Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5)
[2024] NSWSC 1127
•05 September 2024
Supreme Court
New South Wales
Medium Neutral Citation: Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127 Hearing dates: On the papers Date of orders: 5 September 2024 Decision date: 05 September 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Leave to file motion seeking to vacate hearing date refused
Catchwords: CIVIL PROCEDURE – hearing – adjournment –where Court has ordered that neither party may file a motion without leave – where plaintiff makes application for leave to apply to vacate hearing date
Category: Procedural rulings Parties: Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust & Temujin Services Limited (Plaintiff)
John Forster Emmott (Defendant)Representation: Solicitors:
Michael Wilson & Partners (Plaintiff)
Duggan Legal (Defendant)
File Number(s): 2016/34380
JUDGMENT
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On 10 November 2023, Ball J ordered that neither party to these proceedings may file a motion without leave of the Court, with such application for leave to be supported by a short outline of submissions not exceeding one page and a short affidavit not exceeding three pages, with annexures and exhibits not exceeding 10 pages.
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On 26 August 2024, Ball J set these proceedings down for hearing for five days commencing on 18 November 2024.
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By notice of motion filed on 4 September 2024, the plaintiff seeks to have the hearing date vacated and, inferentially, seeks leave to make that application. The plaintiff has not provided a one page submission in support of that application, although the basis of the application appears to be set out in Mr Wilson’s affidavit sworn 4 September 2024.
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The transcript of the directions hearing on 26 August 2024 reveals that, although his Honour was initially minded to fix the matter for two weeks commencing 21 July 2025, his Honour fixed the matter for hearing on the date I have mentioned because Mr Wilson, who appeared for the plaintiff, declined to give an undertaking not to enforce a bankruptcy notice issued in favour of the plaintiff against the defendant arising from a costs order made in the High Court of Australia.
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His Honour said:
“Mr Wilson, you have got a choice. You can agree to a stay of the bankruptcy notice or you can face a hearing on 18 November. It is your choice …
I am not going to permit this case to go off on the basis that you are able to bankrupt the defendant in circumstances where the issues in this case are relevant to the question of the bankruptcy.”
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There was some discussion of whether counsel evidently retained by the plaintiff, Mr Burton SC, was available during the week commencing 18 November 2024.
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His Honour said:
“I have here an email which says that your counsel is available between 18 and 25 November.”
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It does appear that His Honour was mistakenly referring to an email from the defendant’s solicitors which spoke of the defendant’s counsel’s availability.
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But that temporary misapprehension did not affect the outcome as, immediately following his Honour making the statement I have set out at [7] above, the following exchange took place:
“WILSON: I haven’t seen any such email. How have you got such an email? I’ve not seen one. I left for the dates of Mr Burton which I haven’t received. I’ve been chasing him this morning.
HIS HONOUR: In that case, you’re in no position to say your counsel’s not available.”
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It was on that basis, and on the basis of Mr Wilson’s refusal to give an undertaking concerning the bankruptcy notice, that his Honour fixed the matter for hearing on 18 November 2024.
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In those circumstances, I am not persuaded that I should give the plaintiff leave to bring an application to vacate the hearing date, nor to vacate the date.
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The hearing date is over two months away. If Mr Burton is not available on 18 November, the plaintiff has adequate time to retain alternate counsel.
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The plaintiff’s notice of motion of 4 September 2024 is dismissed.
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Decision last updated: 05 September 2024
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