Michael Wilson & Partners Ltd v Nicholls (No 6)

Michael Wilson & Partners Ltd (the applicant) sought leave to appeal from orders made by the ACT Supreme Court. The sixth respondent, Mr Emmott, applied for security for the applicant's costs of that application for leave to appeal, seeking an amount of $22,500. The applications were heard by the Court of Appeal constituted by a single judge.

The court was required to determine whether it had the power to make an order for security for costs under rule 1900 of the Court Procedures Rules 2006 (ACT) when the applicant for leave to appeal possessed assets within the jurisdiction and was a foreign corporation. Further, the court had to consider whether the justice of the case warranted making such an order, particularly in light of the perceived weakness of the applicant's prospects of obtaining leave to appeal, and to determine the appropriate quantum of security.

The court reasoned that while rule 5302 of the Court Procedures Rules indicated that security for costs of an appeal was not ordinarily required unless the Court of Appeal ordered otherwise, rule 1900 provided a general power for the court to order security for costs on the application of a defendant. The court noted that the applicant's submission that it had assets in Australia was not determinative of the question of security for costs, especially given the complex and acrimonious nature of the overarching litigation. The court found that the justice of the case, considering the applicant's limited prospects of success on the appeal and the potential for the sixth respondent to incur further costs, supported the making of an order for security.

The court ordered that the applicant provide security for the costs of the sixth respondent in the sum of $22,500 and that the proceeding be stayed pending the provision of that security. The applicant's application was dismissed.