Whittington v UDC Finance Limited

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 92/2021
[2024] NZSC 74

BETWEEN	MARK ANTHONY WHITTINGTON Applicant
AND	UDC FINANCE LIMITED Respondent

Court:	Ellen France and Williams JJ
Counsel:	Applicant in person S C D A Gollin and S L Michelson for Respondent
Judgment:	3 July 2024

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 27 August 2021 (Whittington v UDC Finance Ltd [2021] NZSC 106) is dismissed.

BThe application for stay of the High Court’s order of 25 March 2021 (UDC Finance Ltd v Whittington [2021] NZHC 627) is dismissed.

C The applicant must pay the respondent costs of $2,500.

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REASONS

The applicant seeks recall of our judgment of 27 August 2021 declining to grant a stay of his bankruptcy adjudication.[1] In addition, he seeks a stay of the order of 25 March 2021 in the High Court adjudicating him bankrupt.[2]
[1]Whittington v UDC Finance Ltd [2021] NZSC 106 (William Young, Ellen France and Williams JJ).
[2]UDC Finance Ltd v Whittington [2021] NZHC 627 (Associate Judge Lester).
This is the second application for recall of the judgment of 27 August 2021, an earlier application having been dismissed on 10 September 2021.[3] Nothing further has been advanced which would warrant a recall of our decision not to grant a stay. The applicant simply seeks to relitigate the Court’s earlier decisions.[4] Nor is anything put forward to show that it is in the interests of justice for the Court to address the application for a stay of the High Court order.[5] The delay in making the present applications is significant, as the respondent says, and the application would have the Court largely reprise concerns expressed previously about processes adopted in the Courts below.

Result

[3]Whittington v UDC Finance Ltd [2021] NZSC 113 (William Young, Ellen France and Williams JJ).

[4]See FMV v TZB [2022] NZSC 26 at [3].

[5]We assume, for these purposes, that the application for a stay of the High Court order comes within r 30 of the Supreme Court Rules 2004: see Whittington v UDC Finance Ltd, above n 1, at [3].

The application for recall is dismissed.
The application for a stay of the High Court order is also dismissed.
The respondent seeks costs on an indemnity basis for having been put to unnecessary expense in responding to an application it says is without merit. We consider the usual award of costs of $2,500 for an application such as the present will suffice in the circumstances. The applicant must pay the respondent costs of $2,500.

Solicitors:
MinterEllisonRuddWatts, Auckland for Respondent

CaseChat Overview and Summary

Mark Anthony Whittington, an Australian resident, applied to the Supreme Court of New Zealand for a recall of a previous judgment and a stay of a bankruptcy adjudication. UDC Finance Limited, the respondent, opposed the application. The case originated from a High Court order adjudicating Whittington bankrupt, which he sought to stay. The Supreme Court had previously declined to grant a stay of the bankruptcy adjudication.

The primary legal issue was whether the Supreme Court should recall its earlier judgment declining to grant a stay of the bankruptcy adjudication and whether it should stay the High Court’s order adjudicating Whittington bankrupt. The Court needed to determine if there were sufficient grounds to revisit its earlier decisions and if the delay in making the application warranted a stay. The Court also considered whether the application was in the interests of justice.

The Court found that the application was an attempt to relitigate previous decisions and that no new arguments had been presented. The delay in making the application was significant, and the Court was not inclined to revisit the decisions of the lower courts. The Court concluded that the application was without merit and dismissed both the application for recall and the application for a stay. The Court awarded costs of $2,500 to UDC Finance Limited for the unnecessary expense incurred in responding to the application.

The Court dismissed both the application for recall of the judgment and the application for a stay of the High Court order. Mark Anthony Whittington was ordered to pay UDC Finance Limited $2,500 in costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established