DeMarco v Anderson - [2022] NZCA 409

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA438/2021
[2022] NZCA 409

BETWEEN	EUGENE JOHN DEMARCO Applicant
AND	NORMAN HUGH ANDERSON AND REBECCA ALICE CARRASCO First Respondents THE OFFICIAL ASSIGNEE Second Respondent

Court:	Cooper P and Simon France J
Counsel:	Applicant in person E S K Dalzell and D Viatos for First Respondents G A D Neil and R M G Hindriksen for Second Respondent
Judgment: (On the papers)	29 August 2022 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time under r 43 is declined.

BThe applicant must pay the first respondents costs in the sum of $478.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

This judgment deals with an application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) to file the case on appeal and apply for the allocation of a hearing date.

Background

Mr DeMarco appealed an adjudication of bankruptcy.[1] Security for costs was set at $7,060. Mr DeMarco sought a dispensation from the obligation to pay security. The Deputy Registrar declined the application. Mr DeMarco sought a review of the decision. Courtney J on 15 March 2022 declined the review.[2] On 22 March the Registrar issued a Notice of Result stating the appeal had expired under r 43 of the Rules and was deemed abandoned.
[1]Anderson v DeMarco [2020] NZHC 1757.
[2]DeMarco v Anderson [2022] NZCA 57.
The subsequent documentation filed by Mr DeMarco is as follows:
(a)On 31 March 2022 an application for allocation of a hearing date and to file the case on appeal.
(b)On 19 May 2022 an application for an extension of time under r 43. Appended to this is an affidavit sworn 26 April 2022 which is directed to the liability to pay security for costs.
(c)A memorandum on 27 June 2022. It amounts to submissions in support of the application for an extension of time. It is accompanied by a fresh affirmation, and also previously filed documents.
(d)A memorandum on 25 July 2022 which contains further submissions and appends an affidavit of Mr DeMarco sworn 25 July 2022. That affidavit itself appends a further “affidavit” of 14 pages.
As noted, this judgment addresses the application noted at (b). Brief submissions have been filed by the first respondents, and the second respondent abides.
A fuller description of some of the documentation is required.
The 31 March application notes the appeal has been dismissed but records the appeal has been “refused for cause without dishonour”. Those words are also stamped across the appended Notice of Result. It is requested that the decision of Courtney J be set aside as wrong in fact and law. There are then some paragraphs seemingly directed against the correctness of the bankruptcy decision to be appealed which introduce a theme to be repeated throughout the subsequent documentation:
5.The issue arises as the agent cannot be held liable for…

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 DeMarco v Anderson

Details

AGLC: DeMarco v Anderson [2022] NZCA 409
Case: [2022] NZCA 409
Decision Date: 29 August 2022 at 10.30 am

CaseChat Overview and Summary

In the case of DeMarco v Anderson, the applicant, Eugene John DeMarco, sought an extension of time to file the case on appeal and to apply for the allocation of a hearing date. The appeal was in relation to an adjudication of bankruptcy against Mr DeMarco, which was appealed against by him. The first respondents, Norman Hugh Anderson and Rebecca Alice Carrasco, and the second respondent, The Official Assignee, opposed the application. The application for an extension of time was dismissed by the Court of Appeal of New Zealand.

The court was required to decide whether to grant an extension of time under rule 43 of the Court of Appeal (Civil) Rules 2005. The court had to consider the extent of the delay, the reasons for the delay, and whether the appeal was genuinely arguable. The court also had to consider that Mr DeMarco was a lay litigant and that there had been a previous appeal in the same litigation that was dismissed for non-compliance with the Rules.

The court declined the application for an extension of time, noting that the delay was significant, especially in the context of an already prolonged process. The court also noted that Mr DeMarco had not paid the security for costs, which was a requirement for filing the appeal. The court found that the documents filed in relation to the matter contained irrelevant material and did not support the proposition that the appeal had any apparent merit. The court awarded standard costs of $478 to the first respondents, with no increase for the lack of merit and the unnecessary step taken by Mr DeMarco.

In conclusion, the Court of Appeal dismissed the application for an extension of time and ordered Mr DeMarco to pay the first respondents costs in the sum of $478. The appeal was deemed abandoned under rule 43 of the Court of Appeal (Civil) Rules 2005.

Orders