Khatri v Tomar - [2024] NZHC 3217

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1383

[2024] NZHC 3217

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of VIN TOMAR

BETWEEN

MONIKA KHATRI

Judgment Creditor

AND

VIN TOMAR

Judgment Debtor

Hearing: 1 October 2024

Appearances:

Judgment creditor is self-represented Judgment debtor is self-represented

Judgment:

6 November 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for annulment of adjudication order and for leave to appeal

This judgment was delivered by me on 6 November 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Copy for: Ms Khatri. Mr Tomar.

KHATRI v TOMAR [2024] NZHC 3217 [6 November 2024]

Introduction

[1]Mr Vin Tomar, the judgment debtor, (Mr Tomar) filed two applications:

(a)an application pursuant to s 309(1) of the Insolvency Act 2006 to annul an adjudication order made against him on 30 November 2023; and

(b)an application for leave to appeal the Court’s judgment issued on 17 November 2023 (the Judgment).1

[2] Both applications were opposed by Ms Monika Khatri, the judgment creditor, (Ms Khatri).

[3] Both Mr Tomar’s applications were heard on 1 October 2024. Both parties were self-represented.

Mr Tomar’s application for annulment of his bankruptcy

[4] Mr Tomar seeks an order under s 309(1) of the Insolvency Act 2006 to annul the adjudication order made against him by the Court on 30 November 2023. Mr Tomar filed submissions dated 17 September 2024 in support of his application for annulment of the adjudication order.

[5] Ms Khatri filed submissions in opposition dated 24 September 2024 (also relying on her earlier submissions filed on 12 August 2024).

Procedural background

[6] The application by Ms Khatri for an adjudication order against Mr Tomar arises from a debt derived from a 20 January 2022 costs judgment of Judge D A Burns in the Family Court at Auckland (the Costs Judgment).2 The debt owed is $56,106.25 (the debt) being the scale costs calculated by Ms Khatri and accepted by the Judge, Mr Tomar providing no opposition to the calculation.3

1 Khatri v Tomar [2023] NZHC 3240.
2 Khatri v Tomar [2022] NZFC 423.
3 Above n 1, at [10].

[7] Ms Khatri served on Mr Tomar in accordance with the substituted service order4 a bankruptcy notice issued by this Court. Mr Tomar’s application to set aside the notice was declined by Associate Judge Gardiner on 30 March 2023 (Associate Judge Gardiner’s Judgment).5 She ordered Mr Tomar to comply by paying the debt by the end of 30 March 2023. Mr Tomar failed to do so.

[8] Ms Khatri then made an application for an adjudication order on 30 June 2023, Mr Tomar’s act of bankruptcy and the non-compliance with the Associate Judge’s order occurring on 31 March 2023, being within three months of that date. The Judgment made the following orders:

(a)Mr Tomar’s application for an order refusing the adjudication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khatri v Tomar

Details

AGLC: Khatri v Tomar [2024] NZHC 3217
Case: [2024] NZHC 3217
Decision Date: 6 November 2024

CaseChat Overview and Summary

The case of Khatri v Tomar involves a bankruptcy adjudication against Vin Tomar, the judgment debtor, and Monika Khatri, the judgment creditor. Tomar filed two applications: one to annul the adjudication order and another for leave to appeal the Court's judgment issued on 17 November 2023. The primary legal issue was whether the adjudication order should be annulled under section 309(1) of the Insolvency Act 2006, and if leave to appeal should be granted. Tomar's grounds for annulment included alleged abuses of the stay order, unfairness in the Family Court decision, misappropriation of funds, and inconsistent practices by the Auckland High Court. Khatri opposed both applications.

The court analyzed Tomar's arguments and found that they were based on previously determined issues. The stay order by Downs J was justified by Tomar's conduct and did not prevent Khatri from filing bankruptcy proceedings. Tomar's complaints about the Family Court judgment and the misappropriation of funds were also matters already decided by the court. Furthermore, Tomar's claims regarding inconsistent practices in the Auckland High Court were deemed unrelated to the annulment of the adjudication order. For the leave to appeal application, the court noted the high threshold required to grant leave and found no arguable errors of law or fact, nor any matters of public interest. Consequently, both applications were dismissed.

The final orders of the court were to dismiss Tomar's application to annul the adjudication order and his application for leave to appeal the Judgment. Additionally, Khatri was awarded costs in respect of all steps taken under schedule 3 of the High Court Rules after 1 September 2024, calculated at a rate of $500 per day.

Orders