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Deed of Settlement

National Australia Bank Limited


ACN 004 044 937

Elliot Daniel Sgargetta


Cybil Nickett Sgargetta

77 Castlereagh Street
Sydney NSW 2000
Australia
T
+61 2 9931 4999
F
+61 2 9931 4888
Ref 31606290/nba/kzp

Contents
1.

Defined meanings

2.

Mr Sgargettas Obligations

3.

Mrs Sgargettas Obligations

4.

NABs Obligations

5.

Consequence of any default

6.

Legal advice warranty

7.

Confidentiality

8.

Non-disparagement

9.

General provisions

10.

Interpretation

Annexure A First VCAT Proceeding Orders

11

Annexure B Second VCAT Proceeding Orders

13

Annexure C Sgargetta Acknowledgement

15

Annexure D Withdrawal of Caveat and Statutory Declaration

16

Deed of Settlement
Dated

____ February 2015

Parties
1.

National Australia Bank Limited ACN 004 044 937 of 800 Bourke Street, Docklands in
the State of Victoria 3008 (NAB);

2.

Elliot Daniel Sgargetta, of 1 Driffield Crescent, Sassafras VIC 3787 (Mr Sgargetta); and

3.

Cybil Nickett Sgargetta (also known as Cybil Nickett Waldron), of 1 Driffield Crescent,
Sassafras VIC 3787 (Mrs Sgargetta);

Background
A.

On or about 10 December 2007, NAB agreed to provide a home loan facility to Mr


Sgargetta for $300,000, with a fixed interest rate period of 5 years (Home Loan Facility).

B.

The Home Loan Facility was secured by a first registered mortgage, registered dealing
number AE912489 (Mortgage), over the property situated and known as 92 Old Coach
Road, Kalorama, in the State of Victoria (volume 04244 folio 765) (Property), which is
solely owned by Mr Sgargetta.

C.

On 8 October 2008, Mr Sgargetta entered into a contract of sale to sell the Property to Mrs
Sgargetta, with settlement scheduled to occur on 1 December 2008 (before the expiry of
the fixed interest rate period of 5 years).

D.

In or about November 2008, Mr Sgargetta sought a discharge of the Mortgage and


requested a payout figure.

E.

Settlement did not occur on 1 December 2008, as Mr Sgargetta disputed the payout figure
NAB provided to him (Payout Dispute).

F.

On 1 December 2008, Mr Sgargetta ceased making payments under the Home Loan
Facility.

G.

On or about 4 December 2008, Mrs Sgargetta lodged a caveat over the Property, noting her
interest as purchaser, being caveat number AG229854R (Caveat).

H.

NAB began enforcement action in relation to the Home Loan Facility and Mortgage,
including commencing proceedings in the County Court of Victoria, proceedings number CI12/02770 (County Court Proceedings).

I.

Mr Sgargetta filed a defence and counter claim in the County Court Proceedings based on
the Payout Dispute (First Counter Claim).

J.

NAB and Mr Sgargetta entered into a Deed of Settlement dated 5 February 2013 (2013
Deed of Settlement), which sought to resolve the Payout Dispute and the First Counter
Claim.

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K.

The 2013 Deed of Settlement required Mr Sgargetta to, among other things, provide to NAB
a conditional letter of approval for finance, on terms satisfactory to NAB, by 5.00pm on 25
February 2013 and subsequently pay NAB $299,000 by 5.00pm on 15 April 2013.

L.

On 27 February 2013, Gadens Lawyers Sydney Pty Ltd (Gadens), the solicitors for NAB,
notified Mr Sgargetta that he had not complied with the terms of the 2013 Deed of
Settlement.

M.

On 20 March 2013, Mr Sgargetta offered NAB a bank cheque for $299,000 (Bank
Cheque).

N.

NAB did not accept the Bank Cheque.

O.

Since at least 20 March 2013, Mr Sgargetta has maintained that he complied with the terms
of the 2013 Deed of Settlement, which NAB disputes (Deed of Settlement Dispute).

