Heenan v Official Assignee - [2010] NZCA 135

IN THE COURT OF APPEAL OF NEW ZEALAND
CA346/2009
[2010] NZCA 135

BETWEENDAVID STANLEY HEENAN

Applicant

ANDTHE OFFICIAL ASSIGNEE

Respondent

CA630/2009

AND BETWEEN DAVID STANLEY HEENAN

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

CA781/2009
AND BETWEEN DAVID STANLEY HEENAN AND ROBERTA JANE MARY HEENAN

Applicants

ANDOSCAR THORWALD ALPERS

First Respondent
ANDMICHAEL AMBLER

Second Respondent
ANDJAMES DEAN

Third Respondent
ANDIAN JAMES DUNCAN HALL

Fourth Respondent
ANDDAVID JAMES HOUSTON

Fifth Respondent
ANDRICHARD PAUL JEFFRIES

Sixth Respondent
ANDKIRISTINA MARY O'CONNOR

Seventh Respondent
ANDCRAIG RAUNE

Eighth Respondent
ANDMURRAY IAN WITHERS

Ninth Respondent

Hearing:16 March 2010

Court:Hammond, Chambers and Baragwanath JJ
Counsel:D S Heenan, Applicant in Person

J G French for the Official Assignee (CA346/2009)
P J Gunn for the Attorney-General (CA630/2009)
K M Foley for O T Alpers and Others (CA781/2009)

Judgment:21 April 2010 at 2.30 pm

JUDGMENT OF THE COURT

CA346/2009
A The present application or purported appeal to this Court is struck out.
B Costs are reserved.
CThe applicant must not file any further documents on this file (CA346/2009), save in respect of costs if the respondent seeks them.
CA630/2009
DThe application for leave to appeal filed on 7 September 2009 is to be treated as a notice of appeal which was filed and served within time.

E Security for costs is dispensed with.
FThe respondent must prepare the case on appeal and file and serve it on or before 28 May 2010.
GIf the applicant considers the case on appeal is incomplete, he must on or before 18 June 2010 file and serve a memorandum annexing any additional documents he says form part of the record.
HIn that event, the respondent must respond by memorandum, to be filed and served on or before 2 July 2010.
IThe Registrar is directed to fix a hearing date for this appeal.
CA781/2009
JThe present application or purported appeal to this Court is struck out.
KCosts are reserved.
LThe applicant must not file any further documents on this file (CA781/2009), save in respect of costs if the respondents seek them.

REASONS OF THE COURT

(Given by Chambers J)

Aftermath of a bankruptcy order
[1] David Heenan was adjudicated bankrupt on 11 December 2000 following his failure to pay a judgment entered against him. He remains an undischarged bankrupt as the Official Assignee has consistently opposed Mr Heenan’s discharge from bankruptcy, asserting that Mr Heenan has a vintage Buick motorcar which forms part of his bankrupt estate. Mr Heenan has refused to deliver that car to the Official Assignee despite a court order. Mr Heenan claims that the car is owned by a family trust. He admits he has the car in hiding so that the Official Assignee cannot seize it.
[2] Ever since his adjudication, Mr Heenan has brought a plethora of court proceedings essentially designed to have the original judgment set aside and his bankruptcy annulled or discharged. Eventually the Attorney-General applied for an order under s 88B of the Judicature Act 1908 declaring Mr Heenan a vexatious litigant. On 19 August last year, the High Court…

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.

Continue reading Heenan v Official Assignee

Details

AGLC: Heenan v Official Assignee [2010] NZCA 135
Case: [2010] NZCA 135
Decision Date: 21 April 2010

CaseChat Overview and Summary

David Stanley Heenan, an undischarged bankrupt, brought several purported appeals to the Court of Appeal of New Zealand, challenging various court decisions made in relation to his bankruptcy and other legal proceedings. The primary issue was whether Heenan needed leave from the High Court to appeal certain decisions, given that he had been declared a vexatious litigant. The court also considered whether time limits for appealing certain judgments should be extended.

The court held that Heenan did not need leave from the High Court to appeal to the Court of Appeal or the Supreme Court, as the phrase "in any Court" in the relevant legislation did not include appellate courts. The court interpreted the statute in a manner that respected the right of access to the courts and found it unlikely that Parliament intended to give the High Court exclusive jurisdiction over appeals to the appellate courts. The court also determined that Heenan's appeal against the vexatious litigant judgment should be treated as a timely notice of appeal, with the Attorney-General offering to prepare the case on appeal. Extensions of time for appealing other judgments were denied, and the purported appeals were struck out.

The court made specific orders regarding the vexatious litigant appeal, allowing it to proceed with the Attorney-General's assistance and setting out the procedure for any additional documents. It also directed that Heenan must not file further documents unless seeking costs or extending time for other appeals, which would require separate applications. The court's final orders included striking out the current applications, reserving costs, and prohibiting further filings without specific exceptions.

Orders