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 the District Court to rehear the proceeding or consider and determine any particular matter.8

Discussion

[7]    The materiality of the definition of “action” to the Judge’s decision was s 4(4) of the Limitation Act 1950, which provides:

An action shall not be brought upon any judgment which has been obtained subsequent to the commencement of this Act after the expiration of 12 years from the date on which the judgment became enforceable or on any judgment which has been obtained before the commencement of this Act after the expiration of 20 years from the date on which the judgment became enforceable; and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due.

[8]    Under the District Court Act 2016, charging orders are a form of enforcement ‘proceeding’, defined as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”. Supporting the Judge’s conclusion, Mr Sharma argued the charging order could not be an interlocutory application, as it was brought after the substantive proceeding was determined.9

[9]    Although the Limitation Act  1950  defines  ‘action’ as  “any  proceeding  in a Court of law other than a criminal proceeding”, that is “unless the context otherwise requires”.10 Here, the context does otherwise require.11 Enforcement proceedings are not ‘actions on a judgment’. They are a distinct form of legal process to obtain

7      May v May (1982) 1 NZFLR 165 (CA); and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.

8      District Court Act 2016, s 128.

9      Relying on Schenker AG v Commerce Commission [2012] NZCA 245, (2012) 21 PRNZ 167 at [30].

10     Limitation Act 1950, s 2(1) definition of “action”.

11     AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017] NZSC 135, [2018] 1 NZLR 212 at [65].

performance of a court’s judgments,12 prompt and voluntary compliance with which generally is expected without resort to enforcement.13 So expressed, the distinction is obvious. The Judge’s conclusion to the contrary erred and was plainly wrong.

Result

[10]   The appeal is upheld. I quash the Judge’s decision and direct the District Court to reconsider Ms Wati’s 25 September 2019 application for leave to enforce the Family Court’s costs orders.

Costs

[11]   As the successful party, in my preliminary view, Ms Wati is entitled to 1B costs and disbursements for steps taken on the appeal, as the appeal was of a straightforward nature occupying a normal amount of time, excluding step 57 as I did not require to hear from Ms Wati’s counsel, Ray Parmenter. I calculate such 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 (plus disbursements as allowed by the Registrar).14

[12]   If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by Ms Wati within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.

—Jagose J

12     National Westminster Bank plc v Powney [1990] 2 All ER 416 (CA) at 428; referred to in Riddiford v New Zealand Law Society HC Wellington CIV-2005-485-879, 15 December 2005 at [16].

13     District Court Act 2016, s 138(1), prohibiting commencement of any enforcement action for 48 hours after judgment or order without leave.

14     High Court Rules 2016, rr 14.2–14.4 and Schedules 2 and 3.