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Khatri v Tomar

Khatri v Tomar

Case [2023] NZHC 684 30 March 2023

Civil Litigation & Procedure

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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…

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 684
Case: [2023] NZHC 684
Decision Date: 30 March 2023

CaseChat Overview and Summary

Monika Khatri, the judgment creditor, applied for a bankruptcy notice against Vin Tomar, the judgment debtor, who was ordered to pay her $56,106.25 in costs pursuant to an order made by the Family Court. Tomar applied to set aside the bankruptcy notice on several grounds, including that he had a cross claim against Khatri for an amount equal to or greater than the costs order. The court considered whether Tomar had a genuine triable cross claim and dismissed his application to set aside the bankruptcy notice. The court found that Tomar's existing proceedings against Khatri did not represent a cross claim as they were not money claims and were indefinitely stayed. The court also found that the costs order was lawful and that the bankruptcy notice was not an abuse of process. The court ordered that Khatri is to be paid her reasonable disbursements and directed that the registry is not to accept any documents for filing from Tomar in this proceeding before checking with a judge that they properly relate to issues in this proceeding and are not otherwise an abuse of process of the court.

Tomar's application to set aside the bankruptcy notice was dismissed, and if the costs order remains unpaid, Tomar will have committed an act of bankruptcy entitling Khatri to file proceedings to have him adjudicated bankrupt. The court also made a procedural order that Khatri is permitted to serve Tomar at the email address he uses for communications with the court and her counsel.

Orders