Sharma v Wati - [2021] NZCA 220

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA506/2020
[2021] NZCA 220

BETWEEN	DEO DATT SHARMA Applicant
AND	NIRMALA WATI Respondent

Court:	Kós P, Gilbert and Courtney JJ
Counsel:	Applicant in person R O Parmenter for Respondent
Judgment: (On the papers)	31 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal is declined.
BThe applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Dr Sharma and Ms Wati separated in 2000. They seem to have been embroiled in litigation ever since. Costs orders have been made against Dr Sharma. Together with interest, they exceed $39,900. He has not paid a cent.[1]
[1]Wati v Sharma [2020] NZHC 2010 at [1] and [5] [Decision under appeal].
Ms Wati then sought leave to place charging orders against Dr Sharma’s share of the family home, to secure the costs he owes her. Downs J granted her application.[2]
[2]At [24].
Dr Sharma filed an appeal. However, he failed to file his case on appeal within time. He was only two days late, but the rule is precise: his appeal was deemed abandoned.[3] Ms Wati applied for costs on the abandoned appeal. Dr Sharma has now applied for an extension of time to file the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005.

Discretion to revive

[3]Court of Appeal (Civil) Rules 2005, r 43(1).

This Court may grant an extension of time to file a case on appeal under r 43(2) of the Court of Appeal (Civil) Rules. The same principles set out by the Supreme Court in Almond v Read in relation to applications for extensions of time to appeal under r 29A apply equally to r 43 applications.[4] Therefore, the ultimate question when considering the exercise of the discretion to extend time is what the interests of justice require. Relevant factors include the length of the delay, the reasons for the delay, the conduct of the parties, particularly of the applicant, any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome and the significance of the issues raised by the proposed appeal, both to the parties and more generally, and whether the appeal lacks merit or is “clearly hopeless”.[5]

Submissions

[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; applied in Rabson v Attorney-General [2017] NZCA 350 at [9]; and Dowden v Commissioner of Inland Revenue [2020] NZCA 630, (2020) 29 NZTC 24–085 at [3].

[5]Almond v Read, above n 4, at [38]–[39].

Mr Sharma’s submissions relate primarily to his substantive appeal. However, he reiterates that the delay was short, that Ms Wati has suffered no prejudice and that his appeal is meritorious. His proposed appeal raises the following legal…

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 [2021] NZCA 220
Case: [2021] NZCA 220
Decision Date: 31 May 2021 at 9 am

CaseChat Overview and Summary

In Sharma v Wati, the applicant, Dr Sharma, sought an extension of time to file his case on appeal against a decision of Downs J that allowed Ms Wati to place charging orders against his share of the family home to secure the costs he owed her. The Court of Appeal was required to determine whether to grant an extension of time to file the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005. The court considered the relevant factors, including the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome and the significance of the issues raised by the proposed appeal, both to the parties and more generally, and whether the appeal lacked merit or was "clearly hopeless".

The Court of Appeal found that the present appeal failed to meet even the low merits threshold for exercise of the r 43 discretion and was clearly hopeless. The court saw no prospect of diverging from the conclusions reached by Downs J. Firstly, the Judge was plainly correct that the Limitation Act does not apply to enforcement proceedings, which are governed by the rules of the relevant court. Secondly, the Judge's conclusion on the status of money paid into court cannot sensibly be impugned. The money is not security for costs and it is open to Dr Sharma to uplift it and pay the costs he owes. Thirdly, Dr Sharma's complaints relating to bankruptcy proceedings and failure to sell the family home are not materially relevant to an application to enforce costs orders made more than six years ago. Fourthly, the procedural ground raised by Dr Sharma is meritless.

The application for an extension of time to file the case on appeal is declined. The applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal and usual disbursements.

Orders