Michael Wilson and Partners Ltd v Nicholls (No 2)
[2021] ACTCA 36
•16 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Michael Wilson & Partners Ltd v Nicholls (No 2) |
Citation: | [2021] ACTCA 36 |
Submissions Last Received: | 5 November 2021 |
DecisionDate: | 16 November 2021 |
Before: | Elkaim ACJ |
Decision: | I confirm Order 5 made on 21 October 2021 |
Catchwords: | APPEAL – APPEAL FROM SUPREME COURT – CIVIL – Application – costs |
Cases Cited: | Michael Wilson & Partners v Nicholls [2021] ACTCA 32 |
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 ACJ:
On 20 October 2021 I heard an application in proceeding brought by Michael Wilson & Partners Ltd (MWP) to stay an application for security for costs which had been made by the sixth respondent (John Emmott). I delivered my reasons the following day (Michael Wilson & Partners v Nicholls [2021] ACTCA 32).
Order 5 of the orders made by me was that each party was to pay its own costs of the application that I heard. I did however give leave to the parties to request a different costs order. I further directed that any such request be decided on the papers.
MWP, by written submissions dated 28 October 2021, has requested a different order.
Initially the submissions seek the following order:
[T]he sixth respondent, Mr Emmott, pay the applicant’s costs of the Application for a stay filed on 29 September 2021.
However by the end of the submissions, perhaps emboldened by its contents, the applicant sought a different order:
The sixth respondent, Mr Emmott, pay the applicant’s costs of the Application for a stay filed on 29 September 2021, on the indemnity basis, to be assessed if not agreed, and with an interim payment to be made on account thereof of $5,000 to be paid by the respondent to the applicant, within fourteen (14) days, and in free and clear funds.
The sixth respondent is content with the order that I made.
The basis upon which I came to my earlier decision about costs is set out in [29] of my earlier reasons:
As far as the costs of this application are concerned, although the application has succeeded in delaying the security for costs application, it has not achieved the stay that was originally sought. I think the appropriate costs order is that each party should pay its own costs. This is also to achieve a balance with any costs implications that might flow from the vacation of the hearing on 4 November 2021. I will give leave to the parties to make submissions for a different order.
In essence, the basis for the now requested order, is that the partial success I referred to in [29] should be viewed as complete success. If that were the case, it is submitted, then costs should follow the event in the normal manner.
The applicant has submitted that it achieved total success because the order originally sought, in the application filed on 29 September 2021 did not seek a permanent stay but rather a stay for a limited period of time, and that is what it achieved. The request for indemnity costs seems to be based on the unreasonable conduct of the sixth respondent in not agreeing to the application for a stay.
I first of all observe that the reasons behind my original costs order were not limited to a comparison of an adjournment with a stay, but also related to the costs thrown away by the vacation of the hearing on 4 November 2021 when the security for costs application was due to be heard.
It is correct, as asserted by the applicant, that the application was not for a permanent stay but rather for a stay until the outcome of an application to be heard in the United Kingdom was known. It is also correct that this result is effectively reflected in the orders that I made.
However I note that on 18 August 2021 Murrell CJ ordered that the applicant was to file any evidence in reply on the application for security for costs by 29 September 2021. The applicant did not do so. Instead it filed the application that came before me.
Accepting that the application was for an adjournment (as opposed to a permanent stay) there is no reason why the applicant could not have filed its evidence in reply. The application seeks no relief from the orders made by Murrell CJ.
More importantly, although on a very preliminary basis, the application for security for costs appears to have been made on good grounds, even if those grounds might be mitigated by the result of the English proceedings. The result of these proceedings however is unknown, or at least was unknown when the application for security for costs was filed.
On this basis I do not think the sixth respondent has acted unreasonably and I think it was entitled, at least as matters stood when the application was made, to be reasonably confident that security for costs would be granted.
Taking all of these matters into account, and considering the wide discretion on costs (but to be exercised judicially), I am not persuaded that I should make any other order than that which I made on 21 October 2021.
Accordingly I confirm Order 5 made on 21 October 2021.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim. Associate: Date: 16 November 2021 |
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