Nicholls v Michael Wilson and Partners Limited
[2010] NSWCA 100
•5 May 2010
New South Wales
Court of Appeal
CITATION: Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 HEARING DATE(S): 19 April 2010
JUDGMENT DATE:
5 May 2010JUDGMENT OF: Young JA at [1] DECISION: (1) Leave to the appellants to amend the notice of appeal.
(2) All notices of motion dismissed with the successful parties' costs to be costs in the appeal.CATCHWORDS: PRACTICE AND PROCEDURE- security for costs- no special circumstances- application of respondent and application of appellants re cross-appeal dismissed- no question of principle- comments as to quantum of costs in appeals. PRACTICE AND PROCEDURE- notice to produce (quasi subpoena) to produce arbitral award- court finds appellants liable as accessories for X's breach of fiduciary duties- X not a party to NSW suit- respondent sues X before London Arbitrators- suggestion that Arbitrators later found X not liable- whether relevant- significance of inconsistent verdicts- whether finding that principal not liable means nothing payable by accessories- Held legitimate forensic purpose to support notice to produce. LEGISLATION CITED: Uniform Civil Procedure Rules 2005, r 42.21, r51.50 CATEGORY: Procedural and other rulings CASES CITED: Barnes v Addy (1874) LR 9 Ch App 244
Cropper v Smith (1884) 26 Ch D 700
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
NSW Bar Association v Forbes Macfie Hansen Pty Ltd (1988) 18 FCR 378; 82 ALR 431
Ponsford v Swaine (1861) 1 J & H 433; 70 ER 816
R v Breen (1990) 99 FLR 474 (NTSC)
R v Rowley (Eli) [1948] 1 All ER 570
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198
Tildesley v Harper (1878) 10 Ch D 393PARTIES: Robert Colin Nicholls (First Appellant)
David Ross Slater (Second Appellant)
Temujin Services Limited (Third Appellant)
Temujin International Limited in its own capacity and as trustee of the Temujin Trading Trust (Fourth Appellant)
Temujin International FZE (Fifth Appellant)
Michael Wilson & Partners Limited (Respondent)FILE NUMBER(S): CA 2009/00298561 COUNSEL: G C Lindsay SC and G W McGrath (Appellants)
M Walton SC and S Balafoutis (Respondent)SOLICITORS: Henry Davis York (Appellants)
Clayton Utz (Respondent)
2009/00298561
Wednesday 5 May 2010YOUNG JA
I am currently dealing with three notices of motion:
A. a notice of motion by the respondent that the appellants provide security for costs;
C. a notice of motion that a notice to produce documents issued against the respondent by the appellants be set aside.B. a notice of motion by the appellants that the respondent provide security for costs;
2 A. It is appropriate to take the respondent’s application for security for costs from the appellants first.
3 Rule 51.50 of the Uniform Civil Procedure Rules 2005 provides that no security for costs of an appeal is required unless there are special circumstances in which case the Court may order that such security as it thinks fit be given and that the powers of the Court under Part 42.21 are not affected by rule 51.50.
4 Rule 42.21, so far as is relevant, provides that the Court may order security for costs if it appears that the plaintiff is ordinarily resident outside NSW or that there is reason to believe that the plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so.
5 The basal argument is that the appellants are self-confessed people without present assets and that the appeal will be one which will take five to eight days and be a very expensive one for the respondent. On the other side it is put that the appeal should go ahead. It raises serious issues, not only for the parties, and the appeal should not be stultified by the impecuniosity of the appellants.
6 In my view, were the matter merely being considered under rule 42.21, it would have been a borderline case as to whether I would have granted security for costs. However, when one has to consider special circumstances under Part 51.50(1), the application falls on the negative side of the line. It is inexpedient to define “special circumstances” as every case is different, but when one goes through the past cases digested in note [51.50.5] in Ritchie’s Uniform Civil Procedure New South Wales (Service 47), one can see the sort of case where special circumstances have been found to exist in the past. The present case is not covered by an exact precedent, but that is of no moment as each case raises its own problems. However, the sort of matters which are considered to have constituted special circumstances are not present in the instant case. Really the only factor pointing towards making some order for security is the impecuniosity of the appellants and the fact that the appeal will take a number of days and be quite expensive and these are not special factors.
