Michael Wilson & Partners Limited v Emmott - [2020] NSWCA 139

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners Limited v Emmott [2020] NSWCA 139
Hearing dates: 11 May 2020
Decision date: 10 July 2020
Before: McCallum JA
Decision:
(1) The relief sought in prayer 4 of the appellant’s amended notice of motion dated 6 April 2020 is refused.
(2) Until further order, the respondent is not obliged to produce the documents referred to in the notice to produce served by the appellant on 20 April 2020

Catchwords:
CIVIL PROCEDURE – Court of Appeal – stay of orders – application for stay of orders requiring payment of costs thrown away on the occasion of a late adjournment application and security for the costs of the appeal – stay sought pending resolution of application in the United Kingdom to vary freezing order – where respondent consents to the variation of the order to the extent necessary to permit the appellant to comply with the orders sought to be stayed – stay sought pending the end of crisis measures in Kazakhstan to address the COVID-19 coronavirus pandemic
CIVIL PROCEDURE – Court of Appeal – notice to produce – where served by appellant when the prosecution of the appeal is stayed – where served on a party who objects to the jurisdiction of the Court – whether respondent has submitted to the Court’s jurisdiction or waived his right to object to jurisdiction by seeking costs, security for costs and an order relieving him of the obligation to comply with the notice to produce

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 21.10, 21.11

Cases Cited:
Laurie v Carroll (1958) 98 CLR 310 at 335; [1958] HCA 4
Lhoneux, Limon & Co v Hong Kong and Shanghai Banking Corporation (1886) 33 Ch D 446
National Commercial Bank v Wimbourne (1987) 11 NSWLR 165 at 176
News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 260-261; [1996] NSWSC 474
Protec Pacific Pty Ltd v SteulerIndustriewerke GmbH [2007] VSC 93
White v Hardwick (1922) 23 SR (NSW) 6

Texts Cited:
M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014)

Category: Procedural and other rulings
Parties: Michael Wilson & Partners Limited (appellant)
John Forster Emmott (respondent)
Representation:
Counsel:
M Wilson (appellant)
J Baird (respondent)
Solicitors:
Michael Wilson & Partners Limited (appellant)
Duggan Legal (respondent)

File Number(s): 2019/103863
2019/170998
Publication restriction: None
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2019] NSWSC 218

Date of Decision:

08 March 2019

Before:

Justice Ball

File Number(s):

2016/34380

Judgment

McCALLUM JA: The appellant appeals from the decision of Ball J delivered on 8 March 2019 permanently staying proceedings brought by the appellant in the Commercial List of the Equity Division: Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218. This judgment determines two interlocutory applications in the appeal.

Circumstances in which the applications are…

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: [2020] NSWCA 139
Decision Date: 10 July 2020

CaseChat Overview and Summary

In *Michael Wilson & Partners Limited v Emmott*, the Court of Appeal considered an application by the appellant for a stay of orders requiring payment of costs thrown away due to a late adjournment and security for the costs of the appeal. The stay was sought pending the resolution of an application in the United Kingdom to vary a freezing order, and also pending the end of crisis measures in Kazakhstan related to the COVID-19 pandemic. The respondent consented to the variation of the UK order to the extent necessary to permit compliance with the orders sought to be stayed. The Court also addressed a notice to produce served by the appellant while the prosecution of the appeal was stayed, on a respondent who objected to the Court's jurisdiction. The central question was whether the respondent had submitted to the Court's jurisdiction or waived his right to object by seeking costs, security for costs, and relief from the notice to produce.

McCallum JA determined that the appellant was not entitled to the stay of the costs orders. The Court reasoned that the appellant had not demonstrated a sufficient basis for such a stay, particularly in light of the respondent's consent to the necessary variation of the UK freezing order. Regarding the notice to produce, the Court found that the respondent had not submitted to the Court's jurisdiction or waived his right to object by seeking costs, security for costs, or relief from the notice. The Court concluded that the respondent's actions were consistent with protecting his position while maintaining his objection to jurisdiction.

Consequently, the Court refused the relief sought in prayer 4 of the appellant’s amended notice of motion. However, by separate order, the respondent was relieved from the obligation to produce the documents referred to in the notice to produce served by the appellant on 20 April 2020, until further order.

Orders

Orders of the court

(1) The relief sought in prayer 4 of the appellant’s amended notice of motion dated 6 April 2020 is refused.

(2) Until further order, the respondent is not obliged to produce the documents referred to in the notice to produce served by the appellant on 20 April 2020

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Michael Wilson & Partners Limited v Emmott [2020] NSWCA 139
Hearing dates:	11 May 2020
Decision date:	10 July 2020
Before:	McCallum JA
Decision:	(1) The relief sought in prayer 4 of the appellant’s amended notice of motion dated 6 April 2020 is refused. (2) Until further order, the respondent is not obliged to produce the documents referred to in the notice to produce served by the appellant on 20 April 2020
Catchwords:	CIVIL PROCEDURE – Court of Appeal – stay of orders – application for stay of orders requiring payment of costs thrown away on the occasion of a late adjournment application and security for the costs of the appeal – stay sought pending resolution of application in the United Kingdom to vary freezing order – where respondent consents to the variation of the order to the extent necessary to permit the appellant to comply with the orders sought to be stayed – stay sought pending the end of crisis measures in Kazakhstan to address the COVID-19 coronavirus pandemic CIVIL PROCEDURE – Court of Appeal – notice to produce – where served by appellant when the prosecution of the appeal is stayed – where served on a party who objects to the jurisdiction of the Court – whether respondent has submitted to the Court’s jurisdiction or waived his right to object to jurisdiction by seeking costs, security for costs and an order relieving him of the obligation to comply with the notice to produce
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 21.10, 21.11
Cases Cited:	Laurie v Carroll (1958) 98 CLR 310 at 335; [1958] HCA 4 Lhoneux, Limon & Co v Hong Kong and Shanghai Banking Corporation (1886) 33 Ch D 446 National Commercial Bank v Wimbourne (1987) 11 NSWLR 165 at 176 News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 260-261; [1996] NSWSC 474 Protec Pacific Pty Ltd v SteulerIndustriewerke GmbH [2007] VSC 93 White v Hardwick (1922) 23 SR (NSW) 6
Texts Cited:	M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014)
Category:	Procedural and other rulings
Parties:	Michael Wilson & Partners Limited (appellant) John Forster Emmott (respondent)
Representation:	Counsel: M Wilson (appellant) J Baird (respondent) Solicitors: Michael Wilson & Partners Limited (appellant) Duggan Legal (respondent)
File Number(s):	2019/103863 2019/170998
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Commercial List Citation: [2019] NSWSC 218 Date of Decision: 08 March 2019 Before: Justice Ball File Number(s): 2016/34380