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. The plaintiff had this taxation reviewed by Master McLaughlin who upheld a number of her submissions. In his opinion the taxing officer should have adopted a substantially more generous approach to the taxation in a number of respects, including the approach to the costs of the twenty-eight days spent before the taxing officer. In the upshot, the Master directed Deputy Registrar Irwin to complete the taxation conformably with directions and principles stated by the Master. Deputy Registrar Irwin did this, and as a result a certificate of taxation in the sum of $463,000 (in round figures) was issued. Because he was of opinion that the plaintiff had unnecessarily lengthened the proceedings, Deputy Registrar Irwin reduced the costs of the taxation payable by the defendant by 15%. 2 UNREPORTED JUDGMENTS The plaintiff claimed that in arriving at the $463,000 figure Deputy Registrar Irwin did not observe the principles and directions prescribed by Master McLaughlin. The plaintiff sought a ruling from Master McLaughlin to this effect, but he took the view that his orders had been completed by the Deputy Registrar's certificate and that the only method (if any) by which the plaintiff could assert her claim that his principles and directions had not been complied with was by appeal. Both the plaintiff and the defendant sought leave to appeal against Master McLaughlin's orders. Leave was granted, and the appeals have been set down for hearing on 23 and 24 November 1995. The plaintiff claims that if the Deputy Registrar had complied with Master McLaughlin's principles, she would have obtained a certificate for a sum (inclusive of the costs of taxation) in excess of $950,000. The defendant claims that the principles stated by Master McLaughlin were wrong and that on proper principles the plaintiff is entitled to a much smaller amount on taxation of costs than she claims; as against this, me plaintiff makes the counter assertion that by reason of the way the defendant conducted the case before the Master it is not open to the defendant to rely on the last mentioned ground of appeal. Until the issues in these appeals are decided, the amount finally payable by one party to the other for the costs of the trial before Bryson J cannot be forecast with any confidence. After Deputy Registrar Irwin had made the certificate of taxation, the plaintiff caused a writ of execution to be issued on it. The Sheriff commenced execution. The defendant then obtained a stay of execution of the writ of execution. On 21 August 1995 Powell JA ordered that the stay continue on condition that the defendant provide security in the sum of $200,000 within a time which was subsequently extended to 9 October 1995. Two other proceedings need to be noted here. 'Young J made orders in December 1994 and March 1995 in proceedings in which he decided arguments about whether costs orders of the proceedings obtained by the plaintiff and defendant to that time should be set off against one another. Leave to appeal against these orders was granted by the Court of Appeal in June of this year because of certain matters of general principle which the court thought required decision. Those appeals are awaiting hearing. What the eventual orders for costs will be concerning the whole of the first instance proceedings before Young J and the appeal proceedings from him will depend on the outcome of the appeals. On 6 June 1995 the plaintiff obtained an order for the examination of the defendant on his assets. The defendant began proceedings to set aside or stay this order. These proceedings of the defendant have been going forward before Simos J and are not yet completed. What costs orders will result from them remains to be seen. That completes the summary of what arose from the plaintiff's s7 proceedings. PROCEEDINGS UNDER S8 OF THE FAMILY PROTECTION ACT. In May 1992 and March 1993 the plaintiff filed notices of motion pursuant to s8 of the Act seeking provision out of her father's notional estate for the payment of costs incurred by her in litigation related in the main to her earlier s7 proceedings. Later in 1993 she filed two further motions seeking provision for maintenance and advancement under s8. S8 permits a person in whose favour an order for provision out of the estate or notional estate of a deceased person has URJ WENTWORTH v WENTWORTH (Priestley JA) 3 previously been made, if the court is satisfied that since the earlier order for provision was made a substantial detrimental change in the circumstances of the person has occurred, to obtain (subject to the court's discretion) an order that additional provision be made out of the estate or notional estate of the deceased. In July 1994 Santow J made orders in the plaintiff's favour, although not of the kind the plaintiff had sought. Both the plaintiff and the defendant appealed against the orders. Santow J's orders required the defendant to pay out of the notional estate of the deceased a sum to be used by a named trustee to buy an annuity on the life of the plaintiff in the sum of approximately $36,800, the annuity to be held by the trustee upon protective trusts set out in a specified deed of trust. Santow J also made orders for payment to the plaintiff of other amounts out of the notional estate of the deceased. At first Santow J designated as notional estate of the deceased charged with the burden of the sums to be paid pursuant to his various orders all ordinary shares in Recato 10 Pty Ltd (Recato). This company was the registered proprietor of the property Southlands. The defendant had me controlling shareholding in the company. Subsequently Santow J decided to accept a method of meeting his various orders which would result in the Recato shares ceasing to be designated notional estate. The defendant was to obtain two Banker's undertakings: one (the first Banker's undertaking) entitling the Registrar of the Court and the trustee to call upon Westpac Banking Corporation (Westpac) to pay on request up to $696,806; the other (the second Banker's undertaking) entitling the Registrar to call on Westpac to pay on request up to $128,194. Upon those undertakings being delivered into the custody of the court and upon some other undertakings being given to the court by the defendant, Recato and the trustee, then, pursuant to s30 of the Act, the orders for me designation of the Recato shares as notional estate were to be altered by substituting for those shares the two Banker's undertakings. From the evidence before me and what I was told in the course of the hearing, it is clear that the conditions were fulfilled and that the trustee called upon Westpac under the first Banker's undertaking for the amount necessary to purchase the annuity and for certain other costs. I was further told that the amount not drawn upon under the first Banker's undertaking together with the amount available under the second Banker's undertaking (which has not been drawn upon at all) totalled $176,000, which was the sum which Santow J had taken to be the amount that would become payable under the O.6 which he made on 27 June 1994. The first Banker's undertaking thus remains on foot to the extent that approximately $39,000 may be drawn under it. To that extent the first Banker's undertaking is still designated notional estate of the deceased, as is the whole of the second Banker's undertaking. The trustee paid a number of monthly instalments of the annuity to the plaintiff. Both plaintiff and defendant appealed against Santow J's orders. The Court of Appeal on 24 August 1995 published reasons for judgment, which showed that the court intended to dismiss the plaintifFs appeal, uphold the defendant's appeal, set aside Santow J's orders and order that the plaintiff's s8 applications be dismissed. Some orders were made on 24 August 1995. A stay of proceedings 4 UNREPORTED JUDGMENTS was immediately granted without argument by a court constituted differently from the court which decided the appeal. By notice of motion dated 5 September 1995 the plaintiff made application for examination of the defendant as to his assets and that he be restrained from entering into a contract for the sale of his shares in Recato to Southlands Ltd. On 8 September 1995 Bryson J dismissed the motion with costs to be assessed on an indemnity basis. The plaintiff filed a summons for leave to appeal against this decision, which is one of the plaintiffs applications now before me. On 11 September 1995 the plaintiff filed an application for special leave to appeal in the High Court. I have been told by the plaintiff that she has been advised by the High Court Registrar that the application will not be listed for hearing this year, but is provisionally in the list for 5 February 1996. This has not been disputed by the defendant. In the appeal from Santow J, the Court of Appeal made its final orders on 4 October 1995. On the same day the court terminated the stay of proceedings granted on 24 August 1995. The plaintiff then applied for a further stay until the hearing of her High Court application for special leave to appeal. The court refused to entertain that application, but said that its refusal was not to be regarded as precluding any other judge of the Court of Appeal or the Full Court of Appeal taking whatever action it thought appropriate. The plaintiff then applied for an urgent hearing by a single judge of the Court of Appeal of an application for a stay. This came before me on the afternoon of 5 October 1995. I then made orders intended to maintain the position as it was immediately before the coming into effect of the Court of Appeal's orders disposing of the appeal from Santow J. The orders I mus made on 5 October 1995 were made until 4 pm on Monday, 9 October 1995. On the morning of that day I began the hearing of the stay application and me other applications I have earlier mentioned. The hearings took parts of 9, 10 and 11 October 1995. On those days I continued the orders I had made on 5 October, those orders presently being on foot until noon today or earlier order. THE ARGUMENTS. lam now in a position to deal with the eight applications which are before me. The plaintiff's submissions