7 Accordingly, I am not inclined to make any order for security for costs in favour of the respondent and its notice of motion must be dismissed with costs to be the appellants’ costs in the appeal.
8 B. So far as the appellants’ notice of motion is concerned, the order sought is for security for costs for the cross-appeal.
9 The appellants’ notice of motion was filed on 25 March 2010. It seeks pursuant to rule 51.50 of the Uniform Civil Procedure Rules that the respondent/cross-appellant give security by way of bank guarantee in the amount of $211,616.25 or such other sum as the Court thinks appropriate.
10 As is pointed out in the respondent’s written submissions, the cross-appeal is a very small part of the proceedings now before the Court of Appeal. The Court of Appeal is likely to spend perhaps four and half days dealing with the appeal and half a day dealing with the cross-appeal. Again there are no special circumstances and the motion must be dismissed with the costs to be the respondent’s costs in the appeal.
11 I should say this, that the costs that were presented by both sets of solicitors in support of their clients’ application for security for costs appear to me to be unrealistic. Further, the affidavits of the principal solicitors have the hallmarks of a person who is not intimately familiar with the litigation.
12 Where a case is being prepared for trial at first instance, one may well expect that the solicitors’ costs might exceed those of the barristers because a lot of time and effort must be spent in collecting and sifting evidence and preparing subpoenas etc. However, on an appeal, there is ordinarily very little of that and the solicitors’ task involves mechanical matters such as preparing appeal books plus conferences with the client and with counsel.
13 Accordingly, when asked to consider security for costs, courts are unlikely to approve a figure which includes multiple solicitors acting for an appellant or a respondent.
14 Furthermore, the affidavit evidence shows that in one case, three solicitors are intended to be used on one side, and the third solicitor’s hourly rate is greater than the hourly rate of the junior counsel. Barristers usually have lesser overheads than solicitors, the barrister is going to be more involved in co-operating with his or her leader in preparing the argument and in such a case it would be rare to allow more than the cost of a competent junior barrister to assist the silk rather than a more expensive third solicitor.
15 Each side quoted hundreds of thousands of dollars as the costs of this appeal. Furthermore, the affidavits after the first directions hearing suggested that as the case was now listed for eight days instead of five, that the costs would be expanded. It evidently did not occur to the principal solicitor who made the affidavits that at the directions hearing the last three days were set aside “just in case”. The expansion of the time set aside is no reason to expand the idea of costs that might be charged to the clients.
16 Ordinarily, it would be very exceptional if even in a complicated appeal, orders for security for costs were made greater than $75,000 but, of course, this general comment will need to be considered along with the facts of any subsequent case.
17 C. The third notice of motion is more complex.
18 Some background is necessary. Of necessity, the summary that I am about to provide will be an over-simplification, but there is little I can do to avoid that.
19 The respondent, Michael Wilson & Partners Limited, is a law firm which offers legal services and a business consultancy in Kazakhstan and surrounding areas. Its current directors are Mr Wilson and his brother David Wilson, who is a non-lawyer. The Wilsons do not have shares directly in the company, and in any event, the shareholder is a Leichtenstein entity. The Kazakhstan office of the plaintiff was operated with a Mr Emmott acting as a “partner” of the firm and at the trial before Einstein J, Mr Wilson described him as “the Deputy Director of the Branch of the plaintiff in Kazakhstan”.
20 The first appellant, Mr Nicholls, was employed as a lawyer in the Almaty Kazakhstan office of the plaintiff between about April 2004 and March 2006. The appellant, Mr Slater, was similarly employed between September 2005 and January 2006.
21 The plaintiff alleged that Mr Emmott breached his fiduciary duties towards the plaintiff/respondent and breached the terms and conditions of his employment contracts and earned secret commissions and received secret benefits flowing from his position with the plaintiff. Mr Emmott insisted that any dispute between the plaintiff and himself be dealt with by arbitration in London and would not become part of the plaintiff’s action against Messrs Nicholls and Slater and others in NSW. He was evidently in a position to force this because that is how things eventuated.
22 Essentially, the plaintiff’s/respondent’s claim against Messrs Nicholls and Slater and their associated entities was that they had improperly diverted business from the plaintiff and were also liable as accessories for the breaches of fiduciary duty which gave a profit to Mr Emmott.
