WENTWORTH v WENTWORTH [1996] NSWCA 553

WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and CLARKE JJA, GROVE AJA 24 November 1995, 21 February 1996

[1996] NSWCA 553

Appeals (by leave) from two interlocutory decisions

Appeals (by leave) from two interlocutory decisions of Young J - in first matter, Young J held on two grounds that one party should not execute on certificates of taxation pending set-off by opposing party pursuant to costs orders where taxation not complete - held: first ground sound (court's general discretionary power to require set-off in such circumstances) - second ground (that parties had agreed to set-off) not supported by the evidence - notwithstanding error as to second ground, court regards first ground as sufficiently strong as at time of decision as to justify decision in any event - appeal dismissed - in second matter, Young J had dismissed motions, without decision on merits - the basis being that appellant had asserted bias - held, proper course was either to disqualify himself from dealing with matters, or to decide them on merits - orders set aside.

ORDERS

1. In appeal against orders of 12 December 1994:

(a) appeal dismissed;

(b) no order as to costs.

2. In appeal against orders of 6 March 1995:

(a) appeal upheld;

(b) orders set aside;

(c) no order as to costs of appeal

Priestley and Clarke JJA, Grove AJA. Ms K Wentworth (the plaintiff) began proceedings under the Family Provision Act in 1989. Her brother, Mr P Wentworth, was a defendant (the defendant). In the long course of those proceedings there were many interlocutory applications, hearings, applications for leave to appeal and appeals. In many of these costs orders were made, some in favour of the plaintiff, some the defendant.

The two present appeals (for which the court gave leave) are against orders made by Young J in applications which arose from disputes between the parties concerning the implementation of the costs orders.