Tomar v Khatri - [2023] NZCA 657

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA168/2023
[2023] NZCA 657

BETWEEN	VIN TOMAR Appellant
AND	MONIKA KHATRI Respondent

Court:	Courtney and Collins JJ
Counsel:	No appearance for Appellant Respondent in person
Judgment: (On the papers)	18 December 2023 at 3 pm

JUDGMENT OF THE COURT

AThe decision of Miller J is set aside.
BThe application for indemnity costs is granted. Mr Tomar is to pay Ms Khatri $7,902.80.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

In 2023 Ms Khatri served a bankruptcy notice on her former husband, Mr Tomar. The notice was based on Mr Tomar’s failure to pay court costs awarded against him in Family Court proceedings.[1] On 30 March 2023, Associate Judge Gardiner declined Mr Tomar’s application to set aside the bankruptcy notice.[2] Mr Tomar filed a notice of appeal against that decision within minutes of it being delivered. The notice of appeal did not identify any specific error by the Associate Judge.
[1]Khatri v Tomar [2022] NZFC 423 [Family Court costs judgment].
[2]Khatri v Tomar [2023] NZHC 684 [Associate Judge Gardiner’s judgment].
On 14 August 2023, with the security for costs not having been paid and the case on appeal not filed, the appeal was deemed to have been abandoned. Ms Khatri applied for indemnity costs on the basis that the sole purpose of the appeal had been to delay the bankruptcy proceedings. Miller J declined the application for indemnity costs on the ground that it was not self-evident that Mr Tomar’s appeal was an abuse of High Court process so as to justify indemnity costs.[3]
[3]Tomar v Khatri CA168/2023, 19 September 2023.
Ms Khatri applies for a review of Miller J’s decision. She says that Mr Tomar’s pattern of litigation in both this Court and lower courts showed that the appeal was vexatious, and made for the purpose of delaying the bankruptcy proceeding. She explains that she assumed that this Court would be aware of that history when determining her application for indemnity costs. Mr Tomar has not filed any response to the application for review.
It is evident from Miller J’s decision that he was not aware of Mr Tomar’s past conduct in both this Court and lower courts. We accept that, had Miller J been aware of the previous decisions of both this Court and the High Court, he would have regarded them as relevant and taken them into account in considering Ms Khatri’s application for indemnity costs. As a result, we consider the application afresh.

Application for indemnity costs

The litigation between Ms Khatri and Mr Tomar extends back to 2016, when their marriage came to an end. We do not attempt a comprehensive review of the various proceedings and applications. At this stage we simply give a brief history of the more recent decisions in both this Court and the High Court.

Downs J’s judgment

In a decision dated 18 November 2021, Downs J determined an application brought…

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 Tomar v Khatri

Details

AGLC: Tomar v Khatri [2023] NZCA 657
Case: [2023] NZCA 657
Decision Date: 18 December 2023 at 3 pm

CaseChat Overview and Summary

This case involved an appeal by Mr Tomar against the decision of Associate Judge Gardiner, who declined to set aside a bankruptcy notice issued by Ms Khatri. The appeal was deemed abandoned when Mr Tomar failed to pay the security for costs, leading Ms Khatri to apply for indemnity costs. Miller J declined the application, but Ms Khatri sought a review of that decision. The Court of Appeal considered the extensive history of litigation between the parties, which included numerous applications in the Family Court and High Court that were found to be vexatious or an abuse of process, resulting in adverse costs orders against Mr Tomar.

The legal issues before the Court were whether Mr Tomar’s appeal was vexatious and whether it was appropriate to grant Ms Khatri indemnity costs. The Court noted that Miller J had not been aware of Mr Tomar’s history of litigation, which included a pattern of vexatious conduct. The Court of Appeal decided to consider the application afresh, taking into account the full history of litigation. The Court found that Mr Tomar’s conduct in the current appeal was consistent with his previous pattern of litigation, which had led to strong criticism by judges and costs orders. The Court accepted that the appeal was vexatious and that it was unnecessary because Mr Tomar was entitled to defend the bankruptcy proceedings.

The Court of Appeal set aside the decision of Miller J and granted Ms Khatri’s application for indemnity costs. The Court ordered Mr Tomar to pay Ms Khatri $7,902.80 in costs associated with the appeal. The Court of Appeal emphasised the importance of ensuring that parties do not abuse the Court process and that those who do should be held accountable through the imposition of costs.

Orders