23 In a judgment which goes to 172 A4 pages, with 653 paragraphs, Einstein J found for the plaintiff.
24 At [182] the primary judge found that “Mr Emmott was really the backbone of the plot which had been hatched and likely played the dominant role in every step of Temujin’s initial and ongoing activities.” Temujin is a corporate appellant and a vehicle used by the appellants in their dealings in Kazakhstan. The judge found at [275] and following that Mr Nicholls and Mr Slater had actual knowledge of what was occurring as Mr Emmott while still with the plaintiff distributed work to Temujin which involved breaching his duties of fidelity and his fiduciary obligations owed to the plaintiff and that they were participating with knowledge in that exercise.
25 The judge found at [393] and following that the appellants had obtained from their breaches of fiduciary duty financial benefits and non-financial benefits for which they must account.
26 In the judgment of 11 December 2009 [2009] NSWSC 1377, the primary judge sets out the orders that he made against each of the defendants. So far as Mr Nicholls is concerned (and Mr Slater is in the same situation), the orders were:
(1) Declaration that the defendant acted in breach of his “no profit” fiduciary duties as set out in paragraphs [279] and [280] of the reasons.
(2) Declaration that the defendant acted in breach of his “no conflict” fiduciary duties as set out in paragraph [283] of the reasons.
(3) Declaration that the defendant is liable under the second limb of the rule in Barnes v Addy in respect of the Emmott’s breaches of “no profit duty”, “duty of loyalty”, “no harm duty” and “duty of competence” referred to in paragraphs [180] and [182] of the reasons.
(4) Declaration that the defendant is liable under the second limb of the rule in Barnes v Addy in respect of the Emmott’s breaches of the no conflict duty referred to in paragraphs [180] and [182] of the reasons.
(5) Declaration that the defendant acted in breach of his contractual duties to the plaintiff (details).
(6) Declaration that the defendant committed the tort of inducement of breach of contract with respect to Emmott’s breaches of his contractual duties to the plaintiff.
(8) “The Court orders that in consequence of:(7) Declaration that the defendant is liable for conspiracy to injure the plaintiff by unlawful means.
- (i) the aforesaid breaches by the first defendant of equitable obligations owed to the plaintiff,
- (ii) the aforesaid breaches by the first defendant of contractual duties owed to the plaintiff,
- (iii) commission by the first defendant of the aforesaid tort of inducement of breach of contract with respect to Emmott’s breaches of his contractual duties,
the first defendant is jointly and severally liable with each of the second to fifth defendants to pay to the plaintiff the sum of $US3,508,793.91, EUR 555,258.94 and $AU4,000,000.”
27 It would appear that the decision that the appellants pay the respondent money is some rolled-up order which includes common law damages for tort, common law damages for breach of contract, equitable compensation for breach of the appellants’ own fiduciary duties and equitable compensation for accessorial liability in respect of Mr Emmott’s breaches of fiduciary obligations or breach of contract.
28 It is rather difficult in pure law to see how the common law damages and equitable compensation for various different causes of action in tort, contract or claims for equitable compensation could all be the same amount. Furthermore, if that were the case, then even if the appeal succeeds as with respect to one of those matters, the ultimate verdict might not be disturbed.
29 The grounds of appeal are very voluminous. However, so far as the present motion is concerned, they include an allegation that there was no fair trial, mainly for two reasons: (a) the amount of ex parte decisions given against the appellants by the primary judge before the hearing based on untested material of the respondent; and (b) that despite their protests, the trial was brought on before the appellants had the opportunity to gain access to the material that was produced in the arbitration in London between the alleged principal fraudster, Mr Emmott and the respondent. The second principal ground is that if the situation is as suspected, that in the London arbitration a verdict was found for Mr Emmott, then the liability of Mr Emmott is nil and accordingly the accessorial liability of the present appellants would be nil.
30 The appellants now seek to amend their notice of appeal by adding a new ground, namely:
“XII THE LONDON ARBITRATORS’ DETERMINATION
22. The Orders under appeal in these proceedings cannot stand in light of the subsequent determination of the London Arbitration (between Mr Emmott and the Respondent) adversely to the Respondent. That is because:
b. Further and alternatively, to the extent that it has been determined by the Arbitrators that, as between Mr Emmott and the Respondent, the Respondent’s allegations of breach of fiduciary obligation must fail:a. The Orders under appeal, and the Reasons for Judgment of the Primary Judge in support of them, were predicated upon findings that: (i) Mr Emmott was in breach of fiduciary obligations he owed to the Respondent; and (ii) the Appellants had accessorial liability to the Respondent in respect of those breaches. To the extent that the Arbitrators have determined that Mr Emmott was not in breach of fiduciary obligations as alleged by the Respondent, a foundation for the orders made in the Court Below, and for the Reasons published by the Primary Judge, has been removed, with the consequence that none of the Orders can stand.
