Michael Wilson and Partners Ltd v Nicholls

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.