WENTWORTH v WENTWORTH [1994] NSWCA 345

WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA 2 September 1994, 2 September 1994

[1994] NSWCA 345

Ex parte application for injunctive relief

Cole JA Application has been made ex parte by Katherine Wentworth, who is the appellant in proceedings number 40361 of 1994. On 27 May 1994, an application was made ex parte for an injunction in circumstances where it was claimed that Recato Ten Pty Ltd intended to dispose of its principal asset, namely its interest in a property named Southlands at Bowral.

His Honour Mr Justice Santow on that occasion granted an ex parte order as sought, restraining until 30 May 1994 the sale of the assets of Recato Ten. That order was made upon the plaintiff giving to the Court an undertaking in the form set out at page 1103 of the appeal books.

The learned trial judge subsequently gave a judgment in the dispute between the parties which, shortly put, had the effect of requiring the setting aside of a sum out of the notional estate of the late George Neville Wentworth for such sum to be used for the purchase of an annuity and payment of other sums of money to Miss Wentworth. That judgment is the subject of an appeal, both by the executor, and by Miss Wentworth.

As part of his Honour's judgment, his Honour said at page 15 of his judgment, appearing at page 1151 of the appeal book: "The shares in Recato Ten are clearly the principal asset of the defendant".

His Honour, in a judgment delivered on 23 May 1994, had found that the assets of the estate comprised in the order of $4.6 million. His Honour at page 34 of his judgment, said:

"Having regard to all these matters as I have done, I am satisfied that I should designate as notional estate the shares in Recato, that is Recato Ten Pty Ltd, but charged to an amount not exceeding the amount that I determine should be the subject of provision pursuant to S8 of the Act."