WENTWORTH v WENTWORTH [1996] NSWCA 551

WENTWORTH v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and CLARKE JJA 22 March 1996

[1996] NSWCA 551

Mahoney P On 8 September 1995 Bryson J made orders against the claimant Ms Katherine Wentworth. Ms Wentworth has applied to this Court for leave to appeal against those orders. The application for leave to appeal was heard on 5 February 1996 and on | March 1996. The hearing of the application has extended over several hours and has been much longer than ordinarily is appropriate to an application for leave to appeal.

The Court is of opinion that the application is not one which should be granted. It is the practice of the Court that, special cases excepted, the Court does not give reasons, or detailed reasons, for the grant or refusal of an application for leave to appeal. The nature of an application for leave to appeal is such that, special cases apart, reasons or detailed reasons are not necessary. The grounds for such an application must be listed by the applicant in or in a document filed with the application; in an application of substance, written submissions are ordinarily provided; and the main reasons why the application is granted or refused will ordinarily be apparent from the transcript of the hearing and the exchanges there recorded.

However, the present application has been, made in the context of ongoing litigation and multiple interlocutory and other applications. It is appropriate that to prevent misunderstanding, the Court indicate some of the matters which have led to the refusal of the present application.

The orders of 8 September 1995 followed substantial litigation between Ms Wentworth and her brother Peter Fitzwilliam Neville Wentworth relating to the estate of their late father. Ms Wentworth obtained orders under the Family Provision legislation. As the result of those orders, and of the interlocutory applications and appeals relevant to them, orders for costs were made, some of them in favour of Ms Wentworth. She sought and obtained taxation of the relevant costs: she claimed costs which were, on one view, of the order of $800,000 or more. The quantification of such costs has not yet been completed.

The motion before Bryson J arose at least substantially because of those costs. By her motion of 5 September 1995, Ms Wentworth sought an order that Mr Wentworth be examined as to his assets: that may be put aside. She sought a Mareva injunction to restrain Mr Wentworth from selling shares held by him in Recato Ten Pty Ltd: that is the application which has been pressed.

Ms Wentworth claimed a Mareva injunction to protect inter alia, such interests as she had in (as I shall describe it) further Family Provision litigation against Mr Wentworth as executor and beneficiary of their father's estate; she sought also to protect, as she claimed it to be, the sum payable by him to her pursuant to the costs orders which have been made in her favour. Bryson J concluded that such interest as she had in further Family Provision litigation would not warrant a Mareva injunction. I do not think that interest, alone or in conjunction with her other interests, would warrant such relief.

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The basis on which, in the main, the motion was dealt with before the judge was that relating to the costs orders. For the reasons given by him in his judgment of 12 September 1995, his Honour concluded that Mareva type relief should not be given.

Ms Wentworth's claim for leave to appeal was based substantially on three grounds: she submitted that, what took place during the hearing of her motion indicated bias or apprehended bias against her; she submitted that appealable error had occurred in dealing with her claim for Mareva type relief, and she submitted that "restrictions" which the judge had imposed upon future applications by her should be set aside.

Shortly before her application to Bryson J, this Court had upheld an appeal by Mr Wentworth against orders made in Ms Wentworth's favour by Santow J under s8 of the Family Provision Act.

Since Bryson J made the orders in question, further litigation has proceeded between the parties. Both Mr and Ms Wentworth were given leave to appeal to this Court against costs orders made by Master McLaughlin. On 21 February 1996, this Court (Priestley and Clarke JJA and Grove AJA) upheld both appeals against the Master's orders. The Court ordered that the Master's orders be set aside and that the matter be returned to the Equity Division for further proceedings directed to the quantification of the costs to which Ms Wentworth is entitled. Ms Wentworth has applied to the Court as so constituted to withdraw or amend the orders which it made. That application has not yet been heard. The terms of the reasons for judgment delivered by the Court so constituted are before this Court. It is at least probable that the costs payable to Ms Wentworth after assessment of them in accordance with the views expressed by this Court will be substantially less than the sum originally claimed and, perhaps, the sum resulting from the Master's orders. But however that be, the amount to which, at best, she may be entitled will be significantly different from the amount resulting from the Master's orders.

