Michael Wilson and Partners v Nicholls (a bankrupt

[2025] NSWSC 1275

Supreme Court

New South Wales

Medium Neutral Citation:

Michael Wilson and Partners v Nicholls (a bankrupt; deceased) [2025] NSWSC 1275

Hearing dates:

17 October 2025; further submissions received 21 October 2025

Date of orders:

30 October 2025

Decision date:

30 October 2025

Jurisdiction:

Equity - Commercial List

Before:

Peden J

Decision:

At [34]

Catchwords:

CIVIL PROCEDURE – application under UCPR rr 36.15, 36.16(1)-(3A), 36.17 to set aside orders dismissing notice of motion – whether orders entered irregularly, illegally or against good faith – whether denial of procedural fairness – applicants in Commercial List expected to prosecute motions expeditiously – motion misconceived – no procedural unfairness in dismissing motion where counsel present and previous adjournments granted – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Supreme Court Act 1970 (NSW)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Uniform Civil Procedure Rules 2006 (NSW)

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111

Evans v Smith (No 2) [2025] NSWCA 139

Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Gross Sum Costs Order [2025] NSWSC 179

Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262

Phillips v Walsh (1990) 20 NSWLR 206

Category:

Procedural rulings

Parties:

Michael Wilson & Partners Ltd (Applicant)
PJT International Pty Limited (acting both in its own right and as the Trustee of the PJT Trust) & PJT Corporate Services Pty Limited (First Respondent)
FOF International Pty Limited (acting both in its own right and as the Trustee of the FOF Trust) (Second Respondent)
FOF Consulting Services Pty Limited (Third Respondent)
Sandwood Pty Limited (Fourth Respondent)
Effective Recoveries/Effective Funds Management Pty Limited (Fifth Respondent)
D M Lighezzolo (Sixth Respondent)
G Neovius-Howe (Seventh Respondent)
A S Neouvius (Eight Respondent)
Christine Helen Stevenson (Ninth Respondent)
Vivian Vernon Bayl (Tenth Respondent)

Representation:

Counsel:
J Forbes (Tenth Respondent)

Solicitors:
Michael Wilson & Partners Ltd (Applicant)
Keypoint Law (Tenth Respondent)

File Number(s):

2006/00268492

Publication restriction:

Nil

JUDGMENT

1. Michael Wilson & Partners Ltd (MWP) seeks to set aside orders I made on 1 August 2025, dismissing a motion it filed on 30 May 2025.

2. MWP’s motion must be dismissed.

MWP’s 30 May motion

3. MWP’s 30 May motion sought to reopen 2006 substantive proceedings about “the ongoing enforcement” of MWP’s judgment debts. The motion sought a range of relief, which can be summarised as follows:

1. An extension of time to enforce earlier judgment debts;

2. A variation of historic freezing orders;

3. The transfer to MWP of various assets, mainly company shares; and

4. The transfer to MWP of six properties located in NSW and Victoria. One of those properties was one at Northbridge, which since 2013 was owned by Ms Bayl, the tenth respondent to the motion.

4. The motion was heard on 1 August 2025, after having been stood over from 6 June and 4 July 2025. MWP was represented by Mr D Brezniak of counsel. MWP had earlier sought leave to appear remotely, which I had refused based on the Court’s expectation for practitioners in the Commercial List to appear in person.

5. I ordered that Ms Bayl be removed as a respondent to the motion and that MWP pay her costs on an indemnity basis. I granted Ms Bayl liberty to apply for a gross sum costs order. I otherwise dismissed the motion and ordered that MWP pay the respondents’ costs of its motion.

6. Counsel for MWP did not seek further reasons for the dismissal or any other orders I made on 1 August 2025. That day was a busy list day, and I had indicated reasons orally during the hearing. However, on 27 October 2025, Mr Wilson emailed my chambers asking for “reasons of HH on 010825…”. I have taken that email as a request for written reasons for dismissing the motion, which I provide below.

7. So far as it concerned Ms Bayl, the 30 May motion sought “the transfer into the name of MWP … title to, legal and beneficial ownership of” the Northbridge property, purportedly on the basis that the property had been acquired by its previous owner using “assets and property properly belonging to MWP”, over which MWP had “proprietary and tracing rights”.

8. An affidavit filed by Ms Bayl in response to the motion evidenced that, in January 2013, she became the registered proprietor of the Northbridge property, having purchased it on the open market for valuable consideration. She was not a party to MWP’s substantive proceedings and the circumstances of her purchase of the property were completely removed from MWP’s dispute.

9. I accepted and adopted Ms Bayl’s submissions that, having regard to the circumstances of Ms Bayl’s acquisition of the property, the 30 May motion disclosed no basis upon which MWP would be entitled to her property. Moreover, a notice of motion was a plainly inappropriate vehicle to obtain the relief sought, which could not have been granted without a proper pleading and hearing. Ms Bayl sought her costs of the motion on an indemnity basis, which I ordered, on the basis that she never should have been joined.

