Tomar v Khatri

[2024] NZCA 345

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA358/2024
CA377/2024
CA427/2024
 [2024] NZCA 345

BETWEEN	VIN TOMAR Applicant
AND	MONIKA KHATRI Respondent

Court:	Goddard and Mallon JJ
Counsel:	Applicant in person No appearance for Respondent
Judgment: (On the papers)	29 July 2024 at 12 pm

JUDGMENT OF THE COURT

AIn relation to CA427/2024, this Court does not have jurisdiction to hear an appeal against the minute of Woolford J nor to remove into this Court, and hear the application made in the High Court to rescind or stay that minute.  For the avoidance of doubt the appeal and the removal application are struck out for want of jurisdiction.

B    In relation to CA358/2024, Mr Tomar’s application for an extension of time to appeal against the decision of Associate Judge Gardiner is struck out. 

CIn relation to CA377/2024, this Court does not have jurisdiction to hear the application for an extension of time to appeal the decision of Associate Judge Taylor.  For the avoidance of doubt, the application is struck out for want of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

1. On 30 November 2023 Vin Tomar was adjudicated bankrupt.  Mr Tomar’s bankruptcy arose following an unpaid costs award in favour of his former wife, Monika Khatri.[1]  He has filed an application for an extension of time to appeal against his bankruptcy adjudication, which has yet to be heard in this Court. 

   [1]Khatri v Tomar [2022] NZFC 423 [costs award].

2. Prior to his adjudication Mr Tomar unsuccessfully made various applications seeking to, in substance, prevent his bankruptcy.  One of those was an application for leave to appeal a direction of Associate Judge Sussock in the High Court made on 23 September 2023 which set down the adjudication application for hearing and an application for a stay of that decision (CA644/2023).[2]  The application for leave was dismissed by this Court for want of jurisdiction which also meant the associated stay application could not succeed.[3]  Moreover, the application for leave was moot because the adjudication hearing had taken place.[4]

   [2]Khatri v Tomar HC Auckland CIV-2022-404-1383, 13 September 2023.

   [3]Tomar v Khatri [2024] NZCA 98 at [10]–[11].

   [4]At [12].

3. Mr Tomar also filed an appeal against interlocutory decisions made in the High Court by Associate Judge Taylor on 17 November 2023 in which the Judge declined to refuse an adjudication order or halt the bankruptcy and listed the adjudication application for the first available bankruptcy list.[5]  Mr Tomar’s appeal from that decision was struck out by this Court for want of jurisdiction because it was an appeal from interlocutory decisions and leave to appeal had been neither sought nor granted (CA726/2023).[6]  An application to recall this Court’s decision was declined.[7]

   [5]Khatri v Tomar [2023] NZHC 3240 [Associate Judge Taylor decision].

   [6]Tomar v Khatri [2024] NZCA 13 [Associate Judge Taylor appeal decision].

   [7]Tomar v Khatri [2024] NZCA 231 [Associate Judge Taylor recall appeal decision].

4. Mr Tomar again seeks to challenge in this Court other steps in the High Court leading up to his bankruptcy adjudication.  Before us are:

   (a)CA427/2024: an application to transfer to this Court an application made in the High Court to rescind and stay a minute of Woolford J in that Court dated 17 October 2022, and an appeal to this Court in respect of that same minute.[8]

   (b)CA358/2024: an application for an extension of time to appeal a High Court decision of Associate Judge Gardiner on 30 March 2023 declining Mr Tomar’s application to set aside a bankruptcy notice.[9]  Mr Tomar also sought directions as to whether he had served this application on Ms Khatri and, if not, her address so that he could effect service.[10]

   (c)CA377/2024: an application for an extension of time to appeal the High Court decision of Associate Judge Taylor made on 17 November 2023 on the basis that this Court erred in CA726/2023 in determining that the High Court decision was interlocutory.[11]

Discussion

CA427/2024

[8]Khatri v Tomar HC Auckland CIV-2022–404–1383, 17 October 2022 [Woolford J minute].  The jurisdiction to transfer proceedings is in s 59 of the Senior Courts Act 2016.

[9]Khatri v Tomar [2023] NZHC 684 [Associate Judge Gardiner decision].

[10]An interlocutory application in this Court is only brought when service is effected, absent some other directions:  see r 27B(2) of the Court of Appeal (Civil) Rules 2005; and Forest Holdings (NZ) Ltd v Sheung [2021] NZCA 108 at [20].

[11]Associate Judge Taylor decision, above n 5.

1. The application and appeal in CA427/2024 relate to a minute that interpreted the scope of an order made by Downs J which restrained Mr Tomar from litigating.[12]  Woolford J determined that Mr Tomar could file interlocutory applications in respect of the bankruptcy proceeding brought by Ms Khatri, as that proceeding was not within the scope of the order made by Downs J.[13]  The Judge directed that Mr Tomar’s application to set aside the bankruptcy notice should be set down for hearing.

