Tomar v Khatri - [2025] NZCA 218

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA777/2024
CA778/2024
[2025] NZCA 218

BETWEEN	VIN TOMAR Appellant
AND	MONIKA KHATRI Respondent

Court:	Courtney and Mallon JJ
Counsel:	Applicant in person Respondent in person for CA777/2024 No appearance for Respondent in CA778/2024
Judgment: (On the papers)	5 June 2025 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal the decision in [2023] NZHC 3240 is declined.
BThe applications for stay of the decisions in [2023] NZHC 3240 and [2024] NZHC 3217 are declined.
CThere is no order as to costs.

REASONS OF THE COURT

(Given by Courtney J)

In 2022, Ms Khatri applied for an order adjudicating Mr Tomar bankrupt. The application was founded on unpaid costs Mr Tomar had been ordered to pay in the Family Court in relationship property proceedings. Despite Mr Tomar’s opposition to the application, Associate Judge Taylor declined to exercise his discretion under ss 37 and 38 of the Insolvency Act 2006 to halt the bankruptcy proceedings in a judgment dated 17 November 2023 (the halt judgment).[1] Mr Tomar was adjudicated bankrupt on 30 November 2023.
[1]Khatri v Tomar [2023] NZHC 3240 [the halt judgment].
Mr Tomar failed to appeal the 30 November 2023 adjudication order within time and was refused an extension of time to appeal.[2] Nearly a year later, he applied to the High Court for an annulment of the adjudication order.[3] Around the same time he also applied for leave to appeal the halt judgment. The Judge declined both applications in a judgment dated 6 November 2024 (the annulment judgment).[4]
[2]Tomar v Khatri [2024] NZCA 691.
[3]See Insolvency Act 2006, s 309(1)(a), which permits the High Court to annul an order for adjudication if it considers the bankrupt should not have been adjudicated bankrupt.
[4]Khatri v Tomar [2024] NZHC 3217 [the annulment judgment]. This decision is subject to an appeal as of right and the stay application is accordingly sought pending the determination of that appeal.
Mr Tomar has applied to this Court for:
(a)leave to appeal the halt judgment;
(b)a stay of the halt judgment; and
(c)a stay of the annulment judgment.[5]
[5]Mr Tomar also sought a stay of the adjudication order but the Registry declined to accept that aspect of the application for filing. Mr Tomar initially sought a review of that decision but subsequently withdrew the application for review.
Ms Khatri filed a memorandum opposing the application for leave to appeal. She has been excused from participating further.[6]

Application for leave to appeal the halt judgment

[6]See Tomar v Khatri CA777/2024, 19 December 2024 (Minute of Ellis J).

Under s 56 of the Senior Courts Act 2016, an interlocutory judgment can only be appealed with leave from the High Court or, if the High Court declines leave, with leave from this Court. Mr Tomar applied to the High Court for leave to appeal the halt judgment. When the High Court declined leave, he applied to this…

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 [2025] NZCA 218
Case: [2025] NZCA 218
Decision Date: 5 June 2025 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Vin Tomar, the appellant, against Monika Khatri, the respondent, concerning an adjudication of bankruptcy and subsequent applications for annulment and leave to appeal. The appellant's primary contentions were that the Associate Judge's decision to not halt the bankruptcy proceedings was erroneous and that the subsequent annulment of the adjudication order should be stayed pending appeal. The court was tasked with determining whether leave to appeal the decision to not halt the bankruptcy proceedings should be granted, and whether a stay of the decisions should be ordered.

The legal issues before the court included whether Mr Tomar required leave to appeal the interlocutory decision, and if the criteria for granting a stay of the decisions were met. The court first considered the requirement for leave to appeal, finding that Mr Tomar's proposed appeal was effectively futile due to section 61 of the Insolvency Act 2006, which prevents challenges to an adjudication order by attacking prior steps in the proceedings. The court also considered the various factors relevant to granting a stay of the decisions, including the strength of the appeal, the balance of convenience, and the effect on third parties. The court found that the appeal against the annulment judgment had little chance of success and that the balance of convenience did not favour granting a stay.

The Court of Appeal declined the application for leave to appeal the decision in Khatri v Tomar [2023] NZHC 3240 and also declined the applications for stay of the decisions in Khatri v Tomar [2023] NZHC 3240 and Tomar v Khatri [2024] NZHC 3217. The court found that Mr Tomar's appeal against the halt judgment was futile and that the appeal against the annulment judgment was unlikely to succeed. The court also considered the effect of not granting a stay on Mr Tomar and the broader public interest, concluding that the balance of convenience did not support a stay. There was no order as to costs.

Orders