Michael Wilson and Partners Ltd v Nicholls (No 3)
[2022] ACTCA 10
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Michael Wilson & Partners Ltd v Nicholls & Ors (No 3) |
Citation: | [2022] ACTCA 10 |
Hearing Date: | 16 March 2022 |
DecisionDate: | 16 March 2022 |
Before: | Elkaim J |
Decision: | Application for security for costs listed for hearing on 2 May 2022. Sixth respondent to file and serve further material by 21 March 2022. Appellant to file and serve further material by 19 April 2022. |
Catchwords: | APPEAL – APPEAL FROM SUPREME COURT – CIVIL – Application – where the applicant seeks security for costs from the appellant – where the matter was adjourned several times due to ongoing proceedings in other jurisdictions – hearing date allocated |
Cases Cited: | Michael Wilson & Partners Ltd v Emmott [2021] EWHC 3549 (Comm) Michael Wilson & Partners v Emmott [2021] NSWCA 315 Michael Wilson & Partners v Nicholls & Ors [2021] ACTCA 32 |
Parties: | Michael Wilson & Partners Ltd ( Appellant) 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 ( Appellant) J Baird ( Sixth Respondent) |
| Solicitors Michael Wilson & Partners ( Appellant) Duggan Legal ( Sixth Respondent) | |
File Number(s): | 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:
On 29 September 2021 the sixth respondent filed an application seeking security for costs from the appellant.
The application was originally listed for hearing on 4 November 2021. However on 20 October 2021 I heard an application by the appellant for a stay or adjournment of the security for costs application. In my decision, delivered on 21 October 2021, I vacated the hearing date and stood the security for costs application over for directions on 25 November 2021 (Michael Wilson & Partners v Nicholls [2021] ACTCA 32).
On 26 October 2021 I vacated the November directions hearing and placed it before the Registrar on 2 December 2021. On the latter date the Deputy Registrar adjourned the matter to 16 December 2021, and then on that date, adjourned the matter again to 3 February 2022.
On 3 February 2022 the Deputy Registrar again adjourned the matter, this time to 16 February 2022, before me.
As can be seen from my 21 October 2021 decision, the appellant was awaiting various decisions, including the lifting of a restraining order in the United Kingdom, which if found in his favour, would enable him to meet any requirement for the payment for security for costs. These considerations were behind the various continued adjournments.
The amount sought in the application is $22,000, a sum which is easily encompassed within the funds apparently held by the appellant, but subject to a restraining order.
The appellant has had some successes, both in the New South Wales Court of Appeal and in the High Court of England and Wales (Michael Wilson & Partners v Emmott [2021] NSWCA 315 and Michael Wilson & Partners Ltd v Emmott [2021] EWHC 3549 (Comm), decision of HH Judge Pelling QC, 23 November 2021 respectively).
It can be seen from the decision of Judge Pelling QC that although various amounts in the freezing order dated 5 December 2014 have been amended, the order itself remains in place.
The appellant said that the next hearing, to be concerned with the lifting of the restraining order, has been set down before Judge Pelling QC on 23 to 25 May 2022. Accordingly he requested a further adjournment until after this hearing.
The fact that the matter is to be heard on 23 May 2022 does not mean that there will be any decision made close to that date. If the decision is reserved it may well take some time before it is delivered.
I think there have been enough adjournments of this matter and the time has come for it to be set down for hearing. The points made by the appellant as to the reasons why there should be an adjournment are all points which can be made in defence of the application for security for costs.
I make the following orders:
(i)The application for security for costs, filed on 29 September 2021, is listed for hearing, with an estimate of one day, at 10 am on 2 May 2022.
(ii)The sixth respondent is to file and serve any further affidavit material and submissions by 5pm on 21 March 2022.
(iii)The appellant is to file and serve any affidavit material and submissions by 5pm on 19 April 2022.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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