WENTWORTH v WENTWORTH EXECUTOR OF THE ESTATE OF THE LATE G.N. WENTWORTH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 24 November 1995 [1995] NSWCA 544 Priestley JA. I will state briefly what is happening and that is, following conclusion of the appeals set down for yesterday and today and their reservation, the matter of what was to happen to the stay that had been granted of execution of the certificate of taxation of 5 May 1995, which stay had been granted on condition that the defendant lodged security to the extent of $100,000 by 5 pm today, had to be dealt with. Mr Lindsay, for the defendant, offered, and I put the matter in terms of substance without going into detail, security to the extent of $100,000. Miss Wentworth sought security in the sum of $277,000, that amount being what, in her submission, represented, first, an amount legally due by order of the court and, second, approximating if not smaller than the amount which would emerge as the net amount due to her when all costs orders arising out of litigation between herself and her brother have finally been turned into terms of money and finally ascertained. She also sought to put evidence before the court, being of a documentary nature, which she had obtained from the response to a subpoenaby the company Southlands Limited and some which she, I think, had obtained from an answer to a notice to produce served upon the defendant. She submitted that the notice to produce had not been properly answered and that there were attempts on foot by the defendant, which had been going on for some time, to move assets out of the way of her eventual reach when, as she sees it, she will be shown to have a balance of costs outstanding to her. On an earlier occasion, while the matter of the application for special leave to appeal to the High Court in the s 8 proceedings was pending, I had fixed the amount of the security required for the stay to continue at the figure of $100,000. No doubt that is why that figure was offered today, through Mr Lindsay on behalf of the defendant, in order that the stay continue. What I find extremely difficult to form a clear idea of at the moment is the likely figure, or even the likely range of figures, from which the eventual net figure will come of costs owing either by the plaintiff to the defendant, or the defendant to the plaintiff. The possibilities are numerous, which make the two extremes of the range quite widely separated. Bearing in mind the information that was before the court when I dealt with the interlocutory matters earlier and fixed the figure of $100,000 as the appropriate amount for the security, and such further information as I now have, it seems to me that I should not order a figure as large as Miss Wentworth asks for but that I should, at least temporarily, increase the figure of $100,000 to $150,000. I indicated that to the parties as Ms Wentworth was seeking to put further evidence before me indicating at the same time also, because of the time of day which has been reached, it is not possible for me to enter into any further detailed 2 UNREPORTED JUDGMENTS consideration of the facts than I already have. I also indicated to the parties that I would give Ms Wentworth an opportunity, and also anopportunity to Mr Wentworth because he is the one who is applying for the stay, of putting further material before the court in the near future upon which I would hope, although my hope may not be realised because it may prove too difficult, to get a better idea of that range of figure in which the net figure of costs will eventually lie. Mr Lindsay, although submitting that I should not make the order I was contemplating, indicated he nevertheless had instructions to submit to the figure of $100,000, which he had included in his short minutes of orders, being $150,000. I will, therefore, make orders in terms of the short minutes of order which have been handed up dated 24 November 1995 and which I will initial for identification purposes with some additional orders and with some variations. In paragraph 3 I will note that the defendant has offered those undertakings to the court initially to the extent of $100,000 and, following an indication by me that I would propose to increase the figure to $150,000, to the extent of that $150,000, although by way of submission rather than by way of offer, in satisfaction of the requirement of security which conditioned the continuation by Clarke JA on 31 October 1995 of the stay of execution of the certificate of taxation dated 5 May 1995, the subject of the Master's taxation review. Then I make order 4 as in the short minutes with the substitution of the figure of $150,000 for $100,000 in paragraph (a) and the orders in paragraphs (b) and (c) as they appear in the short minutes of order subject to, in the case of paragraph (b), the alteration of $100,000 to $150,000. In addition, I stand over the further hearing of this application until 9.30 am on 6 December 1995 for purposes only, on that day, of dealing with the notice to produce that Ms Wentworth has served on the defendant andwith the intent that, if there is any dispute about the fullness of the answer on that day, I will decide the dispute strictly in accordance with the Rules of Court, and the statutory provisions relating to notices to produce. On that day, after that matter has been dealt with, I will stand over the further hearing to a day in the following week which I would suggest would be 13 December 1995 at 9.30 am. On 6 December we will fix the day for further hearing before the end of term. I will try and make sure I have an available day, and I will let the parties know on that day what it is. If I find out beforehand I will get my associate to confer with you both so you can make an arrangement. I will reserve the costs of this application. Orders accordingly.