Wati v Sharma - [2020] NZHC 1545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-236

[2020] NZHC 1545

IN THE MATTER of an appeal from the Family Court

BETWEEN

NIRMALA WATI

Appellant

AND

DEO DATT SHARMA

Respondent

Hearing: 2 July 2020

Appearances:

R O Parmenter for the appellant Respondent in person

Judgment:

2 July 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 2 July 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rule.

………………………….. Registrar/Deputy Registrar

Counsel:
R O Parmenter Barrister, Auckland

WATI v SHARMA [2020] NZHC 1545 [2 July 2020]

[1] Ms Wati is the beneficiary of unmet costs orders made by various Courts, including two from the Family Court in 2001 and 2006, against her former spouse, Mr Sharma. The parties jointly own property in Auckland’s Massey. In enforcement of the costs orders, Ms Wati sought a charging order over the property in anticipation of its sale, now its retention as a home for Ms Wati and children living with her no longer is required. As enforcement was of orders more than six years old, leave is required.1

[2] Ms Wati’s application for leave was dismissed by Judge G M Harrison in the District Court at Auckland on 24 January 2020 on grounds “[t]he application seeks an order to enforce the Court orders, and is therefore a proceeding and falls within the definition of ‘action’”.2 Ms Wati now appeals that decision.

Approach on appeal

[3] Appeals to this Court from the District Court are general appeals conducted by way of rehearing,3 in which the appellant bears the onus of satisfying me I should differ from the District Court’s decision. I only am justified in interfering with that decision if I consider the decision is wrong – in other words, the Judge erred.4

[4] I then am to come to my own assessment of the merits of the case afresh, without deference to the District Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).5 I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.6

[5] To the extent the decision involved exercise of the Judge’s discretion, I only may interfere with it if the appellant establishes the Judge acted on wrong principle,

1      District Courts Act 2016, s 140(1)(a)
2      Sharma v Wati FAM 2002-090-1294, 24 January 2020, direction of Judge G M Harrison.
3      District Court Act 2016, ss 124 and 127.
4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
5 At [13].
6      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.7

[6] After hearing the appeal I may make any decision I think should have been made, or direct…

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 1545
Case: [2020] NZHC 1545
Decision Date: 2 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Nirmala Wati, the appellant, appealed against a decision made by Judge G M Harrison in the District Court. The appeal was against the dismissal of Ms. Wati’s application for leave to enforce two Family Court costs orders against her former spouse, Mr. Deo Datta Sharma. The appeal was dismissed on the grounds that the application was considered a proceeding and fell within the definition of ‘action’. The appeal sought a charging order over jointly owned property in Auckland to enforce the costs orders. The appeal was dismissed as it was more than six years old, and therefore leave was required.

The court was required to determine whether the District Court’s decision to dismiss the appeal was correct. The court needed to consider whether the charging order was an interlocutory application or an enforcement proceeding. The court also needed to consider whether the definition of “action” as defined in the Limitation Act 1950 applied to the charging order.

The court held that the appeal was valid and quashed the decision of the District Court. The court held that the charging order was a distinct form of legal process to obtain performance of a court’s judgments, and therefore not an interlocutory application. The court held that the definition of “action” did not apply to the charging order, and therefore the District Court’s decision was wrong and plainly wrong. The appeal was upheld, and the decision of the District Court was quashed. The court directed the District Court to reconsider Ms. Wati’s application for leave to enforce the Family Court’s costs orders.

The court awarded costs to Ms. Wati for steps taken on the appeal, as the appeal was of a straightforward nature occupying a normal amount of time. The court calculated the costs from a five-day time allocation at a daily recovery rate of $1,590 to amount to $7,950 or such lesser sum as Ms. Wati actually incurred. The court reserved costs for determination on short memoranda of no more than five pages if that was not accepted by the parties, or they could not otherwise agree.

Orders