Legal Research
Cases
Wulff v DeMarco

Wulff v DeMarco

Case [2021] NZHC 3110 18 November 2021

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000417

[2021] NZHC 3110

BETWEEN
OLIVER WULFF

Plaintiff

AND

EUGENE JOHN DEMARCO

First Defendant

OLD STICK & RUDDER CO LIMITED

Second Defendant

Hearing: 10 August 2021

Counsel:

B A Scott and D W Ballinger for the Plaintiff

G A D Neil and R M G Hindriksen via VMR for the

Official Assignee for the First Defendant (a bankrupt) and the Second Defendant (in liquidation)

Judgment:

18 November 2021

JUDGMENT OF GRICE J

(interim)

Contents
Para

Introduction[1]

The background[12]

Procedural background[21]

The pleadings[27]

The plaintiff’s submissions[34]
First cause of action – breach of contract[34]
Legal effect of transactions concerning the P-40[59]

The Company Register[69]
Law – formal proof[76]
Limitation and consideration issues[80]

Analysis[87]

Conclusions on the ownership of the P-40[124]

Share register[126]
Conclusion re: share register[131]

Orders[132]
The P-40 (first cause of action)[132]
The company shares (third cause of action)[133]
Other claims adjourned to case management conference[134]

Costs[137]

WULFF v DEMARCO [2021] NZHC 3110 [18 November 2021]

Introduction

[1] These proceedings concern a dispute between Mr Wulff and Mr DeMarco, about the legal ownership of a vintage aircraft, a Curtiss P-40, and shareholding in the second defendant. The judgment is interim only to the extent that some of the claims in the statement of claim have been halted by the bankruptcy and liquidation of the first and second defendants respectively.1 Those claims will be adjourned to a case management conference.

[2] Mr Wulff says he bought, from Mr DeMarco, the Curtiss P-40 together with a 50 per cent shareholding in the second defendant. Mr Wulff seeks, among other things, a declaration that Mr DeMarco or Old Stick & Rudder Co Ltd (OSRC), holds the P-40 on trust for Mr Wulff as well as an order for rectification of the second defendant’s share register (if it exists) to record his ownership of half of the shares.

[3] Mr Wulff and Mr DeMarco were both interested in vintage aircraft. They met in 2010. Mr DeMarco, at that stage, was employed by a New Zealand company known as The Vintage Aviator Ltd (TVAL), in a senior role. His role involved restoring and building authentic replicas of vintage aircraft. He was also actively involved in the buying and selling of vintage aircraft and parts for his employer. In his personal dealings Mr DeMarco had acquired the P-40 and a Corsair aircraft from the Airtight Trust (ATT).

[4] No steps were taken to formally transfer the P-40 to Mr Wulff’s ownership, nor to record his 50 per cent shareholding in the share register of the second defendant.

[5] These proceedings were earlier put on hold pending the outcome of Mr DeMarco’s criminal trial.

[6] In September 2019, Mr DeMarco was convicted on four charges of theft by a person in a special relationship and two charges of obtaining by deception following a jury trial in the High Court at Wellington.

1 See below at [134] and [135].

[7]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wulff v DeMarco

Details

AGLC: Wulff v DeMarco [2021] NZHC 3110
Case: [2021] NZHC 3110
Decision Date: 18 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Grice J heard the interim proceedings between Oliver Wulff and Eugene DeMarco, in which the plaintiff, Wulff, sought a declaration of ownership over a vintage aircraft, a Curtiss P-40, and a 50 per cent shareholding in Old Stick & Rudder Co Ltd (OSRC). The defendants, DeMarco and OSRC, were both in bankruptcy and liquidation respectively, which resulted in some claims being halted. The court considered whether Wulff had a contractual agreement with DeMarco to purchase the P-40 and a 50 per cent share in OSRC, and whether a resulting trust existed in favour of Wulff.

The court found that Wulff and DeMarco had an agreement to purchase the P-40 for US $500,000, and that Wulff was the owner of the aircraft, subject to DeMarco's right to share in the proceeds of sale as per the P-40 side letter agreement. The court also found that DeMarco had agreed to transfer 50 per cent of his shares in OSRC to Wulff in consideration for the payment of US $500,000, and that a resulting trust existed in favour of Wulff. The court made a declaration that Wulff was the sole legal and beneficial owner of the P-40 and that Wulff was entitled to be entered as a shareholder in OSRC. The claims for compensation were adjourned to a case management conference. The court ordered costs on a 2B basis in favour of the plaintiff.

Orders