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 on” and it would be “wrong … if he could get away without paying me” as she was “practically, unable to force him to pay without depriving my family of a home”.

Dr Sharma’s opposition

[9]Dr Sharma opposes the applications. He contends:

(a)The applications are time-barred because of s 4(4) of the Limitation Act 1950.

(b)Permission should be  refused  because  he  paid  $21,000  to  the High Court as security for costs. This money is still available.

(c)Ms Wati is playing games—my expression, not Dr Sharma’s—as the house could have been sold in 2013 or 2014 had Ms Wati been reasonable.

(d)He is prejudiced as he may not cross-examine Ms Wati on her affidavit.

(e)All litigation is ultimately traceable to false allegations by Ms Wati and the children.

Principle

[10]   A successful litigant may normally issue a charging order as of right.2 However, r 17.9(2)(b) of the High Court Rules 2016 is engaged because of the age of the costs orders. It provides:

17.9 When leave to issue enforcement process necessary

...

(2) The court’s leave is required to issue an enforcement process—

...

(b) if 6 years have elapsed since the date of the judgment (which for a judgment that is an arbitral award entered as a judgment has the meaning given to it by subclause (2A));

[11]   The rule invests a Judge with a discretion, but like other discretions, this must be exercised judicially. The focus is the merits.3

Analysis

[12]   Ms Wati’s affidavit is somewhat terse. It would have been helpful to know more about why Ms Wati now feels able to sell the home. However, there is no reason not to take Ms Wati’s evidence at face value; it accords with the record of the litigation.

[13]I address Dr Sharma’s arguments in the order raised (see [9]).

The limitation point

[14]   The law draws a distinction between an action on a judgment and the enforcement of a judgment. The former is governed by statutory limitations, such as the Limitation Act 1950. The latter is governed by rules of Court, here r 17.9(2)(b). This distinction has been drawn many times.4 Indeed, it was drawn by Jagose J

2      High Court Rules 2016, r 17.8(1).

3      Benecke v Wise (1997) 11 PRNZ 440 citing R Chesney Ltd v NZ Drycleaners Ltd

[1958] NZLR 598.

4      For example, see W T Lamb & Sons v Rider [1948] 2 All ER 402; National Westminster Bank plc v Powney [1990] 2 All ER 416; and Riddiford v New Zealand Law Society HC Wellington CIV-2005-485-879, 15 December 2005 at [9].

recently in  relation to a Family Court costs order against Dr Sharma in  favour of  Ms Wati.5 It follows the application is not time-barred, but permission required.

Security for costs?

[15]   On 4 March 2011, Dr Sharma paid $21,000 into the High Court. Dr Sharma’s covering letter refers to the amount as “payment of security” in cases in relation to Ms Wati. The Registrar issued a receipt on the same basis. Dr Sharma’s recent affidavit captures this sequence, and a related claim the $21,000 was security for costs. So, Dr Sharma’s argument about the $21,000 appears correct. However, the story does not end 4 March 2011.

[16]   On 9 March 2011,  Mr  Witten-Hannah,  Ms  Wati’s lawyer, asked Associate Judge Bell to order the $21,000 be paid to Ms Wati. At that time, Dr Sharma was trying to set aside the bankruptcy notices in relation to the unpaid costs orders. Associate Judge Bell asked Dr Sharma if he agreed to the $21,000 being paid to    Ms Wati. Dr Sharma did not agree. The Judge concluded the money was not actually security for costs, but money paid into Court  “to  demonstrate to  the  Court  that  [Dr Sharma] is able to put up money amounting to the orders for costs”.6 The Judge continued, this was “a step taken by [Dr Sharma] to try and prove his solvency”.7 This sequence is captured in Mr Witten-Hannah’s affidavit in support of Ms Wati’s application  for  permission  and  the  decision  of  Associate  Judge  Bell  (given     9 March 2011). In other words, Dr Sharma repudiated the $21,000 as security for costs when confronted on this very issue, by a Judge, nine years ago.

[17]   It is disingenuous of Dr Sharma to re-characterise the money as security for costs, especially under oath. Dr Sharma must have known what he  said  to  Associate Judge Bell when he swore his 2020 affidavit because that Judge’s decision is readily available.8

5      Wati v Sharma [2020] NZHC 1545 at [9].

6      Wati v Sharma HC Auckland CIV-2008-404-6367/6369/6370/6371/6375, 9 March 2011 at [14].

7 At [14].

8      I put this to Dr Sharma at the hearing. He merely said, “I don’t know”.

Earlier sale of the home?

[18]   Dr Sharma says the home could have been sold in 2013 or 2014 had Ms Wati been reasonable. He says Mr Witten-Hannah tried to get him to sign a document giving  Ms  Wati  unbridled  authority  in  relation  to  the  proceeds   of   the  sale. Mr Witten-Hannah annexed correspondence (from November 2013) to his affidavit offering a different perspective. The first of the letters sent on Ms Wati’s behalf accused Dr Sharma of subverting the sale process; the second said Ms Wati wanted “a watertight  agreement” in relation to that  process, and for the costs  to come from  Dr Sharma’s share of the proceeds.

[19]   Little is to be gained from re-exploration of this chapter. The short point is that the home was not sold when its sale was, and remains, the only realistic means by which Dr Sharma can pay the costs orders.

Cross-examination

[20]   Hinton J made directions concerning this hearing, including one declining to allow Dr Sharma to cross-examine Ms Wati on her affidavit.9 Dr Sharma contends this prevents  him  from  identifying  evidence  that  would  tell  against  permission. I explored with Dr Sharma what evidence cross-examination might have  yielded.  He did not identify any, save for evidence directed at why the house was not sold in 2013 or 2014. I have addressed this argument.

False allegations

[21]   Dr Sharma contends all litigation is traceable to false allegations by Ms Wati and the children. There is nothing in this. It is a matter of record Dr Sharma was convicted of assaulting Ms Wati and the children, the latter with weapons.10 The offending constituted a pattern between 1995 and 2000.

9      Minute of Hinton J, 4 June 2020. Cross-examination in interlocutory applications is permissible only in “special circumstances”; High Court Rules, r 7.28.

10     R v Sharma CA360/04, 6 July 2006.

Evaluation

[22]   The merits favour Ms Wati. This Court and higher Courts have made costs orders against Dr Sharma. Dr Sharma has not paid any. Sale of the family home is the only means by which the orders can be met. Dr Sharma does not oppose the sale but wants to “settle the debts by negotiation”. There is nothing to negotiate; costs should have been paid long ago.

[23]   Ms Wati seeks costs of $11,908.50 for these applications. Dr Sharma opposes, without specificity, except in relation to substituted service. Dr Sharma argues it was unnecessary for Ms Wati to seek substituted service as his address was available, or reasonably discoverable. I agree but otherwise order costs. This leaves a figure of

$9,996.50.

Result

[24]   Permission is granted for charging orders in CIV-2008-404-6367, CIV-2008-404-6369, CIV-2008-404-6370, CIV-2008-404-6371, CIV-2008-404-6375, CIV-2007-404-1513 and CIV-2006-404-2976. Dr Sharma must pay costs of

$9,996.50 in relation to these applications.

Postscript

[25]   I gave thought to directing the $21,000 be used as part-payment of the costs orders. However, jurisdiction is unclear and no one asked me to do this. Once all costs orders are paid, Dr Sharma may seek release of the money from the Court.

……………………………..

Downs J