10. The other relief sought in the motion was similarly inappropriate, because, as is well established, a notice of motion cannot be used “for the purpose of giving substantive relief not sought in the statement of claim”, nor “where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of the matter on summary application is inappropriate”: Phillips v Walsh (1990) 20 NSWLR 206 at 210 (McLelland J). The motion did not identify any legal basis upon which the orders sought could be made, and when I asked, counsel appearing for MWP could not assist by identifying any basis.

11. Counsel for MWP submitted that the motion should not be determined on the day, because MWP intended to serve further evidence and there had been “deleteriousness in relation to the service of material by or on behalf” by the respondents. However, counsel could not explain what evidence MWP proposed to serve, or what delay there had been on the part of the respondents and why that impacted MWP’s ability to prosecute its own motion. I did not accept that further time should be given in circumstances where the motion had been filed more than 8 weeks earlier and had not been prosecuted with due despatch. As Practice Note SC Eq 3 makes clear, proceedings and motions in the Commercial List are managed “with the aim of ensuring a speedy resolution of the real issues between the parties”. Further, paragraph [47] requires those appearing to be ready to “enable all appropriate orders and directions to be made”. In circumstances where MWP had been afforded 8 weeks to prosecute the motion, but the substance of the motion remained misconceived and without any legal basis, it was appropriate for the motion to be dismissed and for MWP to pay the respondents’ costs.

Gross sum costs order

12. On 29 September 2025, Ms Bayl moved for a gross sum costs order fixed in the sum of $23,000. She attempted to serve the motion on MWP via email, but MWP responded that it would not accept service by email. On 9 October 2025, the day before Ms Bayl’s motion was listed for hearing, MWP filed a notice providing an address for service.

13. Ms Bayl’s motion was heard on 10 October 2025. MWP did not appear, either by counsel or a solicitor. I note that the afternoon before the hearing, MWP sought leave to appear via AVL, which I declined to grant. It is the practice of the Commercial List that parties or their practitioners appear in person for any motions listed for call-over or hearing.

14. I was satisfied that MWP had received and was aware of Ms Bayl’s motion and made an order pursuant to r 10.14(3) Uniform Civil Procedure Rules 2006 (NSW) (UCPR) deeming the motion served on MWP. I ordered MWP pay Ms Bayl’s costs of the 30 May motion in a gross sum of $23,000.

15. MWP has not sought to have that costs order set aside.

Application to set aside the 1 August 2025 orders

16. Against that background, on 13 October 2025, MWP filed a motion seeking that the orders of 1 August 2025 be set aside pursuant to UCPR rr 36.15 and 36.17, because they “were wrongly and improperly made and are in material error of fact and of law, and which should have never been made…”. The motion also relied on s 46(4) of the Supreme Court Act 1970 (NSW), a provision which deals with the Court of Appeal’s power to discharge or vary orders and clearly has no application here.

17. The motion was listed on 17 October 2025. As before, I refused a request for leave for MWP to appear by AVL, but MWP did not appear at the hearing of the motion either by counsel or solicitor. Counsel for Ms Bayl orally sought that the motion be dismissed on the basis that it did not disclose an order that I can make. I ordered that the motion would be determined on the papers, with MWP to provide “written submissions of no more than 3 pages in 12 pt font with appropriate margins” to my Chambers by 4pm Sydney time on 21 October 2025. Contrary to that order, at 6:15pm on 21 October 2025, MWP filed 6 pages of closely spaced text. MWP sought to characterise 3 pages of the submissions as an annexure to the submissions, rather than submissions themselves. Despite that noncompliance I have considered those submissions in determining MWP’s motion.

18. For the reasons that follow, I do not accept that the 1 August orders can or should be set aside.

UCPR 36.15

19. MWP submits that it was denied procedural fairness in relation to the hearing on 1 August, primarily because it ought to have been granted a further adjournment, and for that reason the orders were made irregularly, illegally or against good faith: UCPR r 36.15(1). A denial of procedural fairness by a court can constitute an irregularity warranting the setting aside of a judgment or order: see Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262 at [85]-[87] (Spigelman CJ, Tobias and Campbell JJA agreeing). However, I do not accept that MWP was denied procedural fairness such that the orders can or should be set aside under r 36.15.

20. First, MWP was represented at the hearing of the motion by counsel. Although Mr Wilson complains that he ought to have been allowed to appear by AVL, that leave is not granted as a matter of course, and parties in the Commercial List are expected to appear in person. MWP was evidently aware of this, having been represented by counsel at the directions hearings on 6 June and 4 July.

