Michael Wilson & Partners Limited v Emmott - [2024] NSWSC 1258

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258
Hearing dates: 12-13 and 29 August 2024, further submissions filed 3 and 9 September 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1) The proceedings are stayed.

Catchwords:
CIVIL PROCEDURE — stay of proceedings — pending proceedings in other court — where foreign judgments between the parties registered in this Court — where defendant applied for a set off order in relation to those judgments in England — where plaintiff failed to disclose set off application to registrar — whether these proceedings ought be stayed pending determination of the English set off application — overriding purpose of Civil Procedure Act 2005 (NSW), s 56
JUDGMENTS AND ORDERS — amending, varying and setting aside — statutory power to set aside order of registrar — where registrar ordered registration of multiple foreign judgments — whether foreign judgments were “enforceable money judgments” within the meaning of the Foreign Judgments Act 1991 (Cth) — issue to be resolved at later stage

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58
Federal Court of Australia Act 1976 (Cth), s 43
Foreign Judgments Act1991 (Cth), ss 3, 6, 7, 8
Trans-Tasman Proceedings Act 2010 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 53.2, 53.3, 53.5, 53.6, 53.7

Cases Cited:
Huang v Deputy Commissioner of Taxation [2020] FCAFC 160
Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315
Miller v Director of Public Prosecutions [No 2] [2004] NSWCA 249
Porter, in the matter of Slater (No 3) [2021] FCA 688
Yee v O’Dea [2015] NSWSC 1752

Category: Principal judgment
Parties: Michael Wilson & Partners Limited (Plaintiff)
John Forster Emmott (Defendant)
Representation:
Counsel:
G Burton SC (Plaintiff)
J Baird (Defendant)
Solicitors:
Michael Wilson & Partners Limited (Plaintiff)
Duggan Legal (Defendant)

File Number(s): 2023/279049
Publication restriction: Nil

JUDGMENT

The parties have been litigating with each other since 2009 in various jurisdictions around the world, about matters which occurred in the United Kingdom, Kazakhstan and surrounding areas, where the plaintiff company, Michael Wilson & Partners Ltd, conducted business and the defendant, Mr Emmott, had performed work: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315 at [8]-[16]. Those jurisdictions include England, the British Virgin Islands, New Zealand, this State, the ACT and Australia’s High Court. The parties were also involved in arbitral proceedings in England.
Mr Emmott was for some time a director and shareholder of the Company, a relationship which appears to have come to an end in 2006. Mr Wilson remains a director and shareholder and appears to be the Company’s controlling mind.
Proceedings in the Equity Division of this Court, the British Virgin Islands and the High Court of Justice, Business and Property of England and Wales remain on foot and the Company has also foreshadowed the pursuit of bankruptcy proceedings in Australia against Mr Emmott. Such proceedings are already on foot in England,…

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: [2024] NSWSC 1258
Decision Date: 10 October 2024

CaseChat Overview and Summary

In the matter of Michael Wilson & Partners Limited v Emmott, the dispute centred on the question of whether the proceedings before the court should be stayed in light of a set off application made in an English court regarding foreign judgments registered in the Australian court. The case was heard in the Supreme Court of New South Wales. The plaintiff, Michael Wilson & Partners Limited, was seeking a judgment against the defendant, Emmott, who had registered multiple foreign judgments in the Australian court. The defendant applied for a set off order in the English court, but the plaintiff did not disclose this application to the Australian court's registrar. The central legal issues that the court had to address were whether the Australian proceedings should be stayed pending the determination of the English set off application and whether the statutory power to set aside an order of the registrar could be exercised in circumstances where multiple foreign judgments were registered.

The court considered the overriding purpose of the Civil Procedure Act 2005 (NSW), particularly section 56, which mandates that all civil proceedings be conducted in a just, quick, and cheap manner. The court noted that the plaintiff's failure to disclose the English set off application to the registrar could potentially lead to an unjust outcome if the Australian proceedings were to proceed without consideration of the English application. The court found that it was appropriate to stay the Australian proceedings until the English set off application was determined, as this would ensure a just and efficient resolution of the dispute. Regarding the registrar's order to register multiple foreign judgments, the court held that whether these judgments were enforceable money judgments within the meaning of the Foreign Judgments Act 1991 (Cth) was an issue to be resolved at a later stage.

The court granted a stay of the proceedings pending the determination of the English set off application and directed that the issue of whether the foreign judgments were enforceable money judgments would be addressed in subsequent proceedings. This decision balanced the need for procedural fairness and the efficient administration of justice between the parties.

Orders