Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Michael Wilson & Partners, Limited v John Forster Emmott [2025] NSWCA 37 Hearing dates: 10 March 2025 Date of orders: 14 March 2025 Decision date: 14 March 2025 Before: McHugh JA Decision: (1) Pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the Applicant provide security for the Respondent’s costs of the application for leave to appeal in the amount of $20,000.
(2) The security referred to in Order 1 above be paid into Court within 14 days of the date of these orders.
(3) The proceedings be stayed until such time as the security ordered pursuant to Orders 1 and 2 above is provided.
(4) The Applicant pay the Respondent’s costs of the Notice of Motion filed 18 February 2025.
(5) The proceedings be listed before the Registrar on 31 March 2025.
Catchwords: CIVIL PROCEDURE — security for costs — non-resident applicant for leave to appeal — unpaid costs orders in other proceedings — no issue of principle
Legislation Cited: Corporations Act2001, s 1335
Civil Procedure Act 2005 (NSW), ss 56, 58(1)(a)(iii), 60
Foreign Judgments Act 1991 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Ltd [2020] FCA 840
Berry v Innovia Security Pty Ltd [2014] FCA 357
Charara v Integrex Pty Ltd [2010] NSWCA 342
Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258
Michael Wilson & Partners Limited v Emmott (No. 2) [2024] NSWSC 1435
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 [2024] NSWSC 1489
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Mohareb v Local Court of New South Wales [2024] NSWCA 235
PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48
Category: Procedural rulings Parties: Michael Wilson & Partners, Limited (Applicant)
John Forster Emmott (Respondent)Representation: Counsel:
Solicitors:
M Wilson (Solicitor) (Applicant)
J Baird (Respondent)
M Wilson (Applicant)
Duggan Legal (Respondent)
File Number(s): 2024/00416114 Publication restriction: Nil.
JUDGMENT
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The respondent (Mr Emmott) seeks security for costs in the sum of $25,000 with respect to the applicant’s (MWP) application for leave to appeal.
Background
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The background to the application is long-running litigation between the parties around the world. The present chapter arises out of MWP’s application for orders in the Supreme Court of New South Wales for the registration of certain foreign judgments and orders, including under the Foreign Judgments Act 1991 (Cth).
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On 2 February 2024 the Registrar made orders registering some but not all of the judgments and orders.
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Mr Emmott applied to have the registrations set aside or…
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- Case
- [2025] NSWCA 37
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Applicant, a non-resident, should be required to provide security for the Respondent's costs of the application for leave to appeal, given that the Applicant had unpaid costs orders in other proceedings. The Court also considered the quantum of any security to be ordered.
McHugh JA determined that the Applicant should provide security for the Respondent's costs. The Court applied the principles governing security for costs, particularly in circumstances where a party is a non-resident and has outstanding costs orders in other related proceedings. The existence of prior unpaid costs orders was a significant factor in the Court's decision to grant the application for security.
The Court ordered that the Applicant provide security for the Respondent's costs of the application for leave to appeal in the amount of $20,000, to be paid into Court within 14 days. The proceedings were stayed until this security was provided. The Applicant was also ordered to pay the Respondent's costs of the Notice of Motion filed on 18 February 2025, and the proceedings were listed before the Registrar on 31 March 2025.
Orders
Orders of the court
(1) Pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the Applicant provide security for the Respondent’s costs of the application for leave to appeal in the amount of $20,000.
(2) The security referred to in Order 1 above be paid into Court within 14 days of the date of these orders.
(3) The proceedings be stayed until such time as the security ordered pursuant to Orders 1 and 2 above is provided.
(4) The Applicant pay the Respondent’s costs of the Notice of Motion filed 18 February 2025.
(5) The proceedings be listed before the Registrar on 31 March 2025.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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