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[1997] NSWCA 177
defendant. Leave to appeal refused; summons dismissed with costs.
Mr Khera, a solicitor who had been made bankrupt, tried to appeal a decision that he should pay legal costs to Mr Jones in a partnership dispute. The Court of Appeal refused to give him permission to appeal. The Court found that Mr Jones had clearly won the court application because Mr Khera had ultimately agreed to the orders Mr Jones wanted. The Court also rejected Mr Khera's argument that bankruptcy laws prevented the costs order. The Court said that if Mr Jones wanted the costs assessment to be fast-tracked, he would need to ask the original court (the Equity Division), not the Court of Appeal.
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SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL
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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:
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.
It is this order that the claimant now challenges asserting that there is a manifest error of fact and a manifest error of law. The alleged manifest error of fact is said to be his Honour's statement that the position is that the opponent has succeeded on the motion up until now. There could be no doubt that is so, one has only to look at the form of the orders. Orders 1 and 2 were made by consent. The claimant has submitted that in fact he consented very soon after, according to him, he no longer had instructions from the trustee of his estate to act for the trustee. However
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this may be, I can see no basis upon which it could be said that there was any manifest error of fact in what his Honour did.
The manifest error of law is said in broad terms to arise out of sections of the Bankruptcy Act. Quite clearly these proceedings were commenced by the opponent before the sequestration order was made. So far as the particular orders made by his Honour are concerned they were ultimately made by consent, they have not been challenged. It seems to me that there is no error of law in his Honour in consequence ordering the claimant to pay the costs in the way that he did up to the time that he did.
Accordingly, in my opinion, no ground has been shown for the grant of leave to appeal and I would propose that the summons be dismissed with costs.
Studdert AJA. I agree. OPPONENT: In view of the history of this matter, might I also seek your
indulgence to seek an order that the assessment, if it comes to that, as I've gotno doubt there will be no agreement as to the amount of costs payable, that the assessment might be expedited by one of the Court's assessors.
20 ~~ Sheller JA. I don't think that we should make an order like that. If there is to be some order of that sort you can go back to the Equity Division and seek it.
KHERA
JONES
Leave to appeal refused; summons dismissed with costs.