Tomar v Khatri
[2025] NZCA 218
•5 June 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA777/2024 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA KHATRI |
| Court: | Courtney and Mallon JJ |
Counsel: | Applicant in person |
Judgment: | 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 Court.
In his written submissions filed in support of the application for leave, Mr Tomar raises an argument that the halt judgment was not an interlocutory decision but rather a substantive decision for which he does not require leave to appeal.[7] He relies on the fact that the Judge was being asked to determine the application for adjudication, which is a final judgment for which there is a right of appeal. We do not accept this characterisation of the judgment. The Judge was dealing with both Ms Khatri’s application for adjudication, which he did not determine (only ordered it to be listed), and with a number of interlocutory applications by Mr Tomar himself. The Judge treated these applications as being made under ss 37 and 38 of the Insolvency Act. We therefore proceed on the basis that Mr Tomar does require leave to appeal.
[7]This argument has previously been rejected by this Court: see Tomar v Khatri [2024] NZCA 231; and Tomar v Khatri [2024] NZCA 345 at [12].
The criteria for granting leave to appeal an interlocutory judgment are as set out by this Court in Greendrake v District Court of New Zealand:[8]
… [The] requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory order of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[8]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (footnote omitted).
In his application for leave and submissions, Mr Tomar identified several grounds, which can be summarised as follows:
(a)The Judge was biased and failed to properly consider the relevant facts.
(b)An order made by Downs J in 2021 restraining Mr Tomar from bringing or continuing High Court proceedings meant that he was unable to contest the application for adjudication.
(c)The costs judgment on which the application for adjudication was founded was made in breach of Downs J’s order.
(d)There were procedural irregularities with Ms Khatri’s application for adjudication.
(e)Ms Khatri has signed a special resolution liquidating a company involved in the relationship property proceedings.
Mr Tomar has not, however, addressed the critical point, which was drawn to his attention by Ellis J late last year and which must result in leave being declined, regardless of the grounds Mr Tomar has identified.[9]
[9]Tomar v Khatri, above n 6.
Section 61 of the Insolvency Act 2006 provides that, unless an adjudication is appealed under that Act, no one can later assert that the adjudication was not valid or that a prerequisite for adjudication was absent. In Navaratnam v HG Metal Manufacturing Ltd this Court explained that, as a result, an adjudication cannot be challenged by challenging prior steps.[10] This means that any attempt to impugn the order for adjudication by challenging the Judge’s decision not to halt the adjudication proceeding must fail. It is unnecessary to consider the various grounds Mr Tomar would wish to raise in an appeal against the halt judgment because, even if successful, such an appeal would have no practical effect.
Applications for stay
[10]Navaratnam v HG Metal Manufacturing Ltd [2024] NZCA 351 at [10].
Mr Tomar has applied for a stay of the halt judgment and the annulment judgment pending the determination of his appeals (or, in the case of the halt judgment, proposed appeal) for the purpose of preserving the status quo. The applications are made pursuant to s 12(3) of the Court of Appeal (Civil) Rules 2005. In Yan v Mainzeal Property and Construction Ltd (in rec, in liq), this Court identified the following factors as ones to be taken into account in determining a stay application:[11]
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding;
(g)the overall balance of convenience; and
(h)the apparent strength of the appeal.
[11]Yan v Mainzeal Property and Construction Ltd (in rec, in liq) [2014] NZCA 86, (2014) 22 PRNZ 296 at [25].
Mr Tomar says that a miscarriage of justice will result if the stays are not granted because of the imminent effect the decisions will have on his professional career, financial stability and personal rights. Specifically, he says that: as an undischarged bankrupt, he cannot renew his immigration adviser licence, which expired in February 2024; liquidation of his share of the relationship property will adversely affect him; and while he is bankrupt he is disqualified from professional opportunities such as seeking nomination to the Teaching Council.
The application for stay of the halt judgment
The application for a stay of the halt judgment must fail. The stay was sought pending determination of the application for leave to appeal the halt judgment, which we have now determined against Mr Tomar. In any event, the application for stay would fail for the same reason as the application for leave to appeal fails, namely that the halt judgment has been overtaken by the order for adjudication.
