Michael Wilson & Partners Ltd v Nicholls (No 4)
[2022] ACTCA 23
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Wilson & Partners Ltd v Nicholls (No 4) |
Citation: | [2022] ACTCA 23 |
Hearing Date: | 3 May 2022 |
DecisionDate: | 3 May 2022 |
ReasonsDate: | 11 May 2022 |
Before: | Loukas-Karlsson J |
Decision: | (a) The appellant’s notice to produce dated 19 April 2022 is dismissed. (b) I do not propose to make an order in the terms sought in order 3 of the application in proceeding brought by the appellant dated 19 April 2022. |
Catchwords: | APPEAL – APPEAL FROM SUPREME COURT – CIVIL – application for security for costs – application for adjournment – notice to produce |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 6748 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Michael Wilson & Partners Ltd v Nicholls & Ors (No 3) [2022] ACTCA 10 Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128 Michael Wilson & Partners Ltd v Nicholls [2021] ACTCA 32 |
Parties: | Michael Wilson & Partners Ltd ( Appellant) Robert Colin Nicholls ( First Respondent) David Ross Slater (Second Respondent) Temujin Services Ltd (Third Respondent) Temujin International Ltd (Fourth Respondent) Temujin International FZE (Fifth Respondent) Effective Funds Management Pty Ltd (Seventh Respondent) |
Representation: | Counsel M Wilson ( Appellant) J Baird (Sixth Respondent) |
| Solicitors Michael Wilson & Partners ( Appellant) Duggan Legal ( Sixth Respondent) | |
File Number: | ACTCA 36 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 30 June 2021 Case Title: Michael Wilson & Partners Ltd v Nicholls & Ors Citation: [2021] ACTSC 128 |
LOUKAS-KARLSSON J:
Introduction
This matter was originally listed before me on 3 May 2022 for a security for costs application brought by the sixth respondent against the appellant. I heard the matter as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).
The sixth respondent seeks security for costs for the appellant’s application for leave to appeal the decision of McWilliam AsJ in Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128. The security for costs application has been the subject of three decisions of Elkaim J: Michael Wilson & Partners Ltd v Nicholls [2021] ACTCA 32, Michael Wilson & Partners Ltd v Nicholls (No 2) [2021] ACTCA 36 and Michael Wilson & Partners Ltd v Nicholls & Ors (No 3) [2022] ACTCA 10. However, the decisions of Elkaim J do not determine the security for costs application, but deal with adjournments of that application and the setting of directions.
This judgment also does not address the security for costs application, which has been adjourned to 21 July 2022 before me. Instead, this judgment deals with a notice to produce addressed to the sixth and seventh respondent that the appellant sought compliance with.
I underline as Elkaim J did in his first decision dealing with the security for costs application that the substantive leave to appeal application has yet to be allocated a hearing date.
On 16 March 2022, Elkaim J made the following orders in respect of how the security for costs application was to progress:
(a) The application for security for costs, filed on 29 September 2021, is listed for hearing, with an estimate of one day, at 10AM on 2 May 2022.
(b) The sixth respondent is to file and serve any further affidavit material and submissions by 5PM on 21 March 2022.
(c) The appellant is to file and serve any affidavit material and submissions by 5PM on 19 April 2022.
I underline that the above directions were made in relation to the security for costs application.
The appellant subsequently filed an application in proceeding, which is dated 19 April 2022. However, the application was lodged and filed on 28 April 2022. The application in proceeding relevantly sought the following orders:
1. The sixth respondent’s application for security for costs be struck out as it was filed in the wrong Court;
2. The sixth respondent must forthwith cease and desist in and from purporting to appear conditionally, and must correct, amend and re-file all documents so as to accept he is subject to the jurisdiction, and cannot purport to appear conditionally;
3. The sixth and seventh respondent must comply with the notice to produce by no later than 30 April 2022;
4. The hearing of the application for security for costs on 2 May 2022 be vacated.
5. Costs in the applications and the appeals;
6. Liberty to apply.
On 2 May 2022, I indicated to the parties that I did not propose to make an order in the terms sought of order 3 that the sixth and seventh respondents must comply with the notice to produce by no later than 30 April 2022. The appellant’s notice to produce dated 19 April 2022 was dismissed. Reasons now follow for those orders.
