Michael Wilson & Partners Ltd v Emmott (No 5)

1. [1]

   THE COURT: On Friday 11 July 2025, this Court dismissed two applications for leave to appeal brought from orders made by McHugh JA and Basten AJA that Michael Wilson & Partners Ltd (MWP) provide security for costs of its appeals on applications for leave to appeal from decisions in separate proceedings in the Common Law Division and Equity Division of this Court: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152. This Court also made orders on two other topics.

   1. (1)

      The first (by order 2) permitted the successful respondent, Mr John Forster Emmott, to make any application for a special costs order “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”.

   2. (2)

      The second (by orders 3, 4 and 5) permitted a barrister, Mr Richard Thomas, whose name was contained on a supplementary submission filed by MWP, to be heard, if he wished, and (by order 6) permitted Mr Michael Earl Wilson, a solicitor, with an entitlement to practise in New South Wales, to be heard why the judgment and the papers should not be referred to the Legal Services Commissioner.

2. [2]

   These reasons address those two topics. The more important is whether Mr Wilson should be referred to the New South Wales Legal Services Commissioner. It is addressed first, although, as will be seen, the two overlap.

Should Mr Wilson be referred to the Legal Services Commissioner?

1. [3]

   Orders 5 and 6 made by this Court on 11 July 2025 were as follows:

2. [4]

   Mr Thomas supplied four emails to the Associate to Justice Leeming on 11 July 2025. They were copied to Mr Emmott’s counsel (Mr Baird). On 16 July, Mr Thomas wrote again saying that he purported to recall the email. When asked to clarify, he said that all his emails should be recalled. On 17 July, Mr Wilson wrote saying that Mr Thomas’ email must be deleted and disregarded in its entirety. We have treated that request as applying to all of Mr Thomas’ emails.

3. [5]

   It is not necessary to rely on the emails in order to resolve any issue which is before the Court, and we have not done so.

4. [6]

   Mr Wilson’s email also asserts that the contents of Mr Thomas’ email “were and are inaccurate and wrong”, and adds that the transcript of the hearing on 10 March 2025 and Mr Baird’s submissions were provided immediately upon receipt to Mr Thomas, and “[t]he insinuations to the contrary in the Judgment simply have no basis”. Mr Wilson in his affidavit states, after repeating the gravamen of this, that:

5. [7]

   Reasons for judgment should, ideally, be self-contained, especially when as here they concern a matter of importance, namely, whether there should be an investigation into whether Mr Wilson should continue to act as a solicitor. For that reason, Annexure “A” to these reasons contains paragraphs [49]-[83] of our earlier judgment, which is confined to the first ground of review of the decision made by McHugh JA. This ground was that McHugh JA should have recused himself.

6. [8]

   By way of summary, this ground was advanced without the transcript. It was not mentioned by Mr Wilson during his submissions until the end of the day. At that stage it became clear that it was necessary to obtain the transcript, because Mr Baird (who had been there) said that he recalled Mr Wilson not pressing the application, while Mr Wilson said that was not his recollection. The transcript demonstrated that Mr Baird’s recollection was correct, and that Mr Wilson, after obtaining at his request a short adjournment, confirmed that “I don’t have an application to make, your Honour”. That was consistent with there being no order refusing an application for recusal, and no reasons by McHugh JA for his continuing to hear the case. But it is inconsistent with MWP advancing as a basis for review in this Court that McHugh JA should have recused himself from hearing the application for security for costs.

7. [9]

   When MWP supplied submissions, the position was as stated at [60]:

8. [10]

   The submissions were not signed, but Mr Thomas’ name was on them, as well as that of MWP. Mr Thomas had not previously, so far as the Court was aware, participated in the application for security for costs or the review of McHugh JA’s order. The reasons concluded at [62]:

9. [11]

   That was the context in which the Court said the following (at [63]-[67] of its earlier judgment) before making orders that Mr Wilson show cause:

10. [12]

    Pausing there, we return to Mr Wilson’s complaint about “the insinuations and suggestions” in the judgment. We take this to be a reference to what was stated in [67] about Mr Thomas not having the role ordinarily expected of counsel, namely, to settle and sign submissions, and leaving open the possibility that he played no role in them. In light of what is now known, we accept that Mr Thomas played a role in drafting the submissions. We note that Mr Wilson’s affidavit does not explain why the submissions were unsigned. Nor does it assert that they were supplied to the Court in the form supplied by Mr Thomas. Most importantly, it contains no account of why the submissions fail to attend to Mr Wilson’s statement following an adjournment that he was not pressing his application.

11. [13]

    There is an obvious difficulty in Mr Wilson positively asserting (on behalf of MWP) what occurred between him and Mr Thomas, and simultaneously stressing (again on behalf of MWP) that the communications were privileged and this Court must disregard them. It is likely that there has been a waiver, bearing in mind that inconsistency between the conduct of the client and maintenance of confidentiality of communications between client and lawyer may effect a waiver: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]. However, it is not necessary to reach a conclusion on this issue, which we mention only so as to confirm that we have not overlooked Mr Wilson’s demand that the “insinuations and suggestions” be withdrawn. There is no occasion to do so.

12. [14]

    Paragraphs 27-33 of Mr Wilson’s affidavits (identical affidavits in each proceeding were filed by him) are as follows:

13. [15]

    The issue is whether Mr Wilson, who made a groundless application to review an order made by McHugh JA on the basis of apprehended bias, and continued to press that application after being reminded of its seriousness, after being supplied with the transcript, and after being served with the respondent’s submissions pointing out that the application before McHugh JA had not been pressed, should be referred to the Legal Services Commissioner. We would take that course only if there were a real concern that he should not be permitted to act for clients, and only after giving him an opportunity to explain why that course should not be taken.

14. [16]

    We have reproduced verbatim Mr Wilson’s submissions on that issue, as a matter of transparency and because it is difficult to summarise them. It will be seen that those paragraphs are not directed to Mr Wilson’s conduct or whether he should be referred. They maintain that others (notably, Mr Emmott and McHugh JA) have not behaved as they should have. They disclose no insight into the point which led to referral being raised in the first place, namely, his complaint that McHugh JA had refused to disqualify himself when no such application had been made to him.

15. [17]

    In the passage of his affidavit directed to why there should be no referral, Mr Wilson merely renews his application, aspects of which seem to be pitched at the level of actual bias against McHugh JA (through the words “who had clearly already formed a view” and “would not be swayed”). The affidavit also includes a statement that the Court should be aware that MWP will exercise its right of appeal, which it has previously done with success. Whether or not MWP or Mr Wilson exercises such rights as it and he has to seek special leave to appeal does not alter this Court’s obligation to take steps directed to protecting the public.

16. [18]

    Nowhere in Mr Wilson’s affidavit is mention made of the fact that he withdrew the application before McHugh JA.

17. [19]

    The closest Mr Wilson comes to an explanation is a statement that he was “taken entirely by surprise” and “without all documents, information and facts available to [sic] before it, and without adequate time, including to draft, file and serve a motion/application and with evidence in support”. But the difficulty with that statement is that: (a) at the time, Mr Wilson sought and obtained an adjournment; (b) Mr Wilson made no application or gave any indication he was unable to deal with the information McHugh JA had told him; and (c) all of this is well removed from the critical matter, which is why an application to review on the basis of apprehended bias was made and pressed and continues to be pressed in this Court, even after it has been indicated that it is untenable.

18. [20]

    In short, there is no explanation of why this Court has been asked to review a decision of a Judge of Appeal on the basis that he should have recused himself, when the applicant made no such application. It is, for example, not said that Mr Wilson forgot that he had abandoned his application, or that Mr Wilson relied entirely on counsel to make the decision even after he had received the transcript and Mr Baird’s submissions to press this ground of review.

19. [21]

    The other aspects of Mr Wilson’s affidavit need only be summarised, because they are not to the point.

20. [22]

    Paragraphs 1-7 are introductory.

