Tomar v Khatri

[2023] NZHC 708

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001138

[2023] NZHC 708

BETWEEN

VIN TOMAR

Applicant

AND

MONIKA KHATRI

Respondent

Hearing:	On the papers
Judgment:	3 April 2023

JUDGMENT OF DOWNS J

(Recall application)

This judgment was delivered by me on Monday, 3 April 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Copy to: Applicant

TOMAR v KHATRI [2023] NZHC 708 [3 April 2023]

[1]                 On 18 November 2021, I made this order against Mr Tomar, in relation to court costs he owed his former wife, Ms Khatri:1

[63]Mr Tomar is prohibited from:

(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.

[64]Mr Tomar’s existing litigation in the High Court is stayed pending [63].

[2]                 On 15 December 2022, Mr Tomar applied for the order to be recalled. I gave Mr Tomar time to file a submission in support of the application. He has now done so. Mr Tomar also recently filed a fresh application to recall the order.2

[3]                 Mr Tomar’s paperwork is somewhat difficult to follow. I address what appear to be his three main contentions across both applications.

[4]                 First, Mr Tomar contends the order should be recalled because Ms Khatri has sold two properties without Mr Tomar’s knowledge, in turn depriving him of the means or ability to pay costs.

[5]                 The allegation is  unsupported  by  evidence,  independent  or  otherwise.  The allegation appears to be designed to induce or implicate Ms Khatri in yet more High Court litigation, which would, of course, defeat the purpose of the order. In any event, had Mr Tomar adduced evidence to support the allegation, it could not be appropriately addressed in an application for recall.

[6]                 Second, Mr Tomar contends the costs figure identified in the order is incorrect. Mr Tomar says the figure should be $35,611 less than what it is because $35,611 is not actually payable in costs.

1      Khatri v Tomar [2021] NZHC 3091.

2      Dated 22 March 2023.

[7]                 Lang J ordered Mr Tomar pay Ms Khatri costs in this amount.3 Mr Tomar contends the order is invalid or “unlawful” because Lang J did not decide everything that needed to be decided when the case was before him.

[8]                 The answer to this contention is that Lang J ordered Mr Tomar to pay costs to Ms Khatri of $35,611 and that judgment has not been quashed or set aside by a higher Court. There is no basis in law for me to re-examine the Judge’s costs decision.

[9]                 Third, Mr Tomar argues the Family Court and this Court have made a variety of errors in dealing with his cases and these errors vitiate the orders.

[10]              Mr Tomar identifies no legal principle that would permit such an approach. Furthermore, the principles relating to the recall of an order or decision are governed by the longstanding authority of Horowhenua County v Nash (No 2).4    None of     Mr Tomar’s points constitute a basis for recall in accordance with this authority.

Result

[11]The applications for recall are dismissed.

……………………………..

Downs J

3      Tomar v Tomar [2021] NZHC 2985.

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).