VIN TOMAR AND MONIKA KHATRI - [2024] NZCA 691

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA394/2024
[2024] NZCA 691

BETWEEN	VIN TOMAR Applicant
AND	MONIKA KHATRI Respondent

Court:	French P and Hinton J
Counsel:	Applicant in person Respondent in person
Judgment: (On the papers)	19 December 2024 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time is declined.
BThe applicant is to pay the respondent costs for a standard application on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

Vin Tomar was adjudicated bankrupt on 30 November 2023 by Associate Judge Sussock in the High Court. Mr Tomar’s adjudication followed a protracted relationship property dispute with his former wife, Monika Khatri, which culminated in an order made on 20 January 2022 that Mr Tomar pay costs of $56,106.25 to Ms Khatri.[1]
[1]Khatri v Tomar [2022] NZFC 423 [Family Court costs award].
Mr Tomar applies for an extension of time to appeal against the order adjudicating him bankrupt. The application is opposed.

Background

On 16 August 2022, Ms Khatri served a bankruptcy notice on Mr Tomar. On 30 March 2023, Associate Judge Gardiner declined an application by Mr Tomar to set aside the notice.[2] Six months later, on 13 September 2023, Associate Judge Sussock set down the adjudication application for a defended hearing on 6 November 2023.[3] On 3 October 2023, Associate Judge Sussock issued a minute directing that an application by Mr Tomar, headed “[i]nterlocutory application to appeal and stay order on the decision made by Associate Judge Sussock”, should not be accepted for filing.[4] Associate Judge Sussock then issued a minute dated 2 November 2023 declining an application by Mr Tomar to vacate the 6 November fixture.[5] By judgment dated 17 November 2023, following the 6 November hearing, Associate Judge Taylor declined to refuse to make an adjudication order or halt the bankruptcy and listed the adjudication application for the first available bankruptcy list.[6] The bankruptcy order was then, as noted, made on 30 November 2023 by Associate Judge Sussock.
[2]Khatri v Tomar [2023] NZHC 684 [30 March 2023 AJ Gardiner decision].
[3]Khatri v Tomar HC Auckland CIV-2022–404–1383, 13 September 2023 [13 September 2023 AJ Sussock minute].
[4]Khatri v Tomar HC Auckland CIV-2022–404–1383, 3 October 2023 [3 October 2023 AJ Sussock minute].
[5]As referred to in Khatri v Tomar [2023] NZHC 3240 [17 November 2023 AJ Taylor decision].
[6]17 November 2023 AJ Taylor decision, above n 5.
Mr Tomar has, during this process, also sought to challenge these High Court decisions in this Court:
(a)On two occasions he sought to file an appeal against the 30 March 2023 decision of Associate Judge Gardiner declining to set aside the bankruptcy notice.[7] On the first occasion (CA168/2023), Mr Tomar did not pursue the appeal after his application to dispense with security for costs was unsuccessful. On the second occasion (CA358/2023), this Court struck out Mr Tomar’s application for an extension of time to…

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.

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Details

Case: [2024] NZCA 691
Decision Date: 19 December 2024 at 11 am

CaseChat Overview and Summary

The applicant, Vin Tomar, applied for an extension of time to appeal against his adjudication as bankrupt, which was made by the Associate Judge Sussock on 30 November 2023. Monika Khatri, the respondent, opposed the application. The bankruptcy followed a protracted relationship property dispute between the parties, which resulted in a costs order against Mr Tomar in the Family Court. The appeal against the adjudication was brought some five months out of time. Mr Tomar had previously attempted to appeal various interlocutory decisions, but those appeals were declined by the Court of Appeal.

The central legal issue before the Court was whether the application for an extension of time should be granted, considering the significant delay and the merits of the proposed appeal. The Court considered the Almond v Read factors, including the length of the delay, the reason for the delay, the conduct of the parties, the prejudice to the respondent, and the significance of the issues raised by the proposed appeal.

The Court observed that the delay was substantial, and Mr Tomar had not adequately explained it. His litigation strategy, which involved numerous unmeritorious challenges, created difficulties for Ms Khatri and judicial resourcing. The proposed appeal appeared to be a continuation of unjustified delay. The Court found that the interests of justice did not support granting an extension. The appeal was deemed hopeless, and no significant issues were raised by Mr Tomar that would suggest the bankruptcy order was erroneous.

Accordingly, the Court declined the application for an extension of time. Mr Tomar was ordered to pay Ms Khatri costs on a band A basis, together with usual disbursements.

Orders