P.

On or about 20 March 2013, Mr Sgargetta filed an amended defence and counter claim in
the County Court Proceedings, claiming, among other things, that NAB had breached the
Uniform Consumer Credit Code (as it was then) and the Trade Practices Act 1974 and Mr
Sgargetta had complied with the 2013 Deed of Settlement (Second Counter Claim).

Q.

The County Court Proceedings, including the First Counter Claim and Second Counter
Claim, went to trial from 26 to 29 August 2013, inclusive (County Court Trial).

R.

On 17 February 2014, the County Court of Victoria ordered judgment in favour of NAB for
possession of the Property and for the amount then owing under the Home Loan facility,
$440,441.19, and dismissed the First Counter Claim and Second Counter Claim (County
Court Judgment).

S.

On or about 20 March 2014, Mr Sgargetta filed with the Victorian Court of Appeal, an
appeal against the County Court Judgment, proceedings number S APCI 2014/0029
(Appeal).

T.

On 30 July 2014, the Victorian Court of Appeal dismissed the Appeal (Appeal Judgment).

U.

On 11 August 2014, Mr Sgargetta filed an application for special leave, to appeal to the
High Court of Australia (Application for Special Leave).

V.

On or about 29 August 2014, Mr Sgargetta filed a claim with the Victorian Civil and
Administrative Tribunal (VCAT) against NAB, Melissa Thomas, the Head of Recoveries in
NAB Assist and Damien Colella, a former NAB employee, seeking over $3 million in
damages, being proceeding number C5125/2014 (First VCAT Proceeding).

W.

In September 2014, Mr Sgargetta attempted to file a writ in the County Court of Victoria
against NAB and its officers, claiming over $3 million in damages. The County Court
Registry declined to issue Mr Sgargettas writ.

X.

Mr Sgargetta appealed the County Court of Victorias decision refusing to file his writ in the
County Court Proceedings and on 11 December 2014, the County Court of Victoria
dismissed Mr Sgargettas appeal (County Court Writ Judgment).

Y.

On 25 November 2014, NAB took possession of the Property and has since removed and
placed all personal items and belongings, which had been left at the Property, into storage
(NABs Possession).

Z.

On 11 December 2014, the High Court of Australia dismissed Mr Sgargettas Application for
Special Leave (High Court Judgment).

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AA.

On or about 11 December 2014, Mr Sgargetta lodged a second claim with VCAT against
NAB, Melissa Thomas, Adam Segal, counsel acting for NAB, Gadens, Kevin Pringle, a
partner of Gadens and Peter Fieldhouse, Senior Legal Counsel at NAB, being proceeding
number C6955/2014 (Second VCAT Proceeding).

BB.

NAB has brought an application to summarily dismiss the First VCAT Proceeding, which
has been adjourned to 4 March 2015 (VCAT Summary Dismissal Application).

CC.

Since 2008, Mr Sgargetta and/or related entities or persons on his behalf, have made
numerous complaints against NAB, its current or former officers and agents and NABs
legal representatives, including NABs counsel, including (but not limited to) complaints
made to the Legal Services Commissioner, the Victorian Police and the Department of
Public Prosecutions (Sgargetta Complaints).

DD.

NAB has made numerous requests for Mrs Sgargetta to remove the Caveat, however Mrs
Sgargetta has failed to respond.

EE.

NAB has prepared and is in a position to lodge an application against Mrs Sgargetta,
including seeking orders to have the Caveat removed to enable a mortgagee sale of the
Property to proceed.

FF.

The Parties have agreed to resolve all outstanding disputes, issues and Claims between
them, including but not limited to, the Payout Dispute, the Deed of Settlement Dispute, the
County Court Trial, the County Court Judgment, the Appeal Judgment, the High Court
Judgment, the County Court Writ Judgment, the First VCAT Proceeding, the Second VCAT
Proceeding, NABs Possession of the Property and the Sgargetta Complaints, subject to
the terms and conditions of this Deed.

