Sharma v Wati - [2022] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA141/2022
[2022] NZCA 583

BETWEEN	DEO DATT SHARMA Appellant
AND	NIRMALA WATI Respondent

Hearing:	31 October 2022
Court:	Gilbert, Venning and Mander JJ
Counsel:	Appellant in person R O Parmenter and A J H Witten-Hannah for Respondent
Judgment:	29 November 2022 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe order making the interim charging orders final is quashed and the interim charging orders are discharged.
CThe order that the appellant pay the respondent costs and disbursements of $11,616 is quashed and replaced with an order in the sum of $2,751.
DThe order directing the Registrar of the High Court at Auckland to pay the respondent $11,616 from the $21,000 paid into court by the appellant is quashed.
EThe order directing the Registrar to pay the balance of the $21,000 and all accrued interest to the appellant remains unaffected but is to be read as a reference to the existing balance presently held by the Registrar as at the date of this judgment.
FThe appellant is entitled to disbursements to be fixed by the Registrar.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

The separation of Dr Deo Sharma and Ms Nirmala Wati in August 2000 resulted in litigation that has been ongoing over more than two decades. Those proceedings, which commenced in the Family Court and spawned appeals and related applications to the High Court, this Court and the Supreme Court, resulted in various costs orders against Dr Sharma.
Dr Sharma now appeals a decision of the High Court granting Ms Wati’s application for orders that interim charging orders made in respect of three costs awards against Dr Sharma be made final and that funds held by the Registrar of that Court, deposited by Dr Sharma in relation to bankruptcy proceedings, be paid to satisfy the costs Ms Wati incurred in obtaining those interim charging orders.[1]

Background

The payment into court

[1]Wati v Sharma [2021] NZHC 3601 [Judgment under appeal].

In 2011, Dr Sharma paid $21,000 into the High Court. There is no dispute this step was taken by him in an attempt to “prove his solvency” after he was served with bankruptcy notices by Ms Wati in an endeavour to recover court costs.[2] This money has been held by the Registrar ever since. Dr Sharma’s status as the owner of these funds has been confirmed both by this Court and the Supreme Court.[3]

The three costs awards

[2]Wati v Sharma HC Auckland CIV-2008-404-6367, 9 March 2011 at [14].

[3]Sharma v Wati [2021] NZCA 220 at [7]; Sharma v Wati [2021] NZSC 107 [Supreme Court judgment] at [3].

The interim charging orders, the subject of Ms Wati’s application in the High Court, related to three separate costs judgments. The first of these awards was made by Jagose J on 2 July 2020 after he allowed an appeal by Ms Wati in relation to the enforcement of two Family…

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 Sharma v Wati

Details

AGLC: Sharma v Wati [2022] NZCA 583
Case: [2022] NZCA 583
Decision Date: 29 November 2022 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to determine an appeal brought by Dr Deo Sharma against a decision of the High Court which made final interim charging orders and directed the disbursement of certain funds held by the Registrar. The appeal relates to a long-running litigation between Dr Sharma and Ms Nirmala Wati which has resulted in various costs orders against Dr Sharma. The central issue before the Court of Appeal was whether the interim charging orders, which had been made in respect of three costs awards against Dr Sharma, could be made final even though the underlying debts had already been paid. The Court of Appeal held that interim charging orders made in respect of debts that have been paid cannot be made final for the purpose of attaching to new judgment debts in respect of which the interim orders were not originally made. The Court quashed the order making the interim charging orders final and discharged the interim charging orders. Additionally, the Court quashed the order for Dr Sharma to pay Ms Wati's costs and disbursements in the sum of $11,616 and replaced it with an order for him to pay $2,751. The Court also quashed the order directing the Registrar to pay Ms Wati from the funds held by the Registrar. The order directing the Registrar to pay the balance of the funds and all accrued interest to Dr Sharma remains unaffected.

Orders