WENTWORTH v WENTWORTH AND ORS [1995] NSWCA 509

WENTWORTH v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, COLE JJA and GILES AJA 13 February 1995, 13 February 1995

[1995] NSWCA 509

Appeal and New Trial — Practice and procedure — Admission of fresh evidence — Discretion — Principles applicable.

Powell JA In pursuance of a Notice of Motion filed on her behalf of 11 January last, the Appellant, Ms Wentworth, has moved the Court for leave to re-open her case on the Appeal with a view to tendering fresh evidence.

In order that the Court might understand the nature and extent of the evidence leave to tender which is, in effect, being sought, the Court has received in support of the Notice of Motion two Affidavits sworn by Ms Wentworth and one Affidavit sworn by her solicitor Mr Russo. The material in respect of which that leave is sought basically falls into one or other of three categories.

1. material tending to show that the First Respondent, Mr Wentworth, in his capacity as Executor of, and principal beneficiary under, the Will, and as Trustee of the Estate of the Appellant's, and his, late father, is attempting so to order his affairs as to dissipate his assets, thus rendering nugatory any Orders which the Court has already made, or which this Court, on appeal, might make;

2. material which, so it is said, would indicate, not only that has there been a great deal of hostility towards the Appellant within the extended Wentworth family, but also that, even before the death of the deceased that hostility had progressed to a stage where, so it is said, "'a contract' had at least been contemplated, if not been let, in respect of the life of the Appellant" by members of the extended Wentworth family.

3. material relating to certain proceedings presently before Master McLaughlin on a review of a taxing officer's decision in relation to costs being taxed pursuant to Orders for costs made at earlier stages of these proceedings, the effect of which material, so it is said, will be, first, to demonstrate that, in contrast to what was thought to be the position at the time of the hearing of the Appeal, the Appellant will end up being, not a debtor to, but a substantial creditor of, the Estate; and, second, that, in that event, the submission that there would be no utility in making further provision for the Appellant, which submission had been advanced on behalf of Mr Wentworth at the time of the hearing of the Appeal, would be revealed as lacking in substance.