Khatri v Tomar
[2023] NZHC 684
•30 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001383
[2023] NZHC 684
BETWEEN MONIKA KHATRI
Judgment Creditor
AND
VIN TOMAR
Judgment Debtor
Hearing: 21 March 2023 Appearances:
D Brabant and B Bycroft for the Judgment Creditor No appearance by the Judgment Debtor
Judgment:
30 March 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 30 March 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Shieff Angland, Auckland Copy to: V Tomar
KHATRI v TOMAR [2023] NZHC 684 [30 March 2023]
Introduction
[1] Monika Khatri served a bankruptcy notice on Vin Tomar, her former husband. The bankruptcy notice demanded that Mr Tomar pay Ms Khatri $56,106.25 under an order for costs made by Judge D A Burns in the Family Court following proceedings between them under the Property (Relationships) Act 1967.1 Mr Tomar applies to set aside the bankruptcy notice.
[2] The main issues are whether Mr Tomar has a cross claim against Ms Khatri for an amount of money equal to or greater than the costs order; or whether any of the other grounds advanced by Mr Tomar justify the bankruptcy notice being set aside.
The other grounds advanced by Mr Tomar are that:2
(a)Mr Tomar was not served with Ms Khatri’s application for substituted service of the bankruptcy notice;
(b)the order that the bankruptcy notice could be served by affixing it to the house of a ‘third party’ was unlawful;
(c)the bankruptcy notice is an abuse of process;
(d)the costs order is unlawful; and
(e)the costs order has been paid.3
[4] It is also necessary to consider the relevance of several interlocutory applications and memoranda filed by Mr Tomar.
1 Khatri v Tomar [2022] NZFC 423 [Costs judgment].
2 Interlocutory application to set aside bankruptcy notice of Monika Tomar dated 16 August, filed 29 September 2022.
3 Memorandum of Vin Tomar dated 14 March 2023.
Procedural background
[5] On 22 May 2020, the Family Court issued a judgment dealing with classification and division of Ms Khatri and Mr Tomar’s relationship property.4 Nearly a year later, on 20 May 2021, the Family Court issued a further judgment addressing various interlocutory matters raised by Mr Tomar.5
[6] Mr Tomar appealed to the High Court against the two Family Court judgments. The High Court dismissed the appeals6 and declined an application for leave for a second appeal to the Court of Appeal.7 Mr Tomar sought leave to appeal from the Court of Appeal, but this application was dismissed.8 Mr Tomar then applied to the Supreme Court for leave to appeal the decision of the Court of Appeal. This application was also dismissed.9
[7] On 28 June 2021, Ms Khatri filed an application in this Court for an order under s 166 of the Senior Courts Act 2016 banning Mr Tomar from commencing or continuing civil proceedings against her. The application was based on the many interlocutory applications filed by Mr Tomar in the Family Court, his four separate applications for judicial review of the Family Court, and his own application to ban Ms Khatri from commencing or continuing civil proceedings against him. Downs J dismissed Ms Khatri’s application because it was not beyond doubt that Mr Tomar had commenced two or more meritless proceedings (as opposed to interlocutory applications).10 However, exercising the inherent power of the Court to control its own proceedings, he prohibited Mr Tomar from continuing all existing litigation in the High Court, from bringing new proceedings in the Court involving Ms Khatri, and from filing applications in relation to any such litigation, until he first paid outstanding
4 Tomar v Tomar [2020] NZFC 2960 per Judge D A Burns [Substantive Family Court judgment].
5 Tomar v Tomar [2021] NZFC 4666 per Judge D A Burns [Family Court interlocutory application proceeding].
6 Tomar v Tomar [2021] NZHC 2353 [HC appeal].
7 Tomar v Tomar [2021] NZHC 3003 [HC application for leave to advance a second appeal]
8 Tomar v Tomar [2022] NZCA 28 [CA application for leave to appeal]; Tomar v Tomar [2022] NZCA 85 [CA application for recall judgment] (application declined).
9 Tomar v Tomar [2022] NZSC 84 [SC application for leave to appeal].
10 Khatri v Tomar [2021] NZHC 3091 [Section 166 application judgment].
costs to Ms Khatri of $95,998.15.11 Downs J stayed all of Mr Tomar’s existing litigation in the High Court.12
[8] In the meantime, on 20 January 2022, the Family Court ordered Mr Tomar to pay Ms Khatri costs of $56,106.25 from the relationship property proceeding (costs judgment).13 The order was sealed on 21 January 2022 (costs order).
