DeMarco v The Vintage Aviator Limited

[2021] NZCA 666

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA254/2021
CA493/2021
 [2021] NZCA 666

BETWEEN	EUGENE JOHN DEMARCO Appellant
AND	THE VINTAGE AVIATOR LIMITED First Respondent PETER ROBERT JACKSON, FRANCES ROSEMARY WALSH AND PHILLIPA JANE BOYENS AS TRUSTEES OF THE FILM PROPERTY TRUST Second Respondent   OLIVER WULFF Third Respondent CIVIL AVIATION AUTHORITY OF NEW ZEALAND Fourth Respondent PETER ROBERT JACKSON Fifth Respondent

Court:	Cooper and Brown JJ
Counsel:	Appellant in Person B A Scott and T D Smith for First, Second and Fifth Respondents M G Colson QC and D W Ballinger for Third Respondent G A D Neil and S P Farnell for Official Assignee
Judgment: (On the papers)	8 December 2021 at 10.30 am

JUDGMENT OF THE COURT

A        The application for joinder and additional orders is declined.

B        Directions are made at [4] and [5] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

1. On 2 November 2021 Mr DeMarco filed an application for joinder of the two appeals CA254/2021 and CA493/2021 and sought a direction that they be heard at the same time.  In that application he also sought a number of other orders including:

   (a)an order for the Official Assignee to provide written authorisation to administrate the Eugene John DeMarco estate; and

   (b)an order for the Official Assignee to prove its standing, status and capacity to state a claim for which relief may be granted.

2. The application for joinder is declined because as a consequence of his bankruptcy adjudication Mr DeMarco does not have standing to make that application.[1]

   [1]See Anderson v DeMarco [2021] NZHC 1757. An application for suspension of his bankruptcy was declined: DeMarco v Anderson [2021] NZCA 476.

3. For the reasons explained in this Court’s judgment [2021] NZCA 526 dated 13 October 2021 the application for the additional orders is misconceived and it is also declined.

4. In respect of the proceeding CA254/2021 we direct that:

   (i)Mr DeMarco’s r 29A application is adjourned and the respondents’ obligations under the Court of Appeal (Civil) 2005 Rules are suspended pending further order or direction of the Court; and

   (ii)the parties are to file a joint memorandum by 7 February 2022 updating the Court on the progress in the High Court of the s 226 application, and whether at that time the r 29A application can be formally withdrawn/struck out or further directions are necessary to provide time for the s 226 application to be determined.

5. In respect of the proceeding CA493/2021 we direct that:

   (i)Mr DeMarco’s application for leave to appeal under s 56(5) of the Senior Courts Act 2016 application is adjourned and the respondents’ obligations under the Court of Appeal (Civil) 2005 Rules are suspended pending further order or direction of the Court; and

   (ii)the parties are to file a joint memorandum by 7 February 2022 updating the Court on the progress in the High Court of the s 226 application, and whether at that time the leave application can be formally withdrawn/struck out or further directions are necessary to provide time for the s 226 application to be determined.

Solicitors:
Chapman Tripp, Wellington for First, Second and Fifth Respondents
Gibson Sheat, Wellington for Third Respondent
Meredith Connell, Auckland for Official Assignee