Sgargetta - Waldron HUSH UP Deed of Settlement - 3.2.15

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 3

2. Mr Sgargetta’s Obligations 3

3. Mrs Sgargetta’s Obligations 5

4. NAB’s Obligations 5

5. Consequence of any default 6

6. Legal advice warranty 6

7. Confidentiality 7

8. Non-disparagement 7

9. General provisions 7

10. Interpretation 9

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 | 21128893.1 NBA NBA 1

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 CI-

12/02770 (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.

Deed of Settlement – February 2015 | 21128893.1 NBA NBA 2

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 Sgargetta’s writ.

X. Mr Sgargetta appealed the County Court of Victoria’s decision refusing to file his writ in the County Court Proceedings and on 11 December 2014, the County Court of Victoria

dismissed Mr Sgargetta’s 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

(NAB’s Possession).

Z. On 11 December 2014, the High Court of Australia dismissed Mr Sgargetta’s Application for

Special Leave (High Court Judgment).


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 NAB’s legal representatives, including NAB’s 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, NAB’s 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 Sgargetta’s 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 NAB’s counsel; and

(d) an original signed acknowledgment in the form annexed to this Deed and marked

‘C’ (Sgargetta Acknowledgment).


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) NAB’s 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 Dawson’s Moving.

2.6 If Mr Sgargetta refuses and/or fails to remove all belongings and items held in storage with Dawson’s 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.


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 Sgargetta’s 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. NAB’s 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


(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: ________________________________


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 party’s 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.


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:

(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.

9.6 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 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.

9.8 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.


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.


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:


Elliot Daniel Sgargetta

Print name

Print address

Signed sealed and delivered by Cybil Nickett

Sgargetta in the presence of:


Cybil Nickett Sgargetta

Print name

Print address


Annexure A – First VCAT Proceeding Orders


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 Signed by Kevin Pringle, solicitor for Respondents


Annexure B – Second VCAT Proceeding Orders


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 Signed by Kevin Pringle, solicitor for Respondents


Annexure C – Sgargetta Acknowledgement


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


Annexure D – Withdrawal of Caveat and Statutory Declaration


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 …………………. …………….. 2015

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

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*

Sgargetta - Waldron HUSH UP Deed of Settlement - 3.2.15

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