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Michael Wilson & Partners v Emmott

Michael Wilson & Partners v Emmott

Case [2024] NSWCA 269 15 November 2024

Appeal

Costs

Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners v Emmott [2024] NSWCA 269
Hearing dates: 15 November 2024
Date of orders: 15 November 2024
Decision date: 15 November 2024
Before: Ward P; Griffiths AJA
Decision:
1.   The summons seeking leave to appeal filed 31 October 2024 is dismissed.
2.   The applicant’s application for an extension of time to file the summons, as referred to in its outline of written submissions dated 7 November 2024, is also dismissed.
3.   The applicant’s notice of motion filed 7 November 2024 is dismissed, with no order as to costs.
4.   The applicant pay the respondent’s costs of the summons seeking leave to appeal filed 31 October 2024.

Catchwords:
APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Supreme Court Act 1970 (NSW), ss 46, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 51.54

Cases Cited:
Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General’s Department) (2010) 79 NSWLR 354; [2010] NSWCA 72
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42
Emmott v Michael Wilson & Partners Ltd [2022] HCASL 142
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
House v R (1936) 55 CLR 499
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127
Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315
Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Mohareb v Manly Local Court [2024] NSWCA 233
Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Press v iSAM Securities (UK) Ltd [2024] NSWCA 260
Re the Will of FB Gilbert (1946) 46 SR (NSW) 318
Satchithanantham v National Australia Bank [2010] FCAFC 47
State Rail Authority of New South Wales v Phillips [2001] NSWCA 172

Texts Cited:
Nil

Category: Principal judgment
Parties: Michael Wilson & Partners Limited (Applicant)
John Forster Emmott (Respondent)
Representation:
Counsel:
G Burton SC (Applicant)
J Baird (Respondent)
Solicitors:
Michael Wilson & Partners, Limited (Applicant)
Duggan Legal (Respondent)

File Number(s): 2024/406800
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

26 August 2024

Before:

Ball J

File Number(s):

2016/00034380

JUDGMENT

The applicant seeks leave to appeal from an…

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.

Continue reading Michael Wilson & Partners v Emmott

Details

AGLC: Michael Wilson & Partners v Emmott [2024] NSWCA 269
Case: [2024] NSWCA 269
Decision Date: 15 November 2024

CaseChat Overview and Summary

Michael Wilson & Partners sought leave to appeal interlocutory orders made by the primary judge that set a substantive matter down for hearing. The appeal was heard by Ward P and Griffiths AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the applicants had satisfied the criteria for granting leave to appeal an interlocutory order. Specifically, the court had to determine if the applicants had demonstrated that the appeal involved a question of general principle, a question of public importance, or would occasion substantial injustice to the applicants if leave were refused.

The Court of Appeal dismissed the summons seeking leave to appeal, finding that the applicants had not identified a principle of general application or a question of public importance, nor had they established that a substantial injustice would occur. Consequently, the application for an extension of time to file the summons and the notice of motion were also dismissed. The court ordered that the applicant pay the respondent's costs of the summons seeking leave to appeal, with no order as to costs for the notice of motion.

Orders

Orders of the court

1. The summons seeking leave to appeal filed 31 October 2024 is dismissed.

2. The applicant’s application for an extension of time to file the summons, as referred to in its outline of written submissions dated 7 November 2024, is also dismissed.

3. The applicant’s notice of motion filed 7 November 2024 is dismissed, with no order as to costs.

4. The applicant pay the respondent’s costs of the summons seeking leave to appeal filed 31 October 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Michael Wilson & Partners v Emmott [2024] NSWCA 269

Most Recent Citation

High Court Bulletin [2025] HCAB 4

Cases citing this decision · 5 of 5 shown

Michael Wilson & Partners Ltd v Emmott (No 4)
[2025] NSWCA 152 Para 5

…of MWP, on 18 November 2024. MWP sought leave to appeal from that decision, but its application was dismissed: Michael Wilson & Partners v Emmott [2024] NSWCA 269. MWP made various attempts to vacate that hearing. They failed. On 13 November 2024, MWP filed a motion seeking to vacate the hearing, which was made ret…
High Court Bulletin
[2025] HCAB 4

