Tomar v Khatri - [2024] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA644/2023
[2024] NZCA 98

BETWEEN	VIN TOMAR Applicant
AND	MONIKA KHATRI Respondent

Court:	Cooper P and Ellis J
Counsel:	Applicant in person Respondent in person
Judgment: (On the papers)	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.

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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…

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 98
Case: [2024] NZCA 98
Decision Date: 9 April 2024 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Vin Tomar against a bankruptcy adjudication made against him by Monika Khatri. Tomar's appeal arose from a Family Court order for him to pay $56,106.25 in costs, which he failed to do. Khatri subsequently served Tomar with a bankruptcy notice, which he unsuccessfully sought to have set aside. The High Court confirmed the bankruptcy notice, and Tomar was adjudicated bankrupt on 30 November 2023. Tomar then filed applications in the Court of Appeal for leave to appeal certain directions made by the High Court and for a stay of those directions. These applications were determined on the papers by the Court of Appeal.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to grant Tomar's applications for leave to appeal and for a stay of certain High Court directions. The Court found that Tomar's applications faced insurmountable hurdles. Firstly, the directions were interlocutory in nature and Tomar's applications were not accepted for filing by the High Court, so the Court of Appeal had no jurisdiction to grant leave to appeal. Secondly, the Court of Appeal's power to grant a stay under Rule 12 of the Court of Appeal (Civil) Rules 2005 is predicated on a live application for leave or a live appeal, neither of which existed here. Thirdly, the applications were moot as the High Court directions concerned a hearing that had already occurred.

The Court of Appeal declined Tomar's applications for leave to appeal and for a stay of the High Court directions. Khatri was awarded her costs on a Band A basis together with the usual disbursements for the steps taken by her up until she became self-represented in the matter. Tomar was ordered to pay Khatri's costs and disbursements.

Orders