Tomar v Tomar - [2021] NZHC 2985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-815

CIV-2020-404-976 [2021] NZHC 2985

BETWEEN
VIN TOMAR

Appellant

AND

MONIKA TOMAR

Respondent

Hearing: On the papers

Appearances:

Appellant in person

K L Hoult for Respondent

Judgment:

9 November 2021

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 9 November 2021 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date ……………….

TOMAR v TOMAR [2021] NZHC 2985 [9 November 2021]

[1] On 10 September 2021 I delivered a decision in which I dismissed all but two of the grounds raised by Mr Tomar in two appeals against decisions made by Judge D A Burns in the Family Court.1

[2]I am now required to determine costs on the two appeals.

[3] On Ms Tomar’s behalf Ms Hoult sought costs on a Category 2B basis because she contended Ms Tomar was the successful party overall on the two appeals. This reflected the conclusion I reached at the end of my judgment.2

[4] Ms Hoult initially sought costs in the sum of $47,561. This sum was calculated in accordance with a schedule attached to a memorandum that Ms Hoult filed on 24 September 2021.

[5] Before calling on Mr Tomar to respond I referred Ms Hoult’s memorandum to Mr Tony Mortimer, the Registrar at Auckland, so that he could check to ensure the steps for which costs were sought in the schedule had in fact been taken. After receiving Mr Mortimer’s report I issued a minute on 11 October 2021 setting out concerns I held as a result of matters raised by Mr Mortimer.

[6] In a memorandum filed on 21 October 2021 Ms Hoult conceded that some of my concerns were justified. She amended her claim to reduce the costs sought to the sum of $35,611. These were calculated in accordance with an amended schedule attached to the memorandum. For ease of reference I attach the amended schedule to this judgment.

[7] Mr Tomar has not responded in any substantive way to the application for costs. He opposes costs being awarded and has foreshadowed that he will seek leave to appeal against any decision I may make in favour of Ms Tomar.

[8] Ms Tomar was clearly the successful party in the proceeding and is entitled to an award of costs on a category 2B basis as a result. The matters contained in

1 Tomar v Tomar [2021] NZHC 2353.
2 At [96].

Ms Hoult’s memorandum dated 21 October 2021 satisfy me that the costs now sought on Ms Tomar’s behalf are justified. I therefore award costs in favour of Ms Tomar in the sum of $35,611.

Lang J

SCHEDULE 1

Tomar v Tomar - CIV-2020-404 815 & CIV.2020-404.976
Table for 28 •=«+•

(a) 53 Commencement of response to appeal -

FiTing of Me norandum gf §ounseI for

Respondent on 25 June 7020 łCl\/ 8\ 5]

(b)

53

żespondent on 18 June…

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 [2021] NZHC 2985
Case: [2021] NZHC 2985
Decision Date: 9 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Monika Tomar, the respondent, sought costs against Vin Tomar, the appellant, following two appeals against Family Court decisions. Monika Tomar was successful in the appeals, leading to her legal representative, Ms Hoult, applying for costs under Category 2B on Monika Tomar's behalf. The court needed to determine whether the costs sought by Ms Hoult were justified, considering the concerns raised by the Registrar about the claimed costs and the appellant's lack of substantive response to the costs application.

The court assessed the costs application, considering the initial claim of $47,561, which was subsequently amended to $35,611 following the Registrar's report. The Registrar had pointed out discrepancies and the appellant had not substantively responded to the application. The court was satisfied that the amended claim for costs was justified as Monika Tomar was the successful party in the proceeding, entitling her to an award of costs on a Category 2B basis.

After reviewing the amended claim and considering the appellant's lack of substantive response, Justice Lang awarded Monika Tomar the costs of $35,611. The appellant had foreshadowed seeking leave to appeal against any decision in favour of Monika Tomar. However, the court proceeded to award the costs as sought, finding the amended claim justified.

Justice Lang awarded Monika Tomar the sum of $35,611 in costs. This decision was made based on the appellant's lack of substantive response to the costs application and the court's satisfaction that the amended claim for costs was justified. The appellant had foreshadowed seeking leave to appeal against the decision, but the court proceeded to make the final orders as outlined.

Orders