JASWANT KHERA vy DANIELETTO SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL MAHONEY JA, CLARKE JA and MEAGHER JA 22 November 1993 [1993] NSWCA 153 Mahoney JA. This is an application for leave to appeal against orders made by Hodgson J on 11 August 1993. The orders were made in the proceedings: Danieletto v Khera. They were a dispute between two solicitors. His Honour has outlined the circumstances in his judgment. This Court is of the opinion that this is not an appropriate case for leave to appeal. Ordinarily the Court's practice is not to give reasons in circumstances of this kind. However, as Mr Khera is a solicitor and for other reasons, I shall very briefly, in summary form only, refer to some of the matters that have been dealt with before the Court. The application came before the Court upon summons which was supported by a statement said to be under Part 51 Rule 3 and there were submissions filed by Mr Khera himself in support of the application. The Court is told that submissions were filed and served by the respondent this morning. The Court is not referred to those and has dealtwith the matter purely upon the material provided by Mr Khera. Mr Khera has appeared for himself. The orders which had been made by Hodgson J and against which leave to appeal is sought are essentially interlocutory orders. They are orders in the main providing that Mr Khera pay amounts to some legal costs experts who are in the process of dealing with the incidents of the previous partnership, and that he pay to the receiver who has been appointed a number of amounts being, as I understand it from what has been said, amounts which the judge concluded had been received by Mr Khera in respect of costs or generally in relation to the previous partnership and which amounts should be paid to the receiver in accordance with the receivership order. As I have said, these are essentially interlocutory orders and the orders which have been made have apparently been based significantly upon findings which have been made by Hodgson J in the proceedings before him. Leave to appeal has been sought upon grounds which suggest that his Honour was in error — at least suggestions of that kind have been made to the Court from the Bar table today — and also upon the grounds (as Mr Khera has put them) that his Honour was in error admitting evidence on affidavit sworn by Mr Danieletto in the matter; that his Honour gave undue weight to the material in that affidavit; and that he erred in not allowing Mr Khera a sufficient opportunity to respond to the affidavit. Mr Khera, in what he has said to the Court, has referred to matters going beyond what has been said in the statementfiled under Part 51 Rule 3. I do not criticise him for doing so; I merely indicate that in what he has said the Court has allowed him to go beyond what has been filed in the statement. The Court has pointed out to Mr Khera during argument that this is the kind of matter in respect of which, subject to what I shall say, the Court would not ordinarily grant leave to appeal. There does not appear to have been an error in 2 UNREPORTED JUDGMENTS principle and the matters of concern are essentially interlocutory matters which can subsequently be adjusted, if there be an error of fact or principle involved in them. Mr Khera has, however, reiterated his submissions that his Honour erred in not allowing him sufficient time to deal with the affidavit, to which I have referred, or to provide appropriate evidence; and it was suggested as part of this or, in the alternative, that his Honour in some way misled Mr Khera in the course of the proceeding by suggesting that evidence be not given upon a matter and then dealing with the matter as if it were. I state this matter in very general terms and I do not purport to cover all the details of what has been put. There has been no evidence put before the Court on affidavit or otherwise to suggest that such a course was taken by the Judge or that he made an error of this kind. The Court does not have in detail what is alleged in this regard. It is sufficient, without saying more, to indicate that no case has been made out sufficient to support the application for leave to appeal on this basis. The Court has indicated to Mr Khera during the course of argument that, this being an interlocutory matter, he is (within appropriate limits and I underline those words), entitled to come back to the trial Court and to seek a variation of the existing orders or other orders, if the circumstances warrant it and the evidence which he can adduce would justify such orders. I do not mean that, without more, he can come back and canvass the orders which have been made by Hodgson J. If there has been some misunderstanding or error made in this matter, then he has such rights as the law may allow him in that regard. One other matter should be referred to. It has been suggested by Mr Khera that in another matter concerning Mr Ian Jones, with whom a similar dispute is on foot, orders have been made, rightly or wrongly, or letters written the result of which has been that Mr Khera has been deprived of the receipt of moneys which otherwise he would have received and that this makes it difficult or impossible for him to comply with the orders which have been made by Hodgson J. There is nothing before the Court to evidence such matters. Statements have been made from the Bar table. The Court has indicated that if there are reasons why, because of subsequent events, the orders of Hodgson J cannot be complied with, then application should be made to the judge to vary such orders on that ground. The Court does not decide whether, in the particular case, such an application should be made or may be granted. It is merely indicating the position, so that Mr Khera willunderstand that so far as the general matter is concerned he may have to consider what orders he seeks. I emphasise that nothing the Court has said is in any way an indication of what can be done or should be done in this case, or the merits of any other application which may be made. I refer to those matters only as a courtesy to Mr Khera as a solicitor. It is sufficient in my opinion to say that the case, because of its nature, is not one for which leave to appeal should be granted. Even if the case were such as to attract leave, the material placed before the Court is not material upon which the Court would grant leave. In my opinion the application for leave to appeal should be dismissed with costs. Clarke JA. I agree. Meagher JA. I agree. Orders accordingly.