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Khatri v Tomar

Khatri v Tomar

Case [2021] NZHC 3091 18 November 2021

Civil Litigation & Procedure

Family Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001138

[2021] NZHC 3091

UNDER the Senior Courts Act 2016

IN THE MATTER OF

Section 166 orders

BETWEEN

MONIKA KHATRI
Applicant

AND

VIN TOMAR

Respondent

Hearing: 1 November 2021

Appearances (via VMR):

Applicant in person Respondent in person

SP Jerebine counsel assisting the Court

Judgment:

18 November 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 18 November 2021 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
SP Jerebine, Auckland.

Copy to: Applicant and Respondent.

KHATRI v TOMAR [2021] NZHC 3091 [18 November 2021]

Is enough, enough?

[1] Monika Khatri was successful in the Family Court against her former husband, Vin Tomar. Mr Tomar was, at best, an especially difficult defendant. He filed dozens of meritless applications, which took time, money and effort to resist. Mr Tomar also brought three unsuccessful appeals to this Court. Related litigation is ongoing.

[2] Ms Khatri has had enough. She seeks an order banning Mr Tomar from commencing or continuing any civil proceedings against her. The applicable statute requires the person to be banned to have commenced or continued at least two or more totally unmeritorious proceedings. The primary question is whether Mr Tomar’s applications—all of which were brought in the context of litigation instigated by Ms Khatri—constitute “proceedings commenced or continued” by Mr Tomar. Ms Khatri is self-represented. So too Mr Tomar. Unsurprisingly, neither could add much to this question.

The background

[3]Ms Khatri and Mr Tomar married 27 April 2008. They have one son.

[4] Ms Khatri left Mr Tomar 12 December 2016. On the same day, Ms Khatri sought and obtained a temporary protection order; interim parenting order; and ancillary furniture order. Ms Khatri moved to Hamilton with their son. Mr Tomar remained in Auckland.

[5] On 11 August 2017, Judge D R Brown discharged the temporary protection order and made a final protection order.1

[6]On 13 December 2017, Ms Khatri applied for division of relationship property.

[7]On 21 May 2019, Mr Tomar applied for a parenting order in his favour.

[8] Judge A J Twaddle addressed this and other applications in a four-day hearing beginning 18 February 2020. On 19 March 2020, the Judge discharged the interim

1 Tomar v Tomar [2017] NZFC 6328.

parenting order and made a final parenting order. He held the son should remain in Ms Khatri’s daily care with Mr Tomar having contact at weekends and holidays.2 The Judge dismissed an application by Mr Tomar to discharge the protection order.

[9] On 20 March 2020, Judge D A Burns heard Ms Khatri’s application concerning relationship property. On 22 May 20203 and 20 May 2021,4 the Judge found largely in her favour.

[10] Mr Tomar appealed Judge Twaddle’s decision and both decisions of Judge Burns. Campbell J dismissed the former 27 May 2021.5 Lang J dismissed the other appeals 10 September 2021.6

[11] This précis omits Mr…

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 [2021] NZHC 3091
Case: [2021] NZHC 3091
Decision Date: 18 November 2021

CaseChat Overview and Summary

Monika Khatri sought an extended order under s 166 of the Senior Courts Act 2016, prohibiting her former husband, Vin Tomar, from bringing or continuing civil proceedings against her in the High Court, Family Court and Court of Appeal. Ms Khatri argued that Mr Tomar had brought at least two proceedings that were totally without merit. The Court examined whether Mr Tomar had commenced or continued at least two proceedings that were totally without merit. The Court found that five proceedings brought by Mr Tomar were totally without merit: (a) the application to ban Ms Khatri; (b) the two applications to enforce the interim parenting order; and (c) the applications of 29 December 2017 and 24 June 2019 to discharge the final protection order. While the Court found the threshold for an extended order was met, the Court did not exercise its discretion to make an extended order. Instead, the Court prohibited Mr Tomar from continuing all existing litigation in the High Court, bringing new proceedings in this Court, or filing applications of any sort in relation to Ms Khatri unless he paid her outstanding costs. The Court stayed Mr Tomar’s existing litigation in the High Court pending payment of the outstanding costs.

Orders