21. [23]

    Paragraphs 8-17 are directed to the proposition that “The Respondent has misled this Court and the Court below throughout”. Those paragraphs elaborate how it is said that Mr Emmott “has been for decades and is a judgment debtor and debtor of MWP in all jurisdictions, and all monies are and always were payable only to MWP, including qua Sinclair”. None of this is responsive to the issue raised by order 6. Mr Wilson has also included an affidavit made by Mr Emmott filed on 10 June 2025 in the Common Law Division, and a witness statement made by Mr Emmott in the High Court of Justice (proceeding CL-2025-000150) dated 13 July 2025. It is unclear whether either has been read and, if not, whether it was open to Mr Wilson, in his personal capacity, to supply them to this Court in response to order 6, but that will be a matter for the professional regulator to investigate if seen fit.

22. [24]

    Paragraph 11 also complains that “Contrary to what is stated in the Judgment, as can be seen from the Tender Bundles and MWP’s evidence, all necessary documents were, indeed, before this Court”. No references are given. That does not falsify [32] of the reasons, which stated that “despite the volume of the material tendered by MWP in the hearing in this Court, it appeared that the material which had been before Schmidt AJ and Hammerschlag CJ in Eq was not all before us”. Nor does it falsify [43(9)] of the reasons, which stated that the medical evidence which had been before Basten AJA was not before the Court and so it was impossible to determine whether his Honour had been wrong to find that it was “repetitive, unfocused and hard to assess”, which had been asserted by paragraph 8(k) of the motion filed on 30 April 2025 and elaborated in paragraphs 30-32 of Mr Wilson’s affidavit of 19 May 2025, being paragraphs which were advanced by way of submission but without the underlying documents.

23. [25]

    Paragraph 15 asserts that “[20] of the Judgment is clearly in error”, and paragraph 16 states that “It is no longer a question of whether or not the Declaration will be granted, as MWP’s Part 8 Claim and Application has already succeeded, and costs will follow the event”. This is not within the scope of the leave. Moreover, we decline to express a view on the outcome of litigation in a foreign court, noting that before doing so we would wish to be assured that it was open to Mr Wilson to rely upon materials very recently filed by Mr Emmott and possibly not read. In any event, and as will be seen below, Mr Wilson’s subsequent affidavit confirms that the hearing before Pelling J did not resolve the issues between the parties in the way which Mr Wilson had predicted.

24. [26]

    Paragraphs 18-19 assert that “MWP is the clear overall Winner”. This is not relevant to whether the public interest is served by referring the papers to the Legal Services Commissioner, and is outside the scope of the grant of leave. Similarly, paragraphs 34-40, which deal with the bankruptcy of Mr Emmott and his alleged contempt of a foreign court, are outside the scope of the grant of leave. Paragraphs 20-26 address Mr Thomas and waiver of privilege.

25. [27]

    Mr Wilson’s affidavit concludes with an informal application that:

26. [28]

    Treating the affidavit as an application to reopen, we reject it. Nothing has been put forward to show that there was any error in the orders for security made by McHugh JA and Basten AJA. Had error been shown, nothing has been put forward to dissuade us from the position that we would re-exercise the discretion and order security in no lesser amounts, bearing in mind everything we have seen about the manner in which Mr Wilson and MWP conduct litigation.

27. [29]

    The affidavit has served the useful purpose of confirming to our minds that the papers and this Court’s judgments should be referred to the Legal Services Commissioner, to investigate whether Mr Michael Earl Wilson should continue to be permitted to act as a legal practitioner in this jurisdiction.

28. [30]

    The foregoing is sufficient to warrant a referral to the Legal Services Commissioner. What follows confirms the appropriateness of that course.

Mr Emmott’s applications for special costs orders

1. [31]

   Order 2 made on Friday 11 July 2025 entitled Mr Emmott to apply for any special costs orders sought by him “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”. That order reflected what had been presaged in an earlier letter of 24 April 2025, in his written submissions, and orally at the conclusion of the hearing, where there had been the following exchange:

2. [32]

   Mr Wilson was appearing for MWP at that hearing, and was present by audio-visual link. There is no doubt that he had received Mr Emmott’s submissions, which had concluded with a submission that the motion should be “dismissed with costs on the indemnity basis, such to be payable personally by the solicitor for the applicant in an amount fixed by the Court”. Nor is there any doubt that Mr Wilson heard and understood the gravamen of the application flagged on behalf of Mr Emmott. The transcript continued:

3. [33]

   Despite the exchange in Court on 20 June 2025, the order made on 11 July 2025 has given rise to an inordinate amount of disputation. What occurred is as follows.

4. [34]

   Six things happened in quick succession on the afternoon of Friday 1 August 2025 and the following Saturday.

5. [35]

   First, Mr Emmott filed notices of motion in each proceeding, and a supporting affidavit of his solicitor, Mr Duggan. The Court’s records confirm that this was done electronically, at 3:16pm on Friday 1 August 2025. The motions were materially identical. In the application to review the security ordered by McHugh JA, the orders sought were:

6. [36]

   The motion filed in the proceeding to review the security for costs ordered by Basten AJA took substantially the same form, although the gross sum costs sought in orders 2 and 3 were $12,311.36 and $16,049.72 respectively and the dates in order 3 were different. Orders 1, 4, 5, 7 and 8 were materially identical save as to the dates the orders were made. Order 6 was differently worded but to the same effect.

7. [37]

   Reading both motions together, what Mr Emmott sought was:

   1. (1)

      a gross sum costs order for both applications for review of the orders for security for costs, calculated on the indemnity basis, in the amount of $21,241.04 + $12,311.36 = $33,552.40;

   2. (2)

      gross sum costs orders in respect of the costs orders made by each of McHugh JA and Basten JA in the amounts of $16,755.04 and $16,049.72 respectively;

   3. (3)

      orders that the amounts be paid within 14 days without deduction or set-off, by each of MWP and Mr Wilson personally;

   4. (4)

      orders that in default of payment, the pending proceedings in this Court be dismissed.

8. [38]

   The same affidavit sworn by Mr Duggan on 1 August 2025, of 21 pages plus an exhibit of 71 pages, was filed in each proceeding. It mostly concerned the work done in each proceeding and the costs claimed. We shall return to this below.

9. [39]

   At all times, Mr Wilson has been able to access the file on JusticeLink (the Court’s electronic filing system) and see the documents which have been filed electronically, including precisely when that occurred. In light of the correspondence which ensued, it is desirable to reproduce the coversheet generated by JusticeLink (which is available to the parties’ solicitors) when Mr Emmott’s motion in the proceeding reviewing the security ordered by McHugh JA (2024/00416114) was filed:

10. [40]

    A similar document was produced in the proceeding (2024/00449432) reviewing the security ordered by Basten AJA. Both documents indicate the time of electronic filing (at the top) and the documents filed (under the heading “Attachment Details”).

11. [41]

    Secondly, Mr Emmott’s solicitor, Mr Duggan, emailed the filed version of the notice of motion and affidavit, and an unfiled copy of the submissions documents, to the Associate to Justice Leeming, copying in Mr Baird and three email addresses nominated by MWP, being michael.wilson@mwp.kz, Secretaries@mwp.kz and Yermek.Aubakirov@mwp.kz. That email was sent at 4:49pm on Friday 1 August 2025. The first of those emails is regularly used by Mr Wilson.

12. [42]

    The submissions constitute a coversheet and 5 pages signed by Mr Baird. They are straightforward. Paragraphs 1-3 are introductory. Paragraphs 4-13 summarise the principles applicable to indemnity costs orders and gross sum costs orders. Paragraphs 14-17 summarise the evidence of Mr Duggan. Paragraphs 18-21 contend that gross sum costs orders should be made, because (i) the amount claimed is relatively small, (ii) the hourly rates charged are substantially within the guidelines published by the Costs Assessment Rules Committee, and (iii) the costs of assessment are likely to be disproportionate to the costs in issue, having regard to the conduct of the proceedings to date.

