Wentworth v Rogers & Anor (No. 1) [2002] NSWSC 651

New South Wales Supreme Court

CITATION : Wentworth v Rogers & Anor (No. 1) [2002] NSWSC 651 FILE NUMBER(S) : SC 019228/82 HEARING DATE(S) : 28/11/01, 05/04/02 JUDGMENT DATE : 20 August 2002

PARTIES : Katherine Wentworth v Gordon John Rogers & Anor JUDGMENT OF : Howie J at 1

COUNSEL : Plaintiff in person Defendant in person SOLICITORS : - - CATCHWORDS : Costs - Jurisdiction - Interest on costs Supreme Court Act 1970 - ss 76, 95 LEGISLATION CITED : Supreme Court Rules - rule 3 part 40, part 52 div 5 Legal Profession Act 1987 - clause 45 schedule 8, part 11 divs 5 and 6, s 190 Legal Profession Regulation 1994 - clause 80 Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342 McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190 CASES CITED : Grogan v Thiess Contractors Pty :Ltd [2000] NSWSC 1101 Woods v Woods [2001] NSWSC 1108 GIO of NSW v Healey [No. 2] (1991) 22 NSWLR 380 Wentworth v Wentworth (NSWCA, unreported, Handley JA, 4 December 1998) DECISION : The application is dismissed and no order is made as to costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Howie J

TUESDAY 20 AUGUST 2002

019228/82 KATHERINE WENTWORTH v GORDON JOHN ROGERS & ANOR

JUDGMENT ON APPLICATION FOR INTEREST ON COSTS NO 1 1 His Honour: By Amended Notice of Motion Ms Wentworth seeks interest on costs awarded in her favour as long ago as 1994. The litigation in which the order was made has a long and involved history which it is unnecessary to set out for the purpose of this judgment. The costs order was made after a hearing before a jury of a claim for damages brought by Ms Wentworth against Mr Rogers as a result of which Ms Wentworth received judgment in her favour and a modest amount of damages. On 24 June 1994 Sully J ordered that Mr Rogers pay one half of Ms Wentworth's costs as assessed. 2 On 10 March 1995 Mr Rogers obtained a stay of the execution of the order for costs pending an appeal against the judgment in respect of which the order for costs was made. There were numerous interlocutory hearings and consequential orders made pending the hearing of the appeal. In effect that stay remained in place until 23 March 1998. On that date Handley JA stayed the execution of the costs order until further order of the Court but stated that the stay was not to prevent Ms Wentworth completing the assessment of those costs. Ms Wentworth had made an application for an assessment in September 1997 but Mr Rogers objected to the application because of the stay in force. 3 On 9 November 1998 a Certificate as to Determination of Costs issued from an assessor for the sum of $123,015.85. 4 On 7 December 1998 the matter was before the Court of Appeal once more and on that day the Court extended the existing stay until fourteen days after the delivery of the Court's reserved judgment or until further order. The Court handed down its judgment on 29 October 1999. No further order was sought in respect of the stay and it expired 14 days thereafter, that is on 12 November 1999. 5 On 29 June 2000 Ms Wentworth, by filing the Certificate in this Court's Registry, obtained a judgment for the sum of $123,015.85, that judgment to take effect from 27 March 2000. 6 During the period in which the costs order was stayed, there was further litigation between the parties that was heard by Sperling J. The result of that proceeding was that Mr Rogers was successful and a costs order was made in his favour against Ms Wentworth. That order has been the subject of an appeal by Ms Wentworth and there is a pending special leave application before the High Court. 7 The present application was heard by me together with another Notice of Motion seeking interest on a further costs order made in Ms Wentworth's favour against Mr Rogers and other interlocutory applications related to the ongoing litigation between these parties. Ms Wentworth represented herself during these hearings. Initially Mr Rogers was legally represented and written submissions were placed before the Court on his behalf in respect of each of the matters that were to be determined by me. However, during the course of these hearings Mr Rogers ceased to retain his legal representatives. As he lives in the far north of Queensland he chose not to attend the Court but wrote indicating that he wished the matters to be determined in his absence taking into account the written submissions which had been filed on his behalf. 8 After receiving evidence by way of affidavit from Ms Wentworth and her oral and written submissions in November last, I reserved the matter for judgment. 9 Before I was in a position to deliver judgment, Mr Rogers and Ms Wentworth appeared before me on the hearing of proceedings brought by Ms Wentworth against Mr Rogers and his wife. As Mr Rogers was then before me in person, I determined to re-open this matter to give him the opportunity of putting material and submissions before me relevant to the application. The parties were again unrepresented. Mr Rogers made some brief submissions and Ms Wentworth responded. I once again reserved judgment, subject to Ms Wentworth providing me with further material in amplification of the somewhat complicated history of the matter. Mr Rogers indicated he had no objection to that course. This material was provided to me on 8 July last. 10 The relevant sections of the Supreme Court Act are as follows: