being so dissembled, inoperative and destructive. The evidences in
this application are overwhelming that the respondents were not only in breach in the
abovementioned legislations, but sought to conceal and deceive matters of fact and truth to defraud
the courts.
Chronology & History Of Events In brief
5 February 2013
The applicant and respondents at this stage had been in dispute on serious matters for more than 4
years.
The parties undertook a mediation in an attempt to resolve this serious dispute.
As a result, the parties agreed to enter into a contract settlement deed in which the respondents
fully constructed. The core premise of the deed was the applicant would pay the respondents the
sum of $299,000 by the 15 April 2013.
Please see attached exhibit - EDS1_SettlementDeed.pdf

7 February 2013 The applicant signed the deed and returned it to the respondents as required via email.
Please see attached exhibit A2

Note: Within this settlement deed the following clause 2.1a was placed in the contract by the
respondents and it states;

by 5pm on 25 February 2013 Mr Sgargetta must provide to NAB solicitors, Gadens Lawyers, a conditional
letter of approval for finance on terms acceptable to NAB and for an amount equal to or greater than
$299,000;
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Note: Conditions for finance approval nor terms acceptable to NAB were outlined.
It was made clear to the respondents, that due to the nature of this loan and the dispute generally,
funding would come from a non-conventional or private source. The respondents understood and
acknowledged that that would be satisfactory. The applicant also raised concern about the
ambiguity about the 2.1a clause, however the respondents expressed as long as they received the
$299,000 by the 15 April 2013 then that is the core of this deed.
Thus the apparent good-faith would be the soul of such an agreement. The applicant pressed the
matter further in order to seek more a level of formality was present in the deed, however the
respondents expressed that to not sign would equate to an entourage of lawyers from Gadens
against him and suing him for everything, so in essence being pedantic was being received as being
uncooperative and a negative.

With only a short period of time to facilitate this clause the applicant proceeded to make many
enquiries to lenders using a mortgage brokerage channel. Frantically seeking conditional loan
approvals in time for the 25 February 2013 requirement. As one can appreciate submitting
applications and supporting documents for lending etc. is a time consuming process.

13-15 February 2013 Around this period a few non-conforming lenders questioned the integrity of the settlement deed
as the respondents had not signed, thus technically it was not executed and not an agreement at all
unless both parties had signed.
Obviously concerned with this the applicant emailed the respondents for the executed version of
the settlement deed in order to satisfy these lenders concerns.
The respondents did not reply.
Please see attached exhibit A3.

19 February 2013 After 4 days, concern was growing as the respondents had not supplied their signed copy of
the settlement deed.
The applicant emailed the respondents again for the executed settlement deed, and furthermore
raising issue about them not providing it and thus now reasonably seeking an extension of the
cl 2.1a deadline as there was only 5 business days left to facilitate the 2.1a clause.
The respondents finally replied and emailed the signed copy of the deed, and rejected an
extension. Please see attached exhibit A4 and A5.

25 February 2013 3

The applicant was able to achieve a loan proposal from Red Rock Mortgages, and emailed it to
the respondents on the 25 February 2013.
Please see attached exhibit A6

26 February 2013 to 1 March 2013

- On the 26 February 2013 the respondents replied stating it was rejected because it did not
comply with the terms of 2.1a.
Please see attached exhibit A7

- The applicant raised immediate protest to this and stated this there are no terms specifically
specified and this was a genuine and legitimate loan proposal. Furthermore stating it is unfair, and
if the respondent could provide what those terms are, then the applicant can perhaps resolve it,
because the premise of this deed was resolution, and thus payment of $299,000 being made by the
15 April 2013 as both parties agreed.
Please see attached exhibit A8

- The respondents did not reply, so the applicant tried to presume what it could be that caused
rejection, so he contacted the lender Red Rock Mortgages to possibly change the names and
include the security details perhaps. The applicant then sent that version to the respondents.
Please see attached exhibit A9

- The respondents replied with their terms that they deemed to be acceptable and again rejected
the copy sent.
Please see attached exhibit A10

- The applicant and the respondent from the 26 February to 1 March 2013 debated and attempted to
establish clarity on the terms. The respondent agreed to an extension to the 1 March 2013 to try
and formulate the terms, but they had now 2 varying sets and versions of the terms and it was not
anymore clearer but rather now utterly disarranged.
Please see attached exhibits A11-A23

- It was fair to say that the terms were not established and apparent and cl 2.1a was varied and
uncertain that it became dismantled and inoperative, and simply unfair as it gave the respondent full
control of it, yet with no transparency to what would be accurately achievable for the applicant to
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have it appropriately and fairly accepted.

- During this period the applicant sent 4 other loan offers and they were all rejected.

