Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Michael Wilson & Partners, Limited v Emmott [2020] NSWCA 245 Hearing dates: 31 August 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Before: Meagher JA at [1];
White JA at [2];
Emmett AJA at [3]Decision: Order that:
1. The prayers for relief in paras 1, 2 and 3 of the amended motion dated 6 April 2020 filed on 29 April 2020 be dismissed with costs.
2. The notice of motion dated 24 July 2020 filed on 25 July 2020 be dismissed with costs.
3. The time for complying with Orders 5 and 6 made on 25 November 2019 be extended to the date 14 days from the making of these orders.
4. The appeal and the application for leave to appeal be dismissed if either Order 5 or Order 6 made on 25 November 2019 is not complied with in accordance with the previous order.
5. The motion dated 22 March 2020 filed on 23 March 2020 be otherwise dismissed.
6. The respondent to the motion filed on 23 March 2020 pay the applicant’s costs of that motion.
Catchwords: CIVIL PROCEDURE — Court of Appeal — Application — Dismissal under UCPR r 51.50 — Compliance with security for costs — Variation of security for costs
CIVIL PROCEDURE — Court of Appeal — Review of order of single judge of appeal — Notice to produce — Ambit of documents — Whether oppressive or vexatious
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 51.50
Cases Cited: News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250
Texts Cited: Nil
Category: Procedural and other rulings Parties: Michael Wilson & Partners, Limited (Applicant)
John Forster Emmott (Respondent)Representation: Counsel:
Solicitors:
B Hancock (Applicant)
J Baird (Respondent)
Michael Wilson & Partners, Limited (Applicant)
Duggan Legal (Respondent)
File Number(s): 2019/103863 (Notices of Motion)
2019/170998 (Appeal)Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity – Commercial List
- Citation:
- Date of Decision:
- 8 March 2018
- Before:
- Ball J
- File Number(s):
- 2016/34380
Judgment
-
MEAGHER JA: I agree with Emmett AJA.
-
WHITE JA: I agree with Emmett AJA.
-
EMMETT AJA:
Introduction
These proceedings are concerned with a notice of appeal and an application for leave to appeal filed by Michael Wilson & Partners, Limited (Wilson) on 31 May 2019. Mr John Emmott is the respondent to the notice of appeal and the application for leave, each of which relates to orders made on 8 March 2019 by Ball J. By those orders, Ball J ordered that proceedings brought in the Commercial List of the Equity Division by Wilson against Mr Emmott be permanently stayed.
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The appeal and the application for leave to appeal were listed for concurrent hearing before this Court on 25 November 2019. On the morning of the hearing, Mr Michael Wilson, a solicitor who…
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- Case
- [2020] NSWCA 245
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the applicant had complied with the orders for security for costs and, if not, the consequences thereof. It also had to consider whether the notice to produce documents issued by the respondent was oppressive or vexatious, and therefore should be set aside or its scope limited.
The Court found that the applicant had failed to comply with the orders for security for costs. It reasoned that the rules governing appeals, specifically rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW), provided for dismissal in such circumstances. Regarding the notice to produce, the Court determined that while the applicant had raised legitimate concerns about its breadth, the respondent had made some concessions, and the notice was not so fundamentally flawed as to warrant complete dismissal. The Court ultimately extended the time for compliance with the security for costs orders, but stipulated that failure to comply within the extended period would lead to the dismissal of the appeal and the application for leave to appeal.
The Court ordered the dismissal of certain prayers for relief in the amended motion and the notice of motion, with costs. It also extended the time for compliance with specific orders for security for costs, and stipulated that the appeal and application for leave to appeal would be dismissed if these orders were not complied with within the extended timeframe. The remaining aspects of a motion dated 23 March 2020 were dismissed, with the respondent to that motion ordered to pay the applicant's costs.
Orders
Orders of the court
Order that:
1. The prayers for relief in paras 1, 2 and 3 of the amended motion dated 6 April 2020 filed on 29 April 2020 be dismissed with costs.
2. The notice of motion dated 24 July 2020 filed on 25 July 2020 be dismissed with costs.
3. The time for complying with Orders 5 and 6 made on 25 November 2019 be extended to the date 14 days from the making of these orders.
4. The appeal and the application for leave to appeal be dismissed if either Order 5 or Order 6 made on 25 November 2019 is not complied with in accordance with the previous order.
5. The motion dated 22 March 2020 filed on 23 March 2020 be otherwise dismissed.
6. The respondent to the motion filed on 23 March 2020 pay the applicant’s costs of that motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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