WENTWORTH v WENTWORTH (Executor of the Estate of the late G N Wentworth) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and STEIN JJA and FITZGERALD AJA 12 August 1998, 28 October 1998 [1998] NSWCA 260 Priestley, Stein JJA and Fitzgerald AJA In a judgment delivered on 3 September 1998, the Court allowed the appellant's appeal with costs, erroneously referred to as "taxed costs", set aside the certificate of taxation which the appellant then held,, and ordered that the appellant have an interim certificate in the amount of $25,550.38. The amount of the interim certificate was based upon the premise that two erroneous items for counsels' fees in the certificate being set aside amounted to $22,313.74. Under the Court's judgment, the appellant is entitled to a further certificate for those erroneous items for counsels' fees in an amount to be determined by the Master. Since the Court's judgment was delivered, the appellant has drawn our attention to additional material in support of a contention that the total of the two erroneous items for counsels' fees which were included in the certificate which the court ordered be set aside was considerably less than $22,313.74. She has submitted that the amount of the interim certificate should be the amount of the certificate which the Court ordered be set aside less only the amount included in that certificate for the two erroneous items for counsels' fees. The respondent was notified of the appellant's additional contention and submission by a letter from the Registrar, and was given an opportunity to put submissions to the Court, but has not done so. In the letter to the respondent, he was informed that the Court would give its further decision in this matter at 10.15am today, Wednesday, 28 October 1998. The appellant was also notified. We are satisfied that, although taken from the appellant's material, the erroneous two items for counsels' fees included in the certificate which the Court ordered to be set aside was not $22,313.74 but approximately half that sum. Accordingly, the Court vacates its order that the appellant have an interim certificate for $25,550.38, and instead orders that the appellant have an interim certificate for the amount of the certificate which it has ordered be set aside less only the total of the two erroneous items for counsels' fees included in that certificate. In accordance with the Court's previous order, the appellant is entitled to a further certificate in respect of those two items for counsels' fees in an amount to be determined by the Master. The Court further orders that the reference to the appellant's costs of the appeal being taxed be deleted from its previous order. Counsel for the appellant: In person with Mr S Russo Solicitors for the appellant: Russo & Partners Counsel for the respondent: No appearance Solicitors for the respondent: P F N Wentworth 2 UNREPORTED JUDGMENTS Counsel for the Attorney General (amicus curiae): C Birch