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.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

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].
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].
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].
Mr Tomar again seeks to…

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 [2024] NZCA 345
Case: [2024] NZCA 345
Decision Date: 29 July 2024 at 12 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Vin Tomar sought to appeal various decisions leading to his adjudication as bankrupt. Tomar v Khatri involved three appeals and applications: CA427/2024, CA358/2024, and CA377/2024. The primary issues were whether the Court of Appeal had jurisdiction to hear the appeals or applications and if they constituted an abuse of process. The Court of Appeal held that it lacked jurisdiction over CA427/2024, as it involved an interlocutory decision from the High Court that required leave to appeal. Similarly, the Court found it did not have jurisdiction over CA377/2024, which sought an extension to appeal an interlocutory decision of Associate Judge Taylor. Regarding CA358/2024, the Court concluded that the application for an extension of time to appeal the decision of Associate Judge Gardiner was moot, as Tomar had already been adjudicated bankrupt, and it would be an abuse of process to entertain such an application.

The Court of Appeal, in its judgment, reasoned that appeals from interlocutory decisions generally require leave, which had not been sought or granted in this case. The Court also found that the applications and appeals were filed out of time and were an abuse of process. The Court held that appeals from decisions leading to bankruptcy adjudication were precluded by section 61 of the Insolvency Act 2006, which provides that an adjudication is final and binding unless appealed. The Court of Appeal struck out all the appeals and applications for want of jurisdiction and as an abuse of process.

Orders