KHERA v JONES [1997] NSWCA 177

KHERA v JONES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA and STUDDERT AJA 24 March 1997

[1997] NSWCA 177

Sheller JA. This is an application by Jaswant Khera for leave to appeal from part of a judgment given by Brownie J on 27 September 1996. On that date there was before his Honour a notice of motion by the opponent, Ian Jones, seeking certain relief which in broad terms was concerned with a partnership dispute. Mr Jones was the receiver and manager of the partnership.

The notice of motion was filed on 11 October 1995. Subsequent to that on 14 June 1996 a sequestration order was made in respect of the estate of the claimant, Mr Khera. Before Brownie J a number of matters were ventilated concerning the question whether Mr Khera, who is a solicitor, was present representing the trustee of his estate or in a personal capacity.

The hearing before Brownie J took place on 23 September 1996 and his Honour indicated on 27 September 1996 that he would have finished the hearing on 23 September except that Mr Khera, not unreasonably, asked him to adjourn the matter until 27 September so that he could prepare for address.

On 27 September his Honour made the following orders:

1. By consent orders in terms of paragraphs 1 and 6 of the notice of motion;

2. Stand the balance of the motion over until a date to be fixed;

3. Liberty to either party to restore the matter to the list upon three days notice to the other.

Mr Khera does not seek leave to appeal against any of those orders. Also on 27 September 1996 his Honour ordered the defendant to pay the plaintiff's costs of the motion to date. He reserved the balance of the costs for the trial Judge.

Before making that order his Honour said the opponent asked him to deal with the costs now. The claimant asked me to reserve them. The basis for the claimant's submissions is that the opponent ought not to have brought these proceedings. I do not think that is right but in any event the position is that the opponent has succeeded on the motion up until now. He has now obtained, by consent, orders in terms of paragraphs 1 and 6 of the motion. Those orders were previously opposed.