- i. the Respondent is estopped from asserting those allegations of breach of fiduciary obligations (and associated allegations of accessorial liability) in these proceedings; and
- ii. further or alternatively, it would be an abuse of the processes of this Court for the Respondent to assert in these proceedings claims for relief inconsistent with the Arbitrators’ Determination.
31 The appellants have issued a notice to the respondent to produce:
“1. All determinations, reasons for decision, orders, awards or the like which have been published by the Arbitrators in 2010 in respect of the arbitration between the respondent and Mr Emmott in the United Kingdom.”
32 The respondent has moved to set aside that notice to produce.
33 For present purposes, I can take it that the notice to produce is the equivalent of a subpoena and that the ordinary rules as to oppressive subpoenas can be applied.
34 In modern litigation, a person is entitled to issue a subpoena and have it answered if there is a legitimate forensic purpose in issuing the subpoena, that is, that he or she has a reasonable cause to believe the documents subpoenaed have the capacity to throw some light on the issues in the proceedings; see eg National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372.
35 The respondent here says that the notice to produce does not meet this test.
36 In their outline submissions, the appellants put that the London Arbitration Award:
(a) to the extent that it is in inconsistent with the orders made by the primary judge is wholly destructive of the orders under appeal and the claims for relief made by the respondent;
(b) the proceedings before the Court of Appeal are an appeal by way of rehearing in which the Court of Appeal is mandated to give any judgment or make any order which the nature of the case requires;
(c) by virtue of s 75A(7) to (9) of the Supreme Court Act 1970, evidence of the award can be received by the Court of Appeal without proof of “special grounds”;
(d) to the extent it is inconsistent with the orders of the primary judge, it is at a number of different levels relevant to any determination that the Court of Appeal might make in the principal proceedings. In the context of the appellants’ procedural fairness case, it demonstrates that the risk of procedural unfairness to the appellants in the court below not waiting upon determination of the London Arbitration was not remote or inconsequential. In the context of their abuse of process arguments, it may demonstrate unfairness to the appellants in so far as the primary judge held them liable as accessories for compensation which Mr Emmott is not liable as principal;
(f) it further demonstrates or might demonstrate that the respondent must be taken to have recovered the whole of any entitlement he has or might have against the appellants in so far as he has recovered compensation against Mr Emmott. In short it demonstrates or might demonstrate that the respondent cannot prove any loss for which he might be entitled to be compensated by the appellants.(e) it also may demonstrate that the administration of justice would be brought into disrepute by the existence of inconsistent verdicts;
37 The respondent’s riposte was that the amendment is hopeless and leave should be refused because:
(a) the determination in the London Arbitration was delivered on 19 February 2010, more than four months after Einstein J’s judgment in these proceedings;
(b) the London Arbitration proceedings were not curial proceedings;
(d) an agreement between the respondent and Mr Emmott required that the disputes between them be referred to arbitration in London. Mr Emmott was invited to be joined as a party to these proceedings, but declined.(c) none of the appellants were parties to the London Arbitration and Mr Emmott, who was a party to the London Arbitration, was not a party to these proceedings;
38 The respondent submits that because the notice to produce is only relevant to the proposed amendment if allowed, it should be set aside, as the proposed amendment is hopeless.
39 That was the stage when the matter was considered by me at an oral directions hearing on 19 April 2010. I indicated that I really was disappointed in the lack of help that I was given in making a decision on this matter by the deeper issues involved in the present question not being properly explored. On that occasion, Mr G Lindsay SC who appeared with Mr G W McGrath for the appellants, repeated the submission that the London Arbitration Award may well lead to submissions that the risk discarded by the primary judge of not waiting until the London proceedings were concluded, was not as he thought remote or inconsequential.
