WENTWORTH v RARES [1990] NSWCA 183

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

MAHONEY JA 23 October 1990

[1990] NSWCA 183

Mahoney JA (On notice of motion dated 11 July 1990) This is a proceeding whichcomes before the court as the result of orders made by Handley JA.

There has been filed by Miss Wentworth a notice of motion of 11 July 1990.

That notice of motion seeks the following relief:

"1. The court give leave for the appeal to be withdrawn.

2. The costs of the proceedings before Waddell J in this matter be paid by the plaintiff/appellant on a party and party basis.

3. No other order as to costs."

The notice of motion has been filed in the context of an appeal which has been brought from a judgment of Waddell CJ in Eq

Miss Wentworth brought proceedings against Mr Stephen Rares, the defendant, for contempt of court. That proceeding was heard by Waddell CJ in Eq and was dismissed. Miss Wentworth lodged a notice of appeal against his Honour's judgment.

In relation to that particular matter, and in the context of it, an application was made for leave to appeal against a judgment of Kearney J. Kearney J had been considering an application made by Miss Wentworth in respect of her desire to subpoena a judge of the Court, Young J, to give evidence in the proceedings before Waddell CJ in Eq Kearney J refused the application made.

Miss Wentworth has sought leave to appeal against the judgment of Kearney J and that matter has been referred to the Court of Appeal to be dealt with at the same time as the appeal against the judgment of Waddell CJ in Eq

As I understand the position, Miss Wentworth contends that the appeal against the judgment of Waddell CJ in Eq was compromised between the parties on certain terms in relation, inter alia, to costs. Her contention is, as I understand it, that the agreement was made with solicitors and that the solicitors for Mr Rares have now repudiated the agreement and do not propose to carry it into effect. She has brought proceedings in the Equity Division with a view - I put the matter generally - to enforcing that agreement.