JASWANT KHERA vy JONES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA, CLARKE JA and MEAGHER JA 22 November 1993 [1993] NSWCA 154 Mahoney JA. The Court notes that it is now a fraction before 2.30 pm. Mr Khera is not here and there is no explanation for his absence. The Court will dismiss the summons with costs. LATER: Mahoney JA: This is an application for leave to appeal against the orders made by Cole J on 8 September 1993. The orders were made in proceedings brought by Ian Robert Durston Jones, a solicitor, against Mr Jaswant Khera, another solicitor, in proceedings No 3496 of 1993. The initial proceeding is one by Mr Jones against Mr Khera. They were partners, as solicitors, for a short time. The partnership came to an end when Mr Jones alleged there had been misrepresentation. Mr Khera denied it. The proceedings came before Cole J on 8 September for the making of interlocutory orders. It is accepted the orders were interlocutory and his Honour, in his judgment indicates he was making orders based upon the Notice of Motion then before him. The main orders in respect of which leave to appeal is sought are the orders relating to the appointment of Mr Jones as receiver. Mr Jones sought that he be appointed as receiver. His Honour, in the course of a substantial judgment running into some nineteen or more pages, determined to appoint Mr Jones and made the ancillary and other orders then referred to. Application is made for leave to appeal and the Court has a statement under Part 51 Rule 3 prepared by Mr Khera. Mr Khera has appeared for himself in the matter. When the matter came initially before the Court Mr Khera sought to lodge an additional affidavit in support of the application. An affidavit by him sworn 22 November 1993 was tendered to the Court. That was rejected on the ground that it was argumentative or otherwise inadmissible. It is not necessary to go through the grounds. The affidavit, in my opinion, is clearly not proper to be put before the Court in the sense that essentially it simply contains argument. I do not think that it is necessary or appropriate that the Court attempt to disentangle the assertions from such matters of fact as may be embodied in it. The grounds upon which the application for leave to appeal is made can, in the broadest sense, be divided into two. The first of them relates to matters which are alleged to have happened since the order for the appointment of a receiver was made. They go to what is alleged against Mr Jones and what he has done. These matters are in the present context not matters which properly ground leave to appeal in a matter such as this. If there is any substance in those matters, on which I express no opinion, they are matters which should be brought before the Court at trial level in an application for the appropriate interlocutory orders. They are not grounds which, in the present context, weigh significantly in favour of the granting of the leave to appeal. 2 UNREPORTED JUDGMENTS The other matters urged in support of the grant of leave to appeal go to what occurred in the course of the proceedings. I do not purport to deal with all of them. Some at least of them go to the rulings which the judge made on evidence and the statements which were made by the witnesses for parties during the course of the proceedings. I see nothing in these which would warrant the granting of leave to appeal. There is one other matter to which reference can properly be made. The application made to his Honour was for the appointment of a receiver and, as Mr Elliott has suggested, from the beginning he submitted that Mr Jones himself should be appointed as a receiver. It was at one time (and I do not speak now as to the present practice) unusual for a party to seek himself to be appointed as receiver. However this be, Mr Elliott pointed out to his Honour that the partnership had few assets and that the cost of appointing an outside person would not be warranted. He pressed for the appointment of Mr Jones. One can see the reason why Mr Jones would be appointed and his Honour has canvassed that matter at length in his judgment. The matter which gives rise to the present problem is the observation made by his Honour (I refer to p 21 of the transcript of the proceedings) in the following terms: 'You may be assured, if I appoint a receiver at all, it will be someone who is independent, not one of these two parties. Mr Khera has claimed that because of this, the case proceeded on a false basis: he was stopped from giving appropriate evidence and asking appropriate questions. In other words, he was misled in relation to the matter. There is nothing in the transcript to which counsel have been able to point (the Court has not had an opportunity to go through the transcript in detail or in the circumstances the occasion to do so) which would indicate that his Honour said in terms that he was resiling from that position and was considering the appointment of Mr Jones. However, a perusal of the transcript, with such particularity as has been possible in the circumstances, would I think indicate that, when the parties came to make submissions, his Honour came to consider the appointment of Mr Jones as the receiver. In the course of his judgment his Honour referred to the issue that had arisen in relation to the appointment of Mr Jones as receiver. His Honour said: The reality is that I must decide whether to appoint the plaintiff or a third party. It is clear that the plaintiff has a significant knowledge of much of the work of the partnership. Undoubtedly he could complete the winding up of the affairs of the partnership at less expense to the partners than any other person. That suggests to me that the sensible course would be to appoint him as receiver. An endeavour was made by the defendant in submissions and in cross-examination of theplaintiff to indicate reasons why that course should not be adopted. His Honour then went on to detail a large number of reasons urged by Mr Khera in that regard. His Honour subsequently said: In the result, I am not persuaded that there is any significant reason why Mr Jones should not be appointed as a receiver. It will be to the advantage of the parties in that the winding up of the affairs of the partnership can be done in the most expeditious and least expensive way. Accordingly his Honour appointed Mr Jones. URJ JASWANT KHERA v JONES (Mahoney JA) 3 If his Honour's judgment be taken at its face value as it should, it appears, I think, that his Honour, following the making of the observation that he had at page 21, subsequently during the course of the hearing — and I refer, eg, to p 87 of the transcript — changed his view. The question which has agitated my mind is whether in any way Mr Khera was at a disadvantage because of this change in view and the absence, as I have indicated, of a specific statement made by the judge as to why he had altered the view which he had anticipated and was considering appointing Mr Jones. Iam of the opinion it must have been obvious and plain during the course of the proceedings that his Honour was going to do that. His Honour, in the paragraph of his judgment to which I have referred, indicates that he had done this and, as I understand it, Mr Khera then advanced reasons for not taking the course of appointing Mr Jones. If this be the case, I see nothing which would have caused unacceptable prejudice to Mr Khera in the conduct of the case. Nothing has been referred to insofar as thematerial before the Court is concerned. I do not see anything which would warrant the Court granting leave to appeal. The Court pointed out to Mr Khera one matter (I say this without any criticism of him), that he was a solicitor and that he must be deemed to have knowledge of the fact that leave to appeal is granted only in appropriate circumstances. The fact of the appearance of error in the judgment does not automatically mean leave to appeal is granted. The Court reserves to itself the discretion to grant or refuse leave to appeal and it grants leave only in appropriate cases. These are, as I have said, interlocutory orders. Some of the matters referred to, if they be errors, can be dealt with by subsequent application at trial level. I have not attempted to deal with all the issues involved but, again out of courtesy to Mr Khera as a solicitor and because he may have misunderstood the position as he has in the previous matter, I have indicated some of the reasons, the main reasons, why I am of the opinion leave to appeal should be refused. I propose the summons be dismissed with costs. Clarke JA. I agree. Meagher JA. I agree. Mahoney JA. The summons is dismissed with costs. Orders accordingly.