covered many matters, some in an intricate and detailed way. I will only refer to what seems to me to be of importance to the issues I must decide. The nature of those issues and of these proceedings makes it unavoidable that I take a broad approach in reaching my decisions. The most important issues for present purposes seem to me to be: (1) (a) Should the stay on the writ of execution of the certificate of taxation be continued? (b) If so, on what terms? (2) (a) Should a stay be granted of all or any of the Court of Appeal's orders in their final form as pronounced on 4 October 1995? (b) If so, on what terms? S19 ARGUMENT. Before coming to these matters however, I will note an argument raised by the plaintiff, going to the jurisdiction of the Court of Appeal to hear the appeals from Santow J, which had not been raised before. The argument is that s19 of the Act which says that an order for provision made under the Act may not be revoked or altered except in accordance with the Act (subs(1)) had the effect that once an order for provision had been made under the Act at first instance no appeal lay to the Court of Appeal. The argument was elaborated by reference to various other provisions in the Act and to the absence from the Act of any provision dealing with appeals from first instance decisions. URJ WENTWORTH v WENTWORTH (Priestley JA) 5 Ido not think this point has any merit. I read s19(1) as dealing with what may or may not be done, once an order for provision has been made under the Act, by the court which made the provision. A first instance court which has made an order for provision is bound by the subsection, and so, presumably, would be a Court of Appeal which made an order for provision under the Act. I do not think the subsection is in any way directed towards appeals from one level of court to an appellate level. The words "revoked or altered" are not particularly apt words for what an appellate court does when deciding an appeal: it either dismisses an appeal or upholds it, and if the latter, sets aside orders made below and then itself makes whatever orders are appropriate in the circumstances, which sometimes will be in similar form to those the subject of the appeal and will to that extent look like "altered" orders. Such new orders however are orders of the Court of Appeal and not "altered" orders of the court of first instance. Ql(a). Even from the short version of the history of the proceedings I have set out, it is clear mat many costs orders have been made. In some minor instances there has been agreement on costs, but in many others there has been no agreement. Taxation of the costs of the s7 trial before Bryson J has progressed to the point I have mentioned. Unless the parties agree, it seems inevitable that many further taxations or assessments of costs lie ahead. The plaintiff asserts that when all the costs orders have been sorted out, there will be a very substantial balance payable to her. I recognise this as a matter of possibility, but an at least equal possibility is that in the end the net position will be that the plaintiff will be entitled to little or nothing. The pending appeals from Master McLaughlin's orders alone make ie eventual position hard to forecast. If the Master's approach is upheld, then it is possible that the existing certificate of taxation of Deputy Registrar Irwin will remain valid and that also a further certificate will issue for something in the order of $400,000 or more. If on the other hand it is held that the Master's approach departed from established rules in a way too generous to me plaintiff, then a figure considerably less than mat allowed by Deputy Registrar Irwin could result. Another proceeding which complicates any attempt to forecast me eventual costs position is the pendency of the plaintiff's application for special leave to appeal against the Court of Appeal's decisions relating to the plaintiff's s8 applications. If I were of the view that the plaintiff's High Court application is certain to fail, or alternatively certain to succeed, I think I would be bound to say so and to take that opinion into account in forming a view of the overall situation. However, my view of what the High Court is likely to decide, which is necessarily one of impression and not at all fully considered, falls between the two extremes, that is I do not think it out of the question that special leave might be granted, and although my opinion is no more definite than that, and cannot in the circumstances be any more definite, I think I must approach the questions before me with that opinion in mind. The one certain thing as matters now stand is that the plaintiff is entitled to payment under the certificate of taxation issued by Deputy Registrar Irwin unless I continue the existing stay. An amount of $185,000 has been paid by the defendant in respect of the costs to which the certificate relates, leaving $277,000 outstanding. There is thus a crystallised legal obligation on the defendant to pay that amount to the plaintiff, from the consequences of which he is protected at the moment only by the stay. 