Our Reference: 12916/18

GPO Box 9827

In your capital city
5 June 2018
www.asic.gov.au

Mr D Sgargetta
By email: dvs.deed@otelta.com

Dear Mr Sgargetta

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) (‘NAB’)

Thank you for your correspondence dated 30 April 2018.

We summarise your main concerns, that NAB engaged in unconscionable conduct and
perjury, as follows:
• NAB lied that they never produced a settlement payment to you for $299,000,
when it was later shown that they did
• NAB then tried to cover this up and claim that the offer was made on a without
prejudice basis
• Gadens lawyers, acting on behalf of NAB, made an offer that you refused to
sign as it included a “hush deal”

After we received your correspondence, we escalated your concerns for our review
because you have previously raised these matters with us. This letter sets out the
outcome of our review and further information to help you.
Our review
We have looked at the information that you provided and made our own inquiries, both
public and confidential as appropriate.
ASIC does not have the power to enforce the law surrounding perjury. We are unable
to consider this matter further.
We have considered your concerns that NAB engaged in unconscionable conduct and
our review confirms the previous decision not to take further action.
The Courts have set a high bar for establishing unconscionability. A general power
imbalance between the parties or a contract that favours one party more than the other
is not sufficient to support a claim of unconscionable conduct.
We are aware that in 2014 the Victorian Court of Appeal rejected your argument that
NAB engaged in unconscionable conduct under the Australian consumer law.
 -2-

05 June 2018

There is little regulatory benefit in ASIC considering this matter further given the age
of the alleged misconduct and the Court outcome. Your dispute began in 2008 and your
various Court proceedings were during 2012 to 2014. The remedies available for
unconscionable conduct expire after six years (some three years).
Our Information Sheet 151: ASIC’s approach to enforcement sets out the factors that
we consider when selecting matters for formal investigation. Our review outcome is in
line with this approach.
Next steps
We would encourage you to speak to a legal adviser about your options. It will
ultimately be up to you to weigh the costs and benefits involved in pursuing this matter
further.
We see that you are interested in making a submission to the Royal Commission into
Misconduct in the Banking, Superannuation and Financial Services Industry. Please
visit their website for information about how to make a submission.
Finally, our records show that you have contacted us many times about your dispute
with NAB since 2010. Our inquiries are finished and we do not intend to correspond
further with you about these same matters. This will be the last time that we write to
you about your dispute with NAB.
Commonwealth Ombudsman
If you have concerns about ASIC’s management of your matter you can complain to
the Commonwealth Ombudsman. The Commonwealth Ombudsman cannot review or
re-determine ASIC’s decision, but does have the power to investigate misconduct, or
review the way a decision has been made to ensure that it was done fairly and in line
with the law. The contact details for the Commonwealth Ombudsman are available at
www.ombudsman.gov.au

Yours sincerely

Fiona Crowe
Misconduct & Breach Reporting
Assessment & Intelligence