Wati v Sharma - [2021] NZHC 3601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-236

[2021] NZHC 3601

BETWEEN
NIRMALA WATI

Applicant

AND

DEO DATT SHARMA

Respondent

Hearing: On the papers

Counsel:

R O Parmenter for Applicant Respondent in person

Judgment:

22 December 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 22 December 2021 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Witten-Hannah Howard, Auckland

WATI v SHARMA [2021] NZHC 3601 [22 December 2021]

Introduction

[1] By Minute dated 28 October 2021, Toogood J made consent timetable orders for the filing of submissions and made a direction that the matter be determined on the papers. Mr Parmenter for the applicant and Dr Sharma (self-representing) have both filed written submissions.

[2] The background to this longstanding dispute between Ms Nirmala Wati (the applicant) and her former husband Dr Deo Sharma (the respondent) is succinctly summarised by Downs J in his judgment of 10 August 2020 in which he granted the applicant leave to seek charging orders in respect of outstanding court costs owed to her by the respondent.1 The applicant and respondent separated in August 2000, and have ever since been engaged in protracted litigation commencing in the Family Court and progressing to the High Court, Court of Appeal, and Supreme Court.

[3] In the context of bankruptcy proceedings which had been commenced by the applicant to enforce costs orders against the respondent, on 4 March 2011 he paid the sum of $21,000.00 into Court. That sum remains held by the Registrar together with accrued interest (the $21,000.00).

[4]The applicant now applies for:

(a)an order that the interim charging orders be made final.

(b)ordering the respondent to pay the costs of and incidental to the interim charging orders, on a scale 2B basis.

(c)an order for costs and disbursements on the present application.

(d)an order that the Court disburse the costs payable to the appellant from the $21,000.00 paid into Court by the respondent.

1 Wati v Sharma [2020] NZHC 2010.

(e)An order that the remaining balance of the $21,000.00 following the disbursement of the costs for which the charging order was made, be retained by the Court pending further orders to be made under r 17.59 in respect of three other proceedings (the consolidated proceedings) between the parties being:

(i) CIV 2008-404-6367/6369/6370/6371/6375.

(ii) CIV 2007-404-1513.

(iii) CIV 2006-404-2976.

Background

[5] By judgment dated 2 July 2020 Jagose J allowed an appeal by the applicant in relation to the enforcement of two Family Court costs orders.2 Justice Jagose directed the District Court to reconsider the applicant’s application for leave to issue enforcement proceedings, and made an order for costs and disbursements in her favour in the sum of $9,841.30 (the appeal costs). 3

[6] On 28 July 2020 the applicant registered a charging order over the respondent’s interest in the former family home under certificate of title NA 59C/1096 (North Auckland Registry) in respect of…

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 Wati v Sharma

Details

AGLC: Wati v Sharma [2021] NZHC 3601
Case: [2021] NZHC 3601
Decision Date: 22 December 2021

CaseChat Overview and Summary

The case of Wati v Sharma involved an application by Nirmala Wati against her former husband, Deo Sharma, to make final charging orders over a sum of $21,000.00 held by the Registrar of the High Court in Auckland. The sum was originally paid into court by the respondent in 2011 as a means to demonstrate his ability to pay outstanding costs to the applicant. The applicant sought to make final charging orders over the sum, to cover the costs of interim charging orders, and to direct the disbursement of the sum towards the outstanding costs. The respondent opposed the application on the basis that the $21,000.00 was not held by the Registrar as security for costs and that the interim charging orders were unnecessary.

The court found that the $21,000.00 was not held by the Registrar as security for costs but was personal property belonging to the respondent that had been made the subject of interim charging orders. The court held that there was no reason to not make the interim charging orders final and that the making of final charging orders was of utility to the applicant to recover the costs incurred in making the applications for interim charging orders. The court also found that the application of rule 1.6 to direct the disbursement of the $21,000.00 sum would promote the objective of the rules and secure the just determination of the proceeding. The court made an order that the interim charging orders be made final charging orders, that the respondent pay the applicant costs and disbursements in the sum of $11,616.00, and that the Registrar pay the applicant the sum of $11,616.00 from the $21,000.00 sum and pay the balance of the sum together with all accrued interest to the respondent. The court declined to award the applicant any costs in relation to the present application for final charging orders and distribution of the funds held by the Registrar.

Orders