13. [43]

    Paragraphs 22-37 seek to explain why a personal costs order should be made against Mr Wilson. It is not necessary to summarise these submissions.

14. [44]

    Thirdly, Justice Leeming’s (then) Tipstaff sent the following response to all addressees on Mr Duggan’s email at 5:01pm:

15. [45]

    Fourthly, Mr Wilson responded to all addressees at 5:28pm:

16. [46]

    Fifthly, at 6:10pm that Friday, Mr Duggan responded to Mr Wilson’s email, copying in all addressees:

17. [47]

    Mr Duggan’s email attached emails he had sent to the same three email addresses in Kazakhstan, which themselves attached filed versions of the notice of motion and affidavit, and an unfiled written submission.

18. [48]

    Sixthly, Mr Wilson sent a further email in this chain to Justice Leeming’s (new) Associate at 11:28am on Saturday 2 August 2025, copying in Mr Duggan and the other two Kazakhstan addressees:

19. [49]

    We shall return to the legal effect of the emails when dealing with Mr Wilson’s submissions concerning service. For present purposes, it suffices to note two things:

    1. (1)

       First, even if in fact Mr Wilson had not received any of the attachments to either of the two emails sent by Mr Duggan (being (1) the email to him in advance of that sent to Justice Leeming’s Associate, (2) the email sent at 4:49pm to Justice Leeming’s Associate into which the three Kazakhstan email addresses were copied), he demonstrably knew that the Court had received the notice of motion and affidavit and submissions, and had considered them sufficiently to make directions for a timetable for any response. Mr Wilson knew this because his email of 5:28pm on the Friday responded to the email containing those directions.

    2. (2)

       Secondly, Mr Wilson knew that Mr Duggan was claiming that the notice of motion had been filed. It was at all times open to Mr Wilson or anyone else from MWP who was registered with the Court’s electronic system to check JusticeLink to see what had been filed electronically.

20. [50]

    Mr Duggan received a notification from the Court on Monday 4 August, advising him that the motions were listed before the Court on 11 August at 9am. He wrote, copying in Mr Wilson, to the Registrar advising of the email from Justice Leeming’s Tipstaff that the motions would be dealt with on the papers. The Registrar responded later that day advising that the listings had been vacated and the motions would be dealt with on the papers.

21. [51]

    Mr Duggan also filed a further affidavit, which did nothing more than to state that subsequently to his affidavit sworn on 1 August 2025, he had received five emails from Mr Wilson. Four of the five were emails between the parties which did not include the Court, and the fifth was Mr Wilson’s email to Justice Leeming’s Associate at 11:28am on Saturday 2 August mentioned above. The emails are important, and are reproduced as Annexure ‘B’ to these reasons. They accuse Mr Duggan and Mr Baird of serious misconduct, doing so in intemperate terms. The emails include the following:

    1. (1)

       “you, Baird and your client have consistently lied to and misled the Court below, and also the NSWCA”;

    2. (2)

       “Like Robinson before you, it seems clear that after your retirement from private practice, you prefer to conduct litigation as a hobby working from your kitchen table at home, rather than doing crossword puzzles and enjoying life, long after work and reaching the normal current retirement age of 67 in Australia”;

    3. (3)

       “the Judgment Debtor and Debtor of MWP in all jurisdictions has cynically and deliberately misled the Court below and this Court throughout”;

    4. (4)

       “We await your reply to the enclosed and receipt of retraction, updating and evidence and apologies for your knowingly false evidence and false submissions, and for so misleading all courts, wasting public resources, costs and time, pay all of our costs and damages caused”;

    5. (5)

       “We fully reserve our rights and in all respects as a result of the litigation fraud the Judgment Debtor and Debtor of MWP in all jurisdictions has and is conducting and in which litigation fraud you and Baird are knowing participants, filing and serving false motions, false submissions, false evidence, when you know and always knew the same to be untrue, as also did the Judgment Debtor”, and

    6. (6)

       “… you and Baird are and have been acting improperly unethically and in knowing, cynical and deliberate material breach throughout”.

22. [52]

    We pause to note that none of us has ever encountered such correspondence, from a New South Wales solicitor to another New South Wales solicitor, written in such terms.

23. [53]

    Further, it was written while the Court was reserved on whether Mr Wilson ought be referred to the Legal Services Commissioner.

24. [54]

    Still further, r 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) provides that a solicitor must “be honest and courteous in all dealings in the course of legal practice”.

25. [55]

    Only weeks earlier, this Court constituted by Bell CJ, Kirk JA and Griffiths AJA had written in Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 at [19]-[22]:

26. [56]

    Unlike the communications from Mr Sideris, Mr Wilson did not employ expletives. His emails were not coarse. Nor did they contain improper threats. But otherwise, Mr Wilson’s emails answered the description of “grossly discourteous”, “disrespectful”, “gratuitously offensive” and “wholly unprofessional”. The conclusion that they were in serious breach of a basic element of Mr Wilson’s professional obligations as a solicitor is inescapable.

27. [57]

    They were not isolated examples. Mr Duggan exhibited to his affidavit of 1 August 2025 further emails from Mr Wilson to him, including:

    1. (1)

       Email of 24 April 2025 commencing “What nonsense you write … Your email and letter are misconceived and rejected as yet further evidence of the pure fiction and contrived fantasy on your part, and that of Baird, being entirely contingent and fellow-stakeholders with the Judgment Debtor and soon to be bankrupt, like all of Sinclair, Slater and Nicholls before him and which is his destiny” (this email was in response to a courteous letter from Mr Duggan stating that in his opinion the application for review did not have reasonable prospects of success, and anticipating the special costs orders which were subsequently sought by the present motion); and

    2. (2)

       Email of 15 May 2025 commencing “What arrant nonsense you write, as always and where the contents of your email is patently totally without merit. You are cynically and deliberately misleading all courts in Australia and acting in continued and material breach of your professional duties as officers of the Court …”.

28. [58]

    Mr Duggan also annexes two emails sent by Mr Wilson to the Registrar on the afternoon of 9 May 2025, copied to Mr Duggan and the two other Kazakhstan addressees following the making of timetabling directions. These were responses to emails from the Registrar advising that MWP’s motion would be set down on 20 June 2025, and vacating a directions hearing on 12 May 2025. The first concluded:

29. [59]

    The second was as follows:

30. [60]

    Pausing there, the reality is that Judges, Registrars and all officers of this Court who deal with unrepresented litigants all too often receive rude or abusive communications when the litigant is dissatisfied with the outcome. All have, and need to have, relatively robust approaches when such communications are received. That is not to excuse the conduct of a minority of unrepresented litigants, but to acknowledge its reality. However, Judges, Registrars and other court officers are invariably entitled to civil communications from members of the profession. We cannot think of circumstances when it could be appropriate for a solicitor to have occasion to send emails to a Registrar of this Court accusing him of impropriety. It is not entirely clear, but it seems that the source of Mr Wilson’s dissatisfaction was that the Registrar had set down one of MWP’s applications for review some six weeks in the future, and MWP had intended to seek a slower timetable. Even if that be wrong, there was no basis to accuse, repeatedly, the Registrar of impropriety.

31. [61]

    Returning to the correspondence of 4 August 2025 in which the Court was included, Mr Wilson also responded to the Registrar’s email on 4 August 2025 at 3.56pm:

32. [62]

    The following day, Tuesday 5 August, the Registrar responded:

33. [63]

    Mr Wilson responded the following day, 6 August 2025, at 4:11am AEST:

34. [64]

    There were no further emails after 6 August until 15 August 2025, which was the day (a) specified in Justice Leeming’s Associate’s email, and (b) confirmed in the Registrar’s email. Mr Wilson sent an email at 11:11pm AEST which warrants reproduction in full:

35. [65]

    The references in that email to affidavits of 93 and 13 pages, and “the ≥132 pages of new material” establish that Mr Wilson had seen the notice of motion and Mr Duggan’s affidavits of 1 and 4 August 2025 in support.