1 March 2013 - Due to this conduct adopted by a leading bank and their global law firm the applicant obtained a
letter of guarantee from his father, unconditionally stating that payment of $299,000 would be
advanced to the respondents, thus completely and unequivocally determining commitment and
assurance that payment would be made. The applicant also brought his father into court who also
brought along the guarantee and bank statements, indicating available funds to facilitate the
$299,000 payment. It was advanced to respondent 4 in court, and it was rejected.
Please see attached exhibits
EDS7_SanAndreaGuarantee
MS22_DSgargettaAffidavit
MS20_ESgargettaAffidavit

Thus it became abundantly clear that the respondent had no intention to honour the agreement and
the spirit of resolution that was supposed to have been alive in such an agreement was not genuine.
So this clause was either predatory or negligently structured and was ambiguous enough that gave
the respondents complete and full advantage of the deed and overall unfair control.
1 March 2013 20 March 2013 -

In this period the respondents proceeded with their summary for judgment in the County
Court.

On the 1 March 2013 as stated the respondents were provided with a guarantee from San
Andrea Pty Ltd Dennis Sgargetta, and this was further confirmed in an 8 March 2013
hearing that payment was assured with supporting bank statements and bank guarantees
evidenced at that time.
Please see attached exhibits MS12_AffidavitDSgargetta
MS28_SgargettaHearingPaymentEvidence
MS45_8March13_ASegalConfirmPaymnt_RejectingIt

Due to the unfair and unreasonable conduct by the respondents the applicants family rallied
together to achieve a bank cheque from the CBA in the amount of $299,000 in accordance
with the settlement deed made out to the National Australia Bank.
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EDS5_CBA_Cheque_To_Nab_SettlementDeed5FEB13

It is important to note at this time the settlement deed had not been formally rescinded,
terminated or breached by any party.

On the 20 March 2013 the trial was set and the summary for judgment simultaneously.
The applicant had pro bono assistance and they provided the $299,000 bank cheque to the
respondents in full and final settlement of the matter.

The respondents rejected it, and proceeded in to the trial.

The summary for judgment was dismissed and the trial was adjourned to 26 August 2013.
Further attempts were made that day and days thereafter to provide this payment to the
respondents. They refused them all.

On the 3 April 2013 the applicant sent the cheque payment amongst other documents to the
County Court and the respondents, further raising attention to the payment being made.
Please see attached exhibit A32

A trial was fixed for the 26 August 2013 at the County Court.

26 29 August 2013 | Trial

In trial the respondents declared in their opening statement that;

The defence and counterclaim which is pleaded by Mr Sgargettas counsel at the time
was pleaded in March 2013 (That being the 20 March 2013 trial). It was a plea for
specific performance, which at that time was potentially available to Mr Sgargetta, but
that at no time was there any tender, formal or otherwise - formal tender of the $299,000
cheque.
Throughout the respondents have stated that no payment was ever made by the applicant.
Please see attached exhibit
- EDS3_TrialTrans_ConfirmAvailableAgreement_NoPayment_ASegal
- EDS5B_TrialTrans_MThomasChequePayment1
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- EDS5F_TrialTrans_MThomasChequePayment4a

The court of appeal heard just one matter of the Notice Of Appeal & Matters Of
Attention documents, and that was whether or not the respondents received payment of
$299,000. It was determined that the respondents did in fact receive payment of $299,000
from the applicant on the 20 March 2013.
Please see attached exhibits
EDS4_AppealJudgmentConfirmChequePaymentA
AP16_Transcript_RegardingTenderAndDeedCont
ention

Important Key Factors -

1) Respondents confirmed in court that their deed was potentially available at 20

March 2013
Evidence:
- EDS3_TrialTrans_ConfirmAvailableAgreement_NoPayment_ASegal

2)_Judge Whelan stated that if the deed was available at 20 March 2013 then clearly
it was performed.
Evidence:
- AP16_Transcript_RegardingTenderAndDeedContention

3) Cl 2.1a grounds were presumed abandoned at the Court Of Appeal

- AP5_AppealJudgmentAbandonment

4) Conclusion
The respondents deed was available on the 20 March 2013 as they declare, and payment
was made to them on the 20 March 2013 as determined by the Court Of Appeal.
Please see attached exhibit - EDS4_AppealJudgmentConfirmChequePaymentA

- Therefore the respondents were unconscionable in lying in court that no payment had
ever been made.

- Declaring that the deed was in breach or not contending that it was available as they had
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stated in their opening statement in court.

- Withholding the terms of cl 2.1a, then varying them and then changing them and then
never clearly or accurately defining them at all. Then rejecting every single honest
approval, offer, proposal and guarantee advanced.
Please see attached exhibit - MS16_2.1aAnalysis

The core matters now in submission:

1) Cl 2.1a was deceptive and negligent from construction right through to conduct. The
respondent breached the ACL Sec. 4, 18, 19, 29 and 151.

2) Cl 2.1a was unfair and gave full advantage to the drawer of the contract and became further unclear
and completely undefined so to not provide the applicant with a reasonable and fair clear passage to
satisfy the clause. This contract was drawn by a leading bank and their global law firm, who most
certainly would know better. The respondent breached the ACL Sec. 23 and 24.

