Tomar v Khatri [2024] NZCA 355 (31 July 2024)

Last Updated: 5 August 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA644/2023 [2024] NZCA 355

	BETWEEN	VIN TOMAR Applicant
	AND	MONIKA KHATRI Respondent

Court:	Cooper P and Ellis J
Counsel:	Applicant in person Respondent in person
Judgment: (On the papers)	31 July 2024 at 3.00 pm

JUDGMENT OF THE COURT

The application for recall is declined.
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REASONS OF THE COURT

(Given by Ellis J)

• [1] On 9 April 2024, this Court declined Mr Tomar’s application for leave to appeal certain ancillary directions made by Associate Judge Sussock in the High Court in the context of progressing an adjudication to have Mr Tomar adjudicated bankrupt, and his application for a stay of those directions.^[1]
• [2] The applications were declined on the basis that this Court had no jurisdiction to hear them and, in any event, they had been rendered moot by the fact that Mr Tomar had, since the time of the relevant directions, in fact been adjudicated bankrupt.^[2]
• [3] Mr Tomar then applied for our judgment to be recalled. He later filed submissions and a considerable quantity of other material. None of it addresses the long-established principles governing recall.^[3] Rather, the application appears largely to be based on misunderstandings of both the jurisdictional issue addressed in the judgment and of the concept of mootness. Moreover, other (wider) matters raised in relation to the restraint order made by the High Court in 2021 are likely to be addressed in due course,^[4] as a consequence of this Court’s recent decision enabling Mr Tomar to appeal against that order.^[5]
• [4] The only error identified by Mr Tomar in his submissions is that at [8] of our judgment we incorrectly referred to Mr Tomar having filed an appeal against his bankruptcy adjudication. Rather, Mr Tomar has since filed an application for an extension of time to appeal his adjudication. That application has yet to be determined. But in any event, the filing (or not) of an appeal was irrelevant to the question of jurisdiction and not determinative of the question of mootness. And it is immaterial to the question of recall.
• [5] The application for recall is declined.

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^[1] Tomar v Khatri [2024] NZCA 98.

^[2] At [10]–[12].

^[3] See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, affirmed in Craig v Williams [2019] NZSC 60 at [10]; and Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

^[4] Khatri v Tomar [2021] NZHC 3091.

^[5] Tomar v Khatri [2024] NZCA 301.