Mathiesen and McNab v District Court at Timaru
| Jurisdiction | New Zealand |
| Judge | HEATH J |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] NZHC 1377 |
| Docket Number | CIV 2014-476-33 |
| Court | High Court |
| Date | 18 June 2014 |
CIV 2014-476-33
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
Applications for writs of habeas corpus — applicants were summonsed under s165 Insolvency Act 2006 (Assignee may summon bankrupt and others to be examined) by the Official Assignee to appear before a District Court judge for examination — declined to answer questions and were detained — one of applicants had been adjudicated bankrupt on application of her husband following failure to pay amounts ordered by Family Court — claimed it was not permissible for her husband to bring bankruptcy proceedings to enforce the debt — whether there was any basis on which the writs should be issued.
G P Mathiesen, in person, Applicant
A R McRae for First Respondent
G Slevin for Second Respondent
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.
The applications are made orally. Given the circumstances I have decided that they should be heard on that basis. 1
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.
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.
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.
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
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 his spouse by way of bankruptcy proceedings. 4
Both Ms Mathiesen and Mr McNab were summonsed by the Official Assignee to appear before a District Court Judge yesterday for examination. That summons was issued under s 165 of the Insolvency Act 2006. It is permissible under that provision for the Assignee to summon a person with knowledge of the bankrupt's affairs or the bankrupt himself or herself to be examined either by the Assignee or a District Court Judge. 5 In some circumstances that may be done before another Assignee. 6
Usually an examination of this type takes place before the Official Assignee. But in cases where it is likely that there will be objection to the provision of information, an examination before a District Court Judge is often sought. That is what occurred in this case.
When Mr McNab and Ms Mathiesen attended yesterday before...
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