WENTWORTH v ROGERS; ROGERS v WENTWORTH [1988] NSWCA 173

WENTWORTH v ROGERS; ROGERS vy WENTWORTH

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

HOPE JA 7 November 1988

[1988] NSWCA 173

Hope JA This matter has a long history and I do not wish to traverse the whole of it. Its origin lies in proceedings between Ms Wentworth and Mr Rogers at Common Law where a claim by Ms Wentworth against Mr Rogers was rejected by the jury and a substantial verdict was awarded against her on Mr Rogers' cross action. On appeal both verdicts were set aside and a retrial was ordered.

After the verdicts had been entered questions arose as to security for costs, and Ms Wentworth was directed to provide security. That matter came before this Court. After a number of applications the amount of security was fixed and Ms Wentworth was directed to enter into a deed to secure it. The deed was executed and a caveat was placed on the title of Ms Wentworth's property on behalf of Mr Rogers. The caveat was to protect the deed of charge.

When Ms Wentworth succeeded in her appeal the order for costs in respect of which the deed of security was set aside. Accordingly there were no costs for the deed to secure and there was accordingly no basis for the caveat to remain. After some communication between the parties an application was made to this Court to order the deed to be returned to Ms Wentworth and the caveat to be removed. Orders were made by consent. There was confusion about the caveat. Ms Wentworth subsequently took proceedings to recover a sum of money which had been ordered by this Court to be paid by Mr Rogers in the event that he failed to withdraw the caveat. Those proceedings concluded in the judgment given by this Court on 18 April 1988.

The caveat was removed by Mr Rogers on about 28 May 1987 and the deed had been produced to Ms Wentworth about a week before. In the present proceedings, which were instituted by notice of motion, Ms Wentworth seeks orders for damages for the non production of the deed and the non removal of the caveat, and also an order for security for costs and damages in the sum of $25,000, to be paid forthwith.