DeMarco v Anderson - [2022] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA438/2021
[2022] NZCA 57

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

Counsel:	Applicant in Person ESK Dalzell and D Viatos for First Respondents GAD Neil and S P Farnell for Second Respondent
Judgment: (On the papers)	15 March 2022 at 10 am

JUDGMENT OF COURTNEY J
[Review of Registrar’s Decision]

The application for review is declined.

____________________________________________________________________

REASONS

Introduction

Mr Anderson and Ms Carrasco brought proceedings to recover the deposit they had paid on a sale and purchase agreement that was later cancelled. They obtained judgments against Mr DeMarco for (1) costs on an interlocutory application ($6,811.50)[1] and (2) further damages and costs on the substantive claim ($323,441.53).[2] Mr DeMarco appealed the substantive judgment only. That appeal was later deemed abandoned as a result of Mr DeMarco failing to file the case on appeal and seek a hearing date.
[1]Anderson v DeMarco [2020] NZHC 1349.
[2]Anderson v DeMarco [2020] NZHC 2979, (2020) 21 NZCPR 758; and Anderson v DeMarco [2020] NZHC 3490.
Mr Anderson and Ms Carrasco issued bankruptcy notices against Mr DeMarco, which he failed to comply with. They began bankruptcy proceedings, which he opposed. In a judgment delivered on 14 July 2021 Associate Judge Johnston declined Mr DeMarco’s application to halt the bankruptcy proceedings and granted the application by Mr Anderson and Ms Carrasco to adjudicate Mr DeMarco bankrupt.[3]
[3]Insolvency Act 2006, s 42; and Anderson v DeMarco [2021] NZHC 1757.
Mr DeMarco has appealed the Associate Judge’s decision. Security for costs was fixed at $7,060. Mr DeMarco applied for dispensation of the security for costs, citing impecuniosity and public interest.
A Deputy Registrar of this Court advised Mr DeMarco of the legal basis on which security for costs might be dispensed with, namely that the discretion to dispense with security should be exercised so as to both preserve access to this Court by an impecunious appellant in a case that a solvent appellant would reasonably wish to prosecute and also to prevent the use of impecuniosity to secure the advantage of prosecuting an appeal that would not sensibly be pursued by a solvent litigant.[4]
[4]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].
The Deputy Registrar requested details of Mr DeMarco’s assets, liabilities, all sources of funding including full disclosure of any family trust that might provide funding and confirmation as to whether Mr DeMarco had applied for legal aid.
Mr DeMarco provided some of the information sought, including some bank statements, confirmation as to the income status of his partner (who is on a job seeker benefit) and advised that an application for legal aid had been forwarded to prospective counsel and “a decision is still pending”.
On 3 November 2021 the Deputy Registrar declined to dispense with security for costs. Mr DeMarco seeks a review of that…

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 57
Case: [2022] NZCA 57
Decision Date: 15 March 2022 at 10 am

CaseChat Overview and Summary

In this appeal, Mr. DeMarco sought to challenge the decision of a Deputy Registrar of the Court of Appeal of New Zealand, who had declined to dispense with the security for costs required for Mr. DeMarco's appeal against a bankruptcy adjudication. Mr. DeMarco's appeal was against the decision of Associate Judge Johnston, who had adjudicated him bankrupt after he failed to comply with bankruptcy notices issued by Mr. Anderson and Ms. Carrasco. Mr. DeMarco's appeal was deemed abandoned when he failed to file the case on appeal and seek a hearing date. However, he subsequently sought a review of the Deputy Registrar's decision not to dispense with the security for costs required for his appeal.

The legal issues in this case were whether the Deputy Registrar erred in declining to dispense with the security for costs, and whether there was any public interest in doing so. The Deputy Registrar had declined to dispense with the security for costs on the basis that Mr. DeMarco had not provided sufficient information to demonstrate that he was impecunious, and that the merits of his appeal were very limited.

In considering these issues, the Court found that the Deputy Registrar was correct in declining to dispense with the security for costs. The Court found that Mr. DeMarco had not provided sufficient information to demonstrate that he was impecunious, and that the prospects of success in his appeal were very limited. The Court noted that the Associate Judge's decision to adjudicate Mr. DeMarco bankrupt was based on his own failure to disclose his full financial position, and that there was no appeal in respect of the initial costs judgment debt. The Court also found that there was no public interest in dispensing with the security for costs.

Accordingly, the Court declined the application for review of the Deputy Registrar's decision. The Court noted that this was not a case that a solvent appellant would reasonably wish to prosecute, but rather a further step in a very long drawn out effort to deprive the judgment creditors of the fruits of their judgment.

In conclusion, the Court found that the Deputy Registrar was correct in declining to dispense with the security for costs required for Mr. DeMarco's appeal against the bankruptcy adjudication. The Court found that Mr. DeMarco had not provided sufficient information to demonstrate that he was impecunious, and that the prospects of success in his appeal were very limited. The Court declined the application for review of the Deputy Registrar's decision.

Orders