Wentworth v Rogers

[2004] NSWCA 401

CITATION:	Wentworth v Rogers & 2 Ors [2004] NSWCA 401
HEARING DATE(S):	8 October 2004
JUDGMENT DATE:	8 November 2004
JUDGMENT OF:	Santow JA at 1; Hislop J at 20
DECISION:	Application for leave to appeal dismissed with orders as in [19].
CATCHWORDS:	PRACTICE AND PROCEDURE - Leave to appeal against Miles AJ's dismissal of application for review of decision by Registrar to set aside two garnishment notices.
LEGISLATION CITED:	Supreme Court Act 1970 s81; s119(3) Supreme Court Rules Pt 46 r3; Pt 61 r1(6)
CASES CITED:	Gartside v IRC [1968] AC 553 Harris v Caladine (1991) 172 CLR 84 Watson v Hanimex Colour Services P/L (NSWCA, 28 November 1991, unreported)
PARTIES :	Katherine WENTWORTH (Claimant) Gordon J ROGERS (First Opponent) ST GEORGE BANK (Second Opponent) Michael John BRAY and David Peter JACKSON as Trustees of the Estate of the late Laura Helen Cynthia Rogers (Third Opponents)
FILE NUMBER(S):	CA 40574/03; 8/86
COUNSEL:	Claimant in Person First Opponent no appearance J HARRIS (Second Opponent) P DOWDY (Third Opponent)
SOLICITORS:	Beazley Singleton (First Opponent) Michael H S Bowan, St George Bank Limited (Second Opponent) Bray, Jackson & Co (Third Opponent)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC19228/82
LOWER COURT JUDICIAL OFFICER :	Miles AJ

CA 40574/03
CA 8/86
SC 19228/82

SANTOW JA
HISLOP J

8 NOVEMBER 2004

Katherine WENTWORTH v Gordon J ROGERS & 2 Ors

Judgment

1 SANTOW JA:

INTRODUCTION
The claimant, Ms Wentworth, seeks leave to appeal against dismissal of her application for review of a decision of Registrar Whitehead to set aside two garnishment notices filed and served on 10 February 2003. That filing and service was pursuant to Ms Wentworth’s application made under Pt 46 r3 Supreme Court Rules and granted by an earlier Registrar. The first opponent and defendant is Mr Gordon Rogers of whom Ms Wentworth is a judgment creditor. The second opponent is St George Bank Limited against which bank Ms Wentworth served those garnishment notices. They were subsequently set aside by Registrar Whitehead on 3 March 2003. His reasons for doing so are contained in a judgment of that date. That decision was itself the subject of review by Miles AJ resulting in a further detailed judgment of 16 June 2003. That judgment is now the subject of the present application for leave to appeal. The circumstances and issues are sufficiently set out in the two judgments so that I do not need to repeat them in any detail.

2 The debt sought to be attached by Ms Wentworth was described in her application for leave under Pt 46 r3 in these terms: “monies held in the account for the estate of the late Laura Helen Cynthia Rogers, savings account No. 3822, as sole beneficiary in respect of the amount so held”. In permitting the garnishment notices to be filed and served on 10 February 2003, the Registrar then dealing with that application did so ex parte and in Chambers. Part 46 r3(1) Supreme Court…