WENTWORTH v WENTWORTH AS EXECUTOR OF THE ESTATE OF THE LATE G.N. WENTWORTH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 15 December 1995 [1995] NSWCA 501 Priestley JA. Presently before the Court is a motion arising out of the issuing of a certificate of taxation earlier this year upon which a writ or writs of execution were issued. The party who in these successive proceedings has come to be called the defendant sought a stay of the writs of execution and staying orders were made upon condition that security be provided by a certain date. The full history can be found in the series of interlocutory decisions made after the first stay order was made. In general terms the amount of security and the time for its provision changed from time to time. The certificate of taxation which gave rise to the writs of execution was one which was the result of proceedings before Master McLaughlin. Those proceedings in turn arose from a taxation by a taxing officer, Mr Howe, who made a certificate of taxation which Master McLaughlin by his final orders displaced by making a certificate for a considerably larger sum. Both the defendant and Ms Wentworth, who has become known as the plaintiff in these proceedings, sought leave to appeal against MasterMcLaughlin's various orders. Leave was granted and the appeals were heard I think on 23 November this year and the decision was reserved. On 24 November other appeals were heard in matters in some ways related to the main disputes between the plaintiff and the defendant. After the Court reserved its decision in those appeals a question arose whether there should be some alteration to the existing orders for stay and security in respect of the granting of the stay which had been ordered in respect of the writs of execution. The matter could not be completed on that day. I made orders increasing the security to an amount of $150,000. A question arose on that day whether there had been a proper answer to a notice to produce that had been served by the plaintiff on the defendant. That notice to produce had been responded to by the defendant's legal representatives. The plaintiff submitted that the response was inadequate. I then stood the proceedings over to 6 December. I indicated on 24 November that if questions arose about the notice to produce I would expect the defendant to comply with it in full according to the rules on that day. On 6 December, as had been known on 24 November, the time available for consideration of the notice of motion was limited. In the interval between 24 November and 6 December I had been thinking about the substantial matters raised in the notice of motion. They revolve around the amounts that are now or may in the future be payable by the plaintiff to the defendant pursuant to costs orders made against the plaintiff and by the defendant to the plaintiff pursuant to costs orders made against the defendant. 2 UNREPORTED JUDGMENTS There are a great many of these orders, some of them involving amounts which are not particularly large in the context of the litigation that has taken place between the parties. Some of them potentially involvesignificant sums. The plaintiff has submitted that on any view the ultimate outcome of the costs position must be one which will yield a nett payment to her in a very considerable sum greatly in excess of the present amount ordered as security presently ordered to be paid as a condition for the defendant maintaining the stay that he has been granted. For the defendant it is contended that the sum eventually payable will be nothing like that contended for by the plaintiff and that the amount of security presently in place more than covers it. In thinking about the position prior to the hearing on 6 December, I had realised that the first thing I should do in trying to determine the principal questions in the notice of motion was to try and arrive at some estimate at least of a range within which the ultimate balance as between the parties might be. I further came to the view that in trying to make that estimate the appeal or appeals from Master McLaughlin were very relevant matters and that until the result of those appeals was known it would be difficult to arrive at the kind of estimate I had in mind and that, indeed, it might be so difficult that the appropriate thing to do would be to adjourn the completion of the motion until a decision in those appeals had been handed down, which my present understanding is will happen early in February next year. When proceedings began on 6 December I made known to the parties the views I have just expressed. After hearing some argument about the matter, I remained of the view that the first thing which should happen in the motion was the formation of the opinion of the kind I have mentioned. So long as I remained of that opinion, it did not seem to me there was any utility in pursuing the question of the notice to produce. Thus, I changed from the intention I had had of settling whatever had to be settled about thenotice to produce on 6 December and said I would defer that operation until such time as I was persuaded it was necessary. I then proposed to stand over the matter until 21 February 1996, the intention being that on that day with the result