Khatri v Tomar

[2023] NZHC 3240

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1383

[2023] NZHC 3240

UNDER

the Insolvency Act 2006

BETWEEN

MONIKA KHATRI

Judgment Creditor

AND

VIN TOMAR

Judgment Debtor

Hearing:

6 November 2023

Appearances:

DeAnne Brabant for the Judgment Creditor Judgment Debtor is self-represented

(no appearance by the Judgment Debtor)

Judgment:

17 November 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for an adjudication order]

This judgment was delivered by me on 17 November 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:

Shieff Angland (DeAnne Brabant / Isaac Eustace-Smith), Auckland, for the Plaintiff

KHATRI v TOMAR [2023] NZHC 3240 [17 November 2023]

TABLE OF CONTENTS

PARAGRAPH

Introduction  [1]

Background  [2]

Ms Khatri’s application for adjudication  [5] Affidavit of Monica Khatri dated 30 June 2023  [7] Further affidavit of Monika Khatri dated 26 October 2023  [11]

Mr Tomar’s opposition  [17]

Mr Tomar’s various applications  [19]

Legal principles  [22]

Analysis  [30]

Ms Khatri’s submissions  [31]

Whether Mr Tomas can pay the debt over time or at all                   [32]

Whether it is pointless to adjudicate  [34]

Commercial morality and public interest  [37]

Whether adjudication is oppressive  [44]

Mr Tomar’s opposition  [45]

Abuse of statutory power by the Court and its staff against me by accepting defective and abuse documents from Ms Khatri

on 30 June 2023  [46]

Costs order being used to declare me bankrupt is unlawful              [51]

([2022] NZFC 423)

Counterclaims related to the Court order  [54] ([2022] NZFC 423).

Conclusion in respect of Mr Tomar’s opposition  [57]

Result  [58]

Orders  [59]

Introduction

[1]                  Monika Khatri (Ms Khatri) seeks an order that Vin Tomar (Mr Tomar), her former husband, be adjudicated bankrupt.

Background

[2]                  This application arises for a debt derived from a 20 January 2022 costs judgment of Judge D A Burns in the Family Court at Auckland (the Judgment).1 The debt owed is $56,106.25 (the debt), being scale costs calculated by Ms Khatri and accepted by the Judge, with Mr Tomar providing no opposing calculation.2

[3]                  Ms Khatri served on Mr Tomar, in accordance with a substituted service order,3 a bankruptcy notice dated 16 August 2022, and the minute allowing substituted service, on Mr Tomar on 14 September 2022. Mr Tomar’s application to set aside the notice was declined by Associate Judge Gardiner on 30 March 2023.4 She ordered Mr Tomar comply by paying the debt by the end of 30 March 2023.5 Mr Tomar failed to do so.

[4]                  Ms Khatri made the present  adjudication  application  on  30  June  2023,  Mr Tomar’s act of bankruptcy, the noncompliance with the Associate Judge’s order occurring on 31 March 2023, being within three months of that date. This judgment determines that application.

1      Khatri v Tomar [2022] NZFC 423.

2 At [10].

3      Khatri v Tomar CIV-2022-404-1383, 13 September 2022 (Minute of Associate Judge Gardiner) at [3]; Affidavit on Monika Khatri as to substituted service on judgment debtor…