Wentworth v Rogers - [2004] NSWSC 1192

CITATION: Wentworth v Rogers [2004] NSWSC 1192

HEARING DATE(S): 24/8/04, 3/12/04

JUDGMENT DATE:
10 December 2004

JUDGMENT OF: Bell J

DECISION: 1. Dismiss motions filed on 1 October 2003 in proceedings 19228 of 1982 and C of A proceedings 8 of 1986; 2. Dismiss the applicant's motions filed on 8 December 2003 in proceedings 19228 of 1982 and C of A proceedings 8 of 1986; 3. The applicant is to pay the trustees' costs of the motions filed in each of proceedings 19228 of 1982 and C of A proceedings 8 of 1986 on 1 October 2003 and 8 December 2003 on an indemnity basis.

LEGISLATION CITED: Judgment Creditors' Remedies Act 1901
Supreme Court Rules 1970

CASES CITED: Blackburn v The State of New South Wales (unreported) 9 August 1991
Cameron v Cole [1943] 68 CLR 571
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
In the Will of Sheppard [1972] 2 NSWLR 714
Modern Woodcraft Pty Ltd v Nott (unreported) Young J, 7 March 1997 BC 9700735
Westpac Banking Corp v Abemond Pty Ltd (unreported) Santow J, 28 October 1994, BC 9403529
Wentworth v Rogers [2004] NSWCA 401

PARTIES :
Katherine Wentworth (Plaintiff)
Gordon John Rogers (Defendant)

FILE NUMBER(S): SC 19228/82

COUNSEL: In Person (Plaintiff)
P Dowdy

SOLICITORS: In Person
Bray, Jackson & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

10 December 2004

19228/82 Katherine Wentworth v Gordon Rogers
JUDGMENT – review of indemnity costs order made by Registrar Whitehead

1 BELL J: The applicant moved on motions filed on 1 October 2003 and 8 December 2003. There was no appearance on behalf of the defendant.

2 In the motion of 1 October 2003 the applicant claimed orders, including an order the setting aside of orders made by Registrar Whitehead (the Registrar) on 17 September 2003. She sought an order that she had claimed by her motion filed on 24 February 2003, which was in these terms:

“That the stocks, shares and deposit of monies of the estate of the late LHC Rogers, standing in the judgment debtor Gordon Rogers’ name or in the name of Michael Bray and David Jackson in trust for Gordon Rogers including monies held at St George Bank at St George House, 4-6 Montgomery Street, Kogarah, 2217, bank account number 3822 in the name of the Estate of the Late LHC Rogers, and including shares being 1400 fully paid ordinary shares in National Australia Bank, 1300 stock units held in Australia Gaslight Company, and 200 fully paid shares in Australia Net.com Ltd stand charged with the payment of the amount of the judgment of the Supreme Court of NSW made on 5/5/95 entered on 23/6/1997 for costs and interest thereon which judgment took effect by issue of certificate of costs in an amount of $123,051.85 by issue of the certificate of assessment on 9/11/98 and upon which interest is accrued and accruing.”

3 By her motion filed on 8 December 2003 the applicant claimed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wentworth v Rogers

Details

AGLC: Wentworth v Rogers [2004] NSWSC 1192
Case: [2004] NSWSC 1192
Decision Date: 10 December 2004

CaseChat Overview and Summary

In the matter of Wentworth v Rogers, the plaintiff, Katherine Wentworth, sought various orders against the defendant, Gordon John Rogers, in proceedings that had been ongoing since 1982. The central issue revolved around the application of a charging order under the Judgment Creditors' Remedies Act 1901 against the assets held by the trustees of the late LHC Rogers' estate. The defendant did not appear in court, and the proceedings were significantly impacted by the Court of Appeal's prior decision in Wentworth v Rogers [2004] NSWCA 401. The legal issues before the court included whether the charging order motions raised the same legal issues as those previously determined by the Registrar and whether the applicant should be held liable for the trustees' costs on an indemnity basis.

Bell J, in dismissing the applicant's motions, held that the charging order motions indeed raised the same legal issue as previously determined by the Registrar. The court found that it was unreasonable for the applicant to persist with the motions, especially in light of the Court of Appeal's decision. The court also upheld the Registrar's decision to award costs on an indemnity basis, considering the history of the proceedings and the trustees' explicit warning regarding the misconceived nature of the applicant's claims. The judge concluded that the applicant's claims were without merit and that the costs order was appropriate given the circumstances.

The final orders of the court were to dismiss the motions filed on both 1 October 2003 and 8 December 2003, and to direct the applicant to pay the trustees' costs on an indemnity basis. This decision underscores the importance of adhering to established legal principles and the consequences of pursuing baseless litigation.

Orders