Michael Wilson and Partners Ltd v Emmott (No 2)

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.