Michael Wilson & Partners Ltd v Nicholls (No 9) - [2022] ACTCA 70

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Michael Wilson & Partners Ltd v Nicholls (No 9)
Citation:	[2022] ACTCA 70
Hearing Date:	1 November 2022
DecisionDate:	9 December 2022
Before:	Loukas-Karlsson J
Decision:	See [104]
Catchwords:	APPEAL – APPEAL FROM SUPREME COURT – CIVIL – COSTS – appropriate costs orders in relation to a series of interlocutory applications – where applicant claimed seventh respondent was effectively a silent observer – seventh respondent entitled to its costs on the usual basis – whether sixth respondent should receive its costs on other than usual basis – consideration of applicant’s conduct during proceedings – where applicant’s conduct significantly extended hearing time to address irrelevant issues – where applicant’s submissions had a tendency to seek to re-agitate decided or irrelevant matters – where counsel for the applicant made personal attacks on other representatives – indemnity costs ordered
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37J Court Procedures Rules 2006 (ACT) rr 1752, 6748
Cases Cited:	Bhagat v Royal & Sun Alliance Life Assurance Australia Limited [2000] NSWSC 159 Briginshaw v Briginshaw (1938) 60 CLR 336 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTCA 33 Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601 Hood v Bush Pharmacy Pty Ltd (No 2) [2021] FCA 138 Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69 Leichhardt Municipal Council v Green [2004] NSWCA 341 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 Michael Wilson & Partners Ltd v Emmott [2019] EWCA Civ 219 Michael Wilson & Partners Ltd v Nicholls [2021] ACTCA 32 Michael Wilson & Partners Ltd v Nicholls (No 2) [2021] ACTCA 36 Michael Wilson & Partners Ltd v Nicholls (No 4) [2022] ACTCA 23 Michael Wilson & Partners Ltd v Nicholls (No 5) [2022] ACTCA 39 Michael Wilson & Partners Ltd v Nicholls (No 6) [2022] ACTCA 41 Michael Wilson & Partners Ltd v Nicholls (No 7) [2022] ACTCA 43 Michael Wilson & Partners Ltd v Nicholls (No 8) [2022] ACTCA 64 Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Perisher Blue Pty Limited v Chubb Fire Safety Limited [2014] ACTCA 43 R v Collaery (No 10) [2021] ACTSC 311 Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Rutherfurd (Bankrupt) v Inspector-General in Bankruptcy [2022] FCA 1469 Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328
Parties:	Michael Wilson & Partners Ltd (Applicant) 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) John Forster Emmott (Sixth Respondent) Effective Funds Management Pty Ltd (Seventh Respondent)
Representation:	Counsel M Wilson (Applicant) J Baird (Sixth Respondent) B Glare…

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: [2022] ACTCA 70
Decision Date: 9 December 2022

CaseChat Overview and Summary

The applicant, Michael Wilson & Partners Ltd, appealed to the Supreme Court of New South Wales against costs orders made by Loukas-Karlsson J in relation to interlocutory applications. The appeal concerned the appropriate costs orders for the seventh respondent, who was considered a silent observer, and the sixth respondent, whose costs were sought on a basis other than the usual.

The primary legal issues before the Court were whether the seventh respondent was entitled to its costs on the usual basis, and whether the sixth respondent should receive its costs on an indemnity basis rather than the usual basis. This latter question involved an assessment of the applicant's conduct during the proceedings and its impact on the length and nature of the hearings.

Loukas-Karlsson J reasoned that the seventh respondent, having played a minimal role, was entitled to its costs on the usual basis. However, regarding the sixth respondent, the Court found that the applicant's conduct had significantly extended the hearing time by introducing irrelevant issues and attempting to re-agitate matters that had already been decided or were irrelevant to the core dispute. Furthermore, counsel for the applicant had engaged in personal attacks on other representatives. Consequently, the Court determined that indemnity costs were appropriate for the sixth respondent due to the applicant's conduct.

Orders

Orders of the court

See [104]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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