of the appeal or the appeals concerning Master McLaughlin's orders known I would be in a position to form a sufficiently firm view about the likely range of outcomes in regard to costs as to dispose of the motion. In the course of such disposition if it then became necessary to deal with the notice to produce, that would be done. Ms Wentworth responded to my making known this intention by submitting that she could suffer great prejudice by my not ordering an increase of security before February next year. In response to her submissions I then stood the matter over to today and I said, after saying some of the things that I have already briefly touched on, that the relevance of the notice to produce is dependent upon the amount which I eventually fix for security and if the present amount remains then there is no utility at all in calling on the notice to produce in regard to this application and therefore I propose to postpone the question of the answer to the notice to produce until such time as I am in a position to form an opinion about the correct amount of the security. I went on to say that 'On Friday of next week', that is today, 'we will have another mention at which in the light of the material which will be furnished to me by then at your request I am going to see if I can form a better estimate of WASNTWORTH v WENTWORTH AS EXECUTOR OF THE ESTATE OF THE LATE G.N§ WENTWORTH (Priestley JA) (Priestley JA) what is the proper amount on a temporary basis for security but I am not in a position of getting into long argument on Friday of next week'. At that time I thought that probably I would have no time available after 10.15 today because of commitments of Court. As it has happened, I have not got any other Court commitments in Court today, although anannouncement made last night concerning the going to the High Court of the President has created a number of matters of urgency that will need to be dealt with out of Court much more quickly than I had anticipated when this matter was last before the Court. Today both parties have been very helpful by making clearer the position about various costs orders, actual and potential, arising from the litigation between them and I have a clearer idea of the overall position. I am still, however, of the view that the result of the appeals from Master McLaughlin is something which it is essential for me to know before I consider increasing the present amount of security. Ms Wentworth has contended very vigorously that no matter what the result may be in regard to those appeals the nett figure favouring her must be such as to warrant an increase of security today. She has asked that the present amount secured of $176,000 be released and that the defendant be ordered to supply further security of $100,000. Iam not prepared to do that today. It seems to me that the amounts in question between the parties have got too many uncertainties and too many possible combinations for me to be satisfied that the security should be increased. I stress that I am speaking as at today. Ms Wentworth has pointed to the very big difference between the figures that she asserts and the figures put forward by the defendant, saying that even taking the defendant's own best position into account her submission must be a sound one. On my understanding of the figures I am not persuaded that that is correct. I am therefore proposing to adjourn this matter to 21 February next. I will not alter the present situation about security in the interval between now and then. T have indicated already, but I say again (and mention also that MsWentworth has asked for orders today concerning the notice to produce), that I will make no orders today concerning the notice to produce but I have informed the defendant's representative that the defendant should be in a position on 21 February, if it then becomes material for the notice to produce to be answered, to answer the notice to produce in accordance with the rules. Another matter that arose today was a question of extension of time occasioned by one of the orders made by the Court of Appeal on 4 October, I think it was, concerning an accounting ordered to be made by Ms Wentworth, the plaintiff, to the defendant of all moneys received by her pursuant to orders that had been made by Santow J. I refer to order eleven in the Court of Appeal's orders of 4 October. That order required the plaintiff to account for the moneys referred to in it within 28 days of 4 October. That order was subsequently stayed by Gummow J in the High Court, that stay in turn being dissolved when the plaintiff's application for special leave to appeal to the High Court from the Court of Appeal's orders of 4 October 1995 was dismissed. I heard argument briefly on the question of an extension. Mr Meek for the defendant opposed one, but in my opinion I should grant an extension and I think that extension should be ordered to be an extension until 14 days after the disposition of the present motion or further order. 4 UNREPORTED JUDGMENTS I make that order. I reserve the costs of today and I stand the motion over to 21 February 1996 at 10.15am, it being my intention that on that day I will be available throughout the whole day for hearing. 5 Orders accordingly.