36. [66]

    On Saturday 16 August 2025, at 10:09am and 10:11am, Mr Baird resent to Mr Wilson emails sent by Mr Duggan to Mr Wilson into which Mr Baird had been copied, on 1 August 2025. Mr Baird’s emails were unquestionably received, and prompted Mr Wilson’s response at 9:10pm that Saturday (Justice Leeming’s Associate was copied in to all these emails):

37. [67]

    That led to a response by Mr Baird on Sunday afternoon at 3:43pm as follows:

38. [68]

    Mr Wilson responded almost immediately, at 3:51pm AEST:

39. [69]

    Justice Leeming’s Associate responded to all addresses at 8:56am on the morning of Monday 18 August:

40. [70]

    Mr Baird acknowledged receipt at 12:27pm that afternoon. Mr Duggan responded to that email at 2:02pm that Monday, as follows:

41. [71]

    No response was received by any of the Kazakhstan-based addressees acting for MWP.

42. [72]

    That led to a further email from Justice Leeming’s Associate on Wednesday 20 August 2025 at 10:25am:

43. [73]

    On Friday 22 August 2025, at 10:53pm AEST, in response to and attaching that email, Ms Zhanar Kobzhassarova responded as follows:

44. [74]

    On the morning of Monday 25 August 2025, at 8:58am, Justice Leeming’s Associate responded:

45. [75]

    Mr Duggan confirmed receipt. There was no acknowledgement of receipt from Ms Kobzhassarova or anyone else on behalf of MWP, until at 3:22am AEST on 1 September, Ms Zhanar Kobzhassarova wrote:

46. [76]

    On Tuesday 2 September, Justice Leeming’s Associate responded:

47. [77]

    Mr Wilson responded to that email at 2:37pm on Wednesday 3 September:

48. [78]

    Later that afternoon, at 4:37pm, Justice Leeming’s Associate responded as follows:

49. [79]

    Finally, by email received at 6:12am on Monday 8 September, Mr Wilson responded:

50. [80]

    We first deal with Mr Wilson’s request for further time to supply submissions. First, the submissions to which further time for a response is sought occupy five pages and a coversheet, and were supplied five weeks ago, and even if there was some difficulty receiving them, on any view Mr Wilson has had them since 16 August, more than three weeks ago. Secondly, MWP and Mr Wilson knew that when the most recent extension of time was granted, the Court was of the view they had already had a reasonable time within which to respond, and that although a further week was given, they were warned that “[i]t should not be thought that any further extensions of time will be granted”. Thirdly, in those circumstances, it is remarkable that no evidence is put forward to justify the assertion that it was impossible to complete submissions. Fourthly, Mr Wilson’s 7th and 8th affidavits (the 7th was filed on 31 August but sworn on 25 August, the 8th was sworn and filed on 8 September) are 58 and 102 paragraphs long respectively. The exhibits exceed 300 pages. A great deal of each affidavit is in the form of submissions. For example, there are sections in the 8th affidavit titled “MWP’s brief comments on the two (2) Notices of Motion of 01.08.25”, “MWP’s overview comments on Mr Duggan’s unnumbered affidavit and its exhibit of 01.08.25 (that has not been separately filed, approved, sealed and served in both Reviews & Appeals, as required by the CPA, the UCPR and the law)”, “MWP’s comments on the unfiled, unsealed and unserved affidavits of Mr Duggan of 04.08.25” and “MWP’s comments on Mr Baird’s sets of submissions (that have not been filed, approved, sealed and served) in relation to both Reviews & Appeals”. Those headings apply to paragraphs 37-96 of the affidavit, and accurately describe those paragraphs.

51. [81]

    In those circumstances, the Court was of the view that no further extension of time was warranted, and advised the parties and Mr Wilson by email to that effect at 10:40am on Monday 8 September.

52. [82]

    The Court has had regard to the submissions contained in the 7th and 8th affidavits.

53. [83]

    Mr Wilson filed identical affidavits on Sunday 31 August 2025 at 6:55pm and 6:58pm (one in each proceeding), although sworn on 25 August, perhaps in an attempt to comply with the extended timetable. The affidavit contains in paragraph 8 the following summary of the position:

54. [84]

    In large measure, that summary is incorrect.

55. [85]

    Contrary to point 1, Mr Baird’s submissions were five pages and a coversheet. There was no requirement for them to be filed. There was no non-compliance with the Court’s orders. Even if that were not so, any non-compliance is technical in the extreme, and would not disentitle Mr Emmott from relying on them.

56. [86]

    Contrary to point 2, Mr Duggan’s affidavit of 1 August 2025 (including its exhibit) was filed on 1 August 2025 at the same time as Mr Emmott’s motion, and is acknowledged as having been filed on the sealed coversheet reproduced above. Mr Wilson’s statement that it was necessary also for the affidavit to be “stamped” and “sealed” is incorrect.

57. [87]

    In relation to point 3, Mr Wilson is right to say that Mr Duggan’s affidavit of Monday 4 August 2005 was filed in both proceedings without leave. It attached five emails from Mr Wilson to him, all of which post-dated 1 August and which were directly relevant to the question before the Court whether Mr Wilson should be referred to the Legal Services Commissioner. All of them are also relevant to whether MWP had consented to communications by email. All were known to Mr Wilson because he was their author, and the fact that they had been sent and received was uncontroversial. We will grant leave to Mr Emmott to rely on the affidavit.

58. [88]

    Point 4 exaggerates the scope of the material. The submissions occupy 5 pages and a coversheet. The orders sought in the motion occupy a single page; the rest is formal. The exhibit to the first affidavit is mostly itemised tax invoices rendered by Mr Duggan and Mr Baird, and costs disclosures by each, while the exhibit to the second affidavit comprises five emails sent in the previous 72 hours by Mr Wilson.

59. [89]

    Point 5 is (to say the least) contentious in its claims that: (a) some of the material relied on by Mr Emmott had not been “filed, approved, stamped, sealed and served, as is required”; (b) “the material was only received by MWP on 18 August 2025”, and (c) “through no fault of MWP”.

60. [90]

    The affidavit claims that the whole of the difficulty in service of the documents rested with Mr Duggan. It is difficult to summarise the tone and syntax of Mr Wilson’s prose, which is better reproduced verbatim:

61. [91]

    The conclusion in bold advanced by Mr Wilson cannot be the case. All of Mr Duggan’s emails attaching documents were copied to Justice Leeming’s Associate, and those attachments include the documents relied on (being the notice of motion, two affidavits including their exhibits, and the short written submissions). Contrary to the conclusion of that passage, the Court knows that Mr Duggan did in fact send the emails, which were actually received by the Court including their attachments, and with the semblance of having also been sent to each of the three Kazakhstan email addresses nominated by MWP. Justice Leeming’s Associate responded to the emails shortly after they were received. His “reply all” email to all addressees reached Mr Wilson, who in turn replied a few minutes later.

62. [92]

    What is more, Mr Wilson knew, personally, that the Court had received the emails, even if for some reason the attachments were not received by him. His email of 1 August 2025 responded to directions made by the Court for the timing of any response.

63. [93]

    Mr Wilson also knew from the outset that Mr Duggan was claiming that the notice of motion and affidavit had been filed. The fact of the matter is that the documents were filed and available on JusticeLink, and were accessible to any lawyer registered with the Court to access from anywhere in the world at all times after 3:16pm on Friday 1 August 2025. It should not need to be said, but any competent solicitor engaged in litigation in this Court needs to be familiar with the Court’s electronic filing system.

64. [94]

    Nowhere does Mr Wilson explain why, when faced with Mr Duggan’s statements that a notice of motion and affidavit had been filed with the Court, which had been received by the Court and which was the subject of directions, neither he nor some other person within MWP checked JusticeLink to obtain copies of the documents.

