Slavich v Official Assignee [2010] NZCA 117 (14 April 2010)

Last Updated: 20 April 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA155/2010 [2010] NZCA 117

BETWEEN 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: 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.
[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.[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.
[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 Respondent

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[1] Slavich v Official Assignee HC Hamilton CIV-2010-419-000246, 19 March 2010.
[2] 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].