Tomar v Tomar - [2022] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA711/2021
[2022] NZCA 28

BETWEEN	VIN TOMAR Applicant
AND	MONIKA TOMAR Respondent

Court:	Brown, Brewer and Cull JJ
Counsel:	Applicant in Person K L Hoult for Respondent
Judgment: (On the papers)	28 February 2022 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an adjournment is declined.
BThe application for leave to appeal to the Court of Appeal is declined.
CThe applicant must pay the respondent costs on a standard application for leave on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

The applicant’s two appeals to the High Court against judgments of the Family Court at Auckland dated 22 May 2020[1] and 20 May 2021[2] were dismissed (save in two respects) by Lang J on 10 September 2021.[3] His application to the High Court for leave for a second appeal to this Court pursuant to s 60(2) of the Senior Courts Act 2016 was declined on 9 November 2021.[4] He now applies directly to this Court for leave to appeal against the 10 September 2021 judgment.[5]

The course of the application

[1]Tomar v Tomar [2020] NZFC 2960.

[2]Tomar v Tomar [2021] NZFC 4666.

[3]Tomar v Tomar [2021] NZHC 2353.

[4]Tomar v Tomar [2021] NZHC 3003 [leave].

[5]Although the application for leave referred to the High Court judgments of 9 November 2021 (refusal of leave to appeal and costs) the applicant subsequently confirmed in an email of 13 December 2021 that his application relates only to the 10 September 2021 judgment.

The interlocutory application for leave for a second appeal to this Court was filed on 6 December 2021 together with an affidavit of the applicant. The application stated that the applicant had applied to the High Court for release of the transcripts of the hearings and conferences held in respect of the appeals but the High Court had refused this request. In addition to seeking leave to appeal the application sought an interim stay of the judgment and a direction that the High Court release all transcripts relating to the two appeals.
The affidavit dated 6 December 2021 recited a detailed list of criticisms, relating to both the conduct of the High Court hearing on 1 September 2021 and the judgment which is the subject of the leave application. The applicant then stated that there were other legal issues he wished to raise. However he would only address them once he had a copy of the transcript of the High Court hearing, following the receipt of which he intended to update his affidavit.
On 17 December 2021 counsel for the respondent filed a memorandum in accordance with r 19A of the Court of Appeal (Civil) Rules 2005 (the Rules) setting out in detail the grounds on which the leave application was opposed. An affidavit of the respondent was also filed.
That same day the applicant filed a memorandum in which…

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 Tomar

Details

AGLC: Tomar v Tomar [2022] NZCA 28
Case: [2022] NZCA 28
Decision Date: 28 February 2022 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application by Vin Tomar to appeal the 10 September 2021 judgment of the High Court, which dismissed his appeals against two prior Family Court judgments. Tomar sought leave to appeal to the Court of Appeal, as well as an adjournment of the hearing of his application and a direction for the High Court to release transcripts of the proceedings. Monika Tomar opposed the application, arguing it should be dismissed for lack of merit and for being an abuse of process. The application was heard on the papers, and the Court declined the application for leave to appeal, dismissed the application for an adjournment, and refused the request for transcripts. The Court held that the proposed appeal did not raise questions of law or fact of sufficient importance to warrant a further appeal. The applicant was also ordered to pay costs to the respondent.

The primary legal issue before the Court was whether Tomar's application for leave to appeal should be granted. The Court considered the principles governing applications for leave to bring a second appeal under s 60(2) of the Senior Courts Act 2016, which require that the proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The Court held that Tomar's application did not meet this test, as it sought to revisit the conclusions of two courts concerning the allocation of relationship property between him and Monika Tomar. The Court concluded that the proposed appeal was not the appropriate forum for a general traverse of Tomar's dissatisfaction with the conclusions of the Family Court and the High Court. The Court further held that the application for an adjournment was unnecessary, as transcripts of the High Court hearing were not required for the purposes of consideration of the threshold issue of whether leave for a second appeal should be granted.

Orders