Operative provisions
1.

Defined meanings

The definitions and interpretation clause at the back of this document sets out and explains the
defined terms used in this document and the rules of interpretation that apply.

2.

Mr Sgargettas Obligations

2.1

At the time of execution of this Deed, Mr Sgargetta must provide to Gadens:


(a)

original signed orders dismissing the First VCAT Proceeding, in the form annexed
to this Deed and marked A (First VCAT Proceeding Orders);

(b)

original signed orders dismissing the Second VCAT Proceeding, in the form
annexed to this Deed and marked B (Second VCAT Proceeding Orders); and

(c)

written evidence that he has withdrawn all of the Sgargetta Complaints and all other
outstanding Claims that either he, or related entities or persons on his behalf, have
made against NAB, its officers, employees and agents and/or its legal
representatives, including NABs counsel; and

(d)

an original signed acknowledgment in the form annexed to this Deed and marked
C (Sgargetta Acknowledgment).

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2.2

At the time of execution of this Deed, Mr Sgargetta irrevocably and unconditionally releases
NAB, its current and former officers, employees and agents, and current and former legal
representatives of NAB, from any and all Claims that Mr Sgargetta has or may have against
the NAB, its current and former officers, employees and agents and current and former
legal representatives of NAB, arising from or in connection with any of the matters raised in
this Deed, including, but not limited to:
(a)

the Home Loan Facility;

(b)

the Mortgage;

(c)

the Payout Dispute;

(d)

the Deed of Settlement Dispute;

(e)

the Caveat;

(f)

the County Court Trial and the County Court Proceedings, including the First
Counter Claim and Second Counter Claim;

(g)

the County Court Judgment;

(h)

the County Court Writ Judgment;

(i)

the Appeal Judgment;

(j)

The High Court Judgment;

(k)

The First VCAT Proceeding;

(l)

The Second VCAT Proceeding;

(m)

NABs Possession of the Property;

(n)

NAB placing items remaining at the Property into storage;

(o)

NAB exercising its power of sale and conducting a mortgagee sale of the Property;
and

(p)

any other matter referred to in the Background section of this Deed.

2.3

This Deed may be raised or pleaded as a complete defence to the continuance or


commencement of any proceedings or Claim, which have been or may be brought at any
time by or on behalf of Mr Sgargetta.

2.4

Mr Sgargetta has a continuing obligation to do all things necessary to withdraw and not
proceed with any other outstanding complaints or disputes he has brought or made, either
directly or indirectly against NAB, any of its current or former officers, employees and
agents and its current and former legal representatives, including, by complying with
requests made by or on behalf of NAB to take certain conduct, actions or steps in relation to
any such complaints or disputes.

2.5

By 5.00pm on 27 February 2015, Mr Sgargetta must remove all belongings and items that
were removed from the Property by NAB and placed into storage with Dawsons Moving.

2.6

If Mr Sgargetta refuses and/or fails to remove all belongings and items held in storage with
Dawsons Moving by 5.00pm on 27 February 2015, any belongings and items remaining in
storage will be deemed abandoned and can be disposed of by NAB, in any manner it sees
fit.

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2.7

Mr Sgargetta acknowledges and agrees that NAB is entitled to proceed to sell the Property
as mortgagee and retain the full proceeds of sale.

2.8

Mr Sgargetta agrees that he will not lodge any caveats over the title of the Property and will
not, in any way, either directly or indirectly, seek to prevent, delay or interfere with, any
mortgagee sale of the Property by NAB.

2.9

Mr Sgargetta must otherwise comply with the terms and conditions of this Deed.

3.

Mrs Sgargettas Obligations

3.1

At the time of execution of this Deed, Mrs Sgargetta will provide to Gadens, the original
signed withdrawal of Caveat and Statutory Declaration, in the form annexed to this Deed
and marked D (Withdrawal of Caveat and Statutory Declaration).

