Michael Wilson & Partners v Emmott (No 2) - [2024] NSWCA 309

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael Wilson & Partners v Emmott (No 2) [2024] NSWCA 309
Hearing dates: On the papers
Date of orders: 20 December 2024
Decision date: 20 December 2024
Before: Ward P; Griffiths AJA
Decision:
1. Order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the applicant pay the respondent’s costs of the application for leave to appeal on a gross sum basis in the amount of $9,957.21.

Catchwords:
COSTS – Application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – Whether appropriate to make such an order – Quantification of sum to be awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)
Legal Profession Uniform Law (NSW), s 183

Cases Cited:
Beach Petroleum NL v Johnson (1995) 57 FCR 119; [1995] FCA 350
Gabrielle v Abood (No 4) [2023] NSWCA 100
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
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 [2024] NSWSC 1489
Michael Wilson & Partners v Emmott [2024] NSWCA 269
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121

Texts Cited:
Guidelines of the New South Wales Costs Assessment Rules Committee (24 October 2023)

Category: Costs
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 COURT: On 15 November 2024, this Court dismissed with costs an application by Michael Wilson & Partners Limited (the applicant), by summons filed on 31 October 2024, for leave to appeal from an order made by Ball J on 26 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 on 18 November 2024.
When judgment on the leave application was published, Counsel for the respondent sought directions for the making of an application for a special costs order. Accordingly, directions were made that any application for a special costs order be made within seven days (i.e., by 22 November 2024), supported by an affidavit and brief written submissions not exceeding three pages, and for any submissions in reply to be filed within a further seven days, with any such application to be determined on the papers.
On 20 November 2024,…

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: [2024] NSWCA 309
Decision Date: 20 December 2024

CaseChat Overview and Summary

The applicant, Michael Wilson & Partners, sought a gross sum costs order against the respondent, Emmott, pursuant to section 98(4) of the *Civil Procedure Act 2005* (NSW). The dispute concerned the appropriate quantification of costs to be awarded following an application for leave to appeal.

The primary legal issue before the Court of Appeal of New South Wales was whether it was appropriate to make a gross sum costs order under section 98(4) of the *Civil Procedure Act 2005* (NSW) and, if so, how that sum should be quantified.

Ward P and Griffiths AJA determined that a gross sum costs order was appropriate in this instance. The Court reasoned that such an order could be made where it was just and reasonable to do so, considering the circumstances of the case and the costs incurred. The Court then proceeded to quantify the sum to be awarded, taking into account the relevant factors to arrive at a fair and reasonable amount.

The Court ordered that the applicant pay the respondent’s costs of the application for leave to appeal on a gross sum basis in the amount of $9,957.21.

Orders

Orders of the court

1. Order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the applicant pay the respondent’s costs of the application for leave to appeal on a gross sum basis in the amount of $9,957.21.

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.

Medium Neutral Citation:	Michael Wilson & Partners v Emmott (No 2) [2024] NSWCA 309
Hearing dates:	On the papers
Date of orders:	20 December 2024
Decision date:	20 December 2024
Before:	Ward P; Griffiths AJA
Decision:	1. Order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the applicant pay the respondent’s costs of the application for leave to appeal on a gross sum basis in the amount of $9,957.21.
Catchwords:	COSTS – Application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – Whether appropriate to make such an order – Quantification of sum to be awarded
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4) Legal Profession Uniform Law (NSW), s 183
Cases Cited:	Beach Petroleum NL v Johnson (1995) 57 FCR 119; [1995] FCA 350 Gabrielle v Abood (No 4) [2023] NSWCA 100 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 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 [2024] NSWSC 1489 Michael Wilson & Partners v Emmott [2024] NSWCA 269 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Texts Cited:	Guidelines of the New South Wales Costs Assessment Rules Committee (24 October 2023)
Category:	Costs
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