Michael Wilson & Partners, Ltd v Emmott (No 3) - [2025] FCA 1186

FEDERAL COURT OF AUSTRALIA
Michael Wilson & Partners, Ltd v Emmott (No 3) [2025] FCA 1186

File number(s): NSD 1396 of 2024

Judgment of: MOORE J

Date of judgment: 24 September 2025

Catchwords: PRACTICE AND PROCEDURE – costs – costs thrown away by a late adjournment of the hearing – applicant should have appreciated that it needed separate representation at the hearing – respondent has quantified costs in a relatively modest amount – costs in a lump sum ordered to be payable forthwith

Legislation: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 27

Cases cited: Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 13

Date of hearing: 20 August 2025

Solicitor for the Applicant: Mr M Wilson

Counsel for the Respondent: Mr J Baird

Solicitor for the Respondent: Duggan Legal

ORDERS

NSD 1396 of 2024

BETWEEN:
MICHAEL WILSON & PARTNERS, LTD

Applicant

AND:
JOHN FOSTER EMMOTT

Respondent

ORDER MADE BY:

MOORE J

DATE OF ORDER:

24 SEPTEMBER 2025

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs thrown away by the adjournment of the hearing fixed for 20 August 2025 in the sum of $9,764.61.
2.The costs referred to in Order 1 be payable forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MOORE J:

These reasons concern the costs thrown away by an adjournment sought by the applicant (MWP). They should be read with Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment), which sets out some background matters.
On 16 April 2025, I made orders, inter alia, that:
(a)issues pertaining to the jurisdiction of the respondent and service of the bankruptcy notice (the Jurisdiction and Service Issues) be determined separately from, and in advance of, all other issues in the proceedings; and
(b)the Jurisdiction and Service Issues be listed for hearing on 20 August 2025 (the hearing).
MWP has at all times been represented by Mr Wilson, a solicitor admitted to practice in Australia but who is based in Kazakhstan. Mr Wilson has undertaken all court appearances thus far for MWP.
Mr Wilson has sworn various affidavits in the proceedings. On 29 July 2025 (i.e. approximately three weeks before the hearing), the solicitor for Mr Emmott sent a letter to MWP which:
(a)enclosed a notice that Mr Wilson was required for cross-examination; and
(b)enclosed a copy of r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Conduct Rules), which affects whether Mr Wilson could appear as an advocate for MWP in the hearing at which he would give evidence and be cross-examined.
Rule 27.1 of the Solicitors’ Conduct Rules relevantly provides as follows:
In a case in which it is known, or becomes apparent, that a solicitor will be required to…

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: [2025] FCA 1186
Decision Date: 24 September 2025

CaseChat Overview and Summary

In the Federal Court, Michael Wilson & Partners, Ltd (MWP) sought to challenge a bankruptcy notice issued against one of its clients. The respondent, Emmott, sought to have the proceedings dismissed for lack of jurisdiction, which necessitated a separate hearing from the merits of the proceedings. MWP, represented by Mr. Wilson, sought an adjournment of the hearing to brief new counsel, which was granted, leading to a claim for costs by Emmott for the costs thrown away by the adjournment. The court needed to determine whether MWP was at fault for the adjournment and whether it should compensate Emmott for the costs incurred due to the adjournment.
The primary legal issue was whether MWP should have reasonably foreseen the necessity for separate representation at the hearing and whether this foresight would have led to a different course of action, thereby avoiding the costs incurred by Emmott. The court examined whether MWP's decision to delay briefing counsel was unreasonable and whether this delay was the direct cause of the costs thrown away. The court also considered the reasonableness of the costs claimed by Emmott, including the appropriateness of the fees charged by counsel and the expenses incurred.
The court found that MWP should have appreciated the need for separate representation at the hearing, given the requirement for Mr. Wilson to be cross-examined. The late request for an adjournment, coming just days before the hearing, indicated that MWP had not taken reasonable steps to ensure that it was adequately represented. The court held that MWP's delay in briefing counsel was unreasonable and directly caused the costs thrown away by the adjournment. The court assessed the claimed costs and found them to be reasonable and necessary, ordering MWP to pay the costs forthwith.
The court ordered that MWP pay Emmott's costs thrown away by the adjournment of the hearing in the sum of $9,764.61, to be paid forthwith. This order was based on the court's determination that MWP's delay in briefing counsel was unreasonable and that the costs claimed by Emmott were reasonable and necessary. The order ensures that Emmott is compensated for the costs incurred due to MWP's failure to adequately prepare for the hearing.