…Supreme Court of New South Wales (Court of Appeal) [2024] NSWCA 269…
Michael Wilson & Partners v Emmott (No 2)
[2024] NSWCA 309 Para 1

…August 2024 listing for hearing the substantive dispute between the applicant and the respondent (Mr Emmott) (see Michael Wilson & Partners v Emmott [2024] NSWCA 269). The hearing of the application for leave to appeal was dealt with expeditiously as the hearing was listed to commence before Hammerschlag CJ in Eq…
State of New South Wales v Meredith
[2024] NSWCA 287 Para 21

…The relevant principles (or perhaps, more correctly, guidelines) were identified by the Court recently in Michael Wilson & Partners v Emmott [2024] NSWCA 269 at [34]-[37]:…
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final
[2024] NSWSC 1489 Para 3

…empts by MWP to avoid the hearing. These included a failed application to the Court of Appeal last Friday: Michael Wilson & Partners Pty Ltd v Emmott [2024] NSWCA 269. On any view, what happened on the morning of the trial was remarkable, to say the least.…

View all 5 citing cases →

Cases cited in this decision · 24 of 24 shown

Press v iSam Securities (UK) Ltd
[2024] NSWCA 260 Para 34

…Recently, in Press v iSAM Securities (UK) Ltd [2024] NSWCA 260, we set out some relevant principles guiding the discretion to grant leave identified by Kirk and McHugh JJ in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[31]. Those principles are as follows:…
Mohareb v Local Court of New South Wales
[2024] NSWCA 235 Para 34

…e set out some relevant principles guiding the discretion to grant leave identified by Kirk and McHugh JJ in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[31]. Those principles are as follows:…
Mohareb v Manly Local Court
[2024] NSWCA 233 Para 58

…A similar view was recently expressed by Gleeson JA in Mohareb v Manly Local Court [2024] NSWCA 233, where his Honour addressed a challenge to an order by the Court whether or not to list an appeal concurrently with an application for leave to appeal under r 51.54 of the UCPR. His Honour stated at [9] that a:…
Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5)
[2024] NSWSC 1127 Para 3

…signee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127).…
Shapkin v The University of Sydney
[2024] NSWCA 156 Para 39

…NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of “usually”…
Emmott v Michael Wilson & Partners Ltd Michael Wilson & Partners Ltd v Emmott
[2022] HCASL 142

…r for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42 Emmott v Michael Wilson & Partners Ltd [2022] HCASL 142 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 House v R (1936) 55 CLR 499 Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 Michael Wilson…
Michael Wilson and Partners Ltd v Emmott
[2021] NSWCA 315

…rading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127 Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315 Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Mohareb v Manly Local Court [2024] NSWCA 233 Nichol…
PPK Willoughby Pty Ltd v Baird
[2019] NSWCA 48 Para 38

…ractice and procedure, but it is also one which involves the exercise of the Court’s discretion. As Bell P stated in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions, whether in the context of substantive or procedural relief, engage “the strictures against over-ready appellate interf…
Michael Wilson & Partners Ltd v Emmott
[2019] NSWSC 218

…[2024] NSWSC 1127 Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315 Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Mohareb v Manly Local Court [2024] NSWCA 233 Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 1…
DEF v Trappett
[2017] NSWCA 163 Para 24

…Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip…
Khoury v Coffey Projects (Australia) Pty Ltd
[2015] NSWCA 371 Para 36

…As Basten JA pointed out in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 at [9], relevant authorities provide a degree of guidance, but most cases can be decided by reference to current legislation and the Uniform Civil Procedure Rules 2005 (NSW) ( UCPR ). His Honour added at [9]:…
Collier v Lancer (No 2)
[2013] NSWCA 186 Para 7

…ew … such as where there is an error of principle which, if uncorrected, will result in substantial injustice”: Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria…
Nicholls v Michael Wilson & Partners Ltd (No 2)
[2013] NSWCA 141

…ourt of New South Wales [2024] NSWCA 235 Mohareb v Manly Local Court [2024] NSWCA 233 Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Press v iSAM Securities (UK) Ltd [2024] NSWCA 260 Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 Satchithanantham v…
The Age Company Ltd v Liu
[2013] NSWCA 26

