Legal Research
Cases
Anderson v DeMarco

Anderson v DeMarco

Case [2021] NZHC 1757 14 July 2021

Halt of Proceedings

Bankruptcy Notice

Adjudication of Bankrupt

Unjust and Inequitable

Insolvency Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-130

[2021] NZHC 1757

BETWEEN NORMAN HUGH ANDERSON and REBECCA ALICE CARRASCO
Judgment Creditors

AND

EUGENE JOHN DEMARCO

Judgment Debtor

CIV-2021-485-132

BETWEEN

NORMAN HUGH ANDERSON and REBECCA ALICE CARRASCO
Judgment Creditors

AND

EUGENE JOHN DEMARCO

Judgment Debtor

Hearing: 8 July 2021

Appearances:

E S K Dalzell and D Viatos for judgment creditors C J Tennet for judgment debtor (leave to withdraw) Judgment Debtor in person

Judgment:

14 July 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

This judgment was delivered by me on 14 July 2021 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

ANDERSON v DEMARCO [2021] NZHC 1757 [14 July 2021]

[1] Before the Court for determination are applications by the judgment creditors in these two proceedings, Norman Anderson and Rebecca Carrasco, for orders adjudicating the judgment debtor, Eugene DeMarco, bankrupt, and applications by Mr DeMarco for a stay or halt of both proceedings.1

[2] The parties entered into an agreement in which Mr DeMarco agreed to sell and Mr Anderson and Ms Carrasco agreed to purchase a residential property in Wellington. Mr Anderson and Ms Carrasco paid a deposit of $120,000. Between the date of the agreement and settlement, Mr Anderson and Ms Carrasco cancelled the contract, alleging that Mr DeMarco (directly or through his agents) had misrepresented the state of the property, which suffered from weathertightness problems, or was in breach of a warranty contained in the contract in relation to work carried out on it.

[3] Following a largely unsuccessful interlocutory application by Mr DeMarco, in June 2020 I made a costs award in favour of Mr Anderson and Ms Carrasco totalling
$6,811.50.2

[4] The proceeding was eventually set down for trial in September 2020 and in November 2020 Cooke J issued a judgment in which his Honour found in favour of Mr Anderson and Ms Carrasco and awarded damages (including the amount of the deposit).3 Subsequently, in March 2021, his Honour made a costs award in their favour. In total judgment was entered for the sum of $323,441.53.4

[5] Mr Anderson and Ms Carrasco served bankruptcy notices on Mr DeMarco in relation to both judgment debts. Mr DeMarco did not comply with either notice. Accordingly, Mr Anderson and Ms Carrasco commenced these bankruptcy proceedings.

[6] Despite some confusion as to this in the papers, the 132 proceeding is founded on the June 2020 judgment debt of $6,811.50 and the 130 proceeding is founded on

1      Historically, an order stopping proceedings progressing any further — temporarily or permanently
— was referred to as a stay. In the Insolvency Act 2007 the term used is “halt”. I perceive them to mean the same thing, the latter term simply having a more modern flavour to it.
2      Anderson v DeMarco [2020] NZHC 1349.
3      Anderson v DeMarco [2020] NZHC 2979.
4      Anderson v DeMarco [2020] NZHC 3490.

the November 2020 and March…

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 DeMarco

Details

AGLC: Anderson v DeMarco [2021] NZHC 1757
Case: [2021] NZHC 1757
Decision Date: 14 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Anderson v DeMarco was heard, involving the judgment creditors, Norman Anderson and Rebecca Carrasco, and the judgment debtor, Eugene DeMarco. The creditors sought orders adjudicating the debtor bankrupt, while the debtor applied for a halt of the proceedings. The dispute arose from a failed property sale agreement, leading to judgments in favour of the creditors. The debtor appealed the substantive judgment but failed to comply with bankruptcy notices, prompting the creditors' bankruptcy applications.

The legal issues before the court included whether the debtor's appeal and financial position warranted halting the creditors' applications for adjudication, and if the creditors met the statutory requirements for such adjudication. The court noted the debtor's lack of bona fides in prosecuting the appeal and the absence of any substantial evidence suggesting the debtor could pay the debts. The court considered the broader context, including the public interest and the conduct of the litigation.

The court concluded that the debtor's appeal lacked merit and was not bona fide, and that the creditors had waited sufficiently long to enforce their judgments. The court found no justifiable reason to halt the proceedings, deeming it unjust to further delay the creditors. Consequently, the court adjudicated the debtor bankrupt and ordered costs on a standard basis for the creditors. The adjudication orders would come into effect on a specified date.

Orders