[9] Mr Tomar did not file an appeal against the costs judgment or apply for a stay of execution of the costs order.
[10] Ms Khatri requested and was issued a bankruptcy notice from this Court for the costs order, on 16 August 2022. The notice required Mr Tomar to pay the costs order or enter into a formal agreement with Ms Khatri to pay, or satisfy the Court that Mr Tomar has a cross claim against Ms Khatri that equals or exceeds the costs order.14 The bankruptcy notice was served on Mr Tomar under an order for substituted service.15
[11] On 29 September 2022, Mr Tomar filed an interlocutory application to set aside the bankruptcy notice. This was accompanied by an affidavit in support.16
[12] The application received its first call on 17 November 2022 and was set down to be heard on 21 March 2023.17 Mr Tomar was directed to file any affidavit evidence in reply by 2 December 2022 and to file his submissions 10 working days before the hearing. Mr Tomar did not comply with that timetable, filing an affidavit on 16 December 2022 and later, on 8 March 2023, applying to adjourn the hearing. He also filed several other interlocutory applications. In support of his application to adjourn the hearing Mr Tomar argued that his interlocutory applications needed to be dealt with before his application to set aside the bankruptcy notice could be heard.
11 Section 166 application judgment, above n 10 at [63].
12 Section 166 application judgment, above n 10 at [63].
13 Costs judgment, above n 1.
14 Bankruptcy Notice dated 16 August 2022.
15 Khatri v Tomar HC Auckland CIV-2022-404-1383, 13 September 2022 per Associate Judge Gardiner.
16 Affidavit of Vin Tomar affirmed 29 September 2022.
17 Khatri v Tomar HC Auckland CIV-2022-404-1383, 18 November 2022 per Associate Judge Gardiner.
[13] On 15 March 2023, Wylie J declined to adjourn the hearing and directed that submissions were to be filed and served simultaneously by 5.00 pm on 17 March. Mr Tomar did not comply with that direction. Instead, he filed two memoranda concerning an “error by the High Court”. In these memoranda he states that he has filed an application for leave to appeal and to stay the setting down of his application to set aside the bankruptcy notice for a hearing. He states that as Ms Khatri has not filed a notice of opposition to this application, it is unopposed. Referring to r 7.37 of the High Court Rules 2016, he says this means it would be unlawful and wrong for the hearing to proceed. In a second memorandum, Mr Tomar states that he has filed and served an application for leave to appeal the directions made by Wylie J.
[14] It was clear from Wylie J’s minute that the hearing would proceed on 21 March, and that the onus was on Mr Tomar to show the Court why the bankruptcy notice should be set aside and why the interlocutory applications he has filed have a bearing on that issue. His Honour said:18
[4] Having heard from counsel and Mr Tomar, I am satisfied that it is not appropriate to adjourn the hearing on 21 March next. Ms Khatri is entitled to have the matter heard and it will be for Mr Tomar to persuade the judicial officer hearing the application that the interlocutory applications he has filed are relevant and, as a consequence, that the bankruptcy notice should either be stayed or set aside.
[5] Submissions have not been filed. Mr Tomar claims that he cannot do so. I am not persuaded that that assertion is correct. As I have explained, it is Mr Tomar’s application, and the onus will be on him to show why the bankruptcy notice should be set aside and why the interlocutory applications he has filed have some bearing on that issue. He will also have to address the relevant provisions in the Insolvency Act.
[6] I direct that submissions are to be filed and served simultaneously on or before 5.00 pm on Friday, 17 March 2023. The application to set aside the notice will proceed to hearing at 10.00 am on Tuesday, 21 March next.
[15] Mr Tomar did not file any written submissions or appear at the hearing. Consequently, his application to set aside the bankruptcy notice was heard in his absence, having regard to the documents he had already filed, namely his interlocutory application to set aside the bankruptcy notice and his affidavits.
18 Khatri v Tomar HC Auckland CIV-2022-404-1383, 15 March 2023 per Wylie J.
Legal principles – setting aside a bankruptcy notice
[16] Section 17 of the Insolvency Act 2006 (the Act) provides that a debtor commits an act of bankruptcy if:
(a)a creditor has obtained a final judgment or final order against the debtor for any amount; and
(b)the debtor has been served with the bankruptcy notice; and
(c)the debtor has not, within 10 working days after the date of service of that notice (if served in New Zealand):
(i)complied with the requirements of the notice; or
(ii)satisfied the court that they have a cross claim against the creditor.