3.2

Mrs Sgargetta agrees that she will not lodge any further caveats over the title of the
Property and will not, in any way, either directly or indirectly, seek to prevent, delay or
interfere with, any mortgagee sale of the Property by NAB.

3.3

At the time of execution of this Deed, Mrs Sgargetta irrevocably and unconditionally
releases NAB, its current and former officers, employees and agents and current and
former legal representatives of NAB, from any and all Claims that she has or may have
against the NAB, its current and former officers, employees and agents and current and
former legal representatives of NAB, arising from or in connection with any of the matters
raised in this Deed, including, but not limited to:
(a)

the Home Loan Facility;

(b)

the Mortgage;

(c)

the Caveat; and

(d)

the Withdrawal of Caveat and Statutory Declaration.

3.4

Mrs Sgargetta acknowledges and agrees that NAB is entitled to proceed to sell the Property
as mortgagee and retain the full proceeds of sale.

3.5

This Deed may be raised or pleaded as a complete defence to the continuance or


commencement of any proceedings or Claim, which have been or may be brought at any
time by or on behalf of Mrs Sgargetta.

3.6

Mrs Sgargetta must otherwise comply with the terms and conditions of this Deed.

4.

NABs Obligations

4.1

NAB will within 14 days of receiving the original signed First VCAT Proceeding Orders and
Second VCAT Proceeding Orders, file the orders with VCAT, with the intention to bring an
end to the First VCAT Proceeding and Second VCAT Proceeding.

4.2

NAB will, as mortgagee in possession, immediately proceed to market and sell the
Property.

4.3

Upon settlement of any mortgagee sale of the Property and provided that all of the
conditions of this Deed are complied with, NAB will:
(a)

apply the full net proceeds from the sale to the amount owing under the Home Loan
Facility; and

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(b)

forbear from further enforcing the County Court Judgment against Mr Sgargetta
and from making any Claims or demands and from bringing all actions, suits,
proceedings and from enforcing all rights, verdicts and judgments of whatsoever
kind or nature and whether at law, or in equity, that NAB has or may have in
connection with the Home Loan Facility, the Mortgage, the Property, or any of the
matters recited above, against Mr Sgargetta and/or Mrs Sgargetta, or either of
them.

4.4

This clause does not release Mr Sgargetta or Mrs Sgargetta from their obligations arising
under this Deed.

4.5

For the avoidance of doubt, nothing in this deed in any way affects the enforceability of the
Home Loan Facility, the Mortgage, the County Court Judgment, the Appeal Judgment, the
County Court Writ Judgment and/or the High Court Judgment

5.

Consequence of any default

5.1

If Mr Sgargetta and/or Mrs Sgargetta default under any terms of this Deed, time being of
the essence, NAB will immediately be entitled, as it sees fit, to:
(a)

enforce the County Court Judgment, the Appeal Judgment, the County Court Writ
Judgment and the High Court Judgment, in any manner NAB sees fit (including
proceeding to sell the Property and taking steps to recover the balance of the
monetary judgment, including all enforcement costs payable under the Mortgage
and under the County Court Judgment, the Appeal Judgment, the County Court
Writ Judgment and the High Court Judgment;

(b)

bring any Claim, including a claim for damages, against Mr Sgargetta and/or Mrs
Sgargetta, arising from any default under this Deed.

6.

Legal advice warranty

6.1

Mr Sgargetta and Mrs Sgargetta each warrant to NAB that they have separately obtained
independent legal advice in relation to the terms of this Deed, prior to entering into this
Deed by the persons named below.
Mr Sgargetta
Name of legal advisor:

________________________________

Name of firm:

________________________________

Contact email:

________________________________

Contact telephone:

________________________________

Date advice provided:

________________________________

Mrs Sgargetta
Name of legal advisor:

________________________________

Name of firm:

________________________________

Contact email:

________________________________

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Contact telephone:

________________________________

Date advice provided:

________________________________

6.2

Mr Sgargetta and Mrs Sgargetta each acknowledge that NAB has relied on this warranty in
entering into this Deed.

7.