6 UNREPORTED JUDGMENTS The defendant argues that he has good prospects in the appeals from Master McLaughlin and likewise in regard to the plaintifFs application for special leave to appeal to the High Court. If the defendant's assertions are vindicated, it is submitted that little if anything will, on a final net basis ever be payable by the defendant to the plaintiff for costs. The defendant then points to the likelihood that if the amount now due to the plaintiff under Deputy Registrar Irwin's certificate of taxation is paid to her and then subsequent events turn out as the defendant submits they will, then the plaintiff will have been overpaid for costs and the defendant in all likelihood will never be able to recover the overpayment. The plaintifFs position is that her liabilities greatly exceed her assets; she cannot offer any security and any undertaking for damages she may offer is of no value. Q1(b). If the defendant's s8 appeal had not been successful then I would have thought the stay of execution on the certificate of taxation should have been dissolved. The defendant's success in the appeal seems to me to make the situation quite different, even although subject to the plaintiffs application to the High Court for special leave to appeal. In the circumstances the defendant's argument that he should not be required to pay costs now which might later turn out to be wholly or partly recoverable by him, but which he would not be able to recover, seems to me to have considerable weight. On the other hand, the plaintiff has me existing crystallised right (although subject to appeal) to payment of the amount of the certificate of taxation. The s7 proceedings are, to a significant degree, separate from the s8 proceedings. Although it is possible to see sense in the view that the proceedings are connected and it would be convenient that only one net amount of costs be:payable when all costs arguments have been decided, there is also merit, in my opinion, in the idea that costs should be paid, in accordance with orders of court, as it becomes known what they are, particularly when the process of taxation of successive costs orders can take such inordinate lengths of time as are demonstrated in the present cases. Bearing in mind the pendency of the appeals before Master McLaughlin, and the success of the defendant in the s8 appeals, along with the other considerations I have touched on, it seems to me appropriate that the stay of execution now in question should be continued, but subject to me provision by the defendant within twenty-one days of today of security to me satisfaction of the Court of Appeal Registrar in the sum of $100,000. Q2(a). The first part of the plaintiffs main line of argument is along the following lines: she has good reason to fear that if no stay is granted and if she should ultimately succeed in the High Court there will be no property designated as notional estate to meet whatever s8 order is made in her favour; at present the two Banker's undertakings are the only property designated as notional estate; the setting aside of Santow J's orders brings that designation to an end; from the details of the defendant's financial position which are before the court there is no doubt that if Santow J's orders cease to operate, Westpac will immediately be discharged from its undertakings and the amounts outstanding under them will be credited against the defendant's debit balance with Westpac; the annuity purchased with the greater part of the first Banker's undertaking as a result of Santow J's orders held on protective trust for the plaintiff, will under the Court of Appeal orders become beneficially held by the trustee for the defendant; it may have been arguable that by some form of tracing while the trustee held that annuity on trust for the plaintiff, it itself became designated as notional estate, but URJ WENTWORTH v WENTWORTH (Priestley JA) 7 any such argument would become impossible to maintain once the Court of Appeal's orders operate; in such an event the plaintiff would be left to make application under s28 of the Act for the court to make a further exercise of its power to make an order designating property as notional estate (subs3 and subs4) and to rely on being able to persuade the court that there were special circumstances justifying the making of such an order (subs(5)(d)). To this point the plaintiff's propositions seem to me to be sound. She then relied on certain of the well known considerations which relate to the grant or refusal of stay applications (set out most conveniently in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685) to support her submission that the granting of a stay was the only way in which she could be properly protected. She relied particularly on the consideration that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay: Alexander at 695. The court must of course also weigh the balance of convenience and the competing rights of the parties: Alexander at 694. For the defendant it was argued mat the plaintiff's prospects on the special leave application were very poor. She herself