Notice to Produce
In seeking order 3, the appellant relied on a Form 6.20 notice to produce dated 19 April 2022. The notice to produce states the following:
The [appellant] requires the [sixth and seventh] respondents to produce all of the following documents or things to the court:
1. all Costs/ Fee Disclosure Agreements, and related documents and correspondence, as to the engagement by the [sixth and seventh] respondents of all and/ or any of Messrs Rothwells (including, without limitation, T.P. Rothwell and B. Glare, personally), L. Wirth, D. M. Lighezollo, G. W. W. McGrath SC, J. Baird, R. Niwlands SC, P. J. Duggan and others, howsoever relating to these proceedings, and also the proceedings below, whether directly or indirectly, from 22 May 2015 to date;
2. all documents and correspondence as to all any understandings, agreements and arrangements as to the liability for, financing and funding of these proceedings, and also the proceedings below, whether directly or indirectly, from 22 May 2015 to date;
3. all documents and correspondence as to all and any alleged liability for and the funding and payment of all fees, disbursements, out-of-pocket and third-party costs, howeverso relating to these proceedings, and also the proceedings below, whether directly or indirectly, from 22 May 2015 to date;
4. all documents and correspondence as to the alleged loan agreements and purported funding by the [sixth respondent], of both the [second respondent], the [first respondent], as well as the Temujin Partnership, including (without limitation) those from 11 June 2012 onwards in Australia, and also of 13 June 2015 onwards in the UK;
5. all records of all WIP (work-in-progress), pending time, fees, costs, disbursements, third-party and out-of-pocket costs and expenses, accrued due and accruing, howsoever relating to these proceedings, and also the proceedings below whether directly or indirectly, from 22 May 2015 to date;
6. all invoices, bills, fee notes and statements of account, to be issued, issued and paid (whether in whole or in part, and from whatever sources or origin) howsoever relating to these proceedings, and also the proceedings below, whether directly or indirectly, from 22 May 2015 to date; and
7. all documents and correspondence passing between the respondents, Messrs Baird, Duggan, Duggan Legal, Rothwells, T. P. Rothwell, B. Glare, P. McKay, D. Lighezollo, the Bankrupt, on the one hand and Messrs Porter, Moretti, SV Partners, Revive Financial, Mills Oakley (Farmer, and Dimovska), S. Golledge SC and N. Bailley, against [the appellant] howsoever in relation to NSW 428 of 2020 and NSW 767 of 2021, and the purported rental, marketing and sale of the Canberra Property, not copied to [the appellant].
Rule 6748 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) relevantly provides:
6748Notice to produce
(1)A party to a proceeding may serve a notice on another party to the proceeding requiring the other party to produce to the court at the hearing of the proceeding a document or thing mentioned in the notice for the purpose of evidence in the proceeding.
NoteSee approved form 6.20 (Notice to produce) AF2008-121.
(2)The notice must be served on the other party not later than 14 days before the date set for the hearing of the proceeding unless the court otherwise orders.
(3)The other party must produce the document or thing mentioned in the notice to the court at the hearing if––
(a)the notice is served on the party in accordance with subrule (2); and
(b)the document or thing is in the party’s possession.
(4)If the party required to produce the document or thing does not produce the document or thing to the court in accordance with the notice, the party requesting the production may—
(a)give secondary evidence of the contents or nature of the document or thing; or
(b)apply to the court for an order—
(i)that the other party produce the document or thing; or
(ii)adjourning the hearing.
(5)The court may order the other party to pay any costs caused by the party’s failure to comply with the notice.
(6)The court may order the party requesting the production of the document or thing to pay any costs caused by the other party’s compliance with the notice, if the court considers the production of the document or thing to be unnecessary.
(emphasis added)
The appellant did not serve the notice to produce on the sixth and seventh respondent “not later than 14 days before the date set for the hearing of the proceeding”. The Court has not “otherwise order[ed]”. The sixth and seventh respondent were therefore not required to comply with the notice to produce on the day of the hearing on 3 May 2022.
I therefore declined to make an order in the terms sought of order 3 of the application in proceeding that the sixth and seventh respondents must comply with the notice to produce by no later than 30 April 2022. The notice to produce dated 19 April 2022 was dismissed as it does not comply with r 6748(2) of the Court Procedures Rules.
Finally, I again note that the application for security for costs will proceed before me on 22 July 2022.
Regrettably, this therefore means that the substantive Court of Appeal matter is unlikely to be heard in 2022.
Orders
On 3 May 2022, I made the following relevant orders:
(a) The appellant’s notice to produce dated 19 April 2022 is dismissed.
(b) I do not propose to make an order in the terms sought in order 3 of the application in proceeding brought by the appellant dated 19 April 2022.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 11 May 2022 |
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