Whittington v UDC Finance Limited
[2021] NZCA 362
•2 August 2021 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA157/2021 [2021] NZCA 362 |
| BETWEEN | MARK ANTHONY WHITTINGTON |
| AND | UDC FINANCE LIMITED |
| Counsel: | Appellant in person |
Judgment: | 2 August 2021 at 9.30 am |
JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)
The application for a review of the Deputy Registrar’s decision is declined.
____________________________________________________________________
REASONS
Mr Whittington applies for a review of a Deputy Registrar’s decision in which the Deputy Registrar declined Mr Whittington’s application to dispense with security for costs in his appeal against a High Court bankruptcy decision.[1]
Background
[1]Re Whittington, ex parte UDC Finance Ltd [2021] NZHC 627 [Bankruptcy Decision].
Mr Whittington has been engaged in a dispute with UDC Finance Ltd (UDC).
In February 2020, Mr Whittington filed a claim in the High Court against UDC. He then decided to discontinue his claim. As a result, the High Court ordered Mr Whittington to pay costs of $4,590.98 to UDC (Costs Order).[2] Mr Whittington has never complied with the Costs Order.
[2]The parties did not explain what Mr Whittington’s claim was about or why it was discontinued. There do not appear to be any High Court decisions. The file number is CIV-2020-441-5.
In March 2021, UDC applied to the High Court for Mr Whittington to be adjudicated bankrupt over his failure to pay the $4,590.98. Mr Whittington filed a notice of opposition, and he attended the High Court hearing so he could explain the arguments in his notice of opposition.
First, Mr Whittington argued that he did not owe the $4,590.98. He claimed that he could still appeal the Costs Order and so, he argued, it had not been finally decided that he would have to pay the Costs Order.
The High Court rejected this argument. It pointed out that Mr Whittington had not actually appealed the Costs Order, and he was months out of time to appeal.[3]
[3]Bankruptcy Decision, above n 1, at [7] and [9].
Second, Mr Whittington argued that he had a counterclaim against UDC. He claimed that UDC had “unlawfully” repossessed his mother’s car. He then claimed that he had a security interest in his mother’s car, because he helped his mother make repayments on the car. As a result, he argued that he had a counterclaim against UDC for infringing against his security interest in the car.
The High Court also rejected this argument. It held that Mr Whittington could not gain a security interest in the car merely by helping his mother make repayments.[4] The High Court accordingly granted the application for Mr Whittington to be adjudicated bankrupt (Bankruptcy Decision).[5]
[4]At [14].
[5]At [17].
Mr Whittington now wishes to appeal the Bankruptcy Decision to this Court. His ground of appeal is that the High Court failed to adequately consider the arguments in his notice of opposition.
Mr Whittington was required to pay security for costs of $7,060. He applied for the Deputy Registrar to dispense with security for costs, but the Deputy Registrar declined his application. It is that decision Mr Whittington seeks to review.
Principles
In Reekie v Attorney-General, the Supreme Court held that there are two categories of cases where security for costs should be dispensed with:[6]
(a)where, if the appellant loses, it is unlikely that a costs order would be made against them;[7] and
(b)where, if the appellant loses, it is likely that a costs order would be made against them, but it is right to make the respondent defend the appeal without security for costs.
[6]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19] and [21]. At the time, the second Reekie category only included impecuniosity, but this was later expanded. See McGuire v New Zealand Law Society [2020] NZCA 271 at [18].
[7]For a recent example, see Better Public Media Trust v Attorney-General [2020] NZCA 290.
The second Reekie category also has two recognised subcategories:
(a)if the appellant is excused by impecuniosity,[8] which requires the appellant to show that:
(i)they are impecunious; and
(ii)a solvent appellant would reasonably pursue the appeal, which requires the appeal to have merit and greater benefits than costs; and
(b)if there is sufficient public interest in the appeal that the appellant should not have to pay security for costs (though if they lost, it is still likely that a costs order would be made).[9]
Deputy Registrar’s decision
[8]See Reekie, above n 6, at [35] and [41].
[9]See Banks v Ports of Auckland Ltd [2015] NZCA 150, (2015) 22 PRNZ 461; and Siemer v Complete Construction Ltd [2020] NZCA 350 at [11]. This is a more recent subcategory that does not require impecuniosity.
Mr Whittington applied for the Deputy Registrar to dispense with security for costs on the grounds that he was excused by impecuniosity.
The Deputy Registrar considered:
(a)whether Mr Whittington was excused by impecuniosity; and
(b)whether there was sufficient public interest to not require security for costs.
Was Mr Whittington excused by impecuniosity?
The Deputy Registrar did not need to decide whether Mr Whittington was impecunious. Instead, the Deputy Registrar decided that a solvent appellant would not reasonably pursue Mr Whittington’s appeal.
This was because the Deputy Registrar considered Mr Whittington’s appeal to be meritless. The High Court had fully considered each of Mr Whittington’s arguments and explained why they could not succeed.
Was there sufficient public interest to not require security for costs?
The Deputy Registrar decided that Mr Whittington’s appeal had no public interest, because it did not affect anyone other than Mr Whittington and UDC.
Review of Deputy Registrar’s decision
Mr Whittington applies for a review of the Deputy Registrar’s decision on two grounds:
(a)He is excused by impecuniosity.
(b)There is sufficient public interest to not require security for costs.
Is Mr Whittington excused by impecuniosity?
The Deputy Registrar was correct to decide that a solvent appellant would not reasonably pursue Mr Whittington’s appeal.
Mr Whittington’s appeal is meritless. The High Court fully considered each of the arguments in Mr Whittington’s notice of opposition and explained why they could not succeed. Mr Whittington has still not identified any argument that the High Court failed to consider.
Is there sufficient public interest to not require security for costs?
The Deputy Registrar was correct to decide that Mr Whittington’s appeal had no public interest.
The appeal does not affect anyone other than Mr Whittington and UDC. Mr Whittington has still not identified any broader interest in his appeal.
Result
The application for a review of the Deputy Registrar’s decision is declined.
Solicitors:
MinterEllisonRuddWatts, Auckland for Respondent
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