SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Wilson & Partners Ltd v Nicholls & Ors |
Citation: | [2021] ACTSC 128 |
Hearing Dates: | 8 December 2020, 25 February 2021 |
| Submissions last received: Decision Date: | 4 March 2021 30 June 2021 |
Before: | McWilliam AsJ |
Decision: | See [85] |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 75 and 76 – whether proceedings taken to be dismissed – where judgment on interlocutory issue was not delivered because subject matter of application was overtaken by bankruptcy of judgment debtor – where last step in proceeding was the making of an order and more than two years had passed from that date – where proceeding deemed dismissed – where the only outstanding issue in the dismissed proceeding was a question of costs – where substantial delay – whether in the interests of justice to reinstate |
Legislation Cited: | Bankruptcy Act 1966 (Cth) s 58 Court Procedures Act 2004 (ACT) s 5A Limitation Act 1985 (ACT) s 14 |
Cases Cited: | Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381 Barry Thomas Blunden v Commonwealth of Australia [2014] ACTSC 123 Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2007] VSCA 75 |
Parties: | Michael Wilson & Partners Limited (Judgment Creditor) Robert Colin Nicholls (First Judgment Debtor) David Ross Slater (Second Judgment Debtor) Temujin Services Limited (in liquidation) (Third Judgment Debtor) Temujin International Limited (Fourth Judgment Debtor) Temujin International FZE (Fifth Judgment Debtor) John Forster Emmott (First Joined Party) Effective Funds Management Pty Limited (Second Joined Party) |
Representation: | Counsel D Bennett QC with R Thomas (Plaintiff) J Baird (First Joined Party) B Glare (Second Joined Party) |
| Solicitors Michael Wilson & Partners (Plaintiff) Duggan Legal (First… |
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- Case
- [2021] ACTSC 128
- Decision Date
CaseChat Overview and Summary
The court considered the procedural history of the case, noting that the August 2015 Application was heard by Mossop AsJ, who reserved judgment on 16 December 2015. Mr Slater became bankrupt on 23 December 2015, and the Ainslie Property vested in his trustee in bankruptcy. Despite this, the proceedings continued, and on 7 June 2016, Mossop AsJ heard directions from the parties. The court examined whether it was in the interests of justice to reinstate the proceedings, given that they had been deemed dismissed due to the lapse of time and the bankruptcy of Mr Slater. The court concluded that it was appropriate to reinstate the proceedings to address the outstanding question of costs, given the substantial delay and the unique circumstances of the case.
The court granted an order to reinstate the proceedings to determine the costs incurred by Mr Emmott in relation to the August 2015 Application. The court reasoned that it was in the interests of justice to address the question of costs, as the only outstanding issue in the dismissed proceeding was the matter of costs. The decision highlighted the need for careful consideration of procedural rules and the importance of ensuring that proceedings are not dismissed without proper examination of all relevant factors, especially in cases involving bankruptcy and equitable principles.
The final orders of the court included reinstating the proceedings to determine the costs incurred by Mr Emmott in relation to the August 2015 Application and directing the parties to provide further information and submissions regarding the costs. The court's decision underscored the importance of procedural fairness and the need to address outstanding issues in legal proceedings, even in the face of complex circumstances and significant delays.
Orders
Orders of the court
See [85]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The August 2015 Application was opposed by Mr Slater on the basis that there had been satisfaction of the Judgment Debt by a joint and several tortfeasor, namely Mr John Forster Emmott, through arbitration proceedings in the United Kingdom (UK Arbitration proceedings). Mr Emmott was formerly either employed by, or in partnership with, the Judgment Creditor. The argument by Mr Slater involved whether the enforcement of the Judgment Debt, obtained by the Judgment Creditor against him in the Territory, should be prevented because of the application of an equitable principle which prevents double satisfaction. In addition, Mr Emmott sought to intervene, arguing that the Judgment Creditor was in turn the subject of a judgment debt (including indemnity costs) obtained through the UK Arbitration proceedings in favour of Mr Emmott: see Michael Wilson & Partners Limited v John Forster Emmott [2011] EWHC 1441 (Comm). A subsequent decision in relation to quantum was handed down by the UK Arbitration Tribunal in September 2014. The arbitral award was registered as a judgment in the High Court in the UK on 26 June 2015. Mr Emmott’s evidence in these proceedings, through his legal representative, asserted that in 2015, Mr Emmott was seeking to register in the Territory the judgment that he had registered in the UK against the Judgment Creditor. Mr Emmott asserted that any monies obtained pursuant to enforcement of the NSW Judgment in the Territory by the Judgment Creditor against Mr Slater should in fact be paid to him. On 21 August 2015, three further parties were joined to the proceedings: Subsequently, Mr Nicholls and Mr Slater both entered into bankruptcy, and Mr Nicholls later died. The three Temujin Entities went into liquidation. The Ainslie Property was also sold (in 2019) and Westpac’s interest was fully discharged at that time. On 5 June 2020, Westpac was removed as a party in the proceeding. That is how it comes to be that Mr Emmott and EFM are now the only respondents in the present dispute. On 16 December 2015, Mossop AsJ (as his Honour then was) heard the August 2015 Application made by the Judgment Creditor. His Honour reserved judgment on that day. On 23 December 2015, Mr Slater was made bankrupt in the UK (following a successful application made by the Judgment Creditor). The trustee then took steps in the Federal Court of Australia to be recognised as the trustee in bankruptcy in Australia. Under s 58 of the Bankruptcy Act 1966 (Cth), upon Mr Slater becoming bankrupt, the Ainslie Property vested in his trustee in bankruptcy. On 7 June 2016, the parties came before Mossop AsJ for directions. Mr Vivekananda, counsel then representing the Judgment Creditor, had the following relevant exchange with Mossop AsJ (emphasis added): There was then an exchange between counsel for the Judgment Creditor and Mossop AsJ as to the time required for an adjournment, before the transcript continues: His Honour then later confirmed: After hearing from counsel for the Judgment Creditor, Mossop AsJ then proceeded to hear from Ms Bristol, the legal representative for Westpac and from Ms Mense, the legal representative for EFM (emphasis added):