Michael Wilson & Partners Ltd v Emmott (No 4) - [2025] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Hearing dates: 20 June 2025
Date of orders: 20 June 2025, 11 July 2025
Decision date: 11 July 2025
Before: Leeming JA; Mitchelmore JA; Free JA
Decision:
On 20 June 2025:
In each of proceedings 2024/416114 and 2024/449432, dismiss the motions filed by Michael Wilson & Partners Ltd on 2 June 2025.
On 11 July 2025:
In each of proceedings 2024/416114 and 2024/449432:
1. Dismiss the motions filed by Michael Wilson & Partners Ltd on 28 March 2025 and 30 April 2025 with costs.
2. Any application by Mr Emmott for a special costs order to be made by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages, noting that the Court will thereafter make directions as appropriate as to the exchange of evidence and submissions.
3. Note that a copy of these reasons will be supplied directly by the Court to Mr Richard Thomas at the email address nominated by the Australian Capital Territory Bar Association, namely, richardthomascanberrabarrister@gmail.com.
4. Direct Mr Wilson to supply a copy of these reasons to Mr Richard Thomas.
5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today.
6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.

Catchwords:
PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed
PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed
OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established…

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] NSWCA 152
Decision Date: 11 July 2025

CaseChat Overview and Summary

In *Michael Wilson & Partners Ltd v Emmott (No 4)*, the New South Wales Court of Appeal considered applications by Michael Wilson & Partners Ltd (the applicant) to review decisions of a Judge of Appeal ordering security for costs. The applicant, located in the British Virgin Islands, sought to challenge these orders, arguing that there was no evidence of Australian assets against which a costs order could be readily executed. The applicant also sought an adjournment of the review hearing, contending that a decision from an English court would likely alter the outcome of the review.

The Court was required to determine whether the Judge of Appeal had erred in ordering security for costs against the applicant, and whether the applicant's applications for review and adjournment should be granted. A further issue arose concerning the conduct of the applicant's solicitor, who had maintained a ground of review that the judge should have recused himself, despite a transcript indicating that no such application was advanced after disclosure by the judge. The Court also considered whether the solicitor's conduct warranted a referral to the Legal Services Commissioner.

The Court dismissed the applicant's motions for review and adjournment. It found that the applicant had failed to establish grounds for overturning the original security for costs orders, particularly given the lack of evidence of Australian assets. The Court also determined that the English court's decision was unlikely to have a material impact on the review. Regarding the solicitor's conduct, the Court noted unsatisfactory aspects in the presentation of the case and the solicitor's submissions concerning the recusal ground, and provided an opportunity for the solicitor to show cause why the matter should not be referred to the Legal Services Commissioner.

The Court ordered that the applicant's motions filed on 2 June 2025 be dismissed. Further, the motions filed on 28 March 2025 and 30 April 2025 were dismissed with costs. The Court also provided directions for any application by Mr Emmott for a special costs order and noted that a copy of the reasons would be supplied to Mr Richard Thomas, with directions for him to provide an account of his involvement in the preparation of certain submissions. Finally, Mr Wilson was given 14 days to file submissions showing cause why the judgment and papers should not be referred to the Legal Services Commissioner.

Orders

Orders of the court

On 20 June 2025:

In each of proceedings 2024/416114 and 2024/449432, dismiss the motions filed by Michael Wilson & Partners Ltd on 2 June 2025.

On 11 July 2025:

In each of proceedings 2024/416114 and 2024/449432:

1. Dismiss the motions filed by Michael Wilson & Partners Ltd on 28 March 2025 and 30 April 2025 with costs.

2. Any application by Mr Emmott for a special costs order to be made by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages, noting that the Court will thereafter make directions as appropriate as to the exchange of evidence and submissions.

3. Note that a copy of these reasons will be supplied directly by the Court to Mr Richard Thomas at the email address nominated by the Australian Capital Territory Bar Association, namely, richardthomascanberrabarrister@gmail.com.

4. Direct Mr Wilson to supply a copy of these reasons to Mr Richard Thomas.

5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today.

6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Hearing dates:	20 June 2025
Date of orders:	20 June 2025, 11 July 2025
Decision date:	11 July 2025
Before:	Leeming JA; Mitchelmore JA; Free JA
Decision:	On 20 June 2025: In each of proceedings 2024/416114 and 2024/449432, dismiss the motions filed by Michael Wilson & Partners Ltd on 2 June 2025. On 11 July 2025: In each of proceedings 2024/416114 and 2024/449432: 1. Dismiss the motions filed by Michael Wilson & Partners Ltd on 28 March 2025 and 30 April 2025 with costs. 2. Any application by Mr Emmott for a special costs order to be made by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages, noting that the Court will thereafter make directions as appropriate as to the exchange of evidence and submissions. 3. Note that a copy of these reasons will be supplied directly by the Court to Mr Richard Thomas at the email address nominated by the Australian Capital Territory Bar Association, namely, richardthomascanberrabarrister@gmail.com. 4. Direct Mr Wilson to supply a copy of these reasons to Mr Richard Thomas. 5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today. 6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Catchwords:	PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established…