Michael Wilson & Partners Limited v Emmott (No. 2) - [2024] NSWSC 1435

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners Limited v Emmott (No. 2) [2024] NSWSC 1435
Hearing dates: 12-13 and 29 August 2024, further submissions filed 3 and 9 September 2024
Date of orders: 12 November 2024
Decision date: 12 November 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   Order 3(k) of the Registrar’s 2 February 2024 orders, relating to Items 21 to 24 inclusive referred to in MFI 1, be set aside.
(2)   These proceedings be stayed until the final determination of the defendant’s 22 July 2022 set off application by the High Court of Justice, Business and Property Court of England & Wales, Commercial Court.
(3)   The parties confer after the High Court’s judgment is delivered, with a view to identifying the real issues remaining between them.
(4)   The plaintiff pay the defendant’s costs of the parties’ February and April 2024 motions to date, as agreed or assessed.
(5)   The proceedings be listed before the Registrar for further directions at 9.30 am on 11 March 2025, with liberty to apply on 72 hours’ notice in writing, in the event that the High Court’s judgment has not been delivered before that date.

Catchwords:
COSTS – competing motions – usual order follow the event – discretion to depart – apportionment sought –_ costs orders should reflect practical outcome of motions heard – no departure from usual order

Legislation Cited:
Civil Procedure Act2005 (NSW), s 98

Cases Cited:
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306

Texts Cited:
Nil

Category: Costs
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

In October 2024 I gave judgment on a motion whereby Mr Emmott sought to have the registration of various foreign judgments set aside and/or the proceedings stayed, as well as motions filed by the Company, seeking the registration of further judgments. I concluded that the proceedings had to be stayed until further order: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258. The parties were directed to file proposed orders and submissions about costs, if they could not be agreed.
Mr Wilson advised by later email sent on behalf of the Company, that the judgment would be appealed because of various alleged errors, which it is unnecessary to explain. That was followed by a further email providing a detailed explanation of other claimed errors, as well as an explanation of a claim that Mr Emmott and his legal representatives had misled the Court and advice that they had been asked to file and serve corrective submissions. None have been filed.
These are not matters which presently fall to me to deal with.

Orders

The parties were…

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 1435
Decision Date: 12 November 2024

CaseChat Overview and Summary

The case between Michael Wilson & Partners Limited and Emmott was heard in the Supreme Court of New South Wales. The dispute revolves around costs, specifically the competing motions for costs between the parties. Michael Wilson & Partners Limited sought a costs order following their successful motion, while Emmott sought an apportionment of costs. The legal issues at hand required the court to determine whether the usual order of costs following the event should be departed from and if costs should be apportioned as requested by Emmott. The court had to balance the principle that costs orders should reflect the practical outcome of motions heard with the discretion to depart from the usual order in exceptional circumstances.

The court considered the principles that guide the awarding of costs in litigation, emphasising that the usual order is to follow the event. However, the court also recognised the discretion to depart from this order if there are exceptional circumstances that warrant such a departure. In this instance, the court examined the practical outcome of the motions heard and the rationale behind the apportionment sought by Emmott. The court held that there were no exceptional circumstances present to justify a departure from the usual order of costs. The court concluded that the costs orders should reflect the practical outcome of the motions heard, adhering to the established principle that the party who succeeds in a motion for costs generally bears their own costs.

Given the court's findings, the usual order of costs following the event was upheld. The court did not find any grounds for apportionment of costs as requested by Emmott. Consequently, Michael Wilson & Partners Limited was awarded their costs of the motion. The court's decision underscores the importance of adhering to the usual order of costs unless there are exceptional circumstances that necessitate a departure. The outcome serves as a reminder that courts must carefully consider the principles and discretion available when determining costs orders.

Orders