The Vintage Aviator Limited v DeMarco

[2021] NZHC 1912

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-001027

[2021] NZHC 1912

BETWEEN

THE VINTAGE AVIATOR LIMITED

First Plaintiff/First Counterclaim Defendant

PETER ROBERT JACKSON, FRANCES ROSEMARY WALSH and

PHILIPPA JANE BOYENS (as trustees of Film Property Trust)
Second Plaintiffs/Second Counterclaim Defendants

AND

EUGENE JOHN DEMARCO including as trustee of the Airflight Trust

First Defendant/First Counterclaim Plaintiff

OLD STICK & RUDDER CO LIMITED

Second Defendant/Second Counterclaim Plaintiff

CIV-2018-485-000417

BETWEEN

OLIVER WULFF
Plaintiff

AND

EUGENE JOHN DEMARCO

First Defendant

THE OLD STICK & RUDDER CO LIMITED

Second Defendant

Hearing:

19 July 2021

Appearances:

B A Scott and J E Henderson for The Vintage Aviator Ltd, the trustees of the Film Property Trust and Sir Peter Jackson

M G Colson QC and D W Ballinger for Mr Oliver Wulff S J Fraser for The Old Stick & Rudder Co Ltd

G A D Neil for Official Assignee

Judgment:

19 July 2021

THE VINTAGE AVIATOR LIMITED v EUGENE JOHN DEMARCO including as trustee of the Airflight Trust [2021] NZHC 1912 [19 July 2021]

JUDGMENT OF GRICE J

(granting limited leave for proceedings to continue under s 76(2) of the Insolvency Act 2006)

[1]    These proceedings were automatically halted when Mr DeMarco was adjudicated bankrupt on 14 July 2021. Earlier that day I heard an application for leave to appeal an interlocutory judgment of Johnston AJ debarring the defendants from calling evidence and cross-examining in the trial due to start last week.

[2]    I delivered a decision dismissing the application for leave to appeal the Associate Judge’s decision and associated stay application  in  relation  to  the  second defendant as a results decision only on 15 July 2021. In the meantime counsel for the respondents initiated discussions with the Official Assignee with a view to ascertaining the Official Assignee’s views on their continuing the proceedings against Mr DeMarco, at least to enable the decision on the stay and leave to appeal to be delivered.

[3]    The Official Assignee, on 16 July 2021, indicated that he would consent to a limited continuation to enable the delivery of the stay/leave decision that I had heard argument on. The Official Assignee reserved his position as to whether he consented to the substantive proceedings going to trial. He sought further time to consider his position.

[4]    I consider that it is right and fair to grant leave pursuant to s 76(2) of the Insolvency Act 2006 for the limited purpose of delivering the stay/leave decision. This is because: the application has already been heard; Mr DeMarco was represented at the hearing; the plaintiffs will not be gaining an advantage by the determination of the application in view of the fact that it does not determine the outcome of the proceedings; and the Official Assignee has consented to the limited continuation to enable the delivery of the decision.

[5]    Accordingly, limited continuation leave is granted to enable the delivery of my judgment on the leave/stay applications.

Grice J

Solicitors:

Chapman Tripp, Wellington for The Vintage Aviator, the trustees of the Film Property Trust and Sir Peter Jackson

Finn Collins, Wellington for Oliver Wulff Civil Aviation Authority, Wellington

John Miller Law, Wellington for Eugene DeMarco and The Old Stuck & Rudder Co Ltd