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Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors

Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors

Case [2009] NSWSC 669 14 July 2009

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CITATION: Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 669

HEARING DATE(S): 15/06/09, 16/06/09, 23/06/09, 24/06/09, 29/06/09, 30/06/09, 13/07/09, 14/07/09

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: Einstein J

EX TEMPORE JUDGMENT DATE: 14 July 2009

DECISION: Order that defendants costs of and occasioned by the time to be taken in absorbing the latest tranche of 18 or thereabouts folders to be paid by the plaintiff on an indemnity basis. Compulsory mediation ordered.

CATCHWORDS: Practice and procedure - Complex commercial litigation - Responsibility of parties, through their legal representatives, to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute and to participate in the processes of the Court to that end - Trolley load litigation, namely practice of a party in litigation with little or no notice, to flood its opponent with materials and then to insist that whilst its opponent is entitled to a period in which to endeavour to absorb new materials, that period should be miniscule - Trolley load litigation to be discouraged but when it has clearly been deployed and has the capacity to wrong foot the opposing party, the Court utilises its many powers to right the imbalance - Compulsory mediation

LEGISLATION CITED: Civil Procedure Act 2005 (NSW),

CATEGORY: Procedural and other rulings

CASES CITED: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2009] NSWCA 12
Bellevarde Constructions Pty Limited v CPC Energy Pty Limited [2008] NSWCA 228
Boyes v Colins [2000] WASCA 344; 23 WAR 123
Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80
Hooker v Gilling [2007] NSWCA 99
Khan v Armaguard Ltd [1994] 1 WLR 1204
Mercer v Chief Constable of the Lancashire Constabulary [1991] 1 WLR 367
Michael Wilson & Partners v Robert Colin Nicholls & Ors [2009] NSWSC 548
Nowlan v Marson Transport Pty Limited [2001] NSWCA 346
Sutton v Erect Safe Scaffolding (Aust) Pty Ltd [2006] NSWCA 265
White v Overland [2001] FCA 1333

PARTIES: Michael Wilson & Partners (Plaintiff)
Robert Colin Nicholls (First Defendant)
David Ross Slater (Second Defendant)
Temujin Services Limited (Third Defendant)
Temujin International Limited (Fourth Defendant)
Temujin International FZE (Fifth Defendant)
Shaikenov & Partners, LLP (Sixth Defendant)
Scoulton Holdings Limited (Seventh Defendant)

FILE NUMBER(S): SC 50151/06

COUNSEL: Mr M Walton SC, Mr J Carney (Plaintiff)
Mr G McGrath, Mr A Fox (First Defendant)
Mr G Lindsay SC, Mr A Fox, Mr S Adair (Second to Fifth Defendants)

SOLICITORS: Clayton Utz (Plaintiff)
Henry Davis York (First to Fifth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Tuesday 14 July 2009 ex tempore
Revised 15 July 2009

50151/06 Michael Wilson & Partners v Robert Colin Nicholls & Ors

JUDGMENT

The state of these proceedings

1 The proceedings before the court involve many issues not commonly experienced even in complex commercial litigation. In opening the case Mr Walton SC leading counsel for the plaintiff contended that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Michael Wilson and Partners Limited v Robert Colin Nicholls [2009] NSWSC 669
Case: [2009] NSWSC 669
Decision Date: 14 July 2009

CaseChat Overview and Summary

In the case of Michael Wilson and Partners Limited versus Robert Colin Nicholls and others, the matter before the court was a complex commercial dispute. The plaintiff, Michael Wilson and Partners Limited, was seeking various forms of relief against the defendants, which included Robert Colin Nicholls and other parties. The court had to determine the appropriate procedural steps and the responsibilities of the parties involved in such intricate litigation.

The legal issues central to the case revolved around the conduct of the parties during the litigation process. Specifically, the court needed to address the practice known as "trolley load litigation," where one party, through its legal representatives, inundated the opposing party with extensive materials without adequate notice. This practice was intended to create an imbalance in the litigation process, requiring the opposing party to absorb the materials within an unreasonably short period. The court was tasked with assessing whether such conduct was permissible and how it should respond to address any resultant unfairness.

In considering these issues, the court emphasised the importance of parties and their legal representatives assisting the court in achieving its overriding purpose of resolving disputes justly, quickly, and cheaply. The court found that while the practice of trolley load litigation was to be discouraged, where it had been employed and had the potential to disadvantage the opposing party, the court had the authority to take corrective action. The court ordered compulsory mediation as a means to address the imbalance caused by the trolley load litigation, ensuring that the real issues in dispute were resolved in a fair and efficient manner. The final orders included the direction for the parties to participate in mediation under the supervision of a mediator appointed by the court.

Orders