UDC Finance Limited v Whittington - [2021] NZHC 1141

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-000076

[2021] NZHC 1141

BETWEEN
UDC FINANCE LIMITED

Judgment Creditor

AND

MARK ANTHONY WHITTINGTON

Judgment Debtor

Hearing: 13 May 2021 (Napier List by AVL)

Appearances:

S C D A Gollin for Judgment Creditor

M A Whittington, Judgment Debtor, in person

Judgment:

21 May 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 May 2021 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

UDC FINANCE LTD v WHITTINGTON [2021] NZHC 1141 [21 May 2021]

[1] On 25 March 2021, Associate Judge Lester made an order adjudicating the judgment debtor (Mr Whittington) bankrupt upon the application of the judgment creditor (UDC). Mr Whittington has filed an appeal from that decision. This ruling concerns Mr Whittington’s application for a stay of the adjudication order until his appeal has been heard. The application is opposed by UDC.

[2] Mr Whittington is self-represented. I explained to him I considered it would be in his interests if the hearing was adjourned so that he could seek legal advice and file evidence. I pointed out to him his application is not supported by any affidavit evidence and with the benefit of legal advice he might be able to advance matters not presently relied upon in support of it. Mr Whittington did not want an adjournment. He was insistent that the hearing proceed.

Facts

[3] Mr Whittington commenced a proceeding against Bayswater Vehicles Ltd and UDC in relation to the purchase of a vehicle. It appears the vehicle was purchased by Mr Whittington’s mother. She passed away in September 2019. The proceeding was discontinued against UDC. UDC made an application for costs which was considered by Associate Judge Johnston. Mr Whittington made submissions to Associate Judge Johnston in relation to UDC’s application for costs. Associate Judge Johnston awarded UDC costs. UDC sealed judgment for $4,590.98 (inclusive of disbursements) on 7 July 2020 (the costs judgment).

[4] It was not until 13 August 2020 that the Court advised Mr Whittington by email of the costs judgment. On around 19 September 2020 he received the sealed costs judgment and a demand for payment from UDC. Mr Whittington did not pay the costs judgment.

[5] There has been much email correspondence between Mr Whittington and the Court. Some of it was referred to Associate Judge Johnston. In a minute of 25 September 2020, Associate Judge Johnston noted that if Mr Whittington wished to appeal from the costs judgment “he will have to take forward steps in that regard.” In a further minute of 29 October 2020, Associate Judge Johnston noted recent emails

from Mr Whittington and stated as the Court had dealt with UDC’s costs application there was nothing further it could do.

[6] I am satisfied Mr Whittington understood the need to file an appeal if he wished to challenge the costs judgment. He did not file an appeal. He says…

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.

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Details

Case: [2021] NZHC 1141
Decision Date: 21 May 2021

CaseChat Overview and Summary

UDC Finance Limited, a judgment creditor, has brought proceedings against Mark Anthony Whittington, the judgment debtor, in the High Court of New Zealand. UDC Finance Limited was awarded a costs judgment against Mr Whittington for $4,590.98, which Mr Whittington failed to pay. UDC Finance Limited subsequently applied for an order adjudicating Mr Whittington bankrupt. Mr Whittington opposed the application but was unsuccessful, and he has appealed this decision. Mr Whittington has also applied for a stay of the adjudication order until his appeal is heard, which UDC Finance Limited opposes.

The court was required to determine whether it should grant Mr Whittington's application for a stay of the adjudication order pending the outcome of his appeal. The court considered various factors, including whether Mr Whittington's right of appeal would be rendered nugatory without a stay, the bona fides of the applicant in prosecuting the appeal, whether the successful party would be injuriously affected by the stay, the effect on third parties, the novelty and importance of the questions involved, the public interest in the proceedings, the strength of the appeal, and the overall balance of convenience.

The court found that Mr Whittington's appeal was not bona fide, as he had not taken any steps to appeal the costs judgment despite being advised that was the course open to him. The court also found that the balance of convenience was against suspending the adjudication order, as Mr Whittington had failed to pay the costs judgment and had not provided any evidence of his financial circumstances to establish he was not insolvent. The court rejected Mr Whittington's various other arguments and found that his appeal had no reasonable prospect of success.

The court dismissed Mr Whittington's application for a stay of the adjudication order, and UDC Finance Limited is entitled to costs on a 1A basis plus reasonable disbursements as fixed by the Registrar.

Orders