[17] Rule 24.10 of the High Court Rules 2016 extends the time for compliance until an application to set aside the bankruptcy notice has been determined, where a valid application has been made within the 10 working day limit.19
[18] To have the bankruptcy notice set aside, the debtor must satisfy the Court that they have a genuine, triable cross claim (a counterclaim, set-off or cross-demand) that is equal to or greater than the judgment debt or amount the debtor has been ordered to pay; that could not have been used as a defence in the action in which the relevant judgment was given.20
[19] The Court of Appeal approved this test in Sharma v ANZ Banking Group (NZ) Ltd,21 and reaffirmed it in Robertson v ASB Bank Ltd,22 with a slight qualification
19 High Court Rules 2016, r 24.10 and sch 1(B2).
20 Insolvency Act 2006, s 17(7); and Clark v UDC Finance Ltd [1985] 2 NZLR 636 (HC) at 637.
21 Sharma v ANZ Banking Group (NZ) Ltd (1992) 6 PRNZ 386 (CA) at 389.
22 Robertson v ASB Bank Ltd [2014] NZCA 597 at [19].
stating that “the better approach is to consider objectively whether it can be said a genuine ‘triable’ cross claim exists on the facts as they now stand.”23
[20]The Court in Robertson held:24
(a)the onus is on the debtor to show that they have a genuine triable cross claim;
(b)the debtor must show a genuine triable claim in terms of both liability and quantum;
(c)not only the existence of a cross claim must be established, but also that it is equal to or greater than the judgment debt, and could not have been used as a defence in the proceeding of which the judgment was entered;
(d)the summary nature of the procedure is wholly unsuitable for the determination of disputed questions of fact;
(e)the Court need not accept uncritically, evidence that is inherently lacking in credibility, for example where it is inconsistent with contemporary documents, or inherently improbable.
[21] Before addressing the issue of whether Mr Tomar has a genuine triable cross claim, I consider the relevance of the interlocutory applications he has filed.
Mr Tomar’s interlocutory applications
[22] Since being served with the bankruptcy notice Mr Tomar has filed no less than eight interlocutory applications, besides his application to set aside the bankruptcy notice. These are:
(a)An application to rescind the minute in which the order for substituted service of the bankruptcy notice was made.25
23 Robertson v ASB Bank Ltd, above n 22 at [26-27].
24 Robertson v ASB Bank Ltd, above n 22 at [22] and [32].
25 Filed 29/09/22.
(b)An application to stay the order for substituted service of the bankruptcy notice.26
(c)An application27 to rescind the decision of Woolford J determining that Mr Tomar’s interlocutory application to set aside the bankruptcy notice does not fall within the terms of the order of Downs J and granting Ms Khatri an extension of time to file a notice of opposition.28
(d)An application to consolidate and stay this proceeding with two of his applications for judicial review.29
(e)An application for leave to use previous statements of fact made by Ms Khatri during the hearing of Mr Tomar’s appeal against the judgment of the Family Court.30
(f)An application for various orders, including leave to join the Crown, an extension of time to apply for leave to appeal the order for substituted service of the bankruptcy notice on the grounds that it offended the stay ordered by Downs J, leave to appeal or stay the same order and the direction setting down the application to set aside for a hearing, and leave to use previous statements of fact made by Ms Khatri.31
(g)An application to adjourn this hearing.32
(h)An application for leave to appeal and stay the directions of Wylie J.33
[23] Mr Tomar has also filed seven unsolicited memoranda covering matters including “errors by the High Court”, discovery, the status of funds from the sale of the relationship property, and evidence given by Ms Khatri in the Family Court. He
26 Filed 29/09/22.
27 Filed 25/10/22.
28 Khatri v Tomar HC Auckland CIV-2022-404-1383, 17 October 2022 per Woolford J.
29 Filed 11/11/22.
30 Filed 29/11/22.
31 File 15/12/22.
32 File 8/03/23.
33 File 15/03/23.
has filed two ‘Notices to Admit Facts’ served on Ms Khatri which require her to admit facts which relate to the substantive Family Court judgment and Lang J’s High Court judgment.
[24] Mr Tomar’s filing of numerous, irrelevant applications and memoranda is reminiscent of his behaviour in the Family Court and in this Court before his other proceedings were stayed. This pattern of behaviour led Downs J to observe:34
The history mirrors, albeit on a much smaller scale, what happened in the Family Court in relation to Ms Khatri’s [Family Court] proceedings. Rather than addressing the merits, Mr Tomar brought needless, meritless applications; including applications for adjournments; relitigated points determined against him, as if rulings were not binding; and in turn, caused unnecessary expense and delay.
