Parties have been involved in litigation since separation in 2016
The New Zealand Supreme Court has denied leave to appeal against a decision to issue an order under s 166 of the Senior Courts Act 2016, which the respondent had sought to restrain the applicant from commencing or continuing civil proceedings against her.
In Tomar v Khatri [2026] NZSC 75, the parties had a son, separated in 2016, and have since been involved in litigation, through which the respondent obtained protection and parenting orders in her favour.
The applicant mostly unsuccessfully challenged decisions in various courts. In 2021, the respondent applied for an order under s 166. She alleged that the applicant’s “indefatigable and obsessive conduct” took “an immense financial and crippling emotional toll.”
The applicant sought to strike out this application and to prevent the respondent from taking steps against him via his own s 166 application.
In 2021, the High Court dismissed the applicant’s strike‑out application, did not expressly address his 166 application, and refused to issue the respondent’s requested s 166 order. Instead, under its inherent powers, the court issued an order prohibiting the applicant from doing the following unless he fully paid the respondent’s outstanding costs of $98,998.15:
The applicant appealed. The Court of Appeal set aside the High Court order and made an extended order under s 166 in the respondent’s favour upon re‑examining her application.
The appeal court said r 48 of the Court of Appeal (Civil) Rules 2005 allowed it to address “the inevitable question” that arose regarding whether the High Court should have issued the respondent’s requested s 166 order.
The appeal court found that the applicant’s 166 application implicitly failed. The appeal court noted that the High Court order included no fixed duration and no provision for the applicant to seek leave to continue or commence proceedings.
The applicant applied for leave to appeal from the appeal court judgment. In his proposed appeal, he asserted that the appeal court could not reassess the respondent’s s 166 application without a cross‑appeal. He also assailed the appeal court’s approach to suppression.
The Supreme Court of New Zealand dismissed the application for leave to appeal and issued no cost order.
Agreeing with the Court of Appeal, the Supreme Court held that the question of whether to issue a s 166 order inevitably arose and that the appeal court could apply r 48, which allowed for substantive justice.
The Supreme Court found that the appeal court removed the “significant disadvantage” caused by the High Court order’s absence of an express provision for seeking leave to continue or commence proceedings.
The Supreme Court acknowledged that the appeal court arguably should have expressly given the applicant an opportunity to be heard before issuing the s 166 order.
However, the Supreme Court saw no apparent miscarriage of justice in the civil context, given the inevitable and less rights-intrusive outcome, and found insufficient prospects of success in the other proposed grounds of appeal.
