Tomar v Khatri

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA726/2023
[2024] NZCA 231

BETWEEN	VIN TOMAR Appellant
AND	MONIKA KHATRI Respondent

Court:	Goddard and Mallon JJ
Counsel:	Appellant in person D M Brabant for Respondent
Judgment: (On the papers)	17 June 2024 at 11 am

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

The application before this Court

Mr Tomar has applied for recall of this Court’s judgment delivered on 14 February 2024.[1] That judgment struck out, for want of jurisdiction, Mr Tomar’s appeal from a High Court judgment delivered on 17 November 2023 (High Court judgment).[2]
[1]Tomar v Khatri [2024] NZCA 13.
[2]Khatri v Tomar [2023] NZHC 3240.
The application proceeds on the incorrect premise that the High Court judgment adjudicated Mr Tomar bankrupt. It did not. The final order adjudicating Mr Tomar bankrupt was entered in the High Court on 30 November 2023. Mr Tomar was entitled to appeal as of right against that order, within the prescribed time frame. He was not entitled to appeal as of right against the High Court judgment which determined certain preliminary matters in relation to the application to adjudicate him bankrupt. Leave was required to bring an appeal from the High Court judgment, and leave was not sought or obtained.
In any event, even if Mr Tomar were right that this Court’s judgment was incorrect in proceeding on the basis that leave was required for an appeal from the High Court judgment, that would not be a matter that could be pursued by way of recall. Mr Tomar’s application does not engage with the test for recall of a judgment: it simply contends that this Court’s decision was wrong. None of the matters raised in the application is of a kind that could engage this Court’s power to recall a judgment.[3]

Result

[3]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; aff’d Craig v Williams [2019] NZSC 60 at [10]; and Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

The application for recall is therefore declined.

Solicitors:
Shieff Angland, Auckland for Respondent

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Tomar v Khatri was presented before Goddard and Mallon JJ. The appellant, Mr Tomar, sought recall of the Court’s judgment from 14 February 2024, which had dismissed his appeal from a High Court judgment. The respondent, Monika Khatri, was represented by counsel, while Mr Tomar appeared in person. The judgment on the recall application was delivered on 17 June 2024. The primary legal issue before the Court was whether the earlier judgment, which dismissed Mr Tomar’s appeal for lack of jurisdiction, could be recalled.

The Court examined Mr Tomar’s argument that the High Court judgment had adjudicated him bankrupt, thereby entitling him to an automatic right of appeal. The Court found this premise incorrect, as the final order for bankruptcy was issued separately and at a later date. The Court also noted that Mr Tomar had not sought or obtained leave to appeal the High Court judgment, which addressed preliminary matters. Furthermore, the Court held that the application for recall did not meet the stringent criteria for such a remedy, as it did not involve new evidence or a significant error in the judgment that would warrant reconsideration. The application was thus deemed to be a mere disagreement with the Court’s decision rather than a valid ground for recall.

In conclusion, the Court declined the application for recall, affirming that the earlier judgment was correctly made based on the available evidence and applicable legal principles. The Court emphasized that the application did not meet the stringent criteria for recall, which requires significant error or new evidence. The final orders confirmed the dismissal of Mr Tomar’s appeal and the denial of the recall application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established