It is accepted that this Court can and should take into account these recent developments. I have considered carefully the terms of the judgment of this Court upholding Mr Wentworth's appeal against Santow J's s8 orders and, in the light of what the Court then said, I have considered afresh the matters that were before Bryson J. I am not satisfied that an appeal against the judge's dismissal of the application for Mareva type relief would succeed: I do not think that it would. At the least, I think that the possibility of success is such that leave to appeal should not be granted.

I come to the contention that the material before the Court discloses bias or apprehended bias. Having formed my own view of the substantive application for Mareva type relief I do not think it necessary to pursue this basis of the application in detail. I have read the transcript of what took place and the material placed before this Court in relation to it. I am not convinced that on a consideration of the matter on an appeal, the Court would be likely to conclude that there was bias or apprehended bias. But, considering the substance of the application, I do not think that what took place affected the determination of the merits of the application. I am, I believe, able to form my own assessment of the evidence and, on such an assessment, I conclude that these matters would not warrant the grant of leave to appeal.

I come to the third basis of the application. Bryson J ordered that "further application to the Equity Division in these proceedings may be made only by leave of a judge, to be obtained ex parte on production of the proposed notice of

URJ WENTWORTH v WENTWORTH (Mahoney P) 3

motion and the affidavits to be used in support of it". The judge had, towards the end of the proceeding, invited Ms Wentworth to consider a proposal that he should make "an order which would prevent you making any further applications to this Division in this litigation without the leave of a judge". It has been suggested, inter alia, that this order should not have been made. It was not made on application by Mr Wentworth; the proposal to make it came from the judge shortly before the end of the hearing. Ms Wentworth submitted to this Court that the application and the orders were not made in circumstances of procedural fairness.

The circumstances now existing differ significantly from the circumstances in which Bryson J made these orders. The result of the orders of 21 February 1996 would be that there would have to be further proceedings in the Equity Division and that accordingly there may be applications by Ms or Mr Wentworth. In a sense, the orders made contemplate that further applications may be made. In these circumstances, it is, I believe, inappropriate that there be a restriction upon Ms Wentworth making "further application to the Equity Division in these proceedings" of the kind which, on the material before the judge, it may have been appropriate to make.

The parties have agreed that if this Court were of the opinion that the restrictive orders made should not now be maintained, it should, without a further hearing, order that they be set aside. The parties were, in my opinion, sensible in so agreeing; the possibility of further costs and delay may be avoided as the result of such an agreement.

Accordingly in my opinion leave to appeal should be granted to the extent that will enable this Court to set aside those orders. Those orders are set aside by reason of subsequently occurring events.

I do not mean by what I have said that it is appropriate that Ms Wentworth make further applications of the kind here in question or applications based upon claims of the kind in question. The conclusions of Bryson J and, separately, of this Court upon the basis of which the application for Mareva type relief has been refused should be observed, in terms and in spirit. I do not mean that it is impossible to conjecture circumstances, quite different from those here in question, in which such relief would be appropriate. But if the spirit of the present orders be not observed and it appears that money is likely to be wasted on further unnecessary applications, it will be open to the other party to apply to the Court for the imposition of terms or restrictions upon the circumstances in which such application may be made.

I propose:

1. That leave to appeal against the orders of Bryson J of 8 September 1995 be granted, such leave to be limited to appeal against the restriction imposed upon further applications to the Equity Division in the proceedings by Ms Wentworth;

2. That the appeal against that portion of the judge's orders be upheld and that portion of the judge's orders be set aside;

3. That otherwise the application for leave to appeal be dismissed;

4. That the applicant Ms Wentworth pay Mr Wentworth's costs of the application.

Since these reasons were prepared, one further thing has occurred. In those reasons, I have referred to the orders made by the Court (Priestley and Clarke JIA and Grove AJA) on 21 February 1996. The Court set aside the orders made by Master McLaughlin and directed the requantification of the costs to which Ms

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Wentworth is entitled. As I have indicated, the orders then made were the subject of an application that they be withdrawn and amended.

On 5 March 1996, that application was refused.

My conclusions in this matter were and are based upon the facts as they were available to the Court at the date of the hearing of the present application for leave to appeal. If I were to take into account the orders made on 5 March 1996 I would come to the same conclusions.

Priestley JA I agree with Mahoney P. Clarke JA I agree with Mahoney P.

Appeal dismissed.