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Michael Wilson & Partners Ltd v Emmott

Michael Wilson & Partners Ltd v Emmott

Case [2019] NSWSC 218 8 March 2019

Civil Litigation & Procedure

Contract Law

Corporate Law & Governance

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218
Hearing dates: 12 February 2019
Decision date: 08 March 2019
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1) Proceedings be permanently stayed.
(2) The plaintiff pay the defendant’s costs of the notice of motion filed on 1 November 2018.
Catchwords: CIVIL PROCEDURE – Service outside Australia – whether service of originating process should be set aside – whether local proceedings should be stayed on ground that New South Wales is inappropriate forum
CONTRACT – breach of contract – whether partnership agreement existed – whether dispute falls within schedule 6 of UCPR – whether leave to serve outside Australia should be granted
CORPORATIONS – Directors – claim based on breach of duties said to be owed by persons who were shadow directors – whether leave to serve outside Australia should be granted
EQUITY – Contribution – whether court should refuse to assume jurisdiction over claim for contribution
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Base Metal Trading Ltd v Shamurin [2005] 1 WLR 1157; [2004] EWCA Civ 1316
Bialkower v Acohs Pty Ltd (1998) 83 FCR 1
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Henry v Henry [1996] 185 CLR 571; [1996] HCA 51
Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1033
Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1377
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 305; [2011] HCA 48
Michael Wilson & Partners, Limited v Emmott [2018] EWCA Civ 51
Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 222
Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383
Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) (2008) 238 CLR 265; [2008] HCA 54
Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Texts Cited: A Briggs, Private International Law in English Courts, (Oxford University Press, 2014)
Category: Procedural and other rulings
Parties: Michael Wilson & Partners Ltd in its capacity as the assignee of the rights of Robert Colin Nicholls (a Bankrupt) and of certain of the rights of Temujin International Limited (acting both in its own right and as the Trustee of the Temujin International (Trading) Trust) and Temujin Services Limited (Plaintiff)
John Forster Emmott (Defendant)
Representation:
Counsel:
P Bolster (Plaintiff)
J Baird (Defendant)
Solicitors:
ACA Lawyers (Plaintiff)
John Forster Emmott (Defendant)

File Number(s): 2016/34380
Publication restriction: None

Judgment

Introduction

By a notice of motion filed on 1 November 2018, the defendant, Mr John Emmott, seeks an order that service of an Amended Summons filed on 3 February 2016 and a Commercial List Statement filed on 2 February 2016 be set aside on the ground that they…

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.

Continue reading Michael Wilson & Partners Ltd v Emmott

Details

AGLC: Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218
Case: [2019] NSWSC 218
Decision Date: 08 March 2019

CaseChat Overview and Summary

Michael Wilson & Partners Ltd, a partnership, commenced proceedings against Emmott in the Supreme Court of New South Wales, seeking damages for alleged breaches of a partnership agreement and for alleged breaches of statutory duties owed by Emmott as a shadow director of the partnership. Emmott moved to set aside service of the originating process, arguing that service was not effected in accordance with the Hague Service Convention, and that local proceedings should be stayed on the ground that New South Wales is an inappropriate forum. Emmott also sought to have the claim struck out for failing to disclose a cause of action, and for the proceedings to be dismissed for want of prosecution.

The court considered whether the claim fell within the schedule 6 of the Uniform Civil Procedure Rules, which sets out circumstances where leave to serve outside Australia is required. The court held that the claim fell within the schedule, as it was based on alleged breaches of statutory duties owed by a person who was not a director of the partnership at the relevant time. The court further considered whether leave to serve outside Australia should be granted, and whether the court should refuse to assume jurisdiction over the claim for contribution. The court held that the partnership agreement was not binding on Emmott, and that the court should not assume jurisdiction over the claim for contribution.

The court held that service of the originating process was not valid, and that the claim should be struck out. The court further held that the proceedings should be dismissed for want of prosecution, as the plaintiff had failed to take steps to prosecute the claim within a reasonable time. The court declined to stay the proceedings on the ground that New South Wales is an inappropriate forum, as the partnership had its principal place of business in New South Wales.

The court ordered that the proceedings be dismissed with costs to be paid by the plaintiff to the defendant.

Orders