WENTWORTH v WENTWORTH [1994] NSWCA 346

WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE JA 5 September 1994, 5 September 1994

[1994] NSWCA 346

Application under s7 of the Family Provisions Act.

Cole JA It is now 10 past 5 on 5 September 1994 and I have been hearing throughout most of the day an application by Katherine Wentworth for a continuation of an injunction which I granted ex-parte on Friday last, 2 September, and which expired at 4:15pm today.

The application before me, although the argument has ranged wide, is in quite narrow compass. I have before me a Notice of Motion which seeks an order, in essence, that the defendants, Peter Wentworth as executor of the estate of the late G M Wentworth and Recato Ten Pty Ltd be restrained from selling or otherwise dealing in any way with the shares in the second respondent, that is Recato Ten Pty Ltd, to the extent of $2 million, such sum to be in addition to a sum of approximately $830,000 which has already been placed with the court by the first respondent PFN Wentworth pursuant to previous court orders.

Although the matter is in a comparatively narrow compass, it has a long history. Miss Wentworth, originally made application pursuant to s7 of the Family Provision Act. She was awarded the sum of $21,000 per annum as an annuity by Bryson J.

From that decision she appealed to the Court of Appeal. There was there substituted an order for the provision of a capital sum of $100,000 in substitution for the annuity.

There was an application for leave to appeal to the High Court from that order, which was refused. That was the initial application which she sought under the Family Provision Act.

Whilst there was pending the application for leave to appeal to the High Court, and after the $100,000 ordered by the Court of Appeal to be paid had been paid, Miss Wentworth applied for an injunction. She sought then an injunction from Young J. His Honour's reasons at 3 of his judgment of 11 June 1992 disclose that at that time she was pressing for an order for $2.5 million to be frozen. There was offered then by the respondent Mr Wentworth an injunction over $1.5 million of assets. The matter was not resolved by agreement and his Honour determined in those circumstances that he would not grant the injunction sought. His Honour said at 7: