Tomar v Khatri
[2022] NZCA 87
•28 March 2022 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA723/2021 [2022] NZCA 87 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA KHATRI |
| Counsel: | Appellant in person |
Judgment: | 28 March 2022 at 11 am |
JUDGMENT OF COOPER J
The application for stay is declined.
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REASONS
Mr Tomar has applied for a stay of a judgment delivered by Downs J in the High Court at Auckland on 18 November 2021.[1] The application is opposed.
[1]Khatri v Tomar [2021] NZHC 3091.
In his judgment Downs J set out a summary of litigation between the parties that had taken place since the parties’ relationship ended in December 2016. For present purposes it is sufficient if we record the Judge’s summary of the litigation at the outset of the judgment:
[4] Ms Khatri left Mr Tomar 12 December 2016. On the same day, Ms Khatri sought and obtained a temporary protection order; interim parenting order; and ancillary furniture order. Ms Khatri moved to Hamilton with their son. Mr Tomar remained in Auckland.
[5] On 11 August 2017, Judge D R Brown discharged the temporary protection order and made a final protection order.
[6] On 13 December 2017, Ms Khatri applied for division of relationship property.
[7] On 21 May 2019, Mr Tomar applied for a parenting order in his favour.
[8] Judge A J Twaddle addressed this and other applications in a four-day hearing beginning 18 February 2020. On 19 March 2020, the Judge discharged the interim parenting order and made a final parenting order. He held the son should remain in Ms Khatri’s daily care with Mr Tomar having contact at weekends and holidays.The Judge dismissed an application by Mr Tomar to discharge the protection order.
[9] On 20 March 2020, Judge D A Burns heard Ms Khatri’s application concerning relationship property. On 22 May 2020 and 20 May 2021, the Judge found largely in her favour.
[10] Mr Tomar appealed Judge Twaddle’s decision and both decisions of Judge Burns. Campbell J dismissed the former 27 May 2021. Lang J dismissed the other appeals 10 September 2021.
[11] This précis omits Mr Tomar’s many unsuccessful applications to the Family Court, which would overwhelm any chronology. Indeed, Ms Khatri says these now total 88. I give some examples; they are only that.
[12] Mr Tomar filed applications to discharge or rescind the protection order 30 June 2017; 29 December 2017; 8 January 2018; 9 January 2018; 24 June 2019; 11 November 2019; 27 August 2020; and 14 September 2020. All were unsuccessful, and some dismissed as an abuse of process. Judge R H Riddell considered a protection order would be needed for “a long, long” time given Mr Tomar’s “obsessive behaviour”.Judge Twaddle found there was “a high risk of ... psychological abuse of Ms [Khatri] by Mr Tomar if the protection order is discharged”.Campbell J said Judge Twaddle’s decision was “entirely correct”.
[13] Mr Tomar filed many applications to adjourn or vacate hearings. For example, he twice applied to adjourn the four-day hearing before Judge Twaddle in the week before that hearing. Both applications were dismissed. Mr Tomar sought an adjournment of the relationship property hearing before Judge Burns on the morning of that hearing. Mr Tomar alleged his lawyer had “failed to inform him of what has been happening”. The Judge dismissed the application.
[14] Mr Tomar also filed applications for re-hearings. For example, in April or May 2020, he applied for a re-hearing of the matters before Judge Twaddle. As Mr Tomar had already filed appeals against all the orders, the Judge dismissed the application as “an abuse of process”.On 9 September 2020, Mr Tomar again applied for a re-hearing. Judge Twaddle dismissed the application as an abuse.
[15] Mr Tomar used frequent changes in representation as a fulcrum for delay, by seeking extensions or adjournments. Mr Tomar had no fewer than six lawyers throughout: Matthew Wright; Naomi Cramer; Elise McCabe; Trent Bowler; Michael Headifen and Peter McCutcheon.
[16] Unsurprisingly, these and other tactics resulted in adverse costs orders, including increased and indemnity costs. Judge Twaddle said “Mr Tomar’s stance on some of the issues was unreasonable and completely lacked merit ... an award of indemnity costs is appropriate”.Gordon J—who dealt with Mr Tomar’s application for an adjournment of the relationship property appeals ultimately heard by Lang J—noted Mr Tomar had “taken many unnecessary steps”.This included “filing ... multiple amended notices of appeal” and ignoring an order of the Court “not to file any further applications ... without leave of the Court”.Gordon J increased costs by 40 per cent. Campbell J also increased costs by this amount. He said the procedural history of the appeal did “not make for happy reading” and Mr Tomar’s appeal “lacked any merit”.
[17] Mr Tomar continues to challenge the decisions of the Family Court through four separate applications for judicial review.All are yet to be heard. Mr Tomar has also filed an application to have Ms Khatri banned from commencing or continuing civil proceedings.
(Footnotes omitted.)
For reasons which he gave, the Judge made orders under s 166 of the Senior Courts Act 2016 prohibiting Mr Tomar from:[2]
(a) Continuing all existing litigation in the High Court;
(b) Bringing new proceedings in this Court in which Ms Khatri is a party or the proceeding is about or in any way related to Ms Khatri;
(c) Filing applications of any sort in relation to (a) or (b);
Unless he first pays Ms Khatri, in full, $98,998.15 in outstanding costs.
[2]At [63].
The Judge then stayed the existing litigation in the High Court pending payment of the outstanding costs.[3]
[3]At [64].
Mr Tomar has now filed an application in this Court seeking to stay the judgment for the express purpose of continuing his “applications against the Family Court at the High Court”. In other words, he wants to be able to continue with the conduct which caused the High Court to make its order under s 166.
To grant a stay in these circumstances would be to subject Ms Khatri to ongoing litigation which has given rise to the order made in the High Court. That would be unfair to Ms Khatri in circumstances where the very large sum to which she is entitled in outstanding costs has not been paid. It would deprive Ms Khatri of the fruits of her success in the High Court litigation and be contrary to the interests of justice for that reason.
Result
The application for stay is declined.
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