had appealed against Santow J's orders, asserting she should have a lump sum and that it was wrong that she should be subjected to the indignity of a protective trust. The defendant also supports the reasoning of the Court of Appeal as being compelling that no order should have been made by Santow J under s8. The defendant may well be proved right in these contentions. But since I do not think success by the plaintiff in the High Court is out of the question, I am not in a position to act on the basis me defendant asks me to. On balance of convenience the defendant argues that because me plaintiff is insolvent and herself says she could not make restitution of any moneys already paid to her pursuant to Santow J's orders and cannot give an undertaking as to damages or security in support of the stay that she seeks, one result would be that if the court did stay the Court of Appeal's orders, it would also be necessary to stay the continuing operation of Santow J's orders, providing her with no real benefit and causing damage to me defendant. Ido not mink mere is any great force in this argument. The plaintiff does seek to continue to receive the instalments of the annuity pending ie result of her special leave application, and she submits this is a matter of importance to her in her present very straitened circumstances, but the real importance from her point of view in the obtaining of a stay is to ensure mat there will be property designated as notional estate available to meet me orders mat she hopes to have made in her favour in due course under s8. The defendant's principal case for opposing a stay was based on the defendant's own financial position. There was considerable evidence about this before me. I will not state the details. Its general effect was that both personally and through Recato the defendant is possessed of valuable assets, but that these are burdened with significant debts, particularly to Westpac; Westpac has been pressing the defendant to sell assets so as to discharge (or reduce to much lower levels) the debts to it; the defendant has tried to sell some assets but without success; Westpac has said it will exercise its own rights (the defendant is in default to Westpac) to sell if he does not; the defendant has also been negotiating 8 UNREPORTED JUDGMENTS towards selling his shares in Recato to a company called Southlands Ltd in return for $1m and shares and options in Southlands Ltd, which is intended to be floated as a public company. The defendant submits he is under great pressure at the present time because of the way in which his position with Westpac interacts with his dealings with Southlands Ltd. Five other parties are in the course of selling assets to Southlands Ltd. The whole project of Southlands Ltd depends upon the sale by the defendant of the Recato shares. Considerable expense has been incurred by Southlands Ltd in getting the project to its present stage. If the defendant does not carry out his part within the next few days, the whole project may fall down, which would involve financial liability to the defendant, or at the least be delayed and cause Southlands Ltd to begin incurring financial penalties, for which the defendant, as one of a number of guarantors would be jointly liable. Westpac will not permit the defendant to sell his Recato shares unless he reduced his debt to Westpac by an amount greater than he can presently raise; he would be able to raise the necessary amount if the Court of Appeal's orders were not stayed. Hence, a stay of those orders would both interfere with legitimate business dealings by him and cause the likelihood of immediate financial loss, which the argument continues, the court should not permit in the circumstances of the case. The plaintiff does not accept the factual basis of this argument. She says the urgency of the present situation has been in whole or in part manufactured by the defendants that he has assets and sources of income not disclosed to the court, and he is engaged in a scheme so to dispose of his assets as to make the orders she says she will get against the deceased's notional estate of no value. I do not think I should accept these contentions of the plaintiff. In saying this I bear in mind the way the proceedings before me have been conducted. I indicated as evidence was being put before me by affidavit that I was not intending to permit cross-examination on the affidavits. Neither party raised any question about this. This approach seemed to me to be appropriate because of the nature of the proceedings, the need for me to form a broad view of the position of the parties as quickly as possible, and me likelihood (as it then seemed to me) that any detailed exploration of the evidence would not affect the broad lines of what was apparent from the affidavits. It was of course open to either party to seek to persuade me to follow a different procedure if circumstances emerged to warrant it. This did not happen. The closest the proceedings came to anything of the kind arose from a notice to produce served by the plaintiff on the defendant. She called on this