Wati v Sharma - [2020] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2008-404-006367 CIV-2008-404-006369 CIV-2008-404-006370 CIV-2008-404-006371 CIV-2008-404-006375 CIV-2007-404-001513 CIV-2006-404-002976

[2020] NZHC 2010

BETWEEN
NIRMALA WATI

Applicant

AND

DEO DATT SHARMA

Respondent

Hearing: 7 August 2020

Appearances:

RO Parmenter for Applicant Respondent in person

Judgment:

10 August 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 10 August 2020 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Witten-Hannah Howard, Auckland. RO Parmenter, Auckland.

Copy to: Respondent.

WATI v SHARMA [2020] NZHC 2010 [10 August 2020]

Applications for charging orders

[1] In August 2000, Nirmala Wati and Deo Sharma separated. Much litigation followed. This Court, the Court of Appeal and Supreme Court made costs orders against Dr Sharma. Dr Sharma has not paid any. Ms Wati wants to place charging orders against Dr Sharma’s share of their home in relation to the costs orders. Ms Wati requires the Court’s permission because the costs orders are now old. Dr Sharma agrees to the home being sold, but not subject to any charging orders. He says he wants to “settle the debts by negotiation”.1 In other words, Dr Sharma opposes the applications. He self-represents, as he has done since 2000.

Background

[2]I keep this to a minimum.

[3] After the separation, Ms Wati went to the Family Court. That Court made two costs orders against Dr Sharma. Dr Sharma appealed the Family Court matters to the High Court. He was unsuccessful. Dr Sharma appealed to the Court of Appeal. He was again unsuccessful. Both Courts made costs orders against Dr Sharma. Dr Sharma sought permission of the Supreme Court for a final appeal. That Court declined permission and made another costs order against him. These events occurred between 2001 and 2007.

[4] Ms Wati then brought bankruptcy proceedings for the costs orders in [3]. Dr Sharma tried to set aside the bankruptcy notices. He was unsuccessful. The High Court made a costs order against Dr Sharma. Dr Sharma reviewed the decision in relation to the bankruptcy notices. He was again unsuccessful. The High Court made another costs order against him. Dr Sharma then tried, unsuccessfully, to challenge the review decision in the Court of Appeal. That Court made another costs order against him. These events occurred in 2011 and 2012.

[5] Dr Sharma now owes Ms Wati at least $39,900 in relation to the costs orders (the figure includes interest).

1 Dr Sharma’s submissions at 11G.

[6]Ms Wati and Dr Sharma own a home in Massey, Auckland.

Ms Wati’s position

[7] Ms Wati acknowledges the costs orders are old. She says she did not persevere in having Dr Sharma made bankrupt as she did not then want their home sold—she and their two children were living there.

[8] Ms Wati says she is now “able to cope with the sale of the house”, hence the application for permission. Ms Wati says Dr Sharma has “fought on and…

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 [2020] NZHC 2010
Case: [2020] NZHC 2010
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Nirmala Wati applied for permission to place charging orders against Deo Sharma's share of their jointly owned home in relation to unpaid costs orders. The applications arose out of a history of litigation between the parties, including family law proceedings, bankruptcy proceedings, and appeals against costs orders made in those proceedings. Dr Sharma owed Ms Wati at least $39,900 in relation to the costs orders. Ms Wati required the Court's permission to place the charging orders because the costs orders were old. Dr Sharma opposed the applications. The Court considered Dr Sharma's arguments, including that the applications were time-barred, that he had paid money into Court as security for costs, and that Ms Wati could have sold the home earlier. The Court rejected these arguments and found that the merits favoured Ms Wati. The Court granted permission for the charging orders, ordered Dr Sharma to pay costs of $9,996.50, and noted that he could seek release of the $21,000 from the Court once all costs orders were paid.

The central issue before the Court was whether to grant Ms Wati's applications for permission to place charging orders against Dr Sharma's share of their jointly owned home. The applications required the Court's permission because the underlying costs orders were old. The Court considered Dr Sharma's arguments against the applications, including that the applications were time-barred, that he had paid money into Court as security for costs, and that Ms Wati could have sold the home earlier. However, the Court found that these arguments did not prevail and that the merits favoured granting the applications. The Court concluded that the only realistic means by which Dr Sharma could pay the costs orders was by selling the jointly owned home. The Court therefore granted permission for the charging orders and ordered Dr Sharma to pay costs of $9,996.50 in relation to the applications.

Orders