Applications for stay of the annulment judgment
The application for stay of the annulment judgment raises slightly different issues. Mr Tomar can no longer appeal the order for adjudication because, as noted earlier, he failed to exercise his right of appeal in time and this Court declined to extend time.[12] The reasons given for declining to extend time to appeal included the substantial delay in applying, and the fact that nothing raised by Mr Tomar suggested that the bankruptcy order was erroneous.[13] The Court considered that the proposed appeal was “clearly hopeless”.[14] However, Mr Tomar’s appeal against the annulment judgment is still extant and if that appeal succeeds, the order for adjudication would be annulled.
[12]Tomar v Khatri, above n 2.
[13]At [11]–[13].
[14]At [13].
The grounds advanced for a stay can be summarised as:
(a)procedural unfairness in the making of the adjudication order in that there was no substantive hearing and no reasons provided; and
(b)the order has caused significant prejudice to Mr Tomar including the Official Assignee declining to allow various legal proceedings to continue, Ms Khatri having liquidated disputed relationship property, Ms Khatri having relied on judgments being appealed by Mr Tomar to secure new judgments in her favour and the effect on Mr Tomar’s professional life, particularly not being able to renew his immigration adviser licence.
While there is no reason to doubt Mr Tomar’s assertion that he will be adversely affected if a stay is not granted, for example by not being able to renew his licence pending the hearing of the appeal, none of the other relevant factors favour the granting of a stay.
The appeal against the annulment judgment will not be rendered nugatory if a stay is not granted. Mr Tomar will still be able to raise the arguments he makes regarding errors in the Judge’s decision.
There is reason to doubt Mr Tomar’s bona fides — his pattern of meritless applications and appeals following the Family Court decisions that gave rise to this litigation has drawn serious criticism from this Court and the High Court. Ms Khatri, who has already put up with the significant cost and inconvenience created by Mr Tomar’s conduct, will be further affected if a stay is granted.
No novel or important questions arise and there is no public interest in the proceeding.
The apparent strength of the appeal against the annulment judgment is low. In the current application Mr Tomar asserts procedural unfairness in the making of the adjudication order but his complaints — that there was no substantive hearing and reasons were not given — do not seem likely to justify annulment of the order. These complaints either were or should have been raised in the application to extend time to appeal the order. To the extent they were raised, this Court nevertheless regarded the proposed challenge to the adjudication order as hopeless.[15]
[15]At [13].
Nor does there appear to be any basis on which to challenge the Judge’s treatment of the grounds relied on to annul the order. The main ground on which Mr Tomar made his application for annulment was that the filing of the application for adjudication was a breach of Downs J’s restraining order and that same order prevented Mr Tomar from appealing the costs judgment on which the application for adjudication was founded.[16] The former argument has already been considered and rejected; Downs J’s order did not prevent Ms Khatri from bringing the application.[17] As to the latter argument, it appears that Mr Tomar’s appeal against the costs judgment might have been refused for filing on account of Downs J’s order,[18] but it does not follow that Mr Tomar’s bankruptcy should be annulled. Downs J’s order remains extant and there is nothing before this Court to suggest that an appeal against the costs judgment would have had a real prospect of success.
[16]The annulment judgment, above n 4, at [15], [17] and [25].
[17]Khatri v Tomar [2023] NZHC 684 at [27]–[28].
[18]At [49].
Mr Tomar’s other grounds for annulment, likewise, have been the subject of previous decisions and were found to lack any substance. He complained about unfairness in the Family Court but Mr Tomar has already pursued appeals against Family Court decisions, unsuccessfully.[19] He argued that Ms Khatri misappropriated funds held in a solicitor’s trust account but this complaint was found to be baseless because the funds belonged to Ms Khatri, as her share of the relationship property.[20] There were various complaints about the procedure followed by the High Court in determining the adjudication proceedings, all of which have been previously determined and found not to be supported.[21]
[19]See for example Tomar v Tomar [2021] NZHC 2353; aff’d [2022] NZCA 28.
[20]Khatri v Tomar, above n 17, at [53]–[55].
[21]See generally Khatri v Tomar, above n 17; and Tomar v Tomar, above n 19.
Overall, the balance of convenience does not support the making of a stay, and by some margin.
Result
The application for leave to appeal the decision in [2023] NZHC 3240 is declined.
The applications for stay of the decisions in [2023] NZHC 3240 and [2024] NZHC 3217 are declined.
There is no order as to costs.
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