Wentworth v Wentworth - [1999] NSWCA 142

CITATION: Wentworth v Wentworth [1999] NSWCA 142

FILE NUMBER(S): CA 40031/97; 40392/97

HEARING DATE(S): 12 May 1999

JUDGMENT DATE:
25 May 1999

PARTIES :

Katherine Wentworth v Peter Fitzwilliam Neville Wentworth (as Executor Estate Late G N Wentworth)
Katherine Wentworth v Peter Fitzwilliam Neville Wentworth & Anor

JUDGMENT OF: Stein JA at 1; Fitzgerald JA at 1; Brownie AJA at 1

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S) : EQ 3748/89

LOWER COURT JUDICIAL OFFICER: Simos J, Hodgson J

COUNSEL: In person (Appellant)
No appearance (Respondent)

SOLICITORS: n/a

CATCHWORDS: Construction of SCR Part 43 Rule 1 (examination orders) - application to orders for costs which have not been quantified - exercise of discretion

ACTS CITED: Supreme Court Rules Part 43 Rule 1

CASES CITED:
Wilkie v Wilkie (1905) VLR 80
Wilkie v Wilkie (No 2) (1905) VLR 104
Tubby Trout Pty Ltd v Sailby Pty Ltd (No 2) (1996) 63 FCR 530
Brown v Stafford [1944] 1 KB 193

DECISION: Leave to appeal granted from the decision of Simos J on 20 December 1996. Leave to appeal otherwise dismissed. Appeal allowed and the order made by Simos J on 20 December 1996 setting aside the examination order made by the Registrar on 6 June 1995 be set aside. Leave to appeal granted and appeal allowed from the decision of Hodgson J of 12 June 1997 in so far as his Honour refused an application for an examination order. Leave to appeal otherwise dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40031/97; CA 40392/97
EQ 3748/89

STEIN JA

FITZGERALD JA
BROWNIE AJA

Tuesday, 25 May 1999

Katherine WENTWORTH v Peter Fitzwilliam Neville WENTWORTH (as Executor Estate Late G N WENTWORTH)

Katherine WENTWORTH v Peter Fitzwilliam Neville WENTWORTH & Anor

JUDGMENT

1 THE COURT: It may be noted that this application was heard ex parte, the respondent having written to the Registrar by letter dated 3 May 1999 indicating that he would not be attending the hearing. 2 On 5 August 1998 the court, constituted by Handley and Stein JJA, refused Miss Wentworth leave to appeal against decisions of Simos J (20 December 1996), McLelland CJ in Eq (24 December 1996) and Hodgson J (12 June 1997). Miss Wentworth immediately applied, by Notice of Motion, to set aside the orders made. On 30 November 1998 the court, constituted as above, declined to re-open the leave application in respect of a Mareva injunction application (before McLelland J) and the costs order made by Simos J in respect of Miss Wentworth’s motion to set aside the judge’s ex parte order of 28 June 1995 staying her writ of execution. However, the court was persuaded that it should re-open the decision to permit reconsideration of the issues relating to an examination order under SCR Pt 43 Rule 1. 3 Handley JA, who delivered the reasons of the court, said that the court had acted on the view that the rule had no application to an…

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.

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Details

Case: [1999] NSWCA 142
Decision Date: 25 May 1999

CaseChat Overview and Summary

The parties in this matter were Wentworth and Wentworth. The dispute concerned the application of SCR Part 43 Rule 1, which governs examination orders, to costs orders that had not yet been quantified. The case came before the Court of Appeal of New South Wales, comprising Stein and Fitzgerald JJA and Brownie AJA.

The primary legal issue before the Court of Appeal was whether an examination order could be made under SCR Part 43 Rule 1 in relation to a costs order that had not been quantified. This involved considering the scope of the rule and the circumstances under which the court's discretion to grant such an order could be exercised.

The Court of Appeal reasoned that SCR Part 43 Rule 1, which permits examination orders in aid of execution, was applicable even where the costs order to be enforced had not yet been quantified. The court held that the rule was not limited to quantified debts and that the discretion to make an examination order could be exercised in such circumstances. The court allowed the appeal from the decision of Simos J, setting aside her Honour's order that had previously vacated an examination order made by the Registrar. The court also granted leave to appeal and allowed an appeal from a decision of Hodgson J, in so far as his Honour had refused an application for an examination order.

Orders

Orders of the court

Leave to appeal granted from the decision of Simos J on 20 December 1996. Leave to appeal otherwise dismissed. Appeal allowed and the order made by Simos J on 20 December 1996 setting aside the examination order made by the Registrar on 6 June 1995 be set aside. Leave to appeal granted and appeal allowed from the decision of Hodgson J of 12 June 1997 in so far as his Honour refused an application for an examination order. Leave to appeal otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wentworth v Wentworth [1999] NSWCA 142
FILE NUMBER(S):	CA 40031/97; 40392/97
HEARING DATE(S):	12 May 1999
JUDGMENT DATE:	25 May 1999
PARTIES :	Katherine Wentworth v Peter Fitzwilliam Neville Wentworth (as Executor Estate Late G N Wentworth) Katherine Wentworth v Peter Fitzwilliam Neville Wentworth & Anor
JUDGMENT OF:	Stein JA at 1; Fitzgerald JA at 1; Brownie AJA at 1

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	EQ 3748/89
LOWER COURT JUDICIAL OFFICER:	Simos J, Hodgson J

COUNSEL:	In person (Appellant) No appearance (Respondent)
SOLICITORS:	n/a
CATCHWORDS:	Construction of SCR Part 43 Rule 1 (examination orders) - application to orders for costs which have not been quantified - exercise of discretion
ACTS CITED:	Supreme Court Rules Part 43 Rule 1
CASES CITED:	Wilkie v Wilkie (1905) VLR 80 Wilkie v Wilkie (No 2) (1905) VLR 104 Tubby Trout Pty Ltd v Sailby Pty Ltd (No 2) (1996) 63 FCR 530 Brown v Stafford [1944] 1 KB 193
DECISION:	Leave to appeal granted from the decision of Simos J on 20 December 1996. Leave to appeal otherwise dismissed. Appeal allowed and the order made by Simos J on 20 December 1996 setting aside the examination order made by the Registrar on 6 June 1995 be set aside. Leave to appeal granted and appeal allowed from the decision of Hodgson J of 12 June 1997 in so far as his Honour refused an application for an examination order. Leave to appeal otherwise dismissed.