Sharma v Wati - [2022] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2008-404-4494

[2022] NZHC 772

BETWEEN
DEO DATT SHARMA

Appellant

AND

NIRMALA WATI

Respondent

Hearing: On the papers

Appearances:

Appellant in Person

R Parmenter for the Respondent

Judgment:

13 April 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 13 April 2022 at 3 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors: Witten-Hannah Howard, Takapuna Counsel: R Parmenter, Auckland
Copy to: Appellant

SHARMA v WATI [2022] NZHC 772 [13 April 2022]

Introduction

[1] This is a long-running relationship property proceeding between Nirmala Wati and her former husband Deo Sharma. The proceeding concerns the division of their relationship property, based on orders made in the Family Court in 2008 and subsequently varied on appeal to the High Court in 2009.

[2] The current application by Ms Wati seeks a recall and variation of my minute dated 14 October 2021 (the minute).1

[3] Dr Sharma who continues to act for himself, opposes the application and seeks orders of his own.

Procedural background

[4] On 16 June 2008, Judge DF Clarkson issued a judgment in the Family Court which determined the division of the couple’s relationship property following their separation under the Property (Relationships) Act 1976 (the Act).2 In accordance with the principles and purposes of the Act, the Judge held that relationship property should be divided on an equal basis. The Judge made findings of value in relation to financial assets and debts held by the parties, including cash, shares, bonds, insurance policies, and ACC/GST payments.

[5] In relation to the family home (the home), which was the couple’s most significant asset, the Judge made orders pursuant to s 26A of the Act, which fixed the value of the home at the date of the commencement of the proceeding and postponed the date of vesting for six years to enable Ms Wati and the children to remain in the home while the children were at school. Dr Sharma appealed Judge Clarkson’s decision to the High Court.

[6] The appeal included grounds relating to Judge Clarkson’s treatment of the home in her orders and claimed the Judge had made errors in the identification and division of the balance of the relationship property.

1 Sharma v Wati HC Auckland CIV 2008-404-4494, 15 October 2021 [Variation of orders].
2 NW v DDS FC Waitakere FAM-2002-090-1294, 16 June 2008.

[7] On 27 February 2009, Justice Allan set aside the Family Court orders which fixed the value of the home and postponed the vesting ( Allan J’s first judgment).3 The Judge substituted an occupation order under s 27 of the Act which gave Ms Wati exclusive occupation until 31 October 2013. The Judge also ordered that the home be sold no later than November 2013, with the proceeds of the sale to be divided equally between the parties.4 The effect of this judgment was that the value of the…

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] NZHC 772
Case: [2022] NZHC 772
Decision Date: 13 April 2022

CaseChat Overview and Summary

Nirmala Wati, the respondent, applied to recall a minute made by Gordon J on 14 October 2021, which varied an earlier order made on 26 March 2021 concerning the division of the proceeds of the sale of the family home between her and Deo Sharma, the appellant. The 2021 orders were made in the context of long-running litigation concerning the division of their relationship property. The appeal concerns the division of the proceeds of sale of the family home and the division of the other relationship property. The primary issue was whether the minute should be recalled. The Court found that the minute should not be recalled and dismissed the application. Although the Court did not decide the merits of the outstanding payments between the parties regarding their other relationship property, it assessed the evidence in relation to that property and provided its findings. The Court found that Dr Sharma owed Ms Wati $61,493.50 in relation to the other relationship property. The Court also dismissed Dr Sharma's claims for compensation and damages as improperly raised in the context of the recall application. The Court ordered that costs lie where they fall.

Orders