THE VINTAGE AVIATOR LIMITED AND PETER ROBERT JACKSON, FRANCES ROSEMARY WALSH AND PHILIPPA JANE BOYENS AS TRUTEES OF THE FILM PROPERTY TRUST s

[2024] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-1027

[2024] NZHC 3039

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Eugene John DeMarco

BETWEEN

THE VINTAGE AVIATOR LIMITED

First Plaintiff

AND

PETER ROBERT JACKSON, FRANCES ROSEMARY WALSH AND PHILIPPA JANE BOYENS AS TRUTEES OF THE FILM PROPERTY TRUST

Second Plaintiffs

AND

EUGENE JOHN DEMARCO

First Defendant

AND

THE OLD STICK & RUDDER CO. LIMITED

Second Defendant

Hearing:

On the Papers

Counsel:

B A Scott and T D Smith for the Plaintiffs

G Neil for Official Assignee (as assignee and liquidator of the First and Second Defendants)

Judgment:

18 October 2024

JUDGMENT OF GRICE J

[1]        In an interim judgment of 18 November 2021,1 I reserved leave “to file any submissions relating to the calculations in this judgment that may need adjustment within 10 days of the date of this judgment”, in view of the numerous calculations

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

THE VINTAGE AVIATOR LTD v DEMARCO [2024] NZHC 3039 [18 October 2024]

handed up during the hearing.2 No adjustments were sought save for the finalisation of one judgment amount under the first and second causes of action. This judgment deals with that only.

[2]        At [236] of the judgment, I concluded that TVAL was entitled to interest calculated on the figure of $720,000 (the diverted funds) on the same basis as Mr Osborn (the forensic accountant for the plaintiffs) had calculated the interest on the balance of the funds paid to the defendants up to 31 March 2021. As that calculation had not been incorporated in the material handed up during the hearing, I noted it would require further calculation and that the plaintiff was entitled to that as part of the amount of relief granted under the first and second causes of action.

[3]        The parties agree that the correct amount attributable to the $720,000 is the difference between $41,735.11 (Mr Osborn’s calculation of the benefit gained for the entirety of the Warbirds funds up to 31 March 2021) and $19,520.05 (awarded at [234(a)(ii)] of the judgment), that is $22,215.06. They agree that the correct amount to be entered at [234(a)(iii)] is the further sum of $22,215.06. I am satisfied that amount should be entered by way of judgment.

[4]        In addition to the judgment entered for the amounts listed at [491], judgment is entered in favour of TVAL for $22,215.06 (to finalise the amount indicated at [234(a)(iii)] of the judgment) against the defendants jointly and severally. Interest under the Interest on Money Claims  Act  2016  is  payable  on  that  amount  from 31 March 2021 for the reasons set out at [235] to [245] of the judgment.

Grice J

Solicitors:

Chapman Tripp, Wellington for the Plaintiffs.

Meredith Connell, Auckland for The Official Assignee

2 At [497].