65. [95]

    The exhibit to the 7th affidavit is 179 pages. The first 28 pages are emails and the notice of listing of the 1 August motions to which reference has been made, and some further emails between the solicitors, concerning this and other matters, only one of which need be summarised. That is an email from Mr Wilson to (among others) Messrs Baird, Duggan and Emmott sent on 17 August:

66. [96]

    That email (a) lacks the professional courtesy to be expected in communications between solicitors (first paragraph), (b) illustrates that MWP and Mr Wilson treated service of submissions by email as effective (second paragraph), and (c) makes a serious allegation of “collateral attack and an abuse of process” against the recipients (third paragraph).

67. [97]

    Pages 29-164 and 175-179 concern the litigation in the United Kingdom. They are not relevant to the motions before this Court. Pages 165-172 concern a point made in relation to Mr Emmott’s residential address to which reference will be made below. Pages 173 and 174 are British Virgin Islands documents purporting to show that MWP has its registered office at the office of Harneys Corporate Services Ltd in Tortola, that MWP’s sole director is MWP Corporate Finance Limited, and its sole shareholder is “WFA-Windsor Fine Arts Establishment”; they are relevant to the claim for a personal costs order against Mr Wilson.

68. [98]

    Paragraphs 1-15 are introductory. Paragraphs 16-26 and pages 45-49 of the exhibit deal with email problems. They include an email from a System administrator of 19 August stating two possibilities: either “[t]he sender did not actually send the emails” or “[t]he issue originates on their side”. The suggested resolution was that “the sender should provide proof of sending the emails – such as an outgoing message”. Evidently at some stage the outgoing messages from Messrs Duggan and/or Baird were supplied and an email log. Mr Wilson subsequently wrote, on 30 August 2025, to Messrs Duggan, Baird and Emmott, apparently cutting and pasting part of a further response, which suggested that Mr Duggan’s “mail server (smpt.hosting-cloud.net) could not find MX records (Mail Exchange records) for the mwp.kz domain in the global DNS system”. The response suggested that “the failure is likely to be one of the following situations on the sender’s side: 1. Temporary failure of the hosting-cloud.net provider’s DNS resolver … 2. DNS caching issues … 3. Incorrect configuration of the sender’s server”. It will not be necessary to resolve the source of any failure by MWP to receive certain emails.

69. [99]

    Paragraphs 27-30 contend that MWP enjoys rights of set-off, which should not be excluded by this Court’s order. Paragraph 30 states:

70. [100]

    These reasons do not determine whether or not MWP has a right of set-off, but MWP’s point that this Court’s order should not preclude any such right is sound.

71. [101]

    Paragraphs 31-36 address the proposition that Mr Emmott is a judgment debtor. This is not relevant to the motion.

72. [102]

    Paragraphs 37-96 and the conclusion in paragraphs 97-102 are relevant to the claim for costs, and are best addressed in the course of considering that claim.

73. [103]

    We focus first on the position of MWP. Mr Wilson’s statements in his emails of 5:28pm on Friday 1 August and 11:28am on Saturday 2 August about the orders for filing a motion are incorrect, at least insofar as they concern MWP. The position is as follows:

    1. (1)

       Despite the extensive correspondence, Mr Wilson has never identified with precision how it is said that “Nothing has been filed or served on MWP at all”.

    2. (2)

       The order was for the notice of motion to be filed and served within 21 days, “together with any material in support including submissions not exceeding five pages”. The terms of the order provided that the notice of motion was to be filed, but did not extend to requiring any affidavits or submissions to be filed. The distinction was conscious – it is not unusual in applications for gross sum costs orders for the exhibits to affidavits to be very large. As it turned out, the exhibit was filed. Insofar as Mr Wilson’s complaint was that the submissions had not been filed, it was misplaced because there was no requirement to do so.

    3. (3)

       In any event, the matter is to be treated as one of substance rather than form. The “real issues” in this phase of the litigation for the purposes of s 56 of the Civil Procedure Act 2005 (NSW) are whether MWP and Mr Wilson received notice of the special costs orders sought by Mr Emmott and the basis on which they were sought, not whether there has been punctilious compliance with technical aspects of the Court’s orders, such as whether a short submission signed by counsel sent to the other side was also filed.

    4. (4)

       It is clear that from no later than 5:01pm on Friday 1 August 2025 Mr Wilson (and through him MWP) must have known that Mr Duggan and the Court were proceeding on the basis that Mr Emmott had filed the application which had been flagged (in Mr Wilson’s presence) at the hearing on 20 June 2025, as well as by Mr Duggan’s letter of 24 April 2025 in advance of the hearing.

    5. (5)

       It is also clear that even if Mr Wilson received none of the emails which he maintains he did not receive, it was open to him and others within MWP to access the notice of motion and affidavit on JusticeLink.

74. [104]

    MWP has very regularly communicated with Mr Duggan by email, being one of the emails nominated as the “Contact email” on the originating processes in both proceedings (as well as in all four of the motions brought by MWP). The “contact email” on the front page of all four of the motions filed by Michael Wilson & Partners Ltd were the three Kazakhstan email addresses to which Mr Emmott’s documents were sent by email. MWP is to be taken to have consented to the use of email for the service of notices of motion such as contemplated by order 2 made on 11 July 2025, such that r 3.7 of the Uniform Civil Procedure Rules 2005 (NSW) is engaged, read together if necessary with s 8 of the Electronic Transactions Act 2000 (NSW).

75. [105]

    Mr Emmott’s applications were made by notice of motion. Insofar as they sought orders against Michael Wilson & Partners Ltd, which had been the applicant for the reviews of orders for security for costs made by McHugh JA and Basten AJA in appeals brought by it, and had also applied to vacate the hearing of those applications, all of which applications had failed, service could be effected by email sent to the nominated address on the originating process.

76. [106]

    Finally, it is clear that Mr Wilson has actually and personally had all of the documents since 16 August 2025. On any view, MWP and Mr Wilson have had more than three weeks to respond, rather than the 14 days originally envisaged. If there were any non-compliance, there can have been no prejudice, and there is an overwhelming case for dispensation with the rules pursuant to s 14 of the Civil Procedure Act.

77. [107]

    In light of the outcome of the motion against Mr Wilson personally, it is unnecessary to address how the obligations of service relate to a third party, including a third party who is the solicitor acting for a party.

The substance of the application

1. [108]

   Mr Emmott seeks orders that the costs of the motions dismissed by this Court be awarded on an indemnity basis. Section 98(1)(c) of the Civil Procedure Act authorises such an order.

2. [109]

   All four of the applications – being the applications for review of the orders that MWP provide security for Mr Emmott’s costs in amounts of $20,000 and $15,000, and the applications to vacate the applications for review – were hopeless. It is sufficient to say the following:

   1. (1)

      It is absurd to think that any review of the discretion to order security for costs of applications brought by a British Virgin Islands company, which was unable to adduce clear evidence of assets against which an Australian costs order could readily be enforced, would result in lesser amounts of security, or no security, being ordered. MWP did not seek to demonstrate that the amounts of security were excessive having regard to the likely cost of defending the applications for leave.

   2. (2)

      It is equally absurd to think that this Court would permit MWP to adjourn its own applications for review pending a hearing in August in an English court, thereby increasing delay and costs contrary to s 56 of the Civil Procedure Act, on the basis that as a result of that hearing, MWP’s position would be confirmed. (Indeed, with the benefit of the hindsight now contained in Mr Wilson’s 7th affidavit, it is clear that the hearing did not resolve the dispute, but that hindsight is unnecessary to conclude that the application to vacate was hopeless.)

   3. (3)

      Further, the manner in which the applications were prosecuted, by adducing hundreds of pages of irrelevant material, by failing to adduce the most relevant material (notably, a current bank statement of MWP’s bank account at an Australian bank), and by pressing a claim that McHugh JA should have disqualified himself when no such application was made to him, are further reasons for indemnity costs to be ordered.

