Slavich v Official Assignee

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

CaseChat Overview and Summary

John Kenneth Slavich, an undischarged bankrupt, appealed against a decision of the High Court, which dismissed his application for a writ of habeas corpus. The Official Assignee, the respondent, opposed the appeal. The central issue was whether the High Court correctly dismissed Mr Slavich’s application for a writ of habeas corpus, which was intended to challenge the legality of his detention as an undischarged bankrupt. Mr Slavich argued that the Official Assignee unlawfully gave a notice under section 107(3) of the Insolvency Act 1967, preventing his automatic discharge from bankruptcy.

The Court of Appeal considered whether Mr Slavich’s application for a writ of habeas corpus was the appropriate legal remedy for his situation. The court held that the purpose of a habeas corpus writ is to challenge the legality of a person's detention. However, Mr Slavich was not detained and was free to go wherever he liked within New Zealand. Thus, the application did not meet the basic requirement for a habeas corpus writ. Furthermore, the Official Assignee’s notice under section 107(3) was lawful, and Mr Slavich’s concern about the notice did not provide grounds for habeas corpus relief. The Court concluded that Mr Slavich should have applied under section 108 of the Insolvency Act for an order of discharge, rather than seeking a writ of habeas corpus.

The Court of Appeal dismissed the appeal and made no order as to costs. The judges found that Mr Slavich had chosen the wrong legal remedy for his grievances and that the High Court correctly dismissed his application for a writ of habeas corpus.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established