40 However, so far as the amendment is concerned, Mr Lindsay said we are not in the area of estoppel, but in the area of abuse of process, so that questions arise where you have inconsistent verdicts about whether they can stand and whether there is an inconsistency which threatens the integrity of the administration of justice. There is a legitimate forensic purpose in the notice of produce, and that is to consider advancing the case that this Court ought not to make orders inconsistent with what has happened in the London Arbitration.
41 He then said that another way the proposition could be put is that “if it should prove that upon balance the orders made as between the respondent in these proceedings and Mr Emmott, that there is a balance in favour of Mr Emmott, and any possibility that there is a loss suffered by the respondent that is able to be open to be compensated by the appellants will have evaporated”, then the appellants should be entitled to put those submissions.
42 Mr M Walton SC who appeared with Mr S Balafoutis for the respondent, put that there is no basis in law for it being an abuse of process that separate proceedings involving separate parties sometimes do produce inconsistent findings. Indeed, there is no present evidence before the Court that there were any inconsistent findings.
43 I put to Mr Walton: “The applicant says that there is (a) abuse of process because it is against the dignity of courts of justice that there should be inconsistent verdicts; and (b) can one have a successful action against accessories if the principal owes nothing. In case (b) it must be relevant to find out what happened to the principal.” Mr Walton said he would dispute that because if it is indeed the fact that the principal has no liability, that was determined by arbitration proceedings not by a court. I then asked for further submissions and authority.
44 During the oral argument, Mr Lindsay did refer to the decision of this Court in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198. The headnote of that case shows that the purchasers of a business had sued the vendor on the grounds that a warranty of the accuracy of the financial statements had been breached and also that there had been false representations contravening s 52 of the Trade Practices Act 1974 (Cth). The purchasers were successful on the contractual claim, but lost the Trade Practices Act claim because the judge ruled that the purchasers had not relied on the accuracy of the figures but rather on the warranty. The purchasers then sued the accountants who had prepared the financial statements claiming damages for negligent misrepresentation. On appeal, the accountants successfully had that action struck out on the basis that the proceedings were an attempt to relitigate the same issue as had already been litigated and it mattered not that the parties were different.
45 In the appellants’ further written submissions counsel put that it was not for this Court when dealing with an application to set aside a notice to produce to rule on the admissibility of evidence of the award or as to the merits of any ground of appeal founded upon or referable to the award. The appellants were entitled to have their notice to produce answered if they had a legitimate forensic purpose in so requiring. I would agree with that save for the complication that in the present case there has to be an amendment to the notice of appeal before at least a half of the support for a legitimate forensic purpose is shown.
46 Mr Lindsay then puts that the reasons given by the respondent in the previous document are inadequate. It does not matter that the London decision is an award rather than a court decision or that it was given between different parties or that it was given after Einstein J’s decision. The submissions put that if and to the extent that the respondent failed in its claims for relief against Mr Emmott in London and those claims were substantially the same as the claims against the appellants in the NSW proceedings, it would be an abuse of the processes of the court for the respondent to maintain those claims or any judgment of the primary judge referable to those claims against the appellants.
47 I must confess I have some difficulty in accepting that proposition. The proceedings before Einstein J were determined first. If the principle advocated by Mr Lindsay has validity, then one would have expected that the respondent would have used the same argument in the London proceedings. The argument put by Mr Lindsay almost assumes: (a) that the London proceedings were decided in favour of Mr Emmott; and (b) that Einstein J was therefore wrong in reaching the view that he did. Conclusion (b) is not demonstrated by the decision of the London Arbitrators. For instance the evidence might have been different. Indeed, courts would traditionally say that a decision of a superior court judge is to be preferred to a decision of an arbitrator.
48 It may be, as Mr Lindsay puts, that the result of the NSW proceedings will be used as a means of obtaining relief for breaches of fiduciary obligations of Mr Emmott beyond any entitlement it may have against Mr Emmott personally. However, if that is what is happening, then the question is whether that so far goes to the integrity and fairness of the justice system that it should not be permitted.
49 I asked for authority on that point and was referred to the decision of CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 particularly at p 394 where the High Court discussed the origins of the power, perhaps in Equity, perhaps in the inherent jurisdiction, perhaps under principles of estoppel to restrain vexatious proceedings. With respect, it does not assist the present problem.
50 The respondent’s further written submissions indicate that they are unable to find any cases directly on point and that the authorities referred to by the appellants were in the respondent’s submissions of no assistance. I think this is right.