on the first day of the hearing (Monday, 9 October 1995). Considerable documentation was produced, much of which the plaintiff tendered without objection. However, some material was not produced, which in my opinion should have been. I permitted the defendant to postpone further production until the following day, when more documents were produced, but still not all those called for. Because me notice to produce when addressed to a party has the effect of a subpoena I indicated to the defendant that I required full compliance. On the Wednesday morning further documents were produced, but still not covering the whole (not unreasonable) period stated in the notice. The plaintiff asked that the defendant be required to file an affidavit explaining his non compliance. Counsel for the defendant then asked the court to order (pursuant to Supreme Court Rules Pt36 R16(1)) that further production be not required. I made this order because on consideration of the material produced, in light of all other URJ WENTWORTH v WENTWORTH (Priestley JA) 9 evidence before me, I was of opinion that the response to the notice to produce had (eventually) been reasonable. Although the particular documentation in question did not cover the whole period specified, it covered much the greater and more relevant part of it, to the extent that I was satisfied there was no deliberate effort to conceal material from the court and the notice had, in substance, been complied with. The plaintiff relied on what she submitted was the suspicious aspect of this part of the proceedings in support of her submissions I have already summarised. Nevertheless, taking these matters into account, I am of opinion that the material before the court, much of it tendered by the plaintiff from the records produced by the defendant in answer to the notice to produce, gives a sufficiently accurate picture of the defendant's position to make it safe and proper for me to act on it in deciding the various applications now before me. That picture is much as stated in my summary of the defendant's submissions about it. Although I am not fully persuaded that matters are quite as desperately urgent as the defendant claims, I do accept that he is presently suffering from inability to sell assets advantageously, and is being seriously pressed by his creditors. The facts of the unsuccessful auction of one asset earlier this year, and of having given second and third mortgages of his assets to his solicitors, and of the August correspondence from Westpac seem to me to be convincing evidence of this position. I also accept that the defendant is anxious to proceed with the Southlands Ltd project and that he could be helped in doing so if no stay is granted. In addition to the matters I have already mentioned as relied on by the plaintiff, she has stressed her own present position: the annuity instalments being her only source of income, and her liabilities greatly exceeding her assets. I take these things into account, but her strongest argument appears to me to be the difficulty she may encounter, if she eventually succeeds in getting a s8 order, in finding notional estate to support such an order. In considering the weight of this factor there are two further matters I have in mind. The first is that although, in the event the plaintiff obtains a s8 order, she may have the difficulty she fears, I mink s28 of me Act would probably (and no doubt after contest) enable the order to be satisfied. The second is that although I am considering her prospects of succeeding in me High Court as at least arguable, it does not follow that the same degree of arguability attaches to the size of the order she eventually hopes to obtain. I find it difficult to accept that she has any realistic hope of ever obtaining an order of that size. The many considerations for and against making some form of stay order have led me to conclude it will be fair to grant such a stay as will preserve the two Banker's undertakings, (under which $176,000 remains to be drawn down) as designated notional estate. I also think I should stay orders requiring the plaintiff to account to the defendant until me special leave application has been disposed of. I will now deal with the eight applications separately. APPLICATION 1 (FOR STAY OF THE COURT OF APPEAL'S ORDERS OF 24 AUGUST 1995 AND 4 OCTOBER 1995). Attached to these reasons is an engrossment of (1) the orders recorded in the reasons of the Court of Appeal of 4 October 1995 as having been made on 24 August 1995 and (2) the orders made by the Court of Appeal on 4 October 1995, which the parties before me accept as accurate for purposes of the present proceedings. I assume that O.3 of 4 October 1995 replaces O.3 of 24 August 1995. 