Confidentiality

7.1

This Deed and all matters relating to this Deed are and shall remain strictly confidential and
must not be disclosed to any person, whether directly or indirectly, in any manner
whatsoever without prior written consent of the other parties to this Deed, except:
(a)

as required by law; or

(b)

where disclosure is necessary for the purpose of enforcing any obligation arising
under this Deed; or

(c)

where disclosure is made on a confidential basis to a partys officers, employees,


agents, professional advisers or appointees.

8.

Non-disparagement

8.1

Both Mr Sgargetta and Mrs Sgargetta agree not to make any disparaging remarks, publicly
or otherwise, about NAB, any of its current or former officers, employees or agents,
including legal representatives.

9.

General provisions

9.1

Costs
Each party must pay its own costs in relation to:
(a)

the negotiation, preparation, execution, performance, amendment or registration of,


or any consent given or made; and

(b)

that party performing any action in complying with any liability arising,

under this document, or any agreement or document executed or effected under this
document, unless this document provides otherwise.
9.2

Governing law and jurisdiction


(a)

This document is governed by and construed under the law in the State of Victoria.

(b)

Any legal action in relation to this document against any party or its property may be
brought in any court of competent jurisdiction in the State of Victoria.

(c)

Each party by execution of this document irrevocably, generally and unconditionally


submits to the non-exclusive jurisdiction of any court specified in this provision in
relation to both itself and its property.

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9.3

Amendments
Any amendment to this document has no force or effect, unless effected by a document
executed by the parties.

9.4

Third parties
This document confers rights only on a person expressed to be a party to it, and not on any
other person.

9.5

Precontractual negotiation
This document:

9.6

(a)

expresses and incorporates the entire agreement between the parties concerning
its subject matter, and all the terms of that agreement; and

(b)

supersedes and excludes any prior or collateral negotiation, understanding,


communication or agreement by or between the parties concerning that subject
matter or any term of that agreement.

Further assurances
Each party must execute any document and perform any action necessary to give full effect
to this document, whether before or after performance of this document.

9.7

9.8

Continuing performance
(a)

The provisions of this document do not merge with any action performed or
document executed by any party for the purposes of performing this document.

(b)

Any representation in this document survives the execution of any document for the
purposes of, and continues after, performance of this document.

(c)

Any indemnity agreed by any party under this document:


(i)

constitutes a liability of that party separate and independent from any other
liability of that party under this document or any other agreement; and

(ii)

survives and continues after performance of this document.

Waivers
Any failure by a party to exercise any right under this document does not operate as a
waiver. The single or partial exercise of any right by that party does not preclude any other
or further exercise of that or any other right by that party.

9.9

Remedies
The rights of a party under this document are cumulative and not exclusive of any rights
provided by law.

9.10

Severability
Any clause of this document which is invalid in any jurisdiction is invalid in that jurisdiction to
that extent, without invalidating or affecting the remaining clauses of this document or the
validity of that clause in any other jurisdiction.

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9.11

Counterparts
This document may be executed in any number of counterparts, all of which taken together
are deemed to constitute the same document.

10.

Interpretation

10.1

Definitions
In this deed unless the context otherwise requires:
Claims means any demand, notice, statutory notice, action, complaint, objection,
submission, legal or enforcement proceedings, litigation, investigation, cross-claim or claim
for or in respect of any payment, damages, compensation, judgment, loss, cost, expenses,
liability, set-off or any cause of action, whatsoever arising at law, in equity or under statute,
whether known or unknown, certain or contingent, past, present or at any time in the future.
Claim also includes any claim or complaint to the Financial Ombudsman Services or any
similar dispute resolution scheme.
Parties means the parties to this Deed.