51 I have very great doubt as to whether the mere fact, if it be the fact, that there are inconsistent verdicts in NSW and London is sufficient to make out any case of abuse of process. However, I do not consider it appropriate to decide the point as Mr Lindsay said, it is not appropriate to do so at this stage, and practically speaking, I may be a member of the Court which deals with the point on a final basis after there has been opportunity for full argument on each side. The question arises, however, whether the amendment should be allowed because unless it is allowed, the case for the notice to produce is much weakened.
52 I did not have submissions on this point save that Mr Walton says the amendment is hopeless.
53 The classic law as to amendment is that all reasonable amendments should be allowed unless the party applying acts mala fide or the amendment would cause some injury to the opponent which could not be compensated for by costs or otherwise; see eg Cropper v Smith (1884) 26 Ch D 700, 710; Tildesley v Harper (1878) 10 Ch D 393, 396; Horton v Jones (No 2) (1939) 39 SR (NSW) 305, 309. However, useless amendments will not be allowed. The tests as to whether an amendment is useless is the same as the test for when a court would strike out a pleading.
54 In the present case there is no suggestion of prejudice. The only question is whether the amendment is so hopeless that it should be struck out and thus leave to amend should not be given.
55 I have already indicated my disquiet about the amendment. However, in the absence of authority I cannot say that it is so unlikely to succeed at the final hearing that it should be struck out.
56 Inconsistent verdicts do cause problems in the administration of justice. However, from time to time they are inevitable and even in the criminal area no final satisfactory solution has been found; see eg the discussion in MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366. Ordinarily, factual inconsistency is an inevitable risk of the trial system where there are separate trials and even where the accessories are convicted and the principal acquitted the verdict stands.
57 However in R v Rowley (Eli) [1948] 1 All ER 570 it was laid down that ordinarily there should not be prosecution of an accessory before prosecution of the alleged principal offender. If the principal offender is acquitted then a “no bill” might be filed against the alleged accessories: R v Breen (1990) 99 FLR 474 (NTSC).
58 I should note that the opposition to the notice for production on the grounds of confidentiality was abandoned. This was appropriate in view of the principles of discovery with respect to arbitrators discussed in Bray on Discovery (1885) p 52 and see Ponsford v Swaine (1861) 1 J & H 433; 70 ER 816.
59 As I have allowed the amendment, the notice to produce serves a legitimate forensic purpose in having the documents which would support the amended grounds of appeal. However, it seems to me that that is not the whole story. The document is also useful in support of the argument that the NSW court should have held back until London’s proceedings were more advanced or finalised. Again, I am not completely convinced that this is a matter which must succeed because it is a sort of chicken and egg situation where one court or the other must go first, why should it not be our court? It may be because if the principal is found innocent the alleged accessory must succeed; see eg NSW Bar Association v Forbes Macfie Hansen Pty Ltd (1988) 18 FCR 378, 387; 82 ALR 431, 440. However, again the matter is fairly arguable.
60 However, the third point is far stronger in my view, even though there is no authority on it, and that is that if there is a verdict against people with accessorial liability under the principle in Barnes v Addy (1874) LR 9 Ch App 244, and it is held that there is no liability on the principal fraudster, then there can be no damages against the accessories. Again, whilst it is not an unassailable case, it seems to me a stronger point than some of the others raised by the appellants, though the fact that the order for payment of money is a “rolled up” order may be significant.
61 Accordingly, in my view, the three matters which I have mentioned in [59] and [60] justify it being said that there is a legitimate forensic purpose in allowing the notice to produce to prevail.
62 Thus, the respondent’s motion to set aside the notice to produce is dismissed with the costs to be the appellants’ costs in the appeal. The appellants have leave to amend the notice of appeal in accordance with the document referred to above, the costs of and occasioned by the amendment to be paid by the appellants.
63 I have made each cost order when dismissing a notice of motion costs in the appeal as the motions were a part of the case management process and it is of little use making orders which will cancel each other out. The ultimate successful party should get the benefit of these orders in due course.
64 Accordingly, the orders of the Court must be:
(1) Leave to the appellants to amend the notice of appeal in accordance with the document initialled by me on 5 May 2010 and placed with the papers.
****************(2) All notices of motion dismissed with the successful parties’ costs to be costs in the appeal.
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