…g that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to…
Rodi v Gelonesi
[2012] NSWCA 424 Para 24

…d, will result in substantial injustice”: Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Ad…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 32

…particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act , as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the co…
Avery v Registrar of Births, Deaths and Marriages
[2010] NSWCA 72 Para 59

…Young JJA agreeing) in Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General’s Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 at [160] where his Honour said that it is “the Court’s prerogative to decide how its business will be arranged, and it can give directions about the ar…
Hans Pet Constructions Pty Ltd v Cassar
[2009] NSWCA 230 Para 28

…ary judge erred in setting a final hearing date without balancing the justice between the parties (citing Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [37]-[41]). The applicant submits that a correct balancing of justice between the parties would have the hearing dates reset from at least March 2…
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCAFC 42 Para 60

…We also note that in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42, the Full Court of the Federal Court (Lee, Whitlam and Jacobson JJ) refused to grant leave to appeal against a direction of a judge to a registrar not to accept a document for filing…
State Rail Authority of New South Wales v Phillips
[2001] NSWCA 172 Para 39

…day hearing on 18 November 2024, it is also apt to have regard to the observations of Mason P in State Rail Authority of New South Wales v Phillips [2001] NSWCA 172. After noting at [10] that it was “a sad fact that the convenience of counsel cannot invariably be taken into account” in listing a matter for hearing,…
Carolan v AMF Bowling Pty Ltd
[1995] NSWCA 69

…e or a reasonably clear injustice going beyond something that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] N…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 35

…as in Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 and Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39.…
House v R
[1936] HCA 40 Para 38

…ef, engage “the strictures against over-ready appellate interference and the correlative need for “added restraint” associated with House v R (1936) 55 CLR 499”.…
Satchithanantham v National Australia Bank
[2010] FCAFC 47

…iSAM Securities (UK) Ltd [2024] NSWCA 260 Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 Satchithanantham v National Australia Bank [2010] FCAFC 47 State Rail Authority of New South Wales v Phillips [2001] NSWCA 172 Texts Cited: Nil Category: Principal judgment Parties: Michael Wilson & Partners Limited (Applica…

Legislation cited in this decision · 3

Uniform Civil Procedure Rules 2005 (NSW)
36.15, 36.16, 36.17, 51.54 5 mentions (from Para 36)
Civil Procedure Act 2005 (NSW)
56, 57, 58 4 mentions (from Para 37)
Supreme Court Act 1970 (NSW)
101, 101(2)(e), 46 4 mentions (from Para 33)

Medium Neutral Citation:	Michael Wilson & Partners v Emmott [2024] NSWCA 269
Hearing dates:	15 November 2024
Date of orders:	15 November 2024
Decision date:	15 November 2024
Before:	Ward P; Griffiths AJA
Decision:	1. The summons seeking leave to appeal filed 31 October 2024 is dismissed. 2. The applicant’s application for an extension of time to file the summons, as referred to in its outline of written submissions dated 7 November 2024, is also dismissed. 3. The applicant’s notice of motion filed 7 November 2024 is dismissed, with no order as to costs. 4. The applicant pay the respondent’s costs of the summons seeking leave to appeal filed 31 October 2024.
Catchwords:	APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 51.54
Cases Cited:	Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General’s Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42 Emmott v Michael Wilson & Partners Ltd [2022] HCASL 142 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 House v R (1936) 55 CLR 499 Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127 Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315 Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Mohareb v Manly Local Court [2024] NSWCA 233 Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Press v iSAM Securities (UK) Ltd [2024] NSWCA 260 Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 Satchithanantham v National Australia Bank [2010] FCAFC 47 State Rail Authority of New South Wales v Phillips [2001] NSWCA 172
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Michael Wilson & Partners Limited (Applicant) John Forster Emmott (Respondent)
Representation:	Counsel: G Burton SC (Applicant) J Baird (Respondent) Solicitors: Michael Wilson & Partners, Limited (Applicant) Duggan Legal (Respondent)
File Number(s):	2024/406800
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 26 August 2024 Before: Ball J File Number(s): 2016/00034380