3) Cl 2.1a was extended to the 1 March 2013 on the 27 February 2013 by the respondents leaving just
1 day for the applicant to compile with them. Varying versions of the terms and changes were
provided by the respondents after the 25 February 2013, thus unequivocally establishing that the
terms were never clearly identify nor apparent, thus the true intentions to resolve were not genuine
and the applicant had no real chance to accurately have them met whatsoever especially in 1 day.

4) The respondents completely constructed the deed, and ultimately provided it to the applicant,
with a faade to resolve.

3) Due to the deficiencies in the pro bono scheme the applications 1-5 in this matter, were unable to
be addressed in other courts, and thus are here for the tribunal to seek appropriate determination.

4) The respondents state in Affidavits that they actually had the executed deed as early as 8
February 2013 and the terms of the deed at that time, yet only provided the executed deed on the 19
February 2013 and provided varying versions of the terms from the 26-1 March 2013.
Please see attached exhibits:
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EDS13_NMinassianAffi
AP3_ASegalAffidavit

7) The respondents were already instructing a barrister (Adam Segal) for litigation at 8 February
2013, thus a further example on whether the respondents were honestly and sincerely wishing to
resolve and facilitate the contract, or were actually preparing for legal warfare and had manipulated
this deed as a faade of being reasonable and fair where, as long as payment was made before the
15 April 2013 all is well and resolved in good-faith. However their true intentions became apparent,
when the respondents began denying and concealing the payment of $299,000 was ever made.

8) Estoppels are their argument. In response:

Johnson v Gore Wood & Co [2002] 2 AC 1

Lord Bingham considered that the public interest ought go into the mix: It is, however, wrong to
hold that because if a matter could have been raised in earlier proceedings it should have been, so as
to render the raising of it in latter proceedings necessarily abusive. That is to adopt too dogmatic an
approach to what should in my opinion be a broad, merits-based judgment which takes account of
the public and private interests involved and also takes account of all the facts of the case, focusing
attention on the crucial question whether, in all the circumstances, a party is misusing or abusing
the process of the court by seeking to raise before it the issue which could have been raised before.

Rogers v The Queen

In cases where such outcomes can be avoided, and resort is had, by necessity or otherwise, to abuse
of process principles, the limits may be tested and a court or tribunal can be invited to make a
broad merits-based judgment (Aon, (2009) 239 CLR 175, 194 (French CJ)).
Mason CJ stated in Rogers v The Queen that it would be unwise to limit circumstances in which
abuse of process may arise to fixed categories ((1994) 181 CLR 251, 255). Obviously each case
will be fact dependent.

It is important to make reference to where the court will also overrule itself in previous proceedings
such as: Imbree v McNeilly (2008) 236 CLR 510, Esso Australia Resources Ltd v Federal
Commissioner of Taxation (1999) 201 CLR 49 and Brodie v Singleton Shire Council (2001) 206
CLR 512.
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In summary it would impetuous for any court or tribunal to broad-brush matters before it without
appropriately and diligently hearing the facts, merits and evidences of the case.

These Estoppels are to safeguard litigations abusing the court processes, but more importantly the
sanctity of our justice system. They should not be used as a tool to prevent, truth and justice from
prevailing, to allow such conduct would render our judiciary a place for legal manipulation and
dishonourable application.

In the words of Attorney General Mr Dowd in the matter of EINFELD v REGINA [2010]
NSWCCA 87 (5 May 2010):
It is fundamentally important that confidence is maintained in our system of justice, and to this
end it must be protected from attack. Those who interfere with the course of justice must be subject
to severe penalties. Not only do offences concerning the administration of justice affect individuals,
but the community as a whole has an interest in ensuring that justice is properly done.

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Orders Sought -

a. A declaration stating that the respondents breached the Australian Consumer Law Act Sec.18,
19, 23, 24, 29, 151, and/or;

b. A declaration stating that the respondents breached the Corporations Act 2001 Sect 1041e,
and/or;

c. A declaration stating that the respondents breached the Civil Procedure Act 2010 Sec 17, 21 &
14, and/or;

d. A declaration stating that the respondents breached the National Consumer Credit Protection Act
Sec.76 , 77 & 78, and/or;

e. A declaration stating that the respondents breached the Wrongs Act 1958 Sect 43, 59 & 50,
and/or;

f. A declaration stating that the respondents were negligent in their structuring and
conduct associated to the 5 February 2013 settlement deed, and/or;

g. A declaration stating that as at the 20 March 2013 the settlement deed dated 5 February
2013 was available when payment of $299,000 was provided by the Applicant to the
Respondents, and/or;

h. Full remedy of costs caused to the applicant are awarded, and/or;

i. As the tribunal may see fit.

Dated: 3 March 2015

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