Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74 Hearing dates: 31 March 2025; 14 April 2025 Date of orders: 15 April 2025 Decision date: 15 April 2025 Before: Basten AJA Decision: (1) Set aside the notice to produce served by the applicant on the respondent on 19 March 2025.
(2) Upon the applicant paying into court the amount of $A221,200, being the gross sum for costs determined by Hammerschlag CJ in Eq on 12 March 2025, stay the order requiring payment of that amount to the respondent pending determination of the applicant’s application for leave to appeal and, if leave be granted, the determination of the appeal.
(3) Pursuant to s 1335 of the Corporations Act2001 (Cth), or pursuant to UCPR, r 42.21, order that the applicant provide security for the respondent’s costs of the application for leave to appeal in an amount of $A15,000, to be paid into court within 28 days.
(4) The applicant is to pay the respondent’s costs of the motions.
(5) Stay the proceedings until the security fixed by order (3) has been paid into court.
Catchwords: CIVIL PROCEDURE – appeal – application for leave to appeal – respondent’s application for security for costs – whether corporate applicant unable to pay costs if unsuccessful – strength of applicant’s case for leave – stay until security paid into court
CIVIL PROCEDURE – appeal – application to stay costs order made by primary judge – stay on basis of payment into court
CIVIL PROCEDURE – application for leave to appeal – respondent’s application for security for costs – applicant issued notice to produce – respondent’s motion to set aside notice – documents sought to resist security for costs application – agreements between respondent and legal representatives – relevance not established – documents sought to show respondent owed money to applicant – relevance not established – to determine balance of account between parties would be to engage in satellite litigation
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, s 98
Corporations Act 2001 (Cth), s 1335
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.1, 51.14
Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Category: Procedural rulings Parties: Michael Wilson & Partners Ltd (Applicant)
John Forster Emmott (Respondent)Representation: Counsel:
Solicitors:
J Baird (Respondent)
M Wilson (Applicant)
P Duggan, Duggan Legal (Respondent)
File Number(s): 2024/449432 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity – Commercial List
- Citation:
- Date of Decision:
- 22 November 2024
- Before:
- Hammerschlag CJ in Eq
- File Number(s):
- 2016/34380
JUDGMENT
-
BASTEN AJA: On 22 November 2024, Hammerschlag CJ in Eq gave judgment in the matter of Michael Wilson & Partners Ltd v…
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- Case
- [2025] NSWCA 74
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant, a corporate entity, was unable to pay the respondent's costs if the applicant were unsuccessful. It also had to consider the strength of the applicant's case for leave to appeal, and whether to grant a stay of proceedings until security for costs was paid. Further, the court needed to decide whether to set aside the applicant's notice to produce documents, and whether to order the applicant to provide security for the respondent's costs of the application for leave to appeal.
Basten AJA reasoned that the documents sought by the applicant in its notice to produce were not relevant to the determination of the security for costs application, as their production would likely lead to "satellite litigation." The court found that the respondent's application for security for costs was well-founded, and ordered the applicant to pay $A221,200 into court as security for the respondent's costs of the primary proceedings, with a stay of payment pending the determination of the application for leave to appeal and the appeal itself. Additionally, the applicant was ordered to provide security for the respondent's costs of the application for leave to appeal in the amount of $A15,000, and to pay the respondent's costs of the motions. Proceedings were stayed until this further security was paid.
Orders
Orders of the court
(1) Set aside the notice to produce served by the applicant on the respondent on 19 March 2025.
(2) Upon the applicant paying into court the amount of $A221,200, being the gross sum for costs determined by Hammerschlag CJ in Eq on 12 March 2025, stay the order requiring payment of that amount to the respondent pending determination of the applicant’s application for leave to appeal and, if leave be granted, the determination of the appeal.
(3) Pursuant to s 1335 of the Corporations Act 2001 (Cth), or pursuant to UCPR, r 42.21, order that the applicant provide security for the respondent’s costs of the application for leave to appeal in an amount of $A15,000, to be paid into court within 28 days.
(4) The applicant is to pay the respondent’s costs of the motions.
(5) Stay the proceedings until the security fixed by order (3) has been paid into court.
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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