21. Secondly, there was no procedural unfairness inherent in dealing with the motion on 1 August and not ordering a further adjournment. The Court expects parties to prosecute motions, particularly in the Commercial List, with due despatch. After two adjournments over 8 weeks, MWP ought to have been able to proceed with its motion or, at the very least, explain its legal basis or proffer a reasonable explanation for why it would be inappropriate for the motion to be determined, where the respondents’ legal representatives had appeared. Even after the matter was stood down so he could take instructions, counsel appearing for MWP could not provide any explanation. The Court has power to control its processes and must seek to give effect to the overriding purpose in ss 56-60 Civil Procedure Act 2005 (NSW).

22. Thirdly, contrary to MWP’s submission, there was no need for the respondents to file their own motion to strike out or summarily dismiss the 30 May motion.

23. Fourthly, none of the other submissions advanced by MWP suggest a denial of procedural fairness so as to engage r 36.15. Those submissions included an alleged conflict of interest on the part of Ms Bailey, who appeared for another respondent to the 30 May motion, MWP’s contended compliance with previous Court orders, and a range of allegations relating to the merits of the substantive proceedings and proceedings in other courts.

UCPR 36.16(2)

24. I also do not accept that the orders can be set aside under UCPR 36.16(2)(a), which applies where an order has been made in the absence of a party, whether or not that party had notice of the hearing or application. Plainly, MWP was not absent on 1 August 2025.

UCPR 36.16(3A)-(3B)

25. MWP submits that the orders should be set aside under UCPR r 36.16(3A), which provides that the Court may vary a judgment or order if a notice of motion for such relief is filed within 14 days after the judgment or order is entered. UCPR r 36.11 stipulates that a judgment or order is to be taken as entered when it is recorded in the Court’s computerised court record system. The Court has no discretion to extend that 14-day period: r 36.16(3C).

26. The orders were entered into the Court’s record system on 4 August 2025 (the next business day after the hearing). MWP’s motion was electronically filed on 13 October 2025, so r 36.16(3A) is not engaged.

27. MWP submits that it attempted to file its motion on 15 August 2025, but it was rejected and was not sealed until 13 October 2025. Assuming that the motion was filed in time, the power conferred under UCPR 36.16(3A) is only to be exercised “with circumspection and in exceptional cases”: Evans v Smith (No 2) [2025] NSWCA 139 at [5] (Ward P and Stern JA) (Evans). The power can be exercised in rare cases such as where there has been a material misapprehension of fact or law, or denial of procedural fairness: Evans at [5], citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303 (Mason CJ). The relevant “misapprehension” must be “oversight and inadvertence”, not “deliberate decisions which are said to be incorrect”: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

28. MWP does not identify any oversight or inadvertence associated with the 1 August orders that would engage r 36.16(3A). And, as explained above, I do not consider there to have been any denial of procedural fairness associated with the making of those orders.

29. MWP also relies on UCPR 36.16(3B), which allows the Court, on its own motion, to set aside an order within 14 days of entry. As more than 14 days have passed, that provision no longer applies. Even if it did, it would not be appropriate to set aside the orders under that provision for the same reasons the Court would not do so under r 36.16(3A).

UCPR 36.17

30. MWP also relies on UCPR 36.17, which allows the Court to correct a clerical mistake or an error arising from an accidental slip or omission in a judgment or order. That provision cannot operate where MWP challenges the correctness of the 1 August orders and does not identify any clerical mistake or accidental slip or omission.

Conclusion

31. It follows that MWP’s 13 October motion must be dismissed. As for the question of costs, Ms Bayl was the only party that responded to the 13 October motion. For doing so, Ms Bayl seeks costs fixed in the sum of $2,000, which I consider to be an appropriate amount to compensate Ms Bayl.

32. Finally, I consider it relevant to record that Mr Wilson has repeatedly sent emails to my chambers that were unsolicited and argumentative, not sent with the consent of the other parties and without always copying in the respondents or their lawyers. In Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Gross Sum Costs Order [2025] NSWSC 179, Hammerschlag CJ in Eq was critical of Mr Wilson communicating with his chambers contrary to Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rule 22.5. Those criticisms apply with equal force here.

33. Most recently, without invitation, Mr Wilson again sent an email to chambers indicating that he intended filing further material and submissions in response to Ms Bayl’s submissions. No order has been sought nor granted for MWP to do so. The Court does not invite any further communication in relation to MWP’s motion from MWP or any other party.

Orders

34. I make the following orders:

1. The notice of motion filed on 13 October 2025 by Michael Wilson & Partners Ltd is dismissed.

2. Michael Wilson & Partners Ltd is to pay Ms Bayl’s costs of the motion fixed in the gross sum of $2,000.

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Decision last updated: 30 October 2025