Whittington v UDC Finance Limited - [2021] NZSC 138

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 92/2021
[2021] NZSC 138

BETWEEN	MARK ANTHONY WHITTINGTON Applicant
AND	UDC FINANCE LIMITED Respondent

Court:	William Young, Ellen France and Williams JJ
Counsel:	Applicant in person S C D A Gollin and S L Michelsen for Respondent
Judgment:	19 October 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

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

____________________________________________________________________

REASONS

Introduction

Mr Whittington seeks leave to appeal against a decision of the Court of Appeal.[1] In that decision, Collins J declined Mr Whittington’s application for a review of a decision of the Deputy Registrar not to dispense with security for costs on Mr Whittington’s appeal to the Court of Appeal against the decision of the High Court adjudicating him bankrupt on the application of the respondent, UDC Finance Ltd.[2]

Background

[1]Whittington v UDC Finance Ltd [2021] NZCA 362 (Collins J).

[2]UDC Finance Ltd v Whittington [2021] NZHC 627 (Associate Judge Lester).

The background to the current application arises out of proceedings brought by Mr Whittington against the respondent. The proceedings were discontinued and, as a result, an order was made that Mr Whittington pay costs of $4,590.98 to the respondent. There was apparently some delay in Mr Whittington receiving a copy of the costs order but it was ultimately served on him. He did not comply with the order. The respondent applied for Mr Whittington to be adjudicated bankrupt for non‑payment. Mr Whittington filed a notice of opposition and the order adjudicating Mr Whittington bankrupt was made after the Associate Judge had heard from Mr Whittington.
Mr Whittington filed an appeal to the Court of Appeal against that decision. His application for a stay pending appeal was dismissed by the High Court.[3]
[3]UDC Finance Ltd v Whittington [2021] NZHC 1141. This Court declined an application for a stay of the adjudication (Whittington v UDC Finance Ltd [2021] NZSC 106) and dismissed an application for recall of that decision (Whittington v UDC Finance Ltd [2021] NZSC 113).
Mr Whittington was required to pay security for costs in relation to his appeal to the Court of Appeal. He unsuccessfully sought dispensation from payment of security. The Deputy Registrar’s decision was upheld on review by Collins J. Applying the principles set out in Reekie v Attorney-General,[4] Collins J considered that the Deputy Registrar was correct to find that a solvent appellant would not reasonably pursue the appeal because the appeal was meritless. Collins J said that the High Court had addressed each of the arguments raised in the notice of opposition and explained why they could not succeed. Nor did Collins J consider that the appeal had any public interest. Rather, the effect of the appeal was confined to the immediate parties.

The proposed appeal

[4]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

Mr Whittington maintains that he should not…

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] NZSC 138
Decision Date: 19 October 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed Mark Anthony Whittington's application for leave to appeal against the decision of the Court of Appeal. The appeal related to a decision by the Court of Appeal not to dispense with security for costs on Mr Whittington's appeal to the Court of Appeal against the High Court's decision to adjudicate him bankrupt on the application of UDC Finance Limited. The Court of Appeal had upheld the Deputy Registrar's decision that Mr Whittington was required to pay security for costs in relation to his appeal, finding that the appeal was meritless and had no public interest. Mr Whittington argued that the appeal raised matters of fact and law of significant public importance and that there was procedural unfairness in the adjudication decision. However, the Supreme Court found that no question of general or public importance arose and that the Court of Appeal's assessment did not appear to be a miscarriage of justice. The application for leave to appeal was dismissed, and Mr Whittington was ordered to pay costs of $2,500 to UDC Finance Limited.

Orders