AThe application for special leave to appeal is dismissed.
BThe applicant must pay the respondent costs for a standard application on a band A basis, plus usual disbursements.

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REASONS OF THE COURT

(Given by Arnold J)

Introduction

The applicant, Dr Sharma, applies for special leave to appeal against a decision of Rodney Hansen J in the High Court.[1] In that decision, the Judge declined Dr Sharma’s application for review of a decision of Associate Judge Bell in which the Associate Judge refused to set aside five bankruptcy notices issued against Dr Sharma by his former wife, the respondent Ms Wati.[2] The bankruptcy notices related to five costs orders that had been made against Dr Sharma in favour of Ms Wati, totalling $20,605.24. Dr Sharma sought leave to appeal from the High Court, but his application was declined.[3]

Background

[1] Sharma v Wati HC Auckland CIV-2008-404-6367, 30 September 2011.

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

[3] Sharma v Wati HC Auckland CIV-2008-404-6367, 30 November 2011.

The background is a little complicated. Dr Sharma’s original application to set aside the bankruptcy notices raised three grounds, namely:
(a)abuse of process, arising from the fact that five bankruptcy notices were filed (one in respect of each debt) rather than one notice covering all five debts, which had the effect, he said, of inflating the costs and fees;
(b)he was solvent and able to pay his debts; and
(c)he had a cross claim in that he was owed $177,500 by Ms Wati.
The application first came before Wylie J. He dismissed the first two grounds, but adjourned the application in respect of the cross claim ground.[4] The reason for this was that the cross claim was based on a decision of Judge Clarkson in the Family Court. The Judge had ordered that the former family home of Dr Sharma and Ms Wati should vest in Ms Wati and she should pay Dr Sharma $177,500 on the date of vesting, which was to be 30 November 2013.[5] Dr Sharma appealed against the Family Court’s judgment. His appeal had not been heard when his application to set aside the bankruptcy notices came before Wylie J. Wylie J considered that Dr Sharma’s cross claim argument might be affected by the appeal and adjourned that aspect of the argument until the result of the appeal was known.
[4] Sharma v Wati HC Auckland CIV-2008-404-6367, 29 January 2009.
[5] NW v DDS FC Waitakere FAM-2002-90-1294, 16 June 2008.
Allan J heard Dr Sharma’s appeal against Judge Clarkson’s judgment. The appeal was partially successful in that Allan J quashed the order fixing Dr Sharma’s interest in the relationship property at $177,500 and postponing…

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 [2012] NZCA 195
Case: [2012] NZCA 195
Decision Date: 16 May 2012

CaseChat Overview and Summary

The case of Sharma v Wati before the Court of Appeal of New Zealand concerns Dr Deo Datt Sharma's application for special leave to appeal against a decision of Rodney Hansen J in the High Court, which declined Dr Sharma’s application for review of an Associate Judge Bell's refusal to set aside five bankruptcy notices issued against him by his former wife, Ms Nirmala Wati. The bankruptcy notices were related to five costs orders totalling $20,605.24 made in favour of Ms Wati. The central legal issues pertain to the jurisdiction of the Associate Judge, the timeliness of Dr Sharma's appeal, and whether the High Court had the authority to review the Associate Judge's decision.

The Court of Appeal addressed the question of whether Associate Judge Bell had jurisdiction to hear the matter and whether the High Court had the authority to review this decision. The Court found that Associate Judge Bell was entitled to exercise jurisdiction under the Insolvency Act and that his decision, made in chambers, was subject to review by the High Court. The Court also considered Dr Sharma's argument that he should have been allowed to appeal directly to the Court of Appeal against the Associate Judge's decision. However, the Court held that, even if this argument were accepted, special leave to appeal should not be granted due to the considerable delay, Dr Sharma’s conduct, the prejudice to Ms Wati, and the lack of merit in the proposed appeal.

The Court dismissed Dr Sharma's application for special leave to appeal and ordered him to pay the respondent costs for a standard application on a band A basis, plus usual disbursements.

Orders