Tomar v Khatri
[2024] NZCA 98
•9 April 2024 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA644/2023 [2024] NZCA 98 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA KHATRI |
| Court: | Cooper P and Ellis J |
Counsel: | Applicant in person |
Judgment: | 9 April 2024 at 10.00 am |
JUDGMENT OF THE COURT
AMr Tomar’s application for leave to appeal and the application for stay are declined.
BMs Khatri is entitled to her costs on a Band A basis together with the usual disbursements for the steps taken by her up until the time she became self‑represented in this matter (22 February 2024). Mr Tomar is to pay those costs and disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Vin Tomar has been engaged in protracted relationship property proceedings with his former wife, Monika Khatri. In that context, the Family Court made a costs award against Mr Tomar of $56,106.25 and that order was duly sealed.[1]
[1]Khatri v Tomar [2022] NZFC 423.
Mr Tomar’s failure to pay those costs led to Ms Khatri serving a bankruptcy notice on him in 2022. Mr Tomar’s attempt to have the notice set aside was unsuccessful.[2] Associate Judge Gardiner directed that if the costs order remained unpaid at the end of the day on which her judgment was delivered (30 March 2023), Mr Tomar would have committed an act of bankruptcy.[3] Mr Tomar failed to comply with that order and Ms Khatri filed an adjudication application.
[2]Khatri v Tomar [2023] NZHC 684.
[3]At [58].
On 13 September 2023, Associate Judge Sussock set down the adjudication application for a half day defended hearing on 6 November 2023. She made the following ancillary directions:[4]
(a) all documents and correspondence received by the Registry from Mr Tomar are to be referred to Associate Judge Gardiner or myself as soon as possible following receipt to determine whether they ought to be accepted for filing;
(b) Mr Tomar is not to serve any further documents on the Judgment Creditor or her counsel;
(c) the Registry is to provide copies of any documents received from Mr Tomar that are accepted for filing following review by Associate Judge Gardiner or Associate Judge Sussock to counsel for Ms Khatri by way of service;
(d) Mr Tomar is to file (but not serve) any amended notice of opposition incorporating all grounds for opposing bankruptcy) together with any affidavits in support by 29 September 2023;
(e) counsel for Ms Khatri is to file and serve any affidavits in reply by 6 October 2023;
(f) counsel for Ms Khatri is to file and serve a synopsis of submissions, common bundle and copies of any authorities by 20 October 2023;
(g) the judgment debtor, Mr Tomar, is to file (but not serve) his synopsis of submissions together with any additional authorities by 30 October 2023;
…
[4]Khatri v Tomar HC Auckland CIV-2022-404-1383, 13 September 2023 at [16].
On 28 September, Mr Tomar filed a document in the High Court headed “[i]nterlocutory application to appeal and stay order on the decision made by Associate Judge Sussock dated 13 September 2023”. The application was referred to Associate Judge Sussock, in accordance with her directions, and on 3 October the Judge directed that the document should not be accepted for filing, on the basis that there was no prospect of the application succeeding and that allowing it to be filed would be an abuse of the Court’s processes.[5]
[5]Khatri v Tomar HC Auckland CIV-2022-404-1383, 3 October 2023 at [1]–[3] and [7(a)].
On 30 October 2023, Mr Tomar filed an application in this Court for leave to appeal Associate Judge Sussock’s 13 September minute.[6] The next day Mr Tomar filed an application in this Court for a stay of the directions made in that minute.[7]
[6]Purportedly pursuant to s 56(5) of the Senior Courts Act 2016.
[7]Purportedly pursuant to r 12(3) of the Court of Appeal (Civil) Rules 2005.
These two applications were referred to Mallon J, who was satisfied they did not warrant urgent determination. She confirmed the High Court bankruptcy hearing, scheduled for 6 November 2023, could proceed.[8]
[8]Tomar v Khatri CA644/2023, 2 November 2023 at [6].
Back in the High Court, on 2 November 2023 Associate Judge Sussock issued a minute declining an application by Mr Tomar to vacate the 6 November fixture. The hearing went ahead on 6 November. In his subsequent judgment of 17 November 2023, Associate Judge Taylor held there were no grounds for the exercise of the discretion under s 37 of the Insolvency Act 2006 to refuse to adjudicate Mr Tomar bankrupt, or for the exercise of the discretion under s 38 of that Act to halt the application for adjudication.[9] He found Ms Khatri was entitled to an order adjudicating Mr Tomar bankrupt and directed that the adjudication application was to be put in the first available bankruptcy list.
[9]Khatri v Tomar [2023] NZHC 3240.
Mr Tomar was adjudicated bankrupt on 30 November 2023.[10] He has filed an appeal against his adjudication, which has yet to be heard in this Court.
[10]The Official Assignee’s position in relation to the applications presently before us was that Mr Tomar was not precluded by his bankruptcy from pursuing them.
Mr Tomar’s applications for leave and stay now fall to be determined on the papers by us. They face insurmountable hurdles.
Firstly, and assuming a timetable direction could be regarded as a “judgment, decree or order” of the High Court in terms of s 56(1)(a) of the Senior Courts Act 2016, it could only be an order of an interlocutory kind. And s 56(3) provides that leave to appeal such an order (other than an order for strike out or summary judgment) must be sought from the High Court. Although, in the event the High Court declines leave, leave may be granted by this Court under s 56(5), the High Court did not decline leave here; Mr Tomar’s applications were not accepted for filing. In those circumstances this Court has no jurisdiction to grant leave to appeal.
Secondly, the absence of the jurisdiction for the leave application necessarily has a flow-on effect for the stay application. Rule 12 of the Court of Appeal (Civil) Rules 2005 predicates the power to grant a stay on a live application for leave or a live appeal. There is no such application or appeal here.
And thirdly, it is quite plain from the narrative above that the applications are now entirely moot. Without exception, the directions made on 13 September 2023 were concerned with the 6 November hearing. That hearing has been and gone and a judgment has issued. There are no operative directions to appeal and nothing to stay.
Mr Tomar’s application for leave to appeal and the application for stay are declined, accordingly.
Ms Khatri is entitled to her costs on a Band A basis together with the usual disbursements for the steps taken by her up until the time she became self-represented in this matter (22 February 2024). Mr Tomar is to pay those costs and disbursements, accordingly.
3
2
0