DeMarco v The Vintage Aviator Limited (15672720)

[2022] NZCA 84

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA734/2021
 [2022] NZCA 84

BETWEEN	EUGENE JOHN DEMARCO Appellant
AND	THE VINTAGE AVIATOR LIMITED (15672720) First Respondent
AND	PETER ROBERT JACKSON, FRANCES ROSEMARY WALSH AND PHILIPPA JANE BOYENS Second Respondents
AND	PETER ROBERT JACKSON Third Respondent

Court:	Cooper, Brown and Gilbert JJ
Counsel:	Appellant in Person B A Scott and T D Smith for First Respondent M G Colson QC and D W Ballinger for Second and Third Respondents G A D Neil and R Hindriksen for Official Assignee
Judgment: (On the papers)	28 March 2022 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

1. On 16 December 2021 Mr DeMarco filed an appeal against a judgment of the High Court delivered on 18 November 2021 by Grice J.[1]

   [1]The Vintage Aviator Ltd v DeMarco [2021] NZHC 3096.

2. On 14 February, a memorandum was filed by counsel for the Official Assignee stating:

   4 Mr DeMarco filed the application for leave to appeal, and the appeal, in respect of the judgment of her Honour Justice Grice delivered on 18 November 2021, in CIV-2017-485-1027, reported as The Vintage Aviator Ltd v DeMarco [2021] NZHC 3096. Counsel agree that an application for leave to appeal is not required.

   5 Mr DeMarco was, however, adjudicated bankrupt on 14 July 2021 at 4.00pm.

   6 On adjudication all property belonging to a bankrupt including all rights that a bankrupt could have exercised in, over, or in respect of any property vests in the Official Assignee. To the extent that the application and appeal filed by Mr DeMarco contain or relate to choses in action, those vested in the Assignee pursuant to s 101 of the Insolvency Act 2006 on Mr DeMarco’s adjudication. In the event they do not constitute 3 13394332_1 vested property, Mr DeMarco nevertheless lost the right to advance them.

   7 Accordingly, Mr DeMarco did not have standing (or any other right) to file the application for leave to appeal or the notice of appeal dated 16 December 2021. The Assignee did not consent to, or otherwise sanction, their filing.

   8 Mr DeMarco is aware that he does not have standing (or any other rights) in respect of proceedings vested in the Official Assignee as a result of his adjudication bankrupt. Recently, in a judgment delivered on 8 December 2021 the Court of Appeal, confirmed that he lacked standing in respect of a separate application seeking joinder and other orders in proceedings CA254/2021 and CA493/2021 as a consequence of his adjudication bankrupt.

   9 Similarly here, Mr DeMarco lacks standing (or any other right) to file the application or appeal in relation to the judgment of Justice Grice.

   10 Mr DeMarco’s application and appeal are, in the Assignee’s submission, a nullity that ought properly to be struck out or summarily dismissed.

   Orders Sought

   11 For the above reasons, the Assignee respectfully requests (to the extent it is required) an order striking out or summarily dismissing Mr DeMarco’s application for leave to appeal and the notice of appeal dated 16 December 2021.

3. This memorandum was served on Mr DeMarco but he has not responded to it.  The Official Assignee’s analysis is plainly correct.  In the circumstances the appeal must be dismissed.

Result

1. The appeal is dismissed.

Solicitors:
Chapman Tripp, Wellington for Respondents
Meredith Connell, Auckland for Official Assignee