(Emphasis added).
[25] Ms Brabant, for Ms Khatri, asks the Court to strike out Mr Tomar’s applications as irrelevant to the bankruptcy notice and an abuse of process. She says that Ms Khatri cannot be expected to file notices of opposition to the numerous irrelevant applications filed by Mr Tomar. As it has been unclear to Ms Khatri whether the applications have been accepted for filing by the Court, she has not filed notices of opposition to them, but asks for leave to do so if they have been accepted.
[26] At the first call of this application, I dismissed three of the four interlocutory applications, those described at [22] (a), (b) and (d), that Mr Tomar had filed by that stage.35 I directed that the application described at (c) be referred to Woolford J. I also directed that the Registry was to refer any further purported interlocutory applications filed by Mr Tomar to a Judge before they were accepted for filing. It appears that the latter two directions were overlooked.
[27] From what I can discern, at the heart of most these applications is Mr Tomar’s mistaken belief that Ms Khatri’s bankruptcy notice breaches the orders of Downs J. Consequently, he believes that the directions made concerning service of the bankruptcy notice, permitting Ms Khatri an extension of time to file a notice of
34 S 166 application judgment, above n 10 at [23].
35 Khatri v Tomar HC Auckland CIV-2022-404-1383, 18 November 2022 per Associate Judge Gardiner.
opposition to Mr Tomar’s application to set aside, setting down his application for a hearing, and refusing an adjournment of that hearing, also offend the orders of Downs J.
[28] Mr Tomar has misunderstood the position. Downs J prohibited Mr Tomar from commencing or continuing proceedings in this Court involving Ms Khatri. He also stayed all of Mr Tomar’s existing proceedings. These orders did not prevent Ms Khatri from requesting the Court to issue a bankruptcy notice. Further, as Woolford J determined, the orders did not prevent Mr Tomar from applying to set aside that notice, because such an application does not relate to a proceeding commenced by Mr Tomar (as the bankruptcy proceeding was commenced by Ms Khatri).
[29] Turning to Mr Tomar’s remaining applications, as I have just explained, the application to rescind the directions of Woolford J misapprehends Downs J’s orders. The applications for leave to appeal my direction setting down the hearing and the directions of Wylie J refusing an adjournment are misconceived, as procedural directions of this kind are not amenable to appeal. In any case, they serve no purpose as the hearing has now taken place.
[30] The application for leave to use statements of fact made by Ms Khatri is unnecessary: Mr Tomar can rely on factual evidence referred to in the judgments of the Family Court or this Court, without leave. The related Notices to Admit Facts are similarly unnecessary.
[31] The application for an order joining the Crown is completely without merit: this proceeding is between Ms Khatri and Mr Tomar; and concerns Mr Tomar’s failure to pay the costs order.
[32] For these reasons, Mr Tomar’s outstanding interlocutory applications are dismissed.
[33] Mr Tomar’s repeated filing of irrelevant and unmeritorious interlocutory applications, memoranda and notices must stop. This behaviour creates an unacceptable burden on the resources of the Court. It is also wrong that Ms Khatri
should have to respond to these continuous filings. At the end of this judgment, I make a further direction to manage this issue.
[34] I now turn to the main issue in this case: whether Mr Tomar has a cross claim against Ms Khatri that equals or exceeds the costs order. After considering that issue I will turn to the other grounds for setting aside the bankruptcy notice advanced by Mr Tomar in his application to set aside his affidavits filed in support.
Does Mr Tomar have a cross claim?
[35] As noted, to have the bankruptcy notice set aside, Mr Tomar must satisfy the Court that he has a cross claim, meaning a counterclaim, set-off or cross-demand for a sum of money that is equal to, or greater than, the costs order.
[36] Mr Tomar does not assert that he has a cross claim in his application to set aside the bankruptcy notice, or his affidavits. Rather, he refers to five pending proceedings against Ms Khatri in this Court “where she and the Family Court in Auckland have unlawfully sold two of my separate properties valued at
$3 million.” The CIV numbers he lists correspond to his four applications for judicial review of the determinations of the Family Court,36 and his application for an order banning Ms Khatri from commencing or continuing civil proceedings against him under s 166 of the Senior Courts Act 2016.37
[37] These proceedings are not ‘cross claims’ within the meaning of s 17 of the Act. The counterclaim, set-off or cross-demand must be “something sounding in money.”38 Furthermore, it must be a genuine, triable claim. The Court considers “whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue.”39
36 Tomar v Family Court, CIV-2021-404-985; Tomar v Family Court, CIV-2021-404-1216; Tomer v Family Court, CIV-2021-404-1252; and Tomar v Henshall CIV-2021-404-1837.
