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.

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 [2023] NZHC 2301
Case: [2023] NZHC 2301
Decision Date: 24 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Monika Khatri, the judgment debtor, and Vin Tomar, the judgment creditor, were involved in a dispute regarding a bankruptcy notice. The court had to consider two interlocutory applications by Mr Tomar, one to rescind and another to stay an order dismissing his application to set aside the bankruptcy notice. The primary legal issues were whether Mr Tomar's applications were properly grounded under the relevant rules and whether they constituted an abuse of process.

Associate Judge Gardiner began by examining Mr Tomar's application to rescind the order, noting that the relevant rules for rescinding orders were not applicable to substantive orders made in open court. The Judge found that Mr Tomar had failed to provide any specific grounds for his assertion that the order was fraudulently and improperly obtained. Additionally, the Judge highlighted that challenges to the legality of an order must be pursued through an appeal, not through a rescinding application. Moving to Mr Tomar's application for a stay, the Judge similarly found that it lacked any discernible grounds and was essentially a challenge to the merits of the judgment, which should be addressed through an appeal. The Judge concluded that both applications were plainly an abuse of the Court's process and were accordingly struck out under rule 7.42A.

The court's final order was 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 were to be struck out. This decision effectively dismissed Mr Tomar's attempts to challenge the earlier judgment through interlocutory means.

Orders