DeMarco v Anderson

[2021] NZCA 526

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA438/2021
 [2021] NZCA 526

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

Court:	Cooper and Brown JJ
Counsel:	Appellant in Person No appearance for First Respondents G A D Neil and S P Farnell for Second Respondent
Judgment: (On the papers)	13 October 2021 at 10.30 am

JUDGMENT OF THE COURT

The appellant’s application is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

1. Mr DeMarco has filed an interlocutory application seeking three orders.  They are:

   (a)That the Official Assignee provide written authorisation that he/she has authorisation to administrate the Eugene John DeMarco Estate.

   (b)That the Official Assignee, and/or his/her agents, employee, assigns or associate(s) have standing, status or capacity to state a claim for which relief may be granted.

   (c)That failure to provide such written authorisation will result in a penalty of $100,000, a sum certain of one hundred thousand dollars of functional New Zealand currency to be paid by way of certified cleared funds, to Mr DeMarco.  

2. He has filed an affidavit in support in which he seeks to question whether or not he has been adjudicated bankrupt.  The general stance adopted by Mr DeMarco is reflected in these paragraphs from his affidavit:

   4.The Official Assignee has made various claims that I have been adjudicated bankrupt, but have provided no direct evidence that the adjudication process has been completed.

   5.According to official terminology, adjudication is a process which is completed when all parties are in agreement. 

   6.The official assignee’s position is that the 3 years bankruptcy period does not start until the statement of affairs has been signed, so by natural reasoning, the adjudication process is not complete until the statement of affairs is signed.

   7.Despite my having made numerous requests of the Deputy Assignee, … and of Official Assignees for verified proof of written authori[s]ation to administrate Eugene John DeMarco, Estate, none of these requests have been actually replied to.

   8.Accordingly, none of the parties involved (including but not limited to Deputy Assignee, … Official Assignee and Meredith Connell) have provided verified or certified proof they have written authori[s]ation to administrate Eugene John DeMarco, Estate.

   9.As the aforementioned parties have proved no written evidence of any authori[s]ation to administrate the estate in question, they are guilty of personage and barratry, also acting as executor de son tort.

   10.As the aforementioned parties have proved no written evidence of any authori[s]ation to administrate the estate in question, they have no standing, status, or capacity to state a claim for which relief may be granted.  

3. The Official Assignee seeks that Mr DeMarco’s application be struck out or dismissed.  In a memorandum dated 5 October 2021 counsel for the Official Assignee Mr Neil and Ms Farnell point out that Mr DeMarco’s application was not in fact served on the Official Assignee but was provided by the Court’s registry.  Counsel submit that Mr DeMarco’s application is wholly misconceived and lacks any jurisdictional foundation.  Counsel point to correspondence in which the Assignee has fully explained the basis of his authorisation to administer the bankrupt estate and provided Mr DeMarco with the documentation confirming his authority to act. 

4. We agree with counsel for the Official Assignee.  We note that Mr DeMarco’s notice of appeal dated 19 July 2021 is against the judgment of Associate Judge Johnston delivered on 14 July 2021.[1]

   [1]Anderson v DeMarco [2021] NZHC 1757.

5. The judgment concluded:

   [39]     For [the above] reasons, there will be an order adjudicating Eugene John DeMarco bankrupt in both of these proceedings.  The judgment creditors will have their costs on a 2B basis, together with such disbursements as may be fixed by the Registrar.  The order of adjudication will come into effect on the date and at the time entered on the cover sheet of this judgment.

6. Mr DeMarco’s appeal followed. 

7. We note further that in a judgment delivered on 21 September 2021, this Court declined an application by Mr DeMarco to suspend the adjudication of his bankruptcy pending the hearing of the appeal.[2]  The judgment sets out the background relevant to the basis upon which Mr DeMarco was adjudicated bankrupt.[3] 

   [2]DeMarco v Anderson [2021] NZCA 476.

   [3]At [1] and [7].

8. The powers of the Assignee to administer the bankrupt estate are set out in the Insolvency Act 2006.  They arise as a consequence of the adjudication in bankruptcy.

9. Mr DeMarco’s application is misconceived and it is declined. 

Solicitors:
Meredith Connell, Auckland for Second Respondent