WENTWORTH v RARES; WENTWORTH v RARES [1991] NSWCA 282

WENTWORTH v RARES; WENTWORTH v RARES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE JJA and Hope AJA

24, 25 June and 25, 26 July 1991, 20 December 1991

[1991] NSWCA 282

COSTS OF INCOMPETENT APPEAL — COSTS OF INTERLOCUTORY PROCEEDINGS IN APPEAL — APPLICATION FOR LEAVE TO APPEAL CA 340/86 — COSTS OF INCOMPETENT APPEAL — Appeal sought to be brought against dismissal of contempt charge — held (13/12/90) appeal incompetent — appellant seeks that respondent bear all costs because, being aware of incompetency point, did not seek dismissal of appeal on that ground — Supreme Court Rules Pt 51 r17A considered — held, Clarke JA dissenting, appellant to bear costs of appeal to 22 July 1987, no order for costs after that date. COSTS OF INTERLOCUTORY PROCEEDINGS IN APPEAL — appellant submits she should have orders for costs of all interlocutory proceedings — held, costs orders already made in interlocutory proceedings confirmed — where orders not made they should be subject to same orders as made in regard to appeal.

Priestley JA Background. On 18 June 1986 Ms K Wentworth filed a notice of motion that Mr S Rares be punished for committing a contempt of court. On 23 July 1986 Waddell CJ in Eq dismissed the motion and ordered Ms Wentworth to pay Mr Rares' costs, such costs to "include all costs, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions [Mr Rares] will be completely indemnified by [Ms Wentworth] for his costs".

Ms Wentworth sought to appeal from this decision. In the appeal books that were eventually prepared there is a notice of appeal CA 348/86 which the index identifies as dated 1 August 1986. The appeal books also contain an amended notice of appeal dated 7 October 1986. This document sought orders vacating the orders of Waddell CJ in Eq and that this court order that Mr Rares be punished for being in contempt of court. Also filed on 7 October 1986 was a notice of motion in CA 340/86 seeking that the judgment and orders of Waddell CJ in Eq be set aside.