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." The orders made by his Honour, which are found at page 1168 and following, provide by order 4: "That pursuant to s23 of the Act and in substitution for the designation order made on 23 May 1994, the following property is designated as notional estate of the testator and is charged with the burden of the sums referred to in orders 1, 2, 3, 6 and 7, such charge to be discharged as and when such sums have been paid." The property so designated and charged was prescribed as: "All ordinary shares in Recato Ten Pty Ltd held by the defendant on 7 July 1989, or such property, if any, as is substituted therefore pursuant to s30 of the Family Provision Act 1982". Pursuant to 06, his Honour directed that: "Pursuant to s8 of the Act, the defendant pay by way of advancement out of the notional estate of the deceased to the plaintiff a sum representing..." certain costs. 2 UNREPORTED JUDGMENTS Pursuant to his Honour's orders, certain bankers' undertakings have been provided. They are set out at pages 1190 and 1191 of the appeal book. In consequence, the shares which previously were designated as notional estate and which were the subject of the charge have been released from that designation and charge. As Ihave said Miss Wentworth filed a Notice of Appeal. That Notice of Appeal seeks the setting aside of certain orders made by His Honour and in substitution seeks an order in the terms of order 2: "That the plaintiff be awarded a lump sum to make proper provision adequate for her proper maintenance and advancement in life to be paid for out of the estate or the notional estate of the testator." She also seeks subsidiary orders in relation to costs. In addition to that appeal, a Notice of Motion was filed on 30 August 1994, which is returnable before the Court of Appeal on Monday next, 5 September 1994. By that Notice of Motion, an order is sought that: "The first and second respondents, P F N Wentworth and Recato Ten Pty Ltd themselves, or by their agents, or servants, be restrained from selling or otherwise dealing in any way with the shares of the second respondent, (Recato Ten Pty Ltd), or with any of the property of either the first or second respondent to the extent of $2m, such sum not to include the amounts of some $830,000 already placed with the Court by way of bank guarantees." Whether the appellant is entitled to such an order is of course a matter upon which I make no comment. Nonetheless, that Notice of Motion seeking those orders is returnable before this Court on Monday. It is apparent from what I have said that in the past there has been a threat to sell the property of Recato Ten Pty Ltd, including a property known as Southlands. Miss Wentworth has given evidence before mmorning at about 10.00 am, she had a telephone conversation with a Miss Julia McKay, who is apparently a director of Southlands Ltd, which, so it is said, is intended to be the purchaser of assets of Recato Ten Pty Ltd, or shares in that company. According to the evidence given by Miss Wentworth, Miss McKay indicated to her that at 2.00 pm today, Mr P F N Wentworth, the executor of the estate and another person, Mr Cochrane, are expected to attend at the office of Messrs Sly & Weigall, solicitors, for the purpose of signing documents which, according to the information provided by Miss Julia McKay, would have the effect of an agreement for the sale of the shares in Recato Ten Pty Ltd, and for the sale of the assets of Recato Ten Pty Ltd. As I have previously stated, the learned trial Judge designated shares in Recato Ten as being a portion of the notional estate, subject of course to that designation being lifted and the charge thereon being lifted after provision of the bank guarantees. According to the evidence given by Miss Wentworth, Miss Julia McKay said words to the effect: "Fitz will be signing an agreement for sale of the assets of Recato Ten and he will be signing an agreement for the sale of shares in Recato Ten." Miss Wentworth apparently made application that a Judge of this Court sit to hear an urgent oral application. No documents were filed in respect of that application. I direct that not later than 4.00 pm today, there be filed an appropriate Notice of Motion seeking the relief which is sought orally before me today. URJ WENTWORTH v WENTWORTH (Cole JA) 3 Upon being advised that a Judge of this Court would sit at 11.45 pm to consider that application, Miss Wentworth, according to evidence given before me, telephoned Miss Norton, the solicitor having conduct of the matter on behalf of the respondents/defendants, being the estate and executor, and Recato Ten Pty Ltd, advising that the matter would be listed before me at 11.45 pm. According to Miss Wentworth, Miss Norton said she was not going to speak with her and hung up. I came on the bench at 11.50a.m. and indicated that I would adjourn to enable inquiries to be made by Miss Wentworth as to whether Dunhill Madden Butler, the solicitors for the estate and Recato Ten, intended to appear. Miss Wentworth has given evidence before me that she ultimately spoke with a person called Denise, the secretary of Mr Jordon, a partner in that firm, who advised that Mr Jordan had asked that she be told that the firm would not be attending today. In those circumstances, I am dealing with this oral application ex parte. I am satisfied on the evidence given before me by Miss Wentworth this morning that there is a threat that there may be a transfer of the assets of Recato Ten Pty Ltd, or of the shares in the company, those shares and those assets having previously being designated as notional property and made subject to a charge at least until provision of alternate bank guarantees. There is pending an appeal against the orders of the Court which, were it successful in the sense that some greater order were made in Miss Wentworth's favour, may have the effect that any disposition of property of Recato Ten, previously having been designated as notional estate, may have the effect of defeating the orders of the Court. According to Miss Wentworth, she said to Miss McKay: "Is this a preemptive strike to try to get over the application on Monday?", to which Miss McKay responded, "I am not sure what you mean by that". It seems to be that notwithstanding the informality of the proceedings and the absence of written notice, the solicitors for the defendants, being the estate, Mr Wentworth and Recato Ten, have knowledge that this matter is being dealt with by the Court as a matter of urgency now. They have chosen not to attend. Accordingly there is nothing before me regarding any damage which may be occasioned to the defendants if an order were made restraining dealing with assets up to and including 4.15 pm on Monday next, 5 September. Miss Wentworth has proffered to the Court an undertaking as to damages. Are you prepared to give the undertaking in the form at page 1103 of the appeal book. Miss Wentworth: Yes. His Honour: I note that Miss Wentworth is prepared to give the undertaking as to damages in the form set forth on page 1103 of the appeal book. In those circumstances, I propose to make the orders sought, those orders being in the form of paral and para3 appearing on pages 1099 and 1100, except that the time designated in each will be 4.15 pm on Monday, 5 September 1994. I direct that notice of the order is to be given to Mr Jordan of Messrs Dunhill Madden Butler, or his secretary, by telephone and that such notice will be deemed proper notice of this order to the defendants in the initial Equity proceedings. Otherwise, the matter will stand over to 10.15 am. on Monday, 5 September and I shall reserve all question of costs. The orders may be taken out immediately. Counsel for the Appellant: K Wentworth in person 4 UNREPORTED JUDGMENTS Solicitors for the Appellant: Russo & Partners Counsel for the Respondent: No appearance Solicitors for the Respondent: No appearance