Tomar v Khatri - [2022] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA723/2021
[2022] NZCA 87

BETWEEN	VIN TOMAR Appellant
AND	MONIKA KHATRI Respondent

Counsel:	Appellant in person Respondent in person
Judgment: (On the papers)	28 March 2022 at 11 am

JUDGMENT OF COOPER J

The application for stay is declined.

____________________________________________________________________

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…

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 [2022] NZCA 87
Case: [2022] NZCA 87
Decision Date: 28 March 2022 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Tomar sought a stay of the judgment delivered by Downs J in the High Court. Downs J had prohibited Tomar from continuing litigation in the High Court against Khatri unless he paid her outstanding costs. Tomar sought to stay the judgment so he could continue his litigation against Khatri. The Court was required to determine whether it was appropriate to stay the judgment, which would allow Tomar to continue his litigation against Khatri. The Court considered that to stay the judgment would be unfair to Khatri and contrary to the interests of justice, as Tomar had engaged in conduct which led to the High Court making the order prohibiting him from continuing his litigation against Khatri. The Court declined the application for a stay, allowing the judgment to stand as delivered by Downs J. The Court ordered that the existing litigation in the High Court be stayed pending payment of the outstanding costs by Tomar.

Orders