Orders

Orders of the court

1. The applicant pay the respondent’s costs thrown away by the adjournment of the hearing fixed for 20 August 2025 in the sum of $9,764.61.

2. The costs referred to in Order 1 be payable forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These reasons concern the costs thrown away by an adjournment sought by the applicant (MWP). They should be read with Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment), which sets out some background matters. On 16 April 2025, I made orders, inter alia, that: (a)issues pertaining to the jurisdiction of the respondent and service of the bankruptcy notice (the Jurisdiction and Service Issues) be determined separately from, and in advance of, all other issues in the proceedings; and (b)the Jurisdiction and Service Issues be listed for hearing on 20 August 2025 (the hearing). MWP has at all times been represented by Mr Wilson, a solicitor admitted to practice in Australia but who is based in Kazakhstan. Mr Wilson has undertaken all court appearances thus far for MWP. Mr Wilson has sworn various affidavits in the proceedings. On 29 July 2025 (i.e. approximately three weeks before the hearing), the solicitor for Mr Emmott sent a letter to MWP which:(a)enclosed a notice that Mr Wilson was required for cross-examination; and(b)enclosed a copy of r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Conduct Rules), which affects whether Mr Wilson could appear as an advocate for MWP in the hearing at which he would give evidence and be cross-examined. Rule 27.1 of the Solicitors’ Conduct Rules relevantly provides as follows:In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing. At a case management hearing on 12 August 2025, counsel for the respondent, Mr Baird, raised an issue with Mr Wilson appearing in a proceedings when he is also required for cross-examination. On the morning of 18 August 2025, my Chambers received an email from MWP requesting an adjournment of the hearing on 20 August 2025 so as to allow time to brief counsel: specifically, “so that it has time and proper chance to locate, agree terms with, brief and bring counsel up to speed, which is no small task”. I granted an adjournment later that morning. Mr Emmott seeks the costs thrown away by the late adjournment of the hearing. Mr Emmott filed an affidavit giving evidence about his claimed costs. They comprise:(a)counsel fees of $5,000, being one day of fees at the rate of $5,000 per day;(b)solicitors’ fees at an hourly rate of $545.00, being a total of $2,180.00 for “preparing, finalising and attending to swear affidavit and compiling exhibit, attending to file and serve affidavit, email correspondence with the applicant’s solicitor and the Court, correspondence and teleconferences with counsel and with the respondent”; and (c)Mr Emmott’s China Airlines return air fare from London to Sydney calculated at an exchange rate of $1.00 to 0.4793 GB pounds (being the exchange rate of that day), being a total of $2,584.61, amounting to a combined total of $9,764.61.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 1396 of 2024
Judgment of:	MOORE J
Date of judgment:	24 September 2025
Catchwords:	PRACTICE AND PROCEDURE – costs – costs thrown away by a late adjournment of the hearing – applicant should have appreciated that it needed separate representation at the hearing – respondent has quantified costs in a relatively modest amount – costs in a lump sum ordered to be payable forthwith
Legislation:	Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 27
Cases cited:	Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	13
Date of hearing:	20 August 2025
Solicitor for the Applicant:	Mr M Wilson
Counsel for the Respondent:	Mr J Baird
Solicitor for the Respondent:	Duggan Legal

ORDER MADE BY:	MOORE J
DATE OF ORDER:	24 SEPTEMBER 2025