10 UNREPORTED JUDGMENTS My intention is to stay only so much of those orders as will leave the two Banker's undertakings on foot as designated notional estate of the deceased for the purposes of the Act, and as require accounting by the plaintiff to the defendant. By reference to the attached engrossed orders I order a stay of O0.3(b), O.3(c), so much of O.3(d) as relates to the designation of property as notional estate, O.5, and O.11 until 5 February 1996 or further order. APPLICATION 2 (DATED 31 AUGUST 1995. FILED 4 SEPTEMBER 1995, RETURNABLE 9 OCTOBER 1995 SEEKING FOUR SUBSTANTIVE ORDERS AND COSTS). The first and second orders sought have been subsumed in the orders made pursuant to Application 1. I do not think it appropriate for me to make the third order, and I refuse to do so. I decline also to make the fourth order. APPLICATIONS 3 AND 4 (TO SET ASIDE THE ORDERS STAVING THE STAY OF EXECUTION OF THE CERTIFICATE OF TAXATION). For reasons earlier given I continue the stay earlier granted upon condition that the defendant lodge security satisfactory to the Court of Appeal Registrar within three weeks of today's date in the sum of $ 100,000. APPLICATION 5 (TO STRIKE OUT PARAGRAPHS OF DEFENDANT'S NOTICE OF CROSS-APPEAL FROM MASTER MCLAUGHLIN AND FOR DECLARATIONS). In my view the most practical way of dealing with this application is to stand it over to the hearing of the appeals. I accordingly so order. APPLICATION 6 (TO GIVE THE PLAINTIFF LEAVE TO RE-OPEN THE APPEAL). I do not think it appropriate for a single judge to make such an order. In any event, I see no reason to justify such an order. I dismiss this application with costs.. APPLICATION 7 (THAT ORDERS OF 24 AUGUST 1995 AND 4 OCTOBER NOT BE ENTERED, BE SET ASIDE OR VARIED). It seems to me to follow from reasons earlier given, that I should dismiss this application with costs. APPLICATION 8 (DEFENDANT'S APPLICATION THAT STAY OF EXECUTION ON_ CERTIFICATE OF TAXATION BE MADE UNCONDITIONAL AND OTHER ORDERS THE OTHER ORDERS SOUGHT IN THIS APPLICATION BEING NO LONGER RELEVANT). This is dealt with under applications 3 and 4. GENERAL. In regard to those applications in the disposition of which I have not made costs orders, I direct the parties to file written submissions no later than 4 pm, 17 October 1995. If either party is of the view that the stay ordered under application I does not effectuate my stated intention, then liberty is granted to file a written submission suggesting appropriate amendment by 9.30 am, 13 October 1995. If such a submission is filed I will sit at 10 am to deal with it. A copy of any submission so filed should be served on the opposing party. No. 040361/94 ENGROSSMENT OF ORDERS MADE ON 4TH OCTOBER 1995 1. ORDER that the Orders made on 24th August 1995 be, and be deemed to have been, amended by deleting O.(4) as recorded therein and by substituting therefor a fresh Order reading "(4) ORDER that the costs of the hearing below and of the Appeal and Cross-Appeal be reserved". URJ WENTWORTH v WENTWORTH (Priestley JA) 11 2. 3. ORDER that if, and to the extent to which it may be necessary, Orders (1) and (2) made on 24 August 1995 be confirmed. ORDER that the following orders made by Justice Santow in the proceedings below to be set aside: (a) All orders for costs made in favour of the Plaintiff, other than that made on 11th February 1994. (b) The designation order made on 23 May 1994. (c) The orders made on 27 June 1994, including the designation order made on that date; and (d) The orders made on 8 July 1994 other than: (i) the order numbered 1 by which ANZ Executors and Trustee Co. Ltd was joined as a defendant in the proceedings. (ii) the order numbered 3 by which the Trust Deed dated 4 July 1994 between Judith Lekeu (as settlor) and ANZ Executors and Trustee Co Ltd (as trustee) was amended; and (iii) the order numbered 6 insofar as it ordered that shares of the Defendant in Recato Ten Pty Ltd be released from all designations and charges to which they were or may formerly have been subject by orders made in the proceedings before Justice Santow or earlier related proceedings. ORDER that the Plaintiff's applications for relief under s8 of the Family Provision Act 1982 (including the Notices of Motion filed by her on 25th May 1992, 29th March 1993, 13th May 1993 and 10th December 1993) be dismissed. ORDER that: (a) each of: (i) the Banker's Undertaking dated 1 July 1994 addressed by Westpac Banking Corporation to the Registrar of the Supreme Court of New South Wales and ANZ Executors and Trustee Co. Ltd in the sum of $696,806.00; and (ii) the Banker's Undertaking dated 1 July 1994 addressed by Westpac Banking Corporation to the Registrar of the Supreme Court of New South Wales in the sum of $128,194.00 be delivered up to the Defendant forthwith for his own use and benefit absolutely. (b) neither ANZ Executors and Trustee Co Ltd nor any registrar of the Court make any demand under, or take any steps in respect of, the aforesaid Banker's Undertakings without the prior written consent of the Defendant or the leave of a judge of the Court. (c) the Registrar in Equity, within a reasonable time after receiving a written request from the First Defendant so to do, provide to the First Defendant so to do, particulars in writing of: (i) each demand made on the aforesaid Banker's Undertakings or either of them; (ii) the receipt by the Court of moneys from Westpac Banking Corporation pursuant to the Undertakings or either of them; and (iii) the disbursement of such moneys by, or on behalf of, or at the direction of the Court. ORDER that the Trust Deed dated 4th July 1994 between Judith Lekeu (as settlor) and ANZ Executors 8 Trustee Co Ltd (as trustee), as amended by the order numbered 3 made by Justice Santow on 8th July 1994, be revoked. JOBNAME: No Job Name PAGE: 12 SESS: 1 OUTPUT: Fri Nov 2 17:05:19 2007 /reports/caseml]/case/urj/9505516 UNREPORTED JUDGMENTS 7. 