   [12]Khatri v Tomar [2021] NZHC 3091. This judgment of Downs J is under appeal in this Court but the appeal does not relate to the Woolford J minute: see Tomar v Khatri [2024] NZCA 301.

   [13]Woolford J minute, above n 8, at [7].

2. The Judge’s directions were interlocutory.  This Court does not have jurisdiction to hear an appeal from those directions because leave has not been sought nor granted in the High Court.[14]  Nor can that lack of jurisdiction be circumvented by seeking to remove into this Court an application filed in the High Court to rescind or stay the minute.  There is no basis on which those applications could be transferred to this Court. 

   [14]Senior Courts Act, s 56(3).  See also the definition of “interlocutory application” in s 4.

3. For completeness, we also note that the appeal was filed nearly two years out of time, no extension of time has been sought, and it is unclear what Mr Tomar is seeking by way of remedy since the Judge found in favour of Mr Tomar by allowing him to bring interlocutory applications in his High Court bankruptcy proceedings. 

4. The appeal and the removal application must be struck out for want of jurisdiction. 

CA358/2024 

1. The application Mr Tomar seeks to bring for an extension of time to appeal Associate Judge Gardiner’s decision declining to set aside a bankruptcy notice is moot as subsequently the bankruptcy adjudication has been determined against him.  An attempt to set aside the bankruptcy notice at this stage is inconsistent with s 61 of the Insolvency Act 2006, which provides that an adjudication is final and binding unless there is an appeal against it.[15]  Mr Tomar has filed an application for extension of time to appeal against the adjudication and that is the correct way to seek to challenge that adjudication. 

   [15]See Khan v Reid [2011] NZCA 22 at [6]; and Sameer v Conroy Removals Ltd [2019] NZCA 173 at [10].

2. Moreover, as Mr Tomar records in his application for an extension of time to appeal Associate Judge Gardiner’s decision, he previously filed an appeal against that decision (CA 168/2023), then decided not to pursue that appeal after his application to dispense with security for costs was unsuccessful.  He says in his application that subsequent developments “have necessitated a shift in approach”. 

3. In circumstances where an appeal from Associate Judge Gardiner’s decision would be moot, and Mr Tomar has previously brought then abandoned an appeal against that decision, the application for an extension of time to appeal that decision is clearly an abuse of process.  As such, it must be struck out.  This means that there is no need to issue directions as to service.

CA377/2024

1. This Court does not have jurisdiction to entertain Mr Tomar’s application for an extension of time to appeal the decision of Associate Judge Taylor on 17 November 2023.  An appeal from that decision has already been struck out for want of jurisdiction and a recall application in respect of that judgment has been declined.[16]  Mr Tomar is not able to seek to challenge the decisions already made by this Court, or circumvent the Court’s lack of jurisdiction to hear his proposed appeal, through the avenue of an application for an extension of time to bring, again, such an appeal. 

   [16]Associate Judge Taylor appeal decision, above n 6; and Associate Judge Taylor recall appeal decision, above n 7.

2. For completeness, we also note that the Official Assignee filed a memorandum submitting that it would be an abuse of process to allow the proceeding to continue given s 61 of the Insolvency Act and, to the extent that it was necessary, abandoning Mr Tomar’s application.  While we agree that s 61 precludes appeals of decisions leading to the bankruptcy adjudication, we are doubtful that the Official Assignee can abandon such applications made by Mr Tomar.[17]  The point does not need to be determined as the Court does not have jurisdiction in respect of the application for an extension of time to appeal in any event.  Nothing in Mr Tomar’s most recent communications to the Court alters this.[18]

Result

[17]Schedule 1 to the Insolvency Act 2006 provides the Assignee with the power to “begin, continue, discontinue, and defend legal proceedings relating to the property of a bankrupt” and to “with the leave of the court, continue in the Assignee’s name legal proceedings begun by the bankrupt before adjudication”.  See also ss 101 and 102 of the Insolvency Act, which concerns what happens to property upon adjudication.

[18]Memorandum dated 5 July 2024 (filed on 15 July 2024) and email dated 15 July 2024.

1. In relation to CA427/2024, this Court does not have jurisdiction to hear an appeal against the minute of Woolford J nor to remove into this Court and hear the application made in the High Court to rescind or stay that minute.  For the avoidance of doubt the appeal and the removal application are struck out for want of jurisdiction.

2. In relation to CA358/2024, Mr Tomar’s application for an extension of time to appeal against the decision of Associate Judge Gardiner is struck out. 

3. In relation to CA377/2024, this Court does not have jurisdiction to hear the application for an extension of time to appeal the decision of Associate Judge Taylor.  For the avoidance of doubt, the application is struck out for want of jurisdiction.