WENTWORTH v WENTWORTH (EXECUTOR OF THE ESTATE OF THE LATE WENTWORTH); WENTWORTH v WENTWORTH and ANOR [1998] NSWCA 258

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

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and STEIN JJA

14 July 1997, 5 August 1998

[1998] NSWCA 258

COSTS — SET-OFF — INHERENT JURISDICTION

EXAMINATION ORDER — WHETHER JUDGMENT CREDITOR ENTITLED TO ENFORCE JUDGMENT

MAREVA INJUNCTION — WHEN AVAILABLE

Handley and Stein JJA These summonses for leave to appeal were heard ex parte, after notice to the opponent, on 14 July 1997. The hearing lasted all day. On 1 August 1997 the claimant lodged an affidavit which inter alia annexed additional written submissions (17 pages), and a copy of her written submissions to Simos J of 24 April 1997 (18 pages). Thereafter the pressure of other cases prevented the preparation of these reasons for judgment before Handley JA went on long leave. However an interlocutory Mareva injunction granted by Handley JA at an ex parte hearing, after notice to the opponent on 23 June 1997, has remained in force.

The claimant's first summons filed on 17 January 1997 (40031/97) sought leave to appeal from orders made by Simos J on 20 December 1996 and by McLelland CJ in Eq an 24 December. Simos J set aside an order under SCR Pt43, rl that the defendant be examined as to his assets (an examination order). McLelland CJ in Eq dismissed that part of a notice of motion filed by the claimant on 28 November 1996, which sought a Mareva injunction.

By her second summons dated 30 June 1997 (40392/97), the claimant sought leave to appeal from the decision of Hodgson J of 12 June 1997, in which he refused further applications for a Mareva injunction and an examination order. It will be convenient to consider the issues by reference to their subject matter, rather than the summons in which they are raised.

Mareva Injunction etc