Tomar v Khatri
[2023] NZCA 657
•18 December 2023 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA168/2023 [2023] NZCA 657 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA KHATRI |
| Court: | Courtney and Collins JJ |
Counsel: | No appearance for Appellant |
Judgment: | 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 by Ms Khatri against Mr Tomar under s 166 of the Senior Courts Act 2016 and his application to strike out her application.[4] The Judge gave a brief summary of the litigation between the parties since the end of their marriage in 2016. He noted the many occasions on which Mr Tomar had made applications that were held to be an abuse of process and his use of other tactics designed to delay progress, which had resulted in adverse costs orders made against him, including increased and indemnity costs.[5]
[4]Khatri v Tomar [2021] NZHC 3091.
[5]At [4]–[17].
The Judge then reviewed the history of the s 166 application itself, which was marked by numerous, unsuccessful interlocutory applications by Mr Tomar.[6] The Judge summarised the position:
[23] This history mirrors, albeit on a much smaller scale, what happened in the Family Court in relation to Ms Khatri’s proceedings. Rather than addressing the merits, Mr Tomar brought needless, meritless applications; including applications for adjournments; relitigated points determined against him, as if rulings were not binding; and in turn, caused unnecessary expense and delay.
[6]At [18]–[22].
Ultimately, the Judge declined to make an order under s 166 because many of Mr Tomar’s applications and appeals were brought in his capacity as a defendant in litigation commenced by Ms Khatri and were therefore considered not to be “proceedings” for the purposes of s 166; and because Ms Khatri had had some relief in the form of Mr Tomar’s applications being dismissed and costs (including increased and indemnity costs) awarded.[7] However, the Judge considered that it would not be in the interests of justice for Mr Tomar to continue his existing litigation in the High Court or to bring new proceedings or file applications of any sort until he had paid the outstanding costs orders.[8] The Judge made an order staying Mr Tomar’s existing litigation and prohibiting him from continuing any other litigation in the High Court or commencing new proceedings about or related to Ms Khatri unless he first paid Ms Khatri the $98,998.15 then outstanding in court costs.[9]
Challenges to Downs J’s judgment
[7]At [59].
[8]At [61].
[9]At [63].
On 15 December 2021 Mr Tomar filed a notice of appeal against Downs J’s decision (CA723/2021). He took no steps to advance the appeal. In May 2022, the appeal was deemed to have been abandoned. Mr Tomar sought a review of that decision. That application was declined.[10]
[10]Tomar v Khatri [2022] NZCA 233.
One of the proceedings that Downs J had stayed, a judicial review application, was struck out as an abuse of process on the application of the respondents.[11] Mr Tomar filed a notice of appeal against that decision.[12] He took no steps and in July 2022 the appeal was deemed to be abandoned.
[11]Tomar v Family Court in Auckland [2021] NZHC 3542.
[12]CA739/2021.
In March 2022 Mr Tomar applied to this Court for the transfer of the three remaining judicial review applications that had been stayed by Downs J.[13] These were struck out as an abuse of process.[14] Goddard J considered that the applications were a stratagem designed to circumvent the orders made in the High Court.[15]
The application to set aside the bankruptcy notice
[13]CA153/2022; CA156/2022; and CA158/2022.
[14]Tomar v Family Court at Auckland [2023] NZCA 127.
[15]At [20].
In January 2022 the Family Court made a costs order against Mr Tomar in relationship property proceedings.[16] Mr Tomar did not appeal the costs order or apply for a stay of execution, but he did not pay the costs. On 16 August 2022 a bankruptcy notice was issued on Ms Khatri’s request. It was served on Mr Tomar under an order for substituted service. On 29 September 2022, Mr Tomar applied to set the notice aside.
[16]Family Court costs judgment, above n 1.
As a result of Mr Tomar’s various interlocutory applications and applications for adjournments, the application to set aside the bankruptcy application was not heard until 21 March 2023. Mr Tomar did not, however, file submissions and did not appear at the hearing.
Associate Judge Gardiner delivered her decision on 30 March 2023. Having canvassed the history of the application, the Associate Judge commented that “Mr Tomar’s repeated filing of irrelevant and unmeritorious interlocutory applications, memoranda and notices must stop. This behaviour creates an unacceptable burden on the resources of the Court”.[17]
The current appeal
[17]Associate Judge Gardiner’s judgment, above n 2, at [33].
Mr Tomar filed a notice of appeal against the Associate Judge’s decision on 30 March 2023 — as noted, only minutes after the decision was delivered. The stated ground of appeal was that “Some of the grounds of the appeal are that the decision is – regrettably – in error and unlawful”.
Security for costs was set at $7,060.[18] Mr Tomar took no steps until 2 May 2023, when he applied for an order dispensing with security for costs. In a comprehensive decision dated 23 May 2023, a Deputy Registrar declined to dispense with security for costs. She was satisfied that none of the usual grounds for dispensing with security for costs existed — Mr Tomar did not claim to be impecunious, no issue of public interest arose and there was nothing to support Mr Tomar’s assertion that Ms Khatri had abused the Court process to harass him. Moreover, the Deputy Registrar noted the lack of any specific error said to have been made by the Associate Judge. She concluded that there was an element of vexatiousness.
[18]Court of Appeal (Civil) Rules 2005, r 35.
Mr Tomar applied to review the Deputy Registrar’s decision. Mallon J declined that review.[19]
[19]Tomar v Khatri [2023] NZCA 280.
Mr Tomar did not pay the security for costs. Nor did he take any other steps in the appeal. On 14 August 2023, the appeal was deemed to have been abandoned.
Should indemnity costs be awarded?
Rule 53E of the Court of Appeal (Civil) Rules 2005 provides for indemnity costs in specified circumstances. Relevantly, these include when:[20]
(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing or defending an appeal …
[20]Court of Appeal (Civil) Rules, r 53E(3)(a).
Ms Khatri submitted that, against the history just outlined, it was clear that Mr Tomar’s appeal had been brought for the purposes of vexing Ms Khatri and delaying the bankruptcy proceedings rather than to address the merits of the decision. This was evident from timing of the appeal (minutes after the decision was delivered), the failure to identify any specific error by the Associate Judge, and the fact that it was unnecessary because (as the Associate Judge noted)[21] Mr Tomar was entitled to defend the bankruptcy proceedings and to seek to have the court exercise its discretion under ss 36 and 37 of the Insolvency Act 2006 not to adjudicate him bankrupt.
[21]Associate Judge Gardiner’s judgment, above n 2, at [52].
We accept this submission. By the time Ms Khatri applied for costs, this Court had already expressed its concern about Mr Tomar’s abuse of the processes of the Court. His conduct was similar to the way he had conducted himself in proceedings in the both the Family Court and the High Court which, in both cases, had led to strong comments by several judges and to awards of increased and indemnity costs. His conduct in the current appeal was consistent with this pattern. We are satisfied that the appeal was vexatious and that indemnity costs are warranted, in accordance with the invoices rendered to Ms Khatri by her solicitors in relation to the appeal, which total $7,902.80.
Result
The decision by Miller J is set aside.
The application for indemnity costs is granted and an order made that Mr Tomar is to pay Ms Khatri $7,902.80.
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