10. 11. 12. 13, 14. DECLARE that the annuity purchased by ANZ Executors 8 Trustee Co Ltd from the Australian Mutual Provident Society pursuant to orders made by Justice Santow on 27 June 1994 and 8 July 1994 is held on trust for the Defendant for his own use and benefit absolutely. ORDER that the aforesaid annuity be vested in the First Defendant for his own use and benefit absolutely. ORDER that, within 14 days of this day or within such further time as may be agreed by the First Defendant or allowed by the Court on application in that behalf, ANZ Executors and Trustee Co Ltd provide to the Defendant particulars in writing of: (a) its receipt of moneys from the Court and Westpac Banking Corporation respectively pursuant to orders made by Justice Santow in the proceedings below; (b) its disbursement of such money, including its purchase of the aforesaid annuity from the Australian Mutual Provident Society and its application of moneys in payment of its own charges and expenses; (c) its receipt of moneys from the Australian Mutual Provident Society in relation to the aforesaid annuity; (d) its disbursement of moneys received from the Australian Mutual Provident Society in relation to the aforesaid annuity, including its application of such moneys in payment of its own charges and expenses and its payment of moneys to, or at the direction of, the Plaintiff; and (e) the amount of its charges and expenses (if any) which it is prepared to refund to the Defendant. DECLARE that all moneys received by the Appellant from ANZ Executors and Trustee Co Ltd or the Australian Mutual Provident Society pursuant to orders made by Santow J in the proceedings below were received on trust for the First Defendant. ORDER that within 28 days of this day the Plaintiff account to the Defendant with interest calculated at the rates ordinarily allowed pursuant to s94 of the Supreme Court Act 1970, for all moneys received by her from ANZ Executors and Trustee Co Ltd and the Australian Mutual Provident Society in the proceedings below. ORDER that the Plaintiff pay the Defendant's costs of: (a) the proceedings below, other than the costs of and incidental to the hearing before Justice Santow on 10 December 1993; (b) the Appeal; and (c) the Cross Appeal in the case of the costs of the Appeal and the Cross-Appeal up to and including the date of entry of a Minute of these Orders. RESERVE further consideration and further costs. RESERVE liberty to the First Defendant, at his own risk as to costs (a) to apply for an assessment of damages on the undertaking as to damages given by the Plaintiff on and after 27 May 1994 (in respect of injunctions which were granted on that date and subsequently continued until discharged on 11 July 1994 pursuant to O.7 made by Justice Santow on 8 July 1994): (b) to apply for orders by way of restitution or compensation arising out of: (i) orders made by Justice Santow in the proceedings below; URJ WENTWORTH v WENTWORTH (Priestley JA) 13 15. 16. 17. (ii) the provisions of the aforesaid Banker's undertakings pursuant to orders of Justice Santow: (iii) the establishment, execution or revocation of the trust established pursuant to orders of Justice Santow; or (iv) the purchase, administration or disposal of the annuity provided by the Australian Mutual Provident Society pursuant to orders of Justice Santow. (c) to apply for relief against ANZ Executors and Trustee Co Ltd in respect of the aforesaid trust or annuity. (d) to apply for orders setting off as between the Plaintiff and the First Defendant such liabilities for costs or other amounts as they might respectively have one to the other by reason of orders made in these or other proceedings relating to the estate of the late George Neville Wentworth. RESERVE to each party liberty to apply for orders to give effect to, or to enforce, these orders. ORDER that the Plaintiff be granted a certificate pursuant to the Suitor's Fund Act 1951, s6, in respect of the Cross-Appeal. ORDER that the stay granted on 24 August 1995 be dissolved as and from this day. "(1) Appeal dismissed; (2) Cross-Appeal upheld; (3) Order that Orders of Santow J be set aside; (4) Order that the Appellant pay the Respondent's costs of the hearing below, and of the Appeal and Cross-Appeal; (5) Order that the matter stand adjourned to a date to be fixed for the purpose of considering what, if any, orders consequent upon the Orders set out above ought to be made; (6) Stay operation of O.1, 0.2, O.3 and O4 until further order as a consequence of O.5." Counsel for the Appellant: GC LINDSAY/MK MEEK Counsel for the Respondent: IN PERSON Solicitors for the Appellant: DUNHILL MADDEN BUTLER Solicitors for the Respondent: RUSSO and PARTNERS