SLAVICH V THE OFFICIAL ASSIGNEE CA CA155/2010
Habeas corpus was the wrong remedy because the appellant was not detained; the Official Assignee validly gave the s107(3) notice; the appellant must apply under s108 for discharge rather than seek habeas corpus.
Source-derived case information.
- Citation
- openlaw-59f94b06_4f17_44f6_b4c1_dfed28a7f305.pdf
- Parties
- Appellant: John Kenneth Slavich; Respondent: The Official Assignee
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 14 April 2010
- Procedural Posture
- Appeal (bankruptcy) / Determination by Court of Appeal (judgment)
- Outcome
- Appeal dismissed; no order as to costs.
- Legal Topics
- Discharge From Bankruptcy, Section 107(3) Insolvency Act 1967, Habeas Corpus Jurisdiction, Procedural Route Under S108
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kenneth Slavich
Appellant
The Official Assignee
Respondent
Procedural Posture
Appeal (bankruptcy) / Determination by Court of Appeal (judgment)
Legal Issues
- 1 Whether habeas corpus is an appropriate remedy to challenge a s107(3) objection notice
- 2 Whether the Official Assignee validly gave notice under s107(3) of the Insolvency Act 1967
- 3 Proper procedural route to obtain discharge from bankruptcy when an objection under s107(3) has been entered
Ratio Decidendi
Habeas corpus was the wrong remedy because the appellant was not detained; the Official Assignee validly gave the s107(3) notice; the appellant must apply under s108 for discharge rather than seek habeas corpus.
Court Disposition
Appeal dismissed; no order as to costs.
Orders
- Appeal dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
SLAVICH V THE OFFICIAL ASSIGNEE CA CA155/2010 14 April 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA155/2010 [2010] NZCA 117BETWEEN JOHN KENNETH SLAVICH Appellant AND THE 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: 14 April 2010 Reasons: 14 April 2010JUDGMENT 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.1Mr 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. [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 1967.3Under 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. [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] For these reasons, we dismiss the appeal.Solicitors: Almao Douch, Hamilton, for Respondent2 Habeas Corpus Act 2001, s 6.3 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.5 At [40]-[43].