WENTWORTH v WENTWORTH and ORS [1995] NSWCA 499

WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 5, 9-11 October 1995, 12 October 1995

[1995] NSWCA 499

Priestley JA On 9 October 1995 I commenced the hearing of eight applications arising from or connected with proceedings in which the opposing parties are Ms K. Wentworth and her brother, Mr P.F.N. Wentworth. For simplicity's sake I will call the former the plaintiff and the latter the defendant throughout these reasons although at different stages of the various proceedings they have been also described as appellant, claimant, opponent and the like.

Seven of the applications were brought by the plaintiff and one by the defendant. Before dealing with them individually I will summarise the history which lies behind them all.

PROCEEDINGS UNDER S7 FAMILY PROVISION ACT.

Following the death of her father (the deceased) in 1989 the plaintiff brought proceedings under s7 of the Family Provision Act (the Act) for provision from his estate. The defendant, the executor of the deceased's will, was party to those proceedings. The plaintiff obtained an order from Bryson J in 1991 after a lengthy trial. Both she and the defendant appealed to the Court of Appeal. In 1992 the Court of Appeal upheld the appeal and dismissed the defendant's appeal but made an order in the plaintiff's favour much less than the plaintiff had claimed. An application by the plaintiff to the High Court for special leave to appeal was dismissed.

In the course of these s7 proceedings, costs orders were made, some in favour of the plaintiff, some in favour of the defendant.

It seems clear that the net effect of these costs orders, if no other proceedings were to be taken into account, would be to leave substantial sums of costs to be paid by the defendant to the plaintiff. The parties did not agree on what the net effect would be. Taxation of the costs of the trial before Bryson J began. The plaintiff's bill of costs was in excess of $800,000. Twenty-eight days was spent before a taxing officer who allowed costs to the plaintiff of approximately $280,000 and ordered that she pay the defendant's costs of the taxation except for two days.