3. [110]

   We shall order costs on an indemnity basis.

4. [111]

   Section 98(4)(c) of the Civil Procedure Act authorises the Court to make a costs order which specifies a gross sum:

5. [112]

   The provision confers a wide discretion. The applicable principles may be seen in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820] and Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 at [30]-[38]. In Hamod at [816], Beazley JA said:

6. [113]

   Beazley JA added at [817] that:

7. [114]

   This is a plain case for the Court exercising its discretion under s 98(4)(c) that costs be paid in a specified gross sum. Based on the way all four of the applications made by MWP were prepared and prosecuted, any assessment of the costs would likely involve needless time and complexity, vastly exceeding the amount at stake. Against this, Mr Wilson says that “[t]he only proper, safe and reliable way forward and order [sic] is for all and any alleged costs to be taxed, assessed and certified” (7th affidavit, para 44; 8th affidavit, para 102). We do not agree.

8. [115]

   The first point mentioned by Beazley JA in the passage from [816] reproduced above, namely, the relative responsibility of the parties, is especially relevant in a case like this. There is a significant difference between Mr Emmott incurring costs by choosing to bring two applications for security for costs for short appeals or applications for leave to appeal, and Mr Emmott incurring costs by responding to MWP’s application to review the orders that it provide modest amounts of security.

9. [116]

   For that reason, it is appropriate to consider at the same time the applications for gross sum costs orders of (a) the applications by Mr Emmott for security for costs in the first instance and (b) MWP’s unsuccessful review.

10. [117]

    It is a little unusual for this Court having dismissed an application for review to be asked to make a gross sum costs order for the proceedings at first instance: see Wormald v Maradaca Pty Ltd [2021] NSWCA 307 at [16] and Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) at [57]. However, it is appropriate in this case to take that course. For one thing, the costs have all been incurred in proceedings in the Court of Appeal. For another, Basten AJA has ceased to hold an appointment as an Acting Judge of Appeal, having turned 78 (although by reason of s 37(3A) of the Supreme Court Act 1970 (NSW) he is entitled to “despite the expiration of the period of the person’s appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period” and for that purpose is taken to continue to be a Judge). Thirdly and most importantly, there is considerable overlap in the evidence relied upon in each application. The Court as presently constituted has already reviewed the decisions of both McHugh JA and Basten AJA, and it would be inefficient to the parties and to the Court for there to be three separate applications made to the Judges of Appeal who heard the applications for security for costs at first instance and also to the three Judges of Appeal who reviewed each application.

11. [118]

    However, we must first address various submissions advanced by Mr Wilson.

12. [119]

    Mr Wilson’s 7th and 8th affidavits propound a number of arguments against the order of costs.

13. [120]

    In paragraph 39 of the 8th affidavit, it is said that Mr Duggan’s affidavit of 1 August was not “filed, approved, stamped, sealed and served in both Reviews & Appeals, in breach of the CPA, the UCPR and the law and, accordingly, are inadmissible”. A similar point is made in paragraph 87, concerning Mr Duggan’s 4 August affidavit. We disagree.

14. [121]

    In the 7th affidavit, under the headings “The Respondent has misled this Court and the Court below throughout” (paragraphs 11-22), “The Respondent is a judgment debtor and debtor of MWP in all jurisdictions and cannot claim costs and security for costs” (paragraphs 23-27) and “MWP is the clear overall winner” (paragraphs 28-30), there are reprises of arguments which Mr Wilson has previously sought to develop. They are not relevant to costs, save in relation to Mr Emmott’s application for an order that costs be paid “without deduction or set-off”, which we shall in due course address. The same is true of the substantially similar points in paras 31-36 and 95 of Mr Wilson’s 8th affidavit.

15. [122]

    Under the heading “[t]he Respondent has no actual or genuine liability for costs and never has had” in Mr Wilson’s 7th affidavit, it is asserted that Mr Emmott is unable to incur any actual and genuine liability to lawyers, because of his impecuniosity and because he was unable to satisfy the implied warranty of being ready, willing and able to perform. This is developed in the 8th affidavit, by reference to the absence of proof of payment (paras 40, 43). We do not agree. It is sufficient to note that an impecunious person can validly enter into a conditional costs agreement, which is sufficient for the purposes of the law of New South Wales to engage the indemnity principle.

16. [123]

    Mr Wilson’s 8th affidavit also asserts that some pages of the disclosure letters and costs agreements have not been signed (paras 41-42), and says that he has called for inspection and testing of the originals, which have not been supplied. Indeed, at para 77 he asserts that “[i]n MWP’s opinion, this purported contract is a ‘sham’”. We do not accept these submissions, which are insufficient to ground the allegation of sham, or to impugn the validity of the documents.

17. [124]

    Mr Wilson maintains that “Mr Baird does almost all the work with the Judgment Debtor, and not Mr Duggan, so that most of Mr Duggan’s alleged time and costs are not properly claimable and recoverable” (8th affidavit, para 44). Mr Wilson then states at length, in a paragraph occupying an entire page, that the position “is very much a repeat and mirror situation” of what Mr Wilson says occurred many years ago, in the United Kingdom, concerning Messrs Robinson and Shepherd (8th affidavit, para 45). After setting out details, Mr Wilson says that MWP “believes the same tactics and strategy are being deployed in Australia”, and the point of the gross sum costs order is to avoid “the strictures and scrutiny of the process of taxation, assessment and certification”. We disagree. The costs sought are relatively small. The costs of assessment would be disproportionate to the amount of the costs at stake, and may well exceed those costs. As will be seen below, we shall adopt a significant discounting to some of the claimed costs, but not on the basis put forward by Mr Wilson, which amounts to assertions unsupported by evidence.

18. [125]

    Mr Wilson also mentions (7th affidavit, paras 33 and 34) proceedings in the Commercial Court in London concerning Mr Emmott’s liability for costs. We do not accept the proposition that that is relevant to the exercise of the discretion to make orders as to costs in this jurisdiction.

19. [126]

    Mr Wilson makes an elaborate submission based on Mr Emmott’s stated address, and dealings made many years ago (7th affidavit, para 37; 8th affidavit, paras 72, 76), which states:

20. [127]

    Even if there is an error in Mr Emmott’s address, that does not invalidate the costs agreements.

21. [128]

    Mr Wilson also states in his 7th affidavit that there is no evidence of payments being made by Mr Emmott to his lawyers (para 37). He goes on to say that Messrs Baird and Duggan “will only look to get paid from monies extorted from MWP” (7th affidavit, para 39). The failure to comply with the indemnity principle is also prominent in Mr Wilson’s 8th affidavit (paras 61, 71, 72). Putting to one side Mr Wilson’s choice of verb, even if the agreement were one which was wholly conditional in the sense that there was no obligation upon the client to pay until and unless a favourable costs order was made, that does not stand in the way of the making of a costs order.

22. [129]

    Mr Wilson also says at length that there was no evidence of payment of Mr Baird’s fee notes, or that they were provided to Mr Emmott. He suggests that they are “even financing and paying out-of-pocket costs and expenses from their own monies” (8th affidavit, para 67; see also para 61). None of this stands in the way of the making of a gross sum costs order.

23. [130]

    Mr Wilson also says that “MWP will wish to cross-examine Mr Duggan and Mr Baird” as well as Mr Emmott, on the absence of any actual or genuine liability for costs (8th affidavit, para 98). No affidavits from Mr Baird or Mr Emmott were read, and to that extent Mr Wilson’s application is misconceived. Two affidavits by Mr Duggan have been read, but MWP does not have an entitlement to cross-examine on an interlocutory application for special costs orders. The application is refused.

24. [131]

    Paragraphs 90-96 of Mr Wilson’s 8th affidavit are, both in form and in substance, submissions responding to those of Mr Baird. They are as follows:

25. [132]

    It will be clear that we do not accept the submissions in paragraphs 90-93 and 95-96. It is unnecessary to express a view on the submission in paragraph 94.

