VIN TOMAR AND MONIKA KHATRI
[2024] NZCA 691
•19 December 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA394/2024 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA KHATRI |
| Court: | French P and Hinton J |
Counsel: | Applicant in person |
Judgment: | 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 bring the same appeal.[8] This Court noted that the correct way to challenge his bankruptcy was to appeal the adjudication, rather than to appeal the decision to decline to set aside the bankruptcy notice.[9] The Court referred to s 61 of the Insolvency Act 2006, which provides that an adjudication is final and binding unless there is an appeal against it.[10]
(b)Mr Tomar sought to appeal the 13 September 2023 minute of Associate Judge Gardiner, and also applied for a stay of the directions made in that minute (CA644/2023).[11] The matter was not treated with urgency and, on 9 April 2024, these applications were declined.[12]
(c)Mr Tomar has, on two occasions, sought to bring an application for an extension of time to appeal the 17 November 2023 decision of Associate Judge Taylor.[13] On both occasions (CA726/2023 and CA377/2024), this Court noted it did not have jurisdiction, and the applications were struck out.[14] An application for recall of the first decision striking out his application was also declined.[15] In that recall decision, this Court noted that Mr Tomar could appeal the bankruptcy order as of right, but not the earlier decision because that was interlocutory.[16]
[7]30 March 2023 AJ Gardiner decision, above n 2.
[8]Tomar v Khatri [2024] NZCA 345 [CA 29 July 2024 decision].
[9]At [9].
[10]At [9].
[11]13 September 2023 AJ Sussock minute, above n 3.
[12]Tomar v Khatri [2024] NZCA 98.
[13]17 November 2023 AJ Taylor decision, above n 5.
[14]Tomar v Khatri [2024] NZCA 13; and CA 29 July 2024 decision, above n 8.
[15]Tomar v Khatri [2024] NZCA 231 [CA 17 June 2024 decision].
[16]At [2]. This arose as a result of the provisions limiting appeal rights for decisions made on an interlocutory application in s 56 of the Senior Courts Act 2016.
Mr Tomar now seeks to appeal his bankruptcy adjudication made on 30 November 2023. The 20-working day window in which to appeal expired on 19 January 2024.[17] Mr Tomar filed his notice of application for leave to appeal on 17 June 2024. The appeal was brought some five months (or 101 working days) out of time.
[17]Court of Appeal (Civil) Rules 2005, r 29(1)(a).
Following the filing of this application to extend time and its setting down Mr Tomar filed two further applications in the High Court: to annul the bankruptcy and for leave to appeal the 17 November 2023 decision of Associate Judge Taylor.[18] On 6 November 2024 Associate Judge Taylor declined both of those applications.[19]
Application for an extension of time
[18]17 November 2023 AJ Taylor decision, above n 5.
[19]Khatri v Tomar [2024] NZHC 3217. Mr Tomar sought to challenge the admission of this judgment via an email to the Registry. There is no basis for its exclusion.
As set out by the Supreme Court in Almond v Read, the ultimate issue when considering an application for an extension of time is the interests of justice.[20] Relevant considerations include:[21]
(a)The length of the delay.
(b)The reason for the delay.
(c)The conduct of the parties, particularly the applicant.
(d)Any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome.
(e)The significance of the issues raised by the proposed appeal, both to the parties and more generally.
[20]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
[21]At [38].
The merits of an appeal may, in principle, be relevant but a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless.[22] There will be occasions in which a court will risk facilitating unjustifiable delaying tactics by litigants if the merits are not considered.[23] Consideration of the merits must, however, be relatively superficial.[24]
[22]At [39].
[23]At [39].
[24]At [39(c)].
The documents Mr Tomar has filed in this Court are not directed at the criteria for an extension of time to file an appeal. The notice of application alleges a number of procedural irregularities, errors in the reasons for the decision of Associate Judge Taylor dated 17 November 2023, breaches of human rights, as well as judicial bias, among other matters. Mr Tomar’s submissions are primarily directed at the underlying debt in the Family Court, orders made by Downs J restraining him from litigating against Ms Khatri (which he referred to as “stay orders”) and Mr Tomar’s concerns about other related proceedings.[25]
[25]Khatri v Tomar [2021] NZHC 3091. This judgment helpfully sets out some of Mr Tomar’s conduct in related proceedings. This Court recently granted Mr Tomar an extension of time to appeal that decision: Tomar v Khatri [2024] NZCA 301. The orders made by Downs J did not preclude Mr Tomar defending the bankruptcy proceeding nor appealing the adjudication order.
Ms Khatri submits that she is entitled to finality. She says Mr Tomar has provided no valid reason as to why he did not appeal in time and further, the appeal is hopeless. The Family Court proceedings and the decision of Downs J are not, in Ms Khatri’s view, relevant. Ms Khatri submits that Mr Tomar’s allegations of procedural irregularities, unlawful actions and numerous other alleged breaches are a façade to cover up the fact that he has no valid arguments. Ms Khatri submits Mr Tomar’s conduct is a reason to decline an extension. He must be held to account for his debt. She says that this application continues his litigation abuse involving filing of unmeritorious applications at every opportunity, without presenting any valid grounds for his arguments.
Analysis
Turning to the Almond v Read factors, we note that the delay of five months is substantial. Mr Tomar has not adequately explained the delay. It has presumably followed in part from the various incorrect and convoluted steps he has taken following the issuance of the bankruptcy notice by Ms Khatri. While that may in part explain the delay, it does not excuse it. As referred to above, Mr Tomar sought to file several appeals against the steps leading up to his bankruptcy, but there was no jurisdiction for him to do so as of right. An appeal against the order itself, sought here, was the correct jurisdictional pathway. He did file this application for an extension of time the same day as this Court issued its decision declining recall of the decision striking out the purported appeal against the 17 November decision of Associate Judge Gardiner.[26] In this Court’s decision it clarified that Mr Tomar had a right of appeal against the order adjudicating him bankrupt.
[26]CA 17 June 2024 decision, above n 15.
Other factors strongly point against an extension. We have already observed the delay is substantial. Mr Tomar’s litigation “strategy” in this proceeding has created difficulties for both Ms Khatri and judicial resourcing. He has made numerous challenges, pursued with resolution, found to be completely without merit. As Ms Khatri submits, Mr Tomar’s conduct throughout their litigation saga has verged on, or constitutes, harassment against her. Ms Khatri has an obvious interest in the conclusion of this litigation, which arose from Mr Tomar’s failure to comply with a costs order in the context of Family Court proceedings. Those proceedings were themselves greatly protracted because of Mr Tomar’s conduct. An extension would be prejudicial to Ms Khatri.
No significant issue is raised by Mr Tomar. The proposed appeal is clearly hopeless. Nothing raised by Mr Tomar suggests the bankruptcy order was erroneous. The order was made a year ago. The outstanding costs judgment on which it is based goes back to 20 January 2022. The arguments Mr Tomar seeks to bring on appeal are peripheral to the matters that could actually be at issue in an appeal. It appears he merely seeks to continue to unjustifiably delay the adjudication taking effect.
For those reasons, the interests of justice point strongly against an extension of time and we decline the application.
Result
The application for an extension of time to appeal against the adjudication order is declined.
The applicant is to pay the respondent costs on a band A basis, together with usual disbursements.
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