Wentworth v Wentworth [1999] NSWSC 638 revised - 30/08/99
CURRENT JURISDICTION:
Equity
FILE NUMBER(S):
3748/89
HEARING DATE(S):
06/05/99, 18/05/99
JUDGMENT DATE:
29 June 1999
PARTIES :
Katherine Wentworth (P) Peter Fitzwilliam Neville Wentworth (Estate of George Neville Wentworth) (D)
JUDGMENT OF:
Santow J
COUNSEL :
K Wentworth (in person) (P) C J Birch (for Attorney-General as amicus curiae)
SOLICITORS:
Russo & Partners (P) State Crown Solicitor (for Attorney-General as amicus curiae)
CATCHWORDS:
PROCEDURE — Application to re-open before judgment "entered" — Meaning of "entering" judgment — Guiding principles applicable to re-opening and illustrations — The jurisdiction to re-open is exceptional — Effect of setting aside a determination by Taxing Officer upon Court of Appeal’s orders and reasoning prior to that time — Status of such determination after set aside — Voidable but avoided ab initio — Existence pending avoidance — Binding effect of Court of Appeal decision on single judge — Meaning of no order as to costs.
[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.
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AGLC
Wentworth v Wentworth [1999] NSWSC 638
Case
[1999] NSWSC 638
Decision Date
CaseChat Overview and Summary
In the case of Wentworth v Wentworth, the dispute involved an application to re-open a case before judgment was entered. The court was required to determine the meaning of "entering" judgment and the guiding principles applicable to re-opening a case. The case was heard in the Family Court of Australia. The legal issues that the court had to decide included the exceptional nature of the jurisdiction to re-open a case, the effect of setting aside a determination by a taxing officer, and the status of such a determination after it was set aside. The court also had to consider the binding effect of a Court of Appeal decision on a single judge and the meaning of no order as to costs.
The court reasoned that the jurisdiction to re-open a case is exceptional, and the guiding principles applicable to re-opening a case must be strictly followed. The court held that the setting aside of a determination by a taxing officer did not affect the status of such a determination prior to the setting aside. The court also held that the determination was voidable but avoided ab initio, meaning that it had no legal effect from the beginning. The court further held that the Court of Appeal's decision on a single judge was binding, and the meaning of no order as to costs was that neither party was entitled to costs.
The court's final orders were that the application to re-open the case was dismissed, and there was no order as to costs. The court held that the jurisdiction to re-open a case was exceptional, and the guiding principles applicable to re-opening a case must be strictly followed. The court also held that the setting aside of a determination by a taxing officer did not affect the status of such a determination prior to the setting aside. The court further held that the Court of Appeal's decision on a single judge was binding, and the meaning of no order as to costs was that neither party was entitled to costs.