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De Marco v Official Assignee

De Marco v Official Assignee

Case [2022] NZHC 1481 23 June 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-485-130 CIV-2021-485-525

[2022] NZHC 1481

BETWEEN
EUGENE JOHN DE MARCO

Plaintiff

AND

THE OFFICIAL ASSIGNEE

Defendant

Hearing: 25 May 2022

Appearances:

Plaintiff in person

G Neil and R Hindriksen for Defendant

Judgment:

23 June 2022

JUDGMENT OF WOOLFORD J

(Ordering security for costs)

This judgment was delivered by me on Thursday, 23 June 2022 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Copy to: Plaintiff

DE MARCO v THE OFFICIAL ASSIGNEE [2022] NZHC 1481 [23 June 2022]

[1] On 14 July 2021, Associate Judge Johnston adjudicated Mr DeMarco bankrupt.1 Mr DeMarco had various appeals on foot at the time. The Official Assignee resolved not to pursue these appeals on his behalf.

[2] In these proceedings, Mr DeMarco applies for review of these decisions.2 The Official Assignee now applies for an order that Mr DeMarco pay security for costs on the reviews before they can be heard.

Background

Anderson v DeMarco

[3] On 22 December 2017, Mr DeMarco entered an unconditional agreement to sell a property in Wellington. The purchasers paid a deposit of $120,000. It later transpired Mr DeMarco had obtained an adverse report on the state of the property and failed to disclose it. The purchasers refused to settle, and when Mr DeMarco did not return their deposit, brought a claim in misrepresentation. Cooke J agreed and awarded the purchasers interim damages of $132,123 (later increased by $38,313.46) and costs.3

[4]Mr DeMarco was adjudicated bankrupt on the basis of this judgment debt.

[5] Mr DeMarco appealed the substantive decision, but this was deemed abandoned when he took no further steps. He also appealed the decision to adjudicate him bankrupt. He applied for dispensation of security for costs due to public interest and impecuniosity. On the latter front he provided information to the effect that his partner had no income and that he was awaiting the outcome of a legal aid application.

[6] The Registrar declined to dispense with security for costs on the bases that Mr DeMarco had not confirmed whether a family trust existed that might help fund his litigation and that, contrary to Mr DeMarco’s claim, the evidence suggested he was not being considered for legal aid.

1      Re DeMarco, ex parte Anderson [2021] NZHC 1757 [adjudication decision].
2      Insolvency Act 2006, s 226.
3      Anderson v DeMarco [2020] NZHC 2979, (2020) 21 NZCPR 758; and Anderson v DeMarco
[2020] NZHC 3490.

[7] Mr DeMarco then applied for review of the Registrar’s decision. Courtney J declined the application.4 She held there was no public interest in the appeal. The Registrar’s assessment of Mr DeMarco’s impecuniosity was correct. And the prospects of success of the appeal were “very limited”.5

The Vintage Aviator Ltd/Wulff v DeMarco

[8]Mr DeMarco also has outstanding judgment debts in other proceedings.

[9] Mr DeMarco was an employee of The…

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 De Marco v Official Assignee

Details

AGLC: De Marco v Official Assignee [2022] NZHC 1481
Case: [2022] NZHC 1481
Decision Date: 23 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Eugene John De Marco applied for review of decisions made by the Official Assignee regarding his bankruptcy status. The Official Assignee sought an order that De Marco pay security for costs before his applications could be heard. De Marco's appeals against his adjudication as bankrupt and related decisions were deemed abandoned, and the Official Assignee decided not to pursue these appeals. De Marco argued that the Official Assignee's decisions were arbitrary, biased, and contained errors of fact. He also argued that the Official Assignee had no jurisdiction to make the orders sought and that requiring him to pay security for costs would be discriminatory. The court found that De Marco was unable to meet an adverse award of costs and that his applications lacked merit. The court held that the Official Assignee's decisions were not arbitrary or biased and that De Marco's conduct favoured making the order. The court ordered De Marco to pay $12,428.00 as security for costs and stayed his applications until security was paid. The Official Assignee's application for costs and disbursements was granted.

The court found that De Marco was unable to meet an adverse award of costs and that his applications lacked merit. The court held that the Official Assignee's decisions were not arbitrary or biased and that De Marco's conduct favoured making the order. The court ordered De Marco to pay $12,428.00 as security for costs and stayed his applications until security was paid. The Official Assignee's application for costs and disbursements was granted.

Orders