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. Her claim is based on the provisions of s63 of the Supreme Court Act. She submits to the Court that in order to get complete and final determination of this dispute her claim for damages should be dealt with by this Court as an extension of the proceedings in relation to security, the deed and the caveat. Ms Wentworth's claim for damages in respect of non removal of the caveat must, as it seems to me, be based on s98 of the Real Property Act which provides for the awarding of damages where a person lodges a caveat without reasonable cause. Ms Wentworth submits that that section should be construed to extend beyond the lodging of a caveat to the maintaining of a caveat. In support of this submission she relies on a decision of Needham J given on 26 May 1987 in the Equity Division of the Court in the matter of Wildschut v Borg Warner Acceptance Corporation (Aust) Ltd. I do not wish to express any view as to the proper construction of s98 or as to the relevance of the decision of Needham J in 2 UNREPORTED JUDGMENTS relation to it, save to say that I do not think that the matter raised by Ms Wentworth as to its construction is unarguable. With regard to her claim for damages in respect of non production of the deed for cancellation, Ms Wentworth submits, and there may well be substance in her submission, that whilst the deed was in existence even though it had no effect, it limited her ability to deal with her property and in particular to raise money upon security of that property. Whether that gives rise to any claim for damages is a matter about which I am not clear, but Ms Wentworth submits there are authorities which would support her claim. For Mr Rogers it is submitted that any right to damages which Ms Wentworth might otherwise have had in respect of either matter was merged in the order of the court which directed the return of the deed and the removal of the caveat. No claim for damages was made by Ms Wentworth in those proceedings and consequently no order was made, assuming that such an order could be made. In all the circumstances I am not inclined to assent to the application by Mr Rogers to strike out Ms Wentworth's claim as vexatious or completely untenable, save in relation to para4 of the notice of motion which seeks an order that Mr Rogers pay to her as security for costs and damages to be assessed the amount of $25,000, to be paid this day. There is no basis for that application. Persons against whom a claim is made are not required to put on security in order to be entitled to defend the claim. However, save in that respect I think that the proper course is to dismiss Mr Rogers' application, and having regard to the nature of Ms Wentworth's claims, to remit her notice of motion to the Equity Division to be heard and determined there. I express no view at all as to the basis of Ms Wentworth's right to the relief which she seeks. As regards costs, Ms Wentworth submits that she has been brought here and that save in respect of para4 no order has been made in favour of Mr Rogers pursuant to his notice of motion, and the order I have made is of a procedural nature to deal with the matter in the future. In all the circumstances I think that the proper order is to make the costs of today's proceedings Ms Wentworth's costs in the proceedings which I have remitted. The orders are: (1) Para 4 of Ms Wentworth's notice of motion filed on 18 April 1988 struck out; (2) Mr Rogers' motion otherwise dismissed; (3) Application of Ms Wentworth in her notice of motion remitted to the Equity Division to be heard and determined in that Division. (4) Costs of today's proceedings to be Ms Wentworth's costs in the proceedings so remitted.