Whittington v UDC Finance Ltd

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 92/2021
[2021] NZSC 106

BETWEEN	MARK ANTHONY WHITTINGTON Applicant
AND	UDC FINANCE LIMITED Respondent

Court:	William Young, Ellen France and Williams JJ
Counsel:	Applicant in person
Judgment:	27 August 2021

JUDGMENT OF THE COURT

The application for a stay is dismissed.

____________________________________________________________________

REASONS

In the High Court, in an order made by Associate Judge Lester on 25 March 2021, the applicant, Mr Whittington, was adjudicated bankrupt.[1] The bankruptcy decision followed the non‑payment of a costs order of $4,590.98 imposed in relation to proceedings Mr Whittington brought against UDC Finance Ltd which he then discontinued. Subsequently, Associate Judge Paulsen declined Mr Whittington’s application to stay the adjudication order pending appeal.[2]
[1]UDC Finance Ltd v Whittington [2021] NZHC 627.
[2]UDC Finance Ltd v Whittington [2021] NZHC 1141.
Mr Whittington filed an appeal against the bankruptcy decision in the Court of Appeal. Mr Whittington was required to pay security for costs in respect of that appeal. He sought dispensation from payment of security. That application was declined by the Deputy Registrar and the Deputy Registrar’s decision was upheld on review by Collins J.[3] He has filed an application for leave to appeal to this Court against the judgment of Collins J.
[3]Whittington v UDC Finance Ltd [2021] NZCA 362.
Mr Whittington has now sought a stay of the adjudication. Assuming, for these purposes, that the application comes within r 30 of the Supreme Court Rules 2004, we are satisfied that there is no basis for exercising the stay jurisdiction. That is because nothing in Mr Whittington’s application provides support for that course. At the highest, Mr Whittington makes generalised and unsupported claims of a miscarriage of justice. None of the matters raised warrant a stay.
The application for a stay is dismissed.

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mark Anthony Whittington appealed against his adjudication as bankrupt, which was a result of his failure to pay a costs order of $4,590.98. The costs order arose from a discontinued proceeding that Whittington brought against UDC Finance Ltd. The High Court had made the bankruptcy decision, and a subsequent application by Whittington to stay the adjudication order was declined. Whittington sought a stay of the adjudication in the Supreme Court, but the application was dismissed. The primary legal issue before the Supreme Court was whether there were grounds to exercise its jurisdiction to stay the adjudication of bankruptcy. The court found that Whittington's application did not provide a basis for a stay, as it lacked any specific support beyond generalised claims of a miscarriage of justice. The court concluded that none of the matters raised were sufficient to warrant a stay of the adjudication order.

The reasoning of the Supreme Court focused on the lack of substantive grounds provided by Whittington for a stay of the adjudication of bankruptcy. The court noted that Whittington's claims were generalised and unsupported, and did not specify any particular legal or factual basis that would warrant a stay. The court held that the mere assertion of a miscarriage of justice was insufficient to justify a departure from the usual course of enforcing a bankruptcy adjudication. The court's decision was based on the principle that a stay of adjudication is an exceptional remedy, and should only be granted where there are compelling reasons to do so. In this case, the court found that no such reasons were present, and therefore dismissed the application for a stay.

The Supreme Court concluded that there was no basis for exercising its jurisdiction to stay the adjudication of bankruptcy, and dismissed the application accordingly. The dismissal of the application means that the bankruptcy adjudication remains in force, and Whittington is still legally required to address the unpaid costs order. The court's decision underscores the importance of providing specific and substantiated arguments in support of any application for a stay of adjudication, and highlights the exceptional nature of such remedies in the context of bankruptcy proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established