WENTWORTH v WENTWORTH (EXECUTOR OF THE ESTATE OF THE LATE WENTWORTH) [1998] NSWCA 259

WENTWORTH v WENTWORTH (EXECUTOR OF THE ESTATE OF THE LATE WENTWORTH)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MCLAUGHLIN M 2 November 1998

[1998] NSWCA 259

McLaughlin M On 30 October 1997 I published my reserved judgment in respect to a review conducted by me of the decision of Taxing Officer Davidson on a reconsideration of each of a number of specified items in the plaintiff's bill of costs. That review was initiated by notice of motion fled in the Court of Appeal on 11 December 1996 by the plaintiff Katherine Wentworth. By order of the Court of Appeal made on 3 February 1997, the review was remitted to the Equity Division.

Amongst the various items in the plaintiff's bill of costs, the subject of the review, were certain counsel's fees. Essentially, I expressed agreement with the conclusion of the taxing officer in relation to items (F) and (G) concerning the approach of the Court to the amount to be allowed for counsel's fees and also concerning counsel's fees for preparation.

Subsequently, the plaintiff appealed to the Court of Appeal from my decision. In a reserved judgment published on 3 September 1998, the Court of Appeal upheld the appeal in respect to those two areas relating to Counsel's fees and ordered that the matter be remitted to me for reconsideration in accordance with the reasons for judgment expressed by the Court of Appeal. Concerning the allowance of counsel's fees, the Court of Appeal said at p3 of its judgment:-

Implicitly, at least, the starting position adopted by the taxing officer and endorsed by the Master was that the barristers' fees incurred and paid could not be allowed in full because of the distinction between party and party costs and solicitor and client costs. That premise is fallacious. If counsel charged no more than was "necessary or proper," the appellant [that is, Miss Wentworth] was entitled to have the full amount charged allowed on a party and party taxation.