Mathiesen v District Court at Timaru - [2014] NZHC 1377

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-33 [2014] NZHC 1377

BETWEEN
GABRIELLE PAULETTE MATHIESEN

and GORDON WALLACE CAMERON McNAB

Applicants

AND

DISTRICT COURT AT TIMARU First Respondent

OFFICIAL ASSIGNEE Second Respondent

Hearing: 18 June 2014

Counsel:

G P Mathiesen, in person, Applicant
A R McRae for First Respondent
G Slevin for Second Respondent

Judgment:

18 June 2014

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Official Assignee, Christchurch
Crown Solicitor, Timaru
Copies to:
Applicants in person

MATHIESEN and McNAB v DISTRICT COURT AT TIMARU [2014] NZHC 1377 [18 June 2014]

The application

[1] In circumstances I will describe shortly, Ms Mathiesen and Mr McNab each apply for a writ of habeas corpus to release them from detention pursuant to an order made by a District Court Judge earlier today.

[2] The applications are made orally. Given the circumstances I have decided that they should be heard on that basis.1

[3] Mr McNab and Ms Mathiesen were brought to the Court to make submissions on their application. Each has said that the paper provided to me through the Registrar represents what they wish to say and they have nothing to add. On that basis neither Mr McRae, for the District Court at Timaru, nor Mr Slevin, for the Official Assignee, wish to be heard further.

[4] Ms Mathiesen is an undischarged bankrupt. She was adjudged bankrupt by this Court on 11 June 2013. The debt on which she was adjudicated arose out of proceedings in the Family Court at Timaru brought by her husband. They were relationship property proceedings. Ms Mathiesen was ordered to pay a sum of
$326,152.97 to her husband. Of that, $170,000 was to come from the Sweetpea

Family Trust and the other $156,152.97 from Ms Mathiesen.

[5] No application has been made to set aside the judgment entered in the Family Court. Nor has any appeal been brought against it. On that basis the High Court was entitled to rely on the certificate of judgment for the purposes of the bankruptcy proceedings.

[6] I am aware that Ms Mathiesen has consistently challenge the order of adjudication on the basis that there was no power for the Court to make that order in relation to a debt that was said to be owing to her husband. In other words, that it was not permissible for her husband to bring bankruptcy proceedings to enforce the debt. However, no application has been made to annul the bankruptcy;2 nor has any
appeal been brought against the order of adjudication. In those circumstances the

1 Habeas Corpus Act 2001, s 7(2).
2 Insolvency Act 2006, s 309(1)(a).

order is to be regarded as valid and enforceable. It is not permissible for this Court to entertain a collateral challenge to the order of adjudication in a proceeding such as this.3

[7] In any event, there is no rule of law of which I am aware that prevents a husband from enforcing an order for the payment of money from…

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: [2014] NZHC 1377
Decision Date: 18 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mathiesen and McNab applied for a writ of habeas corpus to release them from detention, which was imposed by the District Court at Timaru. The applicants were brought before the court to make submissions on their application, but they relied on the paper provided to the court through the Registrar. The court heard the matter on an oral basis. Ms Mathiesen is an undischarged bankrupt, and she was adjudged bankrupt by the High Court on 11 June 2013. The debt on which she was adjudicated arose from proceedings in the Family Court at Timaru, where she was ordered to pay a sum of $326,152.97 to her husband. Both Ms Mathiesen and Mr McNab were summoned by the Official Assignee to appear before a District Court Judge for examination, which they declined to attend. Following some objections, the District Court Judge gave a ruling, and the applicants were detained until later in the day. Eventually, they were bailed overnight to appear in the District Court at 10 am. However, they indicated that they would not answer questions or produce documents, and the Judge stood them down in custody until later in the day. That is the circumstance in which the application for habeas corpus comes before the court.
The legal issues before the court were whether the District Court had jurisdiction to conduct the proceeding and whether the summons served on both Mr McNab and Ms Mathiesen was valid. The court found that there was a statutory power for the Assignee to summon a person interested for examination before a District Court Judge, and the proceeding was under the District Court Judge's control. The court also found that there was no challenge to the manner in which service was effected. The court noted that a person who acts in contravention of a direction to be examined will generally commit a contempt of court, which may be punished by imprisonment. However, any term imposed must be proportionate to the breach. The court held that there was no basis on which it could interfere with the lawful detention that had been imposed by the District Court Judge for failure to abide by her direction, and the applications for habeas corpus were dismissed. The applicants would now be returned to custody and await further call of their proceeding in the District Court.

Orders