26. [133]

    Mr Emmott incurred:

    1. (1)

       solicitor’s costs of $11,336 plus counsel’s fees of $8,150 plus disbursements of $748 in obtaining an order for security for costs from McHugh JA, and

    2. (2)

       solicitor’s costs of $7,848 plus counsel’s fees of $9,500 plus disbursements of $1,496 in obtaining an order for security for costs from Basten AJA.

27. [134]

    Mr Duggan is a sole practitioner. His costs agreement with Mr Emmott is in evidence. His hourly rate of $545 is at the bottom of the range of rates for practitioners with more than 10 years of experience (he has been in practice for 44 years) in the Guideline dated 24 October 2023 issued by the Costs Assessment Rules Committee. (Mr Duggan has proceeded on the view that because Mr Emmott resides overseas, his fees do not attract GST.) Mr Wilson complains that Mr Duggan’s rates are excessive (8th affidavit, para 50) but we disagree, subject to one qualification. Mr Duggan personally undertook all aspects of the legal work done at the solicitor level, including many tasks which could suitably have been done by a junior solicitor or even a paralegal (for example, “[f]inalising affidavit and collating and marking annexures” and “[a]ttending to file notice of motion for security for costs and affidavit of PJ Duggan”). That is one reason the amounts claimed need to be discounted.

28. [135]

    Mr Baird is a senior junior. His costs agreement is in evidence. His daily and hourly rates (of $5,000 per day and $600 per hour exclusive of GST) are reasonable. His costs agreement is conditional, and reserves to him the right to charge an uplift of 25%. Mr Wilson complains that this was not mentioned by Mr Duggan, but none of Mr Baird’s invoices charge for an uplift. Mr Wilson also complains that his rates are excessive (8th affidavit, para 51), but we disagree, subject to a similar qualification. Some aspects of the work undertaken by Mr Baird fall into the same category as Mr Duggan. It would be wrong for MWP to be ordered to pay Mr Emmott amounts of costs calculated by reference to Mr Baird (as opposed to a more junior practitioner) when he appeared before the Registrar (he charged $600 in each proceeding on 2 June 2025), or any amount for the costs incurred when appearing to take judgment (he charged $300 in each proceeding on 11 July 2025).

29. [136]

    Taking a broad approach, the steps undertaken appear reasonable. We do not accept Mr Wilson’s contention that they are “clearly grossly excessive and vastly disproportionate” (8th affidavit, para 47), bearing in mind the need for evidence and the hearing days involved, although we shall return below to the issue of proportionality. Mr Wilson repeatedly asserts that the items charged “are clearly excessive and bear no resemblance to reality” (8th affidavit, paras 56, 58, 60) or “bear very little resemblance to reality” (8th affidavit, paras 55, 57, 69), but we disagree. It is apparent from the itemisation that the work was increased by the need to review and respond to numerous emails sent by Mr Wilson. The application heard and determined by Basten AJA should have been less costly than that heard and determined earlier in the year by McHugh JA, because many of the issues cover the same ground, and indeed that is reflected in a reduction in Mr Duggan’s costs. However, that application encountered further complexities introduced by MWP, notably a substantial notice to produce, which Basten AJA wholly set aside, for reasons given at [8]-[13], and that is reflected in the greater cost of counsel.

30. [137]

    But that does not mean that anything like those amounts should be recoverable.

31. [138]

    Mr Emmott was the moving party. He obtained the benefit of orders for security for costs, in the amounts of $15,000 and $20,000. However, those orders were obtained at a cost of $39,078. That is to say, Mr Emmott spent more in obtaining orders that MWP supply security for costs than the security that was in fact ordered. This has a direct effect on the discretion to make a gross sum costs order.

32. [139]

    It is to be borne firmly in mind that the whole point of an application for security for costs by a respondent to an appeal is to improve the respondent’s position in respect of costs in the event that the respondent obtains a favourable costs order when the appeal is determined. The premise of the application is that there may or will be difficulties in enforcing such a costs order. It is antithetical to the purpose of security for costs to spend more in obtaining an order for security for costs than the security that is provided. This has a direct bearing upon the assessment of costs, or the making of a gross sum costs order.

33. [140]

    This reflects a common phenomenon in the Court of Appeal. It is not difficult for more time and money to be spent on a security for costs application than the time spent defending a one day appeal or application for leave to appeal. It is easy to see why that is so. The defence of an appeal will typically be able to take advantage of the fact that the same solicitors and counsel who ran the trial will have an understanding of the evidence and findings and legal principles that will be at the forefront of an appeal. Further, the costs of defending an appeal are relatively small, bearing in mind that ordinarily there is no fresh or further evidence, and the appellant bears the burden of preparing appeal books, formulating a notice of appeal, and supplying submissions in chief and in reply. On the other hand, advancing an application for security for costs invariably requires a new affidavit, ordinarily prepared by a relatively senior solicitor, and a further hearing on issues which may well not have arisen hitherto.

34. [141]

    This Court is required by s 60 of the Civil Procedure Act to implement the practice and procedure of the Court with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

35. [142]

    The parties and their lawyers are also subject to obligations to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The real issues in the proceedings commenced by MWP in the Court of Appeal are whether either Schmidt AJ or Hammerschlag CJ in Eq made appellable error in decisions concerning a partial stay, a refusal to vacate, and final orders concerning the existence of a partnership. The decisions to date have led to thousands of pages being reproduced, tens of thousands of dollars of costs being consumed, at least three days of court time consumed, four substantial judgments produced, and at least seven motions being filed and determined, without any steps being taken to advance let alone resolve those issues some seven or eight months later.

36. [143]

    It is very difficult to reconcile what has been summarised above with the obligations upon the litigants, their lawyers and this Court in Part 6 of the Civil Procedure Act.

37. [144]

    It may be said that any respondent to an appeal brought by an offshore appellant has an entitlement to seek security for costs. As the decisions below illustrate, Mr Emmott was entitled to take that course. The fact that MWP opposed Mr Emmott’s applications led to costs orders in his favour. But none of that entitles this Court to disregard the need for proportionality in the costs which are ordered, or to facilitate a process whereby the costs of interlocutory applications may exceed the costs of prosecuting the appeal itself.

38. [145]

    The foregoing reflects what was said by this Court in Salmon v Albarran (No 2) [2025] NSWCA 115 at [25]-[28], concerning a similar application where the largest single component of the costs was a successful application for security for costs:

39. [146]

    The position is similar here. Mr Emmott has obtained the benefit of orders which require MWP to provide security for costs in the amount of $35,000 if the applications to appeal from the orders made by Schmidt AJ and Hammerschlag CJ in Eq are to proceed. Accordingly, if the applications fail and he obtains a costs order in his favour, he will more readily be able to recover up to $35,000 of those costs. However, the price of doing so has exceeded $39,000. There has been no tangible benefit to him. (We note that he has also obtained the benefit of interlocutory costs orders in his favour, but that does not significantly qualify the conclusion that there has been no tangible benefit.)

40. [147]

    Ultimately, on assessment the touchstone for an order of party/party costs (now defined as “ordered costs”) is what is fair and reasonable: Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76. There will be circumstances when it will not be fair and reasonable to require an appellant who has unsuccessfully resisted an application for security for costs to pay more by way of costs than the amount of security which is ordered. Cases where the moving party is worse off, because despite having obtained an order for security for costs, the cost of doing so has exceeded the security ordered, are to be scrutinised carefully in this respect, because they are prima facie examples of where applying ordinary approaches to assessment may not yield a result which is fair and reasonable, having regard to the self-defeating outcome whereby the successful applicant is in fact worse off.

