Anderson v De Marco - [2021] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-622

[2021] NZHC 544

BETWEEN NORMAN HUGH ANDERSON and REBECCA ALICE CARRASCO
Plaintiff

AND

EUGENE JOHN DE MARCO

Defendant

Hearing: On the papers

Appearances:

E S Dalzell and D Viatos for Plaintiffs Defendant in person

Judgment:

17 March 2021

JUDGMENT (No 3) OF COOKE J

(Stay of Execution)

[1] By application dated 24 February 2021 the defendant has applied for a stay of execution of this Court’s judgment pending an appeal to the Court of Appeal. The application is supported by an affidavit from the defendant dated 23 February 2021. The application is opposed and an affidavit sworn 1 March 2021 has being provided by Mr Anderson on behalf of him and his wife, who are the plaintiffs.

Background

[2] By judgment dated 11 November 2020 I upheld the plaintiffs’ claims for misrepresentation and breach of contractual warranty.1 The claims related to a cancelled sale and purchase agreement for a domestic property. In the period between entry of a contract and the settlement date the plaintiffs became aware of factors that

1 Anderson v De Marco [2020] NZHC 2979.

ANDERSON v DE MARCO (No 3) [2021] NZHC 544 [17 March 2021]

suggested that there had been misrepresentations about the building’s weathertightness, and following unsatisfactory responses from the defendant’s representatives they cancelled the contract and sought return of the deposit. Mr De Marco declined to return the deposit and the plaintiffs brought proceedings. I upheld the plaintiffs’ claims in both misrepresentation and breach of contractual warranty, holding that the defendant had misrepresented the position in more than one respect.

[3] By further judgment dated 21 December 2020 the plaintiffs were awarded costs and the quantum of the judgment was settled. 2 The final amount that has been sealed is $323,441.53. In that judgment I noted that Mr De Marco had advised he wished to apply for a stay of the judgment pending a proposed appeal. I directed that he should file and serve any submissions in support of the anticipated stay by 18 January 2021 which could be responded to by the plaintiffs by 22 January, following which I would give directions as to the procedure for dealing with the application.

[4] Nothing was filed by Mr De Marco on 18 January. On 22 January counsel for the plaintiffs filed a memorandum inviting the Court to dismiss the application, but if the Court did not do so, contending that the Court should give directions requiring detailed information in support of the stay application, including Mr De Marco’s financial position, to be filed and served by Mr De Marco by 5 February 2021.

[5] Mr De Marco responded in person by memorandum dated 28 January 2021. He said that he had exhausted his own abilities, the matter was over his head, and that he had applied for legal aid. He said that he hoped to have something filed by 5 February but requested…

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.

Continue reading Anderson v De Marco

Details

AGLC: Anderson v De Marco [2021] NZHC 544
Case: [2021] NZHC 544
Decision Date: 17 March 2021

CaseChat Overview and Summary

The defendant, Eugene John De Marco, has applied for a stay of execution of the judgment passed by Cooke J in the High Court of New Zealand Wellington Registry. The plaintiffs, Norman Hugh Anderson and Rebecca Alice Carrasco, opposed the application. The judgment in question related to a cancelled sale and purchase agreement for a domestic property. The plaintiffs claimed that the defendant had made misrepresentations about the building’s weathertightness, leading them to cancel the contract and seek the return of their deposit. The Court found in favour of the plaintiffs, awarding them damages of $323,441.53. The defendant subsequently applied for a stay of execution pending an appeal to the Court of Appeal.

The primary legal issue in this case was whether the Court should grant a stay of execution of the judgment pending an appeal. The Court considered the principles set out in Keung v GRB Investment Ltd, which include factors such as the potential for the appeal to be rendered nugatory by the lack of a stay, the applicant's bona fides in prosecuting the appeal, the effect on third parties, the novelty and importance of the questions involved, and the overall balance of convenience.

The Court declined to grant a stay of execution for several reasons. Firstly, the defendant provided no offer of security in support of the application. The Court noted that the plaintiffs, as individuals, could be significantly disadvantaged if they were unable to enforce their judgment in the absence of security. Secondly, the Court was not satisfied that the plaintiffs were adequately protected in relation to the appeal, as there was insufficient information about the defendant’s financial position. Thirdly, the Court found that a failure to grant the stay would not render the appeal nugatory, as the plaintiffs could repay any amounts they received by way of enforcement should the defendant prevail in his appeal. Finally, the Court did not see much strength in the potential appeal, as the key findings against the defendant were factual findings, which may be difficult to overturn on appeal.

In light of the above, the Court declined the application for a stay of execution. The plaintiffs' counsel may file a memorandum in relation to the costs of this application, which the defendant may respond to. The Court will then determine the costs of the application on the papers.

Orders