Wentworth v Wentworth

The applicant, Miss C. Simpson QC, appeared before the High Court of Australia with her learned friend, Miss P. Sharpe, for the applicant. Mr R.C. McDougall QC, with his learned friend, Mr R.S. Angyal, appeared for the respondent. The proceedings concerned two applications by the applicant: firstly, for the expedition of a pending special leave application to the High Court, and secondly, for interlocutory relief in the nature of a Mareva injunction or an order for the preservation of property under Order 49 rule 3(1) of the High Court Rules. This latter relief was sought to protect the applicant's position should she be successful in her special leave application and subsequent appeal.

The legal issues before the Court were whether the special leave application should be expedited and whether interlocutory injunctive relief should be granted to preserve the applicant's position pending the determination of her special leave application and potential appeal. The underlying dispute arose from a claim made by the applicant under section 7 of the New South Wales Family Provision Act, seeking provision out of the estate and notional estate of her deceased father, G.N. Wentworth. The applicant had been successful in obtaining orders designating certain shareholdings of the respondent in a company called Recato Ten as notional estate, and an order for the respondent to pay her an annuity of $21,000 out of that estate. The applicant was also ordered to pay the respondent's costs in certain excluded matters, but the respondent was ordered to pay the bulk of the applicant's costs.

The applicant's contention regarding costs was that the shareholding in Recato Ten, designated as notional estate, constituted a common fund, and therefore, costs should have been taxed on a common fund or indemnity basis, entitling her to recover substantially all of her costs. The Court was therefore required to consider the nature of the relief sought and the circumstances justifying expedition and interlocutory preservation orders in the context of a pending special leave application and appeal.