Khatri v Tomar

[2023] NZHC 2301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001383

[2023] NZHC 2301

BETWEEN

MONIKA KHATRI

Judgment Debtor

AND

VIN TOMAR

Judgment Creditor

Hearing:	On the papers
Judgment:	24 August 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

[applications to rescind and stay]

This judgment was delivered by me on 24 August 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

D Brabant, Wellington

Copy to: V Tomar, Auckland

KHATRI v TOMAR [2023] NZHC 2301 [24 August 2023]

[1]                 On 30 March 2023 I delivered a judgment dismissing Vin Tomar’s application to set aside a bankruptcy notice served on him by Monika Khatri.1 That day Mr Tomar filed:

(a)an appeal against that decision with the Court of Appeal;2

(b)an interlocutory application to rescind the order made in the judgment; and

(c)an interlocutory application to stay the order made in the judgment.

[2]This judgment deals with the interlocutory applications filed in this Court.3

Application to rescind

[3]                 Mr Tomar applies to rescind the order under rr 7.50 and 7.51 of the High Court Rules 2016. His stated grounds are that:

(a)the order made in the judgment was fraudulently and improperly obtained by Ms Khatri; and

(b)the order was unlawful and made in error.

[4]                  He relies on his earlier affidavits filed during the proceeding in September, November, and December 2022.

[5]                 Mr Tomar cannot apply to rescind the order under r 7.50, as that rule concerns orders or directions relating to the management of a proceeding made by a Judge in chambers. An order on an application to set aside a bankruptcy notice is not an order relating to the management of a proceeding and nor is it made in chambers. An application to set aside a bankruptcy notice is heard in open Court and a decision that disposes of the application is substantive in nature.

1      Khatri v Tomar [2023] NZHC 684.

2      Tomar v Khatri [NZHC] NZCA 280.

3      There has been some delay dealing with the applications due in part to confusion about whether Mr Tomar had paid the required filing fees or been granted a fee waiver.

[6]                 Rule 7.51 provides that a Judge may rescind any order that has been fraudulently or improperly obtained. This rule exists to prevent intentional or innocent misuse of the Court’s processes.4 Like r 7.50, this rule is concerned with interlocutory orders. An order dismissing an application to set aside a bankruptcy notice is not an interlocutory order. Consistent with that, leave is not required to appeal the Court’s decision on an application to set aside under s 56(3) of the Senior Courts Act 2016.5

[7]                 Even if r 7.51 applies, Mr Tomar does not set out any grounds for why he considers the order was fraudulently and improperly obtained by Ms Khatri. Further, he does not provide any evidence to support this allegation beyond referring to affidavits he filed for the bankruptcy notice hearing.

[8]                 Rule 7.42A of the High Court Rules provides that if a Judge considering an interlocutory application is satisfied that the application is plainly an abuse of the process of the Court the Judge may, on their own initiative, make an order to ensure that the interlocutory application is disposed of in a way compliant with the rules, including make an order under r 15.1 that the application is struck out.6 This rule is consistent with the Court’s inherent power to prevent an abuse of process by striking out an interlocutory application.7 There is no obligation to give affected parties an opportunity to be heard as r 7.43(3) of the High Court Rules is expressly disapplied by r 7.42A(3).

[9]                 It is an abuse of process of the Court to file a proceeding that does not set out any discernible cause of action or grounds.8 By analogy, it is an abuse of process of the Court to file an interlocutory application that does not set out any discernible grounds for the order sought. Mr Tomar’s interlocutory application does not set out any discernible grounds for rescinding the order under r 7.51 on the basis that it was fraudulently and improperly obtained.

4      Yang v Ko HC Auckland CIV-2005-404-4583, 31 July 2007 at [24].

5      Prescott v Police [2017] NZHC 2701 at [9].

6      Associate Judges have the jurisdiction and powers of a Judge in chambers under rr 2.1 of the High Court Rules 2016. Interlocutory applications, aside from applications for summary judgment, are heard in chambers: rr 7.34 and 7.36.

7      Siemer v Stiassny [2011] NZCA 466 at [6]; Tamihere v Commissioner of Inland Revenue No.2

[2018] NZHC 266 at [7]; and Gower v FTG Securities Ltd [2020] NZHC 1105 at [15].

8      See Tranter v Manager Telstra Clear NZ Ltd [2022] NZHC 456 at [13].

[10]              Nor does the claim that the order was unlawful or made in error present a discernible ground for rescinding the order under r 7.51. A challenge of that nature must be pursued through an appeal.

[11]              I am satisfied therefore that the interlocutory application is plainly an abuse of process of the Court and that it should be struck out under r 7.42A. I consider that it would be manifestly unfair to Ms Khatri to require her to respond to the interlocutory application. Further, that right-thinking people would consider the Court was exercising poor control of its processes if it permitted the application to proceed further.9

Application for a stay

[12]              Mr Tomar applies to stay the order dismissing his application to set aside the bankruptcy notice served on him by Ms Khatri.

[13]              As to why the order should be stayed, Mr Tomar simply states that the order has been made in error and unlawfully. He again refers to all the affidavits he has filed in this proceeding to date.

[14]              The application fails to set out any discernible ground for a stay. Rather, it appears to be a challenge to the merits of the judgment which can only be pursued though an appeal.

[15]              For the same reasons as those given at [11] I am satisfied that this application is plainly an abuse of the Court and should be struck out under r 7.42A.

9      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [33].

Result

[16]              I order that Mr Tomar’s interlocutory applications to rescind and stay the order dismissing his application to set aside the  bankruptcy  notice  served  on  him  by Ms Khatri are struck out.

Associate Judge Gardiner