37 Tomar v Tomar, CIV-2021-404-1753.
38 Vogwell v Vogwell [1939] 11 ABC 83 (HLA) at 85, as quoted by the Court of Appeal in Robertson v ASB Bank Ltd [2018] NZCA 597 at [23].
39 Vogwell v Vogwell, above n 38 at 85.
[38] Mr Tomar’s applications for judicial review and for s 166 orders are not ‘money claims’ where the available relief is an award of money to Mr Tomar that would meet or exceed the costs order.
[39] Even if they were cross claims, they cannot be considered ‘triable’ because they are indefinitely stayed according to the order of Downs J. On 1 December 2021, Jagose J confirmed that Mr Tomar’s four judicial review proceedings were stayed until he paid Ms Khatri’s costs.40
[40] I understand that Mr Tomar has recently applied to recall para [61] of the judgment of Downs J, and to appeal the judgment. Mr Tomar is well out of time to appeal the judgment and a recall seems unlikely.
[41] For these reasons Mr Tomar has not satisfied me that his existing proceedings in this Court represent a cross claim to Ms Khatri’s bankruptcy notice in terms of s 17 of the Act.
Substituted service of the bankruptcy notice
[42] In his application to set aside Mr Tomar advances two grounds relating to the orders for substituted service. First, that he was not served with Ms Khatri’s ‘without notice’ interlocutory application for orders for substituted service.41 Second, that the order to affix the bankruptcy notice to the front door of the property of a ‘third party’ was unlawful.42
[43] Mr Tomar previously filed an interlocutory application to rescind and stay the orders for substituted service, relying on these grounds.43 As noted, I determined that application when I set down Mr Tomar’s application to set aside for a hearing.44 As I
40 Tomar v Family Court HC Auckland CIV-2021-404-985, 1 December 2021 per Jagose J (Applies to Tomar v Family Court, CIV-2021-404-1216; Tomar v Family Court, CIV-2021-404-1252; and Tomar v Henshall, CIV-2021-404-1837)
41 Dated 29 August 2022.
42 Khatri v Tomar HC Auckland CIV-2022-404-1383, 13 September 2022 per Associate Judge Gardiner.
43 Interlocutory application to rescind the minute of Associate Judge Gardiner dated 13 September 2022, filed 29 September 2022; and interlocutory application for stay order on the minute of Associate Judge Gardiner dated 13 September 2022, filed 29 September 2022.
44 Khatri v Tomar HC Auckland CIV-2022-404-1383, 18 November 2022 per Associate Judge Gardiner.
said then, it is not necessary to serve an interlocutory application for orders for substituted service on the party to be served.45 An application of this kind under r 6.8 of the High Court Rules 2016 is by definition a ‘without notice’ application. That is because the very reason a plaintiff applies for an order for substituted service is that, despite reasonable efforts, they have been unable to promptly effect personal service.
[44] Ms Khatri affirmed an affidavit in support of her application for orders for substituted service, in which she detailed the attempts made by process servers to personally serve Mr Tomar. She sought orders that the bankruptcy notice could be served by email to various addresses used by Mr Tomar. I ordered that additionally, the bankruptcy notice should be affixed to the front doors of two houses. One was Mr Tomar’s usual place of residence and the other was understood to be his brother’s house, where Mr Tomar was believed to be staying as process servers had seen him there more than once.46
[45] The object of the order for substituted service was to bring the bankruptcy notice promptly to the attention of Mr Tomar so that he could respond to it if he wished. As he filed an interlocutory application to set aside the bankruptcy notice within the statutory timeframe, it can be inferred that the order achieved that objective.
[46] I conclude, again, that there is nothing in the two points Mr Tomar raises concerning service of the bankruptcy notice.
Was the costs order unlawful and bankruptcy notice an abuse of process?
[47] In his application to set aside, Mr Tomar says that the bankruptcy notice is an abuse of process. He does not say why. He also says that the costs order is ‘unlawful’ as he has five pending proceedings against Ms Khatri in this Court. I consider these two related grounds together. I understand Mr Tomar’s argument to be that the costs order is unlawful in view of his five existing proceedings and that consequently the bankruptcy notice based on the costs order is an abuse of process.
