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Michael Wilson & Partners Ltd v Emmott (No 5)

Michael Wilson & Partners Ltd v Emmott (No 5)

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Case Copied 9 September 2025 54 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 5) [2025] NSWCA 206
Hearing dates: On the papers
Decision date: 09 September 2025
Before: Leeming JA; Mitchelmore JA; Free JA
Decision:
In proceeding 2024/416114 (the review of orders made by McHugh JA):
1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.
2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.
3. Refuse the informal application to cross-examine.
4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.
5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.
6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.
7. Otherwise dismiss the notice of motion filed on 1 August 2025.
In proceeding 2024/449432 (the review of orders made by Basten AJA):
1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.
2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.
3. Refuse the informal application to cross-examine.
4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.
5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.
6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.
7. Otherwise dismiss the notice of motion filed on 1 August 2025.

Catchwords:
OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral
COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 14, 56, 60, 98, 99
Electronic Transactions Act 2000 (NSW) s 8
Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.2
Supreme Court Act 1970 (NSW) s 37
Uniform Civil Procedure Rules 2005 (NSW) rr 3.7, 42.7

Cases Cited:
Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159
Hamod v State of New South Wales [2011] NSWCA 375
Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244
Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185
Mann v Carnell

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 206
Decision Date: 09 September 2025

CaseChat Overview and Summary

The New South Wales Court of Appeal, constituted by Leeming, Mitchelmore and Free JJA, considered applications by Michael Wilson & Partners Ltd (MWP) and Mr Emmott concerning costs orders and the conduct of Mr Emmott's solicitor. MWP sought to reopen previous judgments and challenge costs orders, while Mr Emmott sought to rely on an affidavit and cross-examine. The central dispute revolved around the appropriateness of referring Mr Emmott's solicitor to the Legal Services Commissioner and the nature of the costs orders to be made.

The Court was required to determine whether to grant leave to reopen judgments, allow the use of a specific affidavit, permit cross-examination, and, crucially, whether to refer the conduct of Mr Emmott's solicitor to the Legal Services Commissioner. Additionally, the Court had to decide on the quantum and basis of costs orders, including whether to award costs in a gross sum and the significance of any referral to the Legal Services Commissioner in exercising its jurisdiction over costs.

The Court dismissed MWP's applications to reopen the judgments and refused the informal application for cross-examination, while granting Mr Emmott leave to rely on the specified affidavit. The Court determined that the submissions before it confirmed the appropriateness of referring the matter concerning Mr Emmott's solicitor to the Legal Services Commissioner, and accordingly directed the Registrar to make such a referral. In relation to costs, the Court ordered MWP to pay Mr Emmott's costs in gross sums for two separate proceedings, reflecting a determination that the circumstances warranted such an approach.

Orders

Orders of the court

In proceeding 2024/416114 (the review of orders made by McHugh JA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.

6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

In proceeding 2024/449432 (the review of orders made by Basten AJA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.

6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

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 5) [2025] NSWCA 206
Hearing dates:	On the papers
Decision date:	09 September 2025
Before:	Leeming JA; Mitchelmore JA; Free JA
Decision:	In proceeding 2024/416114 (the review of orders made by McHugh JA): 1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025. 2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025. 3. Refuse the informal application to cross-examine. 4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner. 5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000. 6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500. 7. Otherwise dismiss the notice of motion filed on 1 August 2025. In proceeding 2024/449432 (the review of orders made by Basten AJA): 1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025. 2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025. 3. Refuse the informal application to cross-examine. 4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner. 5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000. 6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500. 7. Otherwise dismiss the notice of motion filed on 1 August 2025.
Catchwords:	OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 14, 56, 60, 98, 99 Electronic Transactions Act 2000 (NSW) s 8 Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.2 Supreme Court Act 1970 (NSW) s 37 Uniform Civil Procedure Rules 2005 (NSW) rr 3.7, 42.7
Cases Cited:	Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 Hamod v State of New South Wales [2011] NSWCA 375 Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 Mann v Carnell