41. [148]

    That said, the costs incurred by Mr Emmott were increased by unsuccessful obstacles put forward by MWP (for example, the notice to produce in the proceedings determined by Basten AJA). The way his Honour dealt with that is, with respect, salutary. His Honour wrote at [12], concerning one forensic purpose of the notice to produce, namely to determine whether Mr Emmott was a debtor, as follows:

42. [149]

    The reasoning in that paragraph is an illustration of a broader principle. Litigants are not free to litigate all issues, especially in doubly or triply adjectival applications such as security for costs of applications to seek leave to appeal from interlocutory decisions concerning the granting of a stay or the vacation of a hearing date. To the contrary, litigants and their lawyers are under a duty to assist the court in facilitating the just, quick, and cheap resolution of the real issues in the proceedings.

43. [150]

    We return to the task of quantifying the gross sum costs order, in relation to the applications determined by McHugh JA and Basten JA. The actual costs were some $39,000. They must be discounted, in part because of the high hourly rates charged for work that could have been done by less senior practitioners, in part because there will always be a discount in applications such as this, but mostly because they are too high having regard to the security ordered. That said, the costs will have been increased by the approach to litigation adopted by MWP (for example, its notice to produce). We consider that costs in the amounts of $7,500 in each case are appropriate.

44. [151]

    Fixing upon a number in a case such as this is necessarily somewhat impressionistic. To be as transparent about this as we can, if the same costs had been incurred in relation to a heavy appeal set down for five days where security of say $200,000 was ordered, such that the application secured a tangible benefit and the qualifications addressed above were inapplicable, then the ordinary discounting of the $39,000 in fact incurred would result in gross sums of in the order of $28,000-$32,000. However, because we do not consider that it is fair and reasonable for ordered costs consequent upon an application for security for costs to approximate or exceed the amount of security ordered, there being in those circumstances no tangible benefit to the successful applicant for security, we apply an additional steep discount to reduce the amount to something which is proportionate to the security ordered, although bearing in mind that some of Mr Wilson’s conduct has increased the costs.

45. [152]

    Turning to the applications for review brought in this Court, Mr Emmott had no choice but to respond to the motions seeking review and vacation of the hearing date.

46. [153]

    The actual costs incurred were $24,217 for the proceedings seeking review of McHugh JA’s order, and $13,954.50 for the proceedings seeking review of Basten AJA’s order. In some cases where there is complete overlap (for example, solicitor’s and counsel’s fees for the hearing day), half of the amount has been allocated to each matter (thus Mr Baird has billed $2,750 for each proceeding on 20 June 2025).

47. [154]

    The costs are relatively high bearing in mind what was involved, but that is a consequence of the amount of material adduced by Mr Wilson, which was wholly out of proportion to what was involved. Save for the work which could have been done by less senior practitioners, all of the costs appear to have been reasonably incurred. Bearing in mind that qualification, we would reduce the costs incurred by both practitioners by some 10%, resulting in amounts of $21,800 (0.9 x ($12,317 + $11,900)) and $12,500 (0.9 x ($5,504.50 + $8,450)) in proceeding 416114 and 449432 respectively. Bearing in mind that in the assessment of an indemnity costs order, a reduction in the order of 5% upon solicitors’ costs is ordinarily applied. We conclude that costs should be ordered in amounts of $21,000 and $12,000.

48. [155]

    Mr Emmott seeks orders that the gross sums costs orders be paid “without deduction or set off”, and that they be paid within 14 days. There is no basis for any such order.

49. [156]

    A gross sum costs order, made pursuant to s 98(4)(c) as an alternative to costs assessment, produces substantially the same result as assessment. The order will support a judgment debt in the amount of the order, and may be executed in the same ways (including garnishee, application to wind up or writ of execution). Whether MWP is entitled to a set off is something that cannot be determined in the abstract. It will turn on the mode of execution, and perhaps also the place where that occurs. It cannot be determined on an application such as this.

50. [157]

    The costs the subject of all these orders are interlocutory. No good reason has been put forward to depart from the ordinary rule (UCPR r 42.7) that they not be presently enforceable. Indeed, no submissions are directed to this by Mr Emmott. If MWP supplies security and the appeals are heard and determined favourably to MWP, MWP may be expected to obtain a costs order in its favour, and a set-off will apply. On the other hand, if MWP fails to provide security, or for some other reason the appeals are dismissed, then these orders will be enforceable in the usual way.

51. [158]

    Mr Emmott also seeks orders in each proceeding that if the costs are not paid within 14 days, the summons seeking leave be dismissed. As well as being contrary to UCPR r 42.7, that application conflates the discretion to order security for costs with the ancillary entitlements of a successful party to the costs of an interlocutory application.

52. [159]

    Mr Emmott also seeks an order that MWP pay the amount of $11,581.50 for the costs of preparing the application for a gross sum costs order. We are not minded to make any such order, bearing in mind the partial success of Mr Emmott on his application and the absence of any tangible benefit in spending more money in obtaining orders for security for costs than the security in fact ordered.

Costs against Mr Wilson personally

1. [160]

   This Court has power to order that Mr Wilson is personally liable for the costs his client MWP has been ordered to pay, both under s 99 of the Civil Procedure Act and in its inherent jurisdiction to regulate solicitors: see Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [123]-[137].

2. [161]

   However, there are two obstacles to exercising that jurisdiction in the present case.

3. [162]

   First, both the Court’s inherent power and that conferred by s 99 turn on Mr Wilson being a legal practitioner. That is why it is not necessary before exercising the power to join him as a party to the proceedings; instead it is sufficient that he has a reasonable opportunity to be heard. To be clear, we are satisfied that Mr Wilson has enjoyed a reasonable opportunity to be heard, for he has been on notice of the application since it was flagged in written and oral submissions at the hearing in June 2025, he has had actual knowledge of the fact that it was made on and from 1 August 2025, he has had access to JusticeLink from that time, and even taking the most favourable view of his evidence about receiving emails, he received the whole of the materials relied upon on Saturday 16 August.

4. [163]

   However, Mr Wilson is no ordinary solicitor. He is a solicitor of whom we hold serious concerns whether he should be permitted to practise in New South Wales. This litigation has been characterised by (a) meritless points raised by him, (b) prolix and needless complexity, (c) the making of serious allegations against judges, the Registrar and practitioners without foundation, and (d) intemperate discourtesy.

5. [164]

   True it is that Mr Wilson is a legal practitioner at present, and subject to s 99 and the exercise of this Court’s inherent jurisdiction. However, all of the reasons which favour the making of a personal costs order overlap with the reasons which warrant the serious step of a referral to the Legal Services Commissioner. That latter course is intrinsically protective. On the other hand, the making of a personal costs order is apt to be punitive. In the particular circumstances of this case, it is inappropriate to do both.

6. [165]

   Secondly, there is at the least a tension between on the one hand a referral of Mr Wilson to the Legal Services Commissioner for investigation as to whether he should cease to be permitted to practise as a solicitor, and on the other hand the exercise of a jurisdiction an element of which is the fact that Mr Wilson is in practice as a solicitor.

7. [166]

   For those reasons, we do not accede to the application for a personal costs order.

Orders

1. [167]

   The result is that Mr Wilson’s informal application to reopen the judgment is refused, and this judgment on the papers will be referred to the Legal Services Commissioner. That referral is based upon the matters raised in this Court’s earlier judgment, and Mr Wilson’s response. However, it will be plain from what has been said in relation to the matters arising when dealing with the application for security for costs that those considerations confirm the appropriateness of the referral.

2. [168]

   On Mr Emmott’s motions, orders for indemnity costs of the applications to review the decisions of McHugh JA and Basten AJA, and gross sum costs for all the costs orders of proceedings in this Court will be made, albeit in substantially smaller amounts than were sought. The other orders sought in the notices of motion will not be made.

3. [169]

   In light of the partial success concerning special costs orders, there should be no order as to the costs of Mr Emmott’s notices of motion, with the intention that the parties and Mr Wilson bear their own costs.

4. [170]

   The Court’s orders are: