Michael Wilson and Partners Ltd v Nicholls - [2021] ACTCA 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Michael Wilson & Partners Ltd v Nicholls
Citation:	[2021] ACTCA 32
Hearing Date:	20 October 2021
DecisionDate:	21 October 2021
Before:	Elkaim J
Decision:	See [30]
Catchwords:	APPEAL – APPEAL FROM SUPREME COURT – CIVIL – Application – application for stay – application for security for costs – adjourned to await UK decision
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5001 Corporations Act 2001 (Cth) s 1335 Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128
Parties:	Michael Wilson & Partners Ltd ( Applicant) Robert Colin Nicholls ( First Respondent) David Ross Slater ( Second Respondent) Temujin Services Ltd ( Third Respondent) Temujin International Ltd ( Fourth Respondent) Temujin International FZE ( Fifth Respondent) John Forster Emmott ( Sixth Respondent) Effective Funds Management Pty Ltd ( Seventh Respondent)
Representation:	Counsel M Wilson ( Applicant) J Baird ( Sixth Respondent)
Solicitors Michael Wilson & Partners ( Applicant) Duggan Legal ( Sixth Respondent)
File Number:	ACTCA 36 of 2021
Decision under appeal:	Court: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 30 June 2021 Case Title: Michael Wilson & Partners Ltd v Nicholls & Ors Citation: [2021] ACTSC 128

ELKAIM J:

I am hearing this matter as a single judge of appeal, pursuant to s 37J of the Supreme Court Act 1933 (ACT).

The application heard by me was filed on 29 September 2021 and, in short, seeks a stay of an application for security for costs filed by the sixth respondent. The application is supported by an affidavit of Mr Michael Wilson sworn on 29 September 2021. Most of the affidavit was objected to on the grounds of relevance or containing submission. Having regard to the interlocutory nature of the application I allowed the material to stand subject to weight, a course to which objection was not taken.

The proceedings for which security for costs is sought are an application for leave to appeal from a decision of McWilliam AsJ handed down on 30 June 2021 (Michael Wilson & Partners Ltdv Nicholls & Ors [2021] ACTSC 128).

The leave to appeal application does not yet have a hearing date. It is very unlikely to be heard this year.

For the purposes of these reasons I will refer to Michael Wilson & Partners as the applicant and to Mr John Emmott as the respondent. Mr Emmott is the sixth respondent in the application for leave to appeal and the applicant in the application for security for costs.

The background to the matter might be described as a legal saga. It is described in detail by McWilliam AsJ in her judgment, from [7]. There is no need for me to make any addition.

The application for security for costs was filed on 16 August 2021. It seeks security in the sum of $22,500.00. It has been set down for hearing on 4 November 2021.

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

Case: [2021] ACTCA 32
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application by Michael Wilson & Partners Ltd (the applicant) seeking a stay of an application for security for costs filed by the sixth respondent, Mr John Forster Emmott. The applicant sought to adjourn the security for costs application, which was scheduled for hearing on 4 November 2021, pending a decision from the United Kingdom regarding a freezing order that affected the applicant's ability to pay any costs awarded.

The central legal issue before the court was whether to grant an adjournment of the security for costs application. The applicant argued that the security for costs application relied substantially on the existence of a UK freezing order, which prevented access to funds in Australia. The applicant contended that if this freezing order were lifted, the need for security for costs would be negated, and an adjournment would avoid the time and expense of preparing evidence for the security for costs application. The respondent opposed the adjournment, arguing that the freezing order was not the sole basis for the security for costs application and that the matter should proceed as scheduled.

The court reasoned that while the freezing order was not the only ground for the security for costs application, it was a significant factor. Given that the applicant predicted the potential lifting of the freezing order on 16 November 2021, and that no prejudice would flow to the respondent from a short adjournment, the court considered an adjournment to be appropriate to potentially save costs and court time. The court noted that the application for leave to appeal would not be heard for some time, and certainly not before the security for costs application.

Consequently, the court vacated the hearing date for the security for costs application and adjourned it for directions before the Registrar on 25 November 2021. The application for leave to appeal was also listed for directions on the same date. The court ordered that if hearing dates were assigned, the security for costs application must precede the leave to appeal hearing by no less than 60 days. Each party was ordered to pay its own costs of the stay application, with leave granted for parties to request a different costs order within seven days.

Orders