Michael Wilson & Partners Ltd v Nicholls (No 8)

The applicant, Michael Wilson & Partners Ltd, sought to set aside an earlier order of the Court of Appeal requiring it to provide security for costs. The sixth respondent sought orders that the bank guarantee provided by the applicant be amended to comply with the Court's earlier order. The matter came before Loukas-Karlsson J of the Supreme Court of the Australian Capital Territory.

The primary legal issue was whether there were special circumstances or a material change in circumstances that warranted setting aside the previous order for security for costs. This involved considering the impact of a worldwide freezing order previously made by a court in the United Kingdom, which had since been set aside, and whether the unavailability of a final order at the time of the original decision constituted such a change. The court also considered the relevance of an order from the High Court refusing special leave to appeal from a decision of the NSW Court of Appeal. A secondary issue concerned whether the current form of the bank guarantee complied with the Court's order, and if not, what amendments were necessary to ensure enforceability by the ACT Supreme Court.

Loukas-Karlsson J reasoned that the earlier reasons for ordering security for costs did not rely on the existence of the worldwide freezing order. Consequently, the setting aside of that order did not amount to a material change in circumstances justifying the setting aside of the security for costs order. The court found no special circumstances or material change of circumstance to warrant departing from the earlier decision. Regarding the bank guarantee, the court considered the appropriate jurisdiction for any dispute arising from it and ordered amendments to ensure that the ACT Supreme Court could enforce the original order for security for costs.

The applicant's application to set aside the security for costs order was dismissed. Amendments to the bank guarantee were ordered to ensure compliance with the Court's earlier order and its enforceability within the ACT jurisdiction.