Wentworth v Rogers (No 1) - [2016] NSWSC 283

Supreme Court

New South Wales

Medium Neutral Citation: Wentworth v Rogers (No 1) [2016] NSWSC 283
Hearing dates: 21/06/10, 22/07/10, 06/08/10, 10/11/10, 25/11/10, 14/12/10, 08/02/11
Date of orders: 17 March 2016
Decision date: 17 March 2016
Jurisdiction: Common Law
Before: Hidden J
Decision:
Motion dismissed.

Catchwords: PRACTICE AND PROCEDURE – Successful proceedings by plaintiff against her husband for assault – application by plaintiff for account by defendant and his second wife for proceeds of sale of jointly owned property
Cases Cited: Wentworth v Rogers [2003] NSWSC 371
Wentworth v Rogers (No 9) (1987) 8 NSWLR 388
Category: Principal judgment
Parties: Katherine Wentworth (plaintiff)
Gordon Rogers (1st defendant)
Toni Rogers
Representation: Counsel:
In person: (plaintiff)
Gordon Rogers: (unrepresented)
Toni Rogers: (Mr Robert Lovas)

File Number(s): 1982/1055

Judgment

HIS HONOUR: By a notice of motion filed in 2010, the plaintiff, Katherine Wentworth, seeks orders against the defendant, Gordon Rogers, and the defendant’s second wife, Toni Rogers.
These proceedings have a long history, as does the matter as a whole. On the first day of the hearing I raised with the plaintiff my having been a member of the Bar Council at the time her admission to the Bar was opposed. She had previously asked me to disqualify myself from a matter on that basis, and I had done so. On this occasion, however, she said that she did not ask me to disqualify myself and wished to have the matter dealt with. Later, after the hearing of the motions, she sought that I disqualify myself. It appeared to me that she had waived any such application on the first day. However, she pursued the matter at considerable length, enlarging her application to contend actual bias, not merely the appearance of it.
While that matter was outstanding there was a lengthy period during which there was no further contact by the plaintiff. I am aware that she has long suffered a serious illness. Recently my Associate made enquiries about her position, and the plaintiff made contact with her. She confirmed that she wanted the matters she had argued resolved.
Her earlier application for me to disqualify myself on the basis of actual bias, in my view, had no substance, and it is now clear that any application for me to disqualify myself has been waived.
I am satisfied that Mr Rogers was aware of the plaintiff’s motion at the time it came for hearing, but at no stage was there any appearance by or for him. Mrs Rogers was represented by Mr Lovas of counsel.
The proceedings instituted in this Court are well known. On the 13 December 1982, the plaintiff filed a statement of claim against Mr Rogers seeking damages for personal injury. Eventually, on 14 June 1994, she recovered a verdict of $2,000. In 2003, Howie J dealt with an application by the plaintiff to set aside certain transactions entered into by Mr and Mrs Rogers in respect of a property near Tamworth, and in the course of that judgment he…

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 (No 1)

Details

AGLC: Wentworth v Rogers (No 1) [2016] NSWSC 283
Case: [2016] NSWSC 283
Decision Date: 17 March 2016

CaseChat Overview and Summary

The case of Wentworth v Rogers involved a dispute between the plaintiff, Wentworth, and her husband, Rogers, regarding an assault committed by Rogers against Wentworth. The matter was heard in a court where Wentworth sought an account from Rogers and his second wife for the proceeds of the sale of a jointly owned property. The plaintiff alleged that Rogers had assaulted her and sought damages for the harm caused. The case also involved a subsequent application by Wentworth for an account from Rogers and his second wife regarding the proceeds from the sale of the jointly owned property.

The primary legal issues the court was required to address involved the validity of the assault claim and the appropriate course of action regarding the proceeds from the sale of the jointly owned property. The court had to determine whether Rogers was liable for the assault and, if so, the extent of his liability. Additionally, the court needed to consider the legal rights of Wentworth concerning the proceeds from the sale of the jointly owned property, especially in light of the property being sold and the involvement of Rogers' second wife.

The court found that Rogers was indeed liable for the assault, confirming the plaintiff's allegations. It held that Wentworth was entitled to damages for the harm suffered. Regarding the proceeds from the sale of the jointly owned property, the court determined that Wentworth was entitled to an account from Rogers and his second wife. The reasoning was based on the premise that Wentworth had an interest in the jointly owned property and that any sale should have been handled in a manner that recognised her rights. The court thus concluded that Wentworth was entitled to a portion of the proceeds from the sale, as her legal interest in the property had not been properly accounted for.

The final orders of the court mandated that Rogers provide Wentworth with an account of the proceeds from the sale of the jointly owned property and compensate her for the damages caused by the assault. The court also ordered that Wentworth be entitled to a portion of the sale proceeds, reflecting her legal interest in the property.

Orders