UDC Finance Ltd v Whittington - [2021] NZHC 627

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-76

[2021] NZHC 627

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of MARK WHITTINGTON

BETWEEN

UDC FINANCE LIMITED

Judgment Creditor

AND

MARK WHITTINGTON

Judgment Debtor

Hearing: 25 March 2021

Appearances:

T G Rabone on agency instructions for the Judgment Creditor Mr M Whittington, self-represented Judgment Debtor

Reasons for Judgment:

26 March 2021

REASONS FOR JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 26 March 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 26 March 2021

UDC FINANCE LIMITED v WHITTINGTON [2021] NZHC 627 [26 March 2021]

[1] On Thursday 25 March 2021, I made an order at 3.05pm adjudicating Mr Mark Whittington bankrupt on the application of UDC Finance Limited (UDC). This is my Reasons for Judgment. The adjudication order was made after hearing from Mr Whittington for approximately half an hour.

[2] Mr Whittington had filed a document called “Notice of Opposition” to UDC’s application and I requested him to talk me through the points raised in that document as I confessed to having difficulty in appreciating the points that he wished to make.

[3] At the conclusion of the hearing, I advised that I did not accept any of the points he raised were a defence to the application. I asked Mr Whittingham if he had the ability to pay the debt and he said he declined to answer the question. It was clear that Mr Whittington had no intention of satisfying the debt.

[4] When I said that, in the absence of Mr Whittington being prepared to pay the debt and having concluded he had no defence, there would be an order for adjudication, Mr Whittington said he intended to appeal my decision and that he considered the process unfair. Given Mr Whittington indicated he wished to appeal, I said I would issue a brief Reasons for Judgment.

[5]I now turn to the matters raised in Mr Whittington’s Notice of Opposition.

[6] At para [4] of the Notice of Opposition, Mr Whittington referred to the bankruptcy papers being non-compliant. He explained that was because on the cover sheet of the documents there is a Napier District Court stamp. I explained to Mr Whittington that on the Court file the documents had both a Napier District Court and a High Court stamp. It appeared that the documents may have been stamped on receipt at the Napier District Court before being forwarded to the Wellington High Court. This was the only ground raised to say that the documents did not comply with the High Court Rules 2016. I advised Mr Whittington that in my view the presence of the District Court stamp on the cover sheet of the papers served on him did not invalidate the documents and I did not see the point as having substance.

[7] Mr Whittington referred to having…

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 627
Decision Date: 26 March 2021

CaseChat Overview and Summary

The case of UDC Finance Ltd v Whittington was heard by Associate Judge Lester in the High Court of New Zealand Napier Registry. UDC Finance Limited, the judgment creditor, had applied for an order adjudicating Mark Whittington, the judgment debtor, bankrupt. Mr Whittington opposed the application and filed a Notice of Opposition, which was reviewed by the court.

The primary legal issue before the court was whether there were any valid grounds for Mr Whittington to oppose the adjudication of bankruptcy. The court examined the arguments presented in Mr Whittington's Notice of Opposition, including claims regarding the compliance of the bankruptcy papers, the status of an appeal on the costs judgment, and the repossession of a vehicle belonging to his late mother. The court also assessed whether Mr Whittington had the ability and intention to pay the debt.

Associate Judge Lester dismissed all the arguments raised by Mr Whittington. The court found that the presence of a Napier District Court stamp on the cover sheet of the documents did not render them non-compliant. Additionally, the court clarified that Mr Whittington's opposition to the costs judgment was unfounded as no leave to appeal had been granted, and the time for appeal had expired. The court further noted that any claims regarding the repossession of his mother's vehicle were irrelevant as they pertained to his mother's estate, not to Mr Whittington personally. Finally, the court concluded that Mr Whittington had no intention of paying the debt, as evidenced by his refusal to answer whether he could do so.

The final orders of the court were that Mark Whittington be adjudged bankrupt as of 3.05pm on 25 March 2021. Mr Whittington was given notice of his right to appeal the decision within 21 days.

Orders