45 At [4].
46 Affidavit of Monika Khatri affirmed 29 August 2022.
[48] These objections do not provide grounds to set aside the bankruptcy notice. Mr Tomar’s (stayed) judicial review and s 166 proceedings in this Court do not render the costs order unlawful. A costs order, once given, is final.47 There is no suggestion that execution of the costs order has been stayed.
[49] Mr Tomar did not seek to appeal the costs order when it was made. I am told by Ms Brabant that he attempted to file a notice of appeal against the costs order in this Court, on 1 February 2023, but this was refused for filing. Any attempt to secure leave to appeal the costs order is severely out of time. Even if Mr Tomar is given leave to appeal the costs order, the status of the costs order as a final, enforceable order remains unless and until it is overturned.
[50] The costs order was made following the substantive judgment in the Family Court dealing with classification and division of Ms Khatri and Mr Tomar’s relationship property.48 Mr Tomar has exhausted all his appeal rights concerning the Family Court judgment.
[51] Accordingly, there is no basis for the claim that the bankruptcy notice is an abuse of process. It is based on a final order of the Family Court, the execution of which has not been stayed. Mr Tomar did not pay the costs order and after seven months Ms Khatri sought a bankruptcy notice. Ms Khatri is entitled to enforce the costs order in this way.
[52] The Court may consider Mr Tomar’s existing proceedings relevant in any subsequent application to adjudicate Mr Tomar bankrupt, as the Court has a wide discretion under ss 36 and 37 of the Act. That discretion permits the Court to decide not to adjudicate a debtor bankrupt on ‘just and equitable’ grounds despite them having committed an act of bankruptcy. But the Court is not considering an application to adjudicate Mr Tomar bankrupt now, it is simply deciding whether the bankruptcy notice should be set aside.
47 Re Hair, ex parte Schmidt [2014] NZHC 2476 at [7] citing Re Sigglekow, ex parte Turner [2012] NZHC 3334.
48 Substantive Family Court judgment, above n 4.
Has the costs order been paid?
[53] Mr Tomar raises a further objection in a memorandum filed in support of his recent application for an adjournment of the hearing.49 He states that he has recently discovered that Ms Khatri has been paid $720,000 from the Family Court, meaning she was paid the sum specified in the bankruptcy notice before it was issued.
[54] Mr Tomar is mistaken. This payment to Ms Khatri represents her share of their relationship property according to the orders of the Family Court, as upheld by this Court. The Family Court ordered the sale of two matrimonial homes and for the proceeds to be held in the trust account of the Court-appointed solicitor, Mr Snedden.50 Nearly two years later, once Mr Tomar’s appeal rights were exhausted, Ms Khatri’s counsel and Mr Snedden filed a joint memorandum seeking an order that Mr Snedden should disburse the funds to Ms Khatri to implement the orders of the Family Court.51 On 2 May 2022, Judge Burns directed that the funds be disbursed to Ms Khatri accordingly.52 I note that Mr Tomar is recorded as an appearance in the Chambers minute recording this direction.
[55] The release of these funds to Ms Khatri does not represent payment of the costs order, but rather Ms Khatri receiving her share of the relationship property as determined by the Family Court.
Result
[56] Mr Tomar has not satisfied me that he has a genuine, triable cross claim equal to or greater than the costs order. The other grounds he advances do not provide a basis for the bankruptcy notice to be set aside.
[57] Accordingly, Mr Tomar’s application to set aside the bankruptcy notice is dismissed.
49 Dated 14 March 2023.
50 Substantive Family Court judgment, above n 4 at [6].
51 Dated 11 April 2022.
52 Khatri v Tomar Auckland Family Court, FAM-2018-004-000053, 2 May 2022 per Judge D A Burns (In Chambers).
[58] If the costs order remains unpaid at the end of today, Mr Tomar will have committed an act of bankruptcy entitling Ms Khatri to file proceedings to have him adjudicated bankrupt.
[59] In terms of costs, as the successful party Ms Khatri is entitled to her reasonable disbursements (Ms Khatri being represented on a pro bono basis). Accordingly, Ms Khatri will be paid her disbursements of $510.
[60]Finally, I make the following procedural orders:
(a)Ms Khatri is permitted to serve Mr Tomar at the email address he uses for communications with this Court and her counsel;
(b)the Registry is not to accept any documents for filing from Mr Tomar in this proceeding before checking with a Judge or Associate Judge that they properly relate to issues in this proceeding and are not otherwise an abuse of process of the Court.
Associate Judge Gardiner
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