WENTWORTH v RARES and ORS [1990] NSWCA 185

WENTWORTH v RARES and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 19 November 1990

[1990] NSWCA 185

Samuels J In order to understand the point at issue in this motion it is necessary to recapitulate a little of the history of the principal proceeding.

In that matter it was said that settlement had been reached between Miss Wentworth and Mr Rares, her adversary, and Miss Wentworth came to the Court seeking to discontinue her appeal, she being the appellant from orders of Waddell J, upon the basis of the compromise which she asserted had been reached. Mr Rares, on the other hand, contended that there had been no compromise, and certainly not the agreement upon which Miss Wentworth relied.

In that context the matter came before a single judge of this Court who stood it over to enable Miss Wentworth to take such other proceedings to vindicate her view of the compromise as she might consider proper. She commenced proceedings in the Equity Division.

The matter came again before a single judge of this Court sitting by dint of the provisions of s46 and he took the view that the question of fact, namely whether there had been a settlement entered into and, if so, what its terms were, ought to be decided in this Court by a single judge and not in the Equity Division.

One reason for that was, of course, that there was no power in the Equity Division to stay an appeal in the Court of Appeal or to make any other orders which might influence the conduct of proceedings in this Court.

Miss Wentworth disputed that that single judge had power to make such orders and in particular to direct that the issue of fact be tried in this Court.

Her objection came before a Full Bench of this Court over which I presided, and we decided that the orders made were not made without power and we dismissed Miss Wentworth's motions contending that the orders were invalid or without force.