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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. 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].

2. 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].

3. 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).

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].

1. 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 questions:  whether the application for charging orders is time-barred under the Limitation Act 1950; whether money Dr Sharma has paid into court constitutes security for costs; whether the “multiple bankruptcy proceedings” that have been brought against Dr Sharma are an abuse of process; whether the family home could have been sold earlier; and “the status as procedure in the use of interlocutory applications more than six years after the substantive case has closed”. 

Discussion

1. While the case on appeal was filed only marginally late, and there was no prejudice to Ms Wati by the time the case was received, Dr Sharma’s default necessarily subjects his proposed appeal to the prospective merits review described at the end of [4] above.  It means the respondent is not to be needlessly subjected to the revival of an appeal if that appeal is clearly hopeless.

2. In our view the present appeal fails to meet even the low merits threshold for exercise of the r 43 discretion.  It is, in short, clearly hopeless.  We see no prospect of this Court diverging from the conclusions reached by Downs J.  First, 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.[6]  Secondly, the Judge’s conclusion on the status of money paid into court cannot sensibly be impugned.[7]  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:  r 17.9 of the High Court Rules 2016 requires a judgment creditor to seek leave to issue an enforcement process and the only way to do that is by interlocutory application. 

Result

[6]Decision under appeal, above n 1, at [14].

[7]At [15]–[17].

1. The application for an extension of time to file the case on appeal is declined.

2. The applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal and usual disbursements.

Solicitors:
Witten-Hannah Howard, Takapuna for Respondent