Wulff v DeMarco

[2021] NZHC 3353

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-417

[2021] NZHC 3353

BETWEEN

OLIVER WULFF

Plaintiff

AND

EUGENE DEMARCO

Defendant

AND

THE OLD STICK & RUDDER CO LIMITED

Second Defendant

Hearing:

On the papers

Appearances:

M G Colson QC and D W Ballinger for the Plaintiff First Defendant in Person

S Fraser and R Sommers for the Second Defendant

Judgment:

8 December 2021

JUDGMENT (COSTS) OF GRICE J

This judgment was delivered by me on 8 December, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:

Gibson Sheat, Te Whanganui-a-Tara | Wellington for the plaintiff. Meredith Connell, Tāmaki Makaurau | Auckland for the defendants.

WULFF v DEMARCO [2021] NZHC 3353 [8 December 2021]

CIV-2017-485-1027

BETWEEN                THE VINTAGE AVIATOR LIMITED

First Plaintiff/First Counterclaim Defendant

AND  P R JACKSON, F R WALSH AND P J BOYENS as

trustees of the FILM PROPERTY TRUST

Second Plaintiffs/Second Counterclaim Defendants

O WULFF
Third Counterclaim Defendant

THE CIVIL AVIATION AUTHORITY OF NEW ZEALAND
Fourth Counterclaim Defendant

P R JACKSON
Fifth Counterclaim Defendant

E J DEMARCO
First Defendant/First Counterclaim Plaintiff

THE OLD STICK & RUDDER CO LIMITED
Second Defendant/Second Counterclaim Plaintiff

[1]    Mr Wulff seeks costs on a 2B  basis following an  interim  judgment,  dated 18 November 2021, making declarations in the terms sought by the plaintiff in respect of the ownership of the P-40 aircraft and 500 shares in The Old Stick & Rudder Co Ltd.

[2]    Two sets of proceedings travelled together in this matter. The steps claimed by Mr Wulff are as follows:

(a)successfully applying for strike out of the defendants' counterclaim in proceeding CIV-2017-485-1027;1

(b)successfully applying for orders confirming that the defendants are debarred from defending proceeding CIV 2018-485-417 on account of non-compliance with discovery orders;2

(c)successfully opposing an application by the defendants for leave to appeal the debarring judgment and a stay pending the hearing of that appeal;3 and

(d)successfully obtaining declaratory relief by way of formal proof on the first and third causes of action in the substantive proceeding (with the second cause of action and one aspect of the third cause of action adjourned).4

[3]    The Official Assignee took over conduct of the defence for Mr DeMarco, now bankrupt and The Vintage Aviator Ltd is now in liquidation. The Official Assignee has agreed that the plaintiff is the successful party in the proceedings mentioned above. The Official Assignee points out he was not involved until just before the substantive proceedings went to hearing, resulting in the interim judgment. He, therefore, is unable to comment on the steps claimed for the earlier matters.

1      The Vintage Aviator Ltd v DeMarco [2021] NZHC 847.

2      The Vintage Aviator Ltd v DeMarco [2021] NZHC 1476.

3      The Vintage Aviator Ltd v DeMarco [2021] NZHC 2467.

4      Wulff v DeMarco [2021] NZHC 3110.

[4]    The itemised scale costs were set out in a schedule to counsel’s memorandum. In summary, the plaintiff seeks:

(a)$56,823.00 as plaintiff in proceeding CIV-2018-485-417; and

(b)$11,494.00 as third counterclaim defendant in proceeding CIV-2017- 485-1027.

[5]    Category 2B costs are appropriate. The steps itemised for which costs are sought are reasonable. Costs and disbursements are awarded for the amounts sought.

[6]    Counsel has pointed out there are two outstanding issues, as recorded in the substantive judgment at [134]–[136].5 He anticipates they will be resolved by agreement between the plaintiff and the Official Assignee. In case any further steps are required to be taken in Court respect of these issues, those costs will be dealt with after the event.

Grice J

5      Wulff v DeMarco, above n 4.