Slavich v Official Assignee

[2010] NZCA 117

IN THE COURT OF APPEAL OF NEW ZEALAND

CA155/2010
[2010] NZCA 117

BETWEENJOHN KENNETH SLAVICH

Appellant

ANDTHE OFFICIAL ASSIGNEE

Respondent

Hearing:30 March 2010

Court:Chambers, O'Regan and Ellen France JJ

Counsel:Appellant in person

J N Foster for Respondent

Judgment:30 March 2010 

Reasons:            14 April 2010

JUDGMENT OF THE COURT

A           The appeal is dismissed.

B           No order as to costs.

REASONS OF THE COURT

(Given by Chambers J)

[1]        John Slavich, the appellant, is an undischarged bankrupt.  He applied in the High Court for a writ of habeas corpus.  Andrews J dismissed the application.[1]  Mr Slavich appealed.  

[1] Slavich v Official Assignee HC Hamilton CIV-2010-419-000246, 19 March 2010.

[2]        The point of an application for a writ of habeas corpus is “to challenge the legality of a person’s detention”.[2]  But Mr Slavich is not detained.  He is free to go wherever he likes within New Zealand.  So he does not get past first base.

[2] Habeas Corpus Act 2001, s 6.

[3]        What Mr Slavich is really concerned about is the act of the Official Assignee, the respondent, in having given notice under s 107(3) of the Insolvency Act 1967.[3]  Under that subsection, the Assignee or, with the leave of the High Court, any creditor can enter an objection to what would otherwise be a bankrupt’s automatic right to a discharge from bankruptcy after three years.[4]  Because of that notice, Mr Slavich remains an undischarged bankrupt; but for that notice, he would have been discharged automatically on 2 October 2009.  Mr Slavich complains the Assignee unlawfully gave the s 107(3) notice, but plainly he did not.

[3] The Insolvency Act 1967 continues to apply to Mr Slavich pursuant to transitional provisions in the Insolvency Act 2006: see s 444.  References to “the Act” hereafter are to the Insolvency Act 1967.

[4] The right to discharge after three years is conferred by s 107(1) of the Act. 

[4]        If Mr Slavich wishes to be discharged from bankruptcy, he should be doing what Andrews J told him to do.[5]  That is, he should apply under s 108 of the Act for an order of discharge.  He chose quite the wrong procedural route for what he wants to achieve.  Applying for a writ of habeas corpus is not the right way to challenge a s 107(3) notice or to be discharged from bankruptcy, as Andrews J explained. 

[5] At [40]-[43]. 

[5]        For these reasons, we dismiss the appeal.

Solicitors:

Almao Douch, Hamilton, for Respondent