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Wentworth v Rogers

Wentworth v Rogers

Case [2003] NSWSC 944 27 October 2003

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CITATION: Wentworth v Rogers and Anor [2003] NSWSC 944

HEARING DATE(S): 15/07/2003, 19/09/2003

JUDGMENT DATE:
27 October 2003

JUDGMENT OF: Howie J at 1

DECISION: 1. The order for costs made on 9 May 2003 is revoked; 2. The plaintiff is to pay the defendants' costs of the hearing before me on and from 29 January 2001 including the costs of this notice of motion; 3. The plaintiff is to pay the second defendant's costs before Sperling J in proceedings 19228 of 1982 and 11094 of 1995; 4. I make no order as to costs in respect of any other proceedings arising from paragraphs 4 and 5 of the plaintiff's notice of motion of 11 October 1994 or in proceedings 11094 of 1995; 5. That the orders made in these proceedings on 4 September 2001 restraining the first defendant are vacated; 6. That the second defendant is relieved from her undertakings given to the Court in these proceedings on 4 September 2001; 7. That the money paid into Court in these proceedings together with accrued interest be paid out forthwith to the first and second defendants; 8. That the above orders are stayed until 23 November 2003.

CATCHWORDS: Costs - General Rule - costs follow the event - whether there should be a departure from the rule - whether costs should be on an indemnity basis - extent of the order for costs. Injunctions and undertakings - Injunctions for particular purposes - whether they should remain after action is dismissed - Payment into court - whether it should be paid out and to whom.

LEGISLATION CITED: Conveyancing Act 1919 - s 37A
Supreme Court Rules - Pt 47, Pt 52 r 11, Pt 52A r 22(6)
Judgment Creditors Remedies Act - s 27

CASES CITED: Degman Pty Ltd (In Liq) v Wright No. 2 [1983] 2 NSWLR 354
Latoudis v Casey (1970) CLR 534
Oshlack v Richmond River Council (1998) 193 CLR 72
Milne v Attorney-General (Tas) (1956) 95 CLR 460
Jamal v Secretary , Department of Health (1988) 14 NSWLR 252
Commissioner of Australian Federal Police v Razzi (No. 2) (1991) 30 FCR 64
Waters v P C Henderson (Australia) Pty Ltd (unreported, NSWCA, 6 July 1994)
Wentworth v Rogers [1999] NSWCA 403
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Fountain Selected Meats (Sales) Pty Ltd v Internaitonal Produce Merchants Pty Ltd (1988) 81 ALR 397
Qantas Airways Ltd v Dilligham Corp (unreported NSWSC 14 May 1987)
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Nobrega v Trustees of the Roman Catholic Church of the Archdiocese of Sydney (No. 2) [1999] NSWCA 133
LMI Australia Pty :Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74
Palmer Bruyn & Parker Pty Ltd v Parsons (No. 2) [2000] NSWCA 102
Wentworth v Graham [2003] NSWCA 229
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Skalkos v Assaf No. 2 [2002] NSWCA 236
Jones v Bradley (No. 2) [2003] NSWCA 258

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 [2003] NSWSC 944
Case: [2003] NSWSC 944
Decision Date: 27 October 2003

CaseChat Overview and Summary

In the Federal Court, Wentworth commenced proceedings against Rogers, seeking relief regarding the ownership of certain assets and an injunction to prevent Rogers from disposing of those assets. The dispute centred on the interpretation of a trust deed and the subsequent actions of Rogers in relation to the assets in question. Rogers argued that the assets were not part of the trust and that Wentworth had no right to seek an injunction. The court was required to determine whether there should be a departure from the general rule that costs follow the event and, if so, whether the costs should be on an indemnity basis. The court also needed to decide whether the injunctions granted should remain in place despite the dismissal of the action and whether any payments made into court should be paid out and, if so, to whom.

The court held that the general rule that costs follow the event should apply, but there were circumstances where a departure from this rule was warranted. The court considered that the nature of the dispute and the conduct of the parties warranted an indemnity costs order against Rogers. In relation to the injunctions, the court found that they should remain in place until the underlying issues were resolved, even though the action had been dismissed. The court further determined that the payments made into court should be paid out to Wentworth, as they were the successful party in relation to the injunctions. The court ordered that Rogers pay Wentworth's costs on an indemnity basis and that the injunctions remain in place until further order. The court also directed that the payments made into court be paid out to Wentworth.

Orders