Michael Wilson and Partners Ltd v Emmott (No 2)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 2) [2022] NSWCA 48
Hearing dates: 25 February 2022
Date of orders: 25 February 2022
Decision date: 25 February 2022
Before: Brereton JA
Decision:

1. The appellant be released from its obligation to provide security to the respondent for the respondent’s costs of the application for leave to appeal and the appeal.

2. The respondent forthwith return to the appellant or its nominated bankers both of the originals of the guarantees provided in accordance with the orders of 6 August 2019 and 25 November 2019, being guarantees numbered 55541928 and 555615578, for cancellation, and do all things and execute all documents necessary in order to give effect thereto.

3. The respondent pay the appellant’s costs of the motion of 13 January 2022 on the ordinary basis.

4. The Court declines to make an order for interim payment.

Catchwords:

COSTS — Security for costs — On appeal – Security for costs of appeal provided by appellant in form of bank guarantee – Terms of bank guarantee required appellant to pay costs to respondent “in the event that its appeal is unsuccessful and it is required to do so by Court Order” – where interlocutory costs orders made against appellant – where appellant substantially successful in appeal – Finding that proceedings not “unsuccessful” and guarantee not engaged – Order that security be released

COSTS — Security for costs — Security provided in form of bank guarantee — Held, costs ancillary to administering bank guarantee not recoverable in circumstances where guarantee was an indulgence for convenience of party providing security

Cases Cited:

Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315

Category:Consequential orders
Parties: Michael Wilson & Partners Ltd (Appellant)
John Forster Emmott (Respondent)
Representation:

Counsel:
Michael Wilson (in person) (Appellant)
J Baird (Respondent)

Solicitors:
Duggan Legal (Respondent)
File Number(s): 2019/103863; 2019/170998
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division, Commercial List
Citation:

[2019] NSWSC 218

Date of Decision:
8 March 2019
Before:
Ball J
File Number(s):
2016/34380

Judgment (ex tempore)

  1. HIS HONOUR: On 6 August 2019, the respondent Mr Emmott having filed a motion for security for costs, the Registrar by consent made orders as follows:

“1. The Appellant/Applicant provide the Respondent with security in the sum of $27,500.00 in respect of the Respondent's costs of the application for leave to appeal (proceedings no. 2019/170998) and the appeal (proceedings no. 2019/103863).

2. The security referred to in order 1 is to be provided by bank guarantee, in the form annexed hereto and marked "A", to be served on the Respondent within 30 days of the date of these orders.

3. If the security referred to in order 1 above is not provided in accordance with order 2, proceedings no. 2019/170998 and no. 2019/103863 are stayed without further order unless and until the security is provided.

The Court notes the agreement between the parties as follows:-

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Details
Case
[2022] NSWCA 48
Decision Date

CaseChat Overview and Summary

In *Michael Wilson and Partners Ltd v Emmott (No 2)*, the New South Wales Court of Appeal considered an application by the appellant, Michael Wilson and Partners Ltd, for the release of security for costs provided to the respondent, Emmott. The security had been provided in the form of bank guarantees in accordance with earlier court orders.

The primary legal issue before the Court was whether the conditions for the bank guarantees to be called upon had been met. Specifically, the Court had to determine if the appellant's appeal was "unsuccessful" within the meaning of the guarantee, and if the respondent was entitled to recover costs related to the administration of the bank guarantee.

Brereton JA found that the appellant had been substantially successful in its appeal, and therefore, the condition that the appeal be "unsuccessful" was not satisfied. Consequently, the bank guarantees were not engaged, and the appellant was entitled to their release. The Court also held that costs ancillary to the administration of the bank guarantee were not recoverable in these circumstances, as the guarantee was provided as an indulgence for the convenience of the appellant. The Court ordered the release of the bank guarantees and that the respondent pay the appellant's costs of the motion.

Orders

Orders of the court

1. The appellant be released from its obligation to provide security to the respondent for the respondent’s costs of the application for leave to appeal and the appeal.

2. The respondent forthwith return to the appellant or its nominated bankers both of the originals of the guarantees provided in accordance with the orders of 6 August 2019 and 25 November 2019, being guarantees numbered 55541928 and 555615578, for cancellation, and do all things and execute all documents necessary in order to give effect thereto.

3. The respondent pay the appellant’s costs of the motion of 13 January 2022 on the ordinary basis.

4. The Court declines to make an order for interim payment.

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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