10.2

Interpretation
In this document, unless the context requires otherwise:
(a)

clause and subclause headings are for reference purposes only;

(b)

the singular includes the plural and vice versa;

(c)

words denoting any gender include all genders;

(d)

a reference to a person includes any other entity recognised by law and vice versa;

(e)

where a word or phrase is defined, its other grammatical forms have a


corresponding meaning;

(f)

any reference to a party to this document includes its successors and permitted
assigns;

(g)

any reference to any agreement or document includes that agreement or document


as amended at any time;

(h)

the use of the word includes or including is not to be taken as limiting the
meaning of the words preceding it;

(i)

the expression at any time includes reference to past, present and future time and
performing any action from time to time;

(j)

an agreement, representation or warranty by two or more persons binds them


jointly and severally and is for the benefit of them jointly and severally.

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Executed as a deed.
Executed on behalf of National Australia Bank
Limited ACN 004 044 937 by its Attorney
________________________________________
who holds the position of Level _______ Attorney
under Power of Attorney dated 1 March 2007
before.
Signature of witness

Print name

Print address

Signed sealed and delivered by Elliot Daniel


Sgargetta in the presence of:
Signature of witness

Elliot Daniel Sgargetta

Print name

Print address

Signed sealed and delivered by Cybil Nickett


Sgargetta in the presence of:
Signature of witness

Cybil Nickett Sgargetta

Print name

Print address

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Annexure A First VCAT Proceeding Orders

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Victorian Civil and Administrative Tribunal


Civil Division
Civil Claims List
VCAT Reference: C5125/2014

Applicant:

Elliott Sgargetta

First Respondent:

Melissa Thomas

Second Respondent:

Damien Colella

Third Respondent:

National Australia Bank Limited ACN 004 044 937

Date of Order:

Orders

1.

The proceeding be dismissed.

2.

No order as to costs.

Signed by Elliot Sgargetta

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Signed by Kevin Pringle, solicitor for


Respondents

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Annexure B Second VCAT Proceeding Orders

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Victorian Civil and Administrative Tribunal


Civil Division
Civil Claims List
VCAT Reference: C6955/2014

Applicant:

Elliott Sgargetta

Respondents:

Melissa Thomas, Adam Segal, Peter Fieldhouse, Kevin


Pringle, National Australia Bank Limited ACN 004 044
937, Gadens Lawyers Sydney Pty Ltd ACN 100 963
308

Date of Order:

Orders

1.

The proceeding be dismissed.

2.

No order as to costs.

Signed by Elliot Sgargetta

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Signed by Kevin Pringle, solicitor for


Respondents

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Annexure C Sgargetta Acknowledgement

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February 2015
To Whom it May Concern,

I Elliot Daniel Sgargetta, provide notice that:


1.

I wish to immediately withdraw the existing dispute/complaint relating to National Australia


Bank Limited, its officers, employees, agents and/or legal representatives; and

2.

I will not make any future complaints/disputes relating to National Australia Bank Limited, its
officers, employees, agents and/or legal representatives.

Please ensure that any outstanding dispute/complaint is closed as soon as possible.

Yours sincerely,

Signed by Elliot Daniel Sgargetta

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Annexure D Withdrawal of Caveat and Statutory Declaration

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IN THE MATTER of the Transfer of Land Act


1958 in respect of Certificate of Title Volume
04244 Folio 765
STATUTORY DECLARATION

I, CYBIL NICKETT WALDRON of 1 Driffield Crescent, Sassafras in the State of Victoria, do


solemnly and sincerely declare that:1.

I am the Caveator stated in Caveat No. AG229854R.

2.

The Caveat was lodged on 4 December 2008.

3.

I signed the Withdrawal of Caveat in my capacity as Caveator.

I acknowledge that this Declaration is true and correct and I make it in the belief that a person
making a false declaration is liable to the penalties of perjury.
DECLARED at
in the State of Victoria this ..
day of . ..

)
)
)

....................................................................
(Signature of Declarant)

2015

Before me:

............................................................................
Signature of Authorised Witness

............................................................................
Name of Authorised Witness
(Block Letters)

............................................................................

............................................................................
Address of Authorised Witness
(Block Letters)

............................................................................
Qualification of Authorised Witness
(Block Letters)

*See annexed list of authorised witnesses*

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