Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Gross Sum Costs Order

On 22 November 2024, I delivered final judgment (Final Judgment) in this matter: Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Final [2024] NSWSC 1489. The defendant (Emmott) succeeded. Definitions in the Final Judgment are used here. I determined that there was not any partnership between him and Nicholls or Slater. I ordered the plaintiff (MWP) to pay Emmott’s costs of his failed application to adjourn the final hearing referred to in [61] and [62] of the Final Judgment on the indemnity basis and otherwise that MWP pay Emmott’s costs on the ordinary basis. Additionally, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (CPA) I ordered that Emmott is entitled to a specified gross sum instead of assessed costs. This is required and appropriate so as to bring this long-standing litigation to a close.

I directed that within 21 days of 22 November 2024, that is, by 13 December 2024, Emmott file and serve an affidavit with supporting material and a brief outline of submissions motivating the specified gross sum which he contends should be ordered.

I ordered that MWP file and serve by no later than 15 January 2025 any affidavits and a brief written outline upon which it intends to rely should it oppose the gross sum contended for by the defendant. I stood the proceedings over before me to 7 February 2025.

I said that if, after any material had been received, I concluded that I should assess the amount on the papers, I would communicate that to the parties’ respective solicitors.

In accordance with my directions, Emmott filed an affidavit by his solicitor, Mr Peter Joseph Duggan (Duggan), sworn 12 December 2024 and a brief outline of submissions by Mr Baird, of counsel, of the same date.

However, MWP did not serve any affidavits or written outline as directed.

Given the procedural history, particularly MWP’s multiple adjournment applications, it was perhaps predictable that MWP would not comply with my directions and seek an adjournment or extension. The day after the deadline expired, MWP filed in the Registry a notice of motion seeking an extension of time to file and serve any affidavits and written outline until 3 March 2025. As well, MWP filed an affidavit (the 35th) of Wilson sworn on 15 January 2025 in support of the motion.

Much of the affidavit is irrelevant. However, so far as it was pertinent to the adjournment application, its thrust is that Wilson was incapacitated from 15 November 2024 until 9 January 2025. He says he became sick on 15 November 2024 and was hospitalised. After discharge he made daily visits to doctors at a clinic until 30 December 2024.

The application was, to say the least, not burdened with merit.

If Wilson was indisposed at the time of the final hearing, his indisposition was not so acute so as to prevent him from travelling to London between 17 and 20 December 2024 for a hearing. Moreover, he was able, between 18 November 2024 and 17 December 2024 to generate numerous documents and make communications directly with my Chambers. Many (but not all) of these are identified, some with contents, in the Schedule to this judgment.

Wilson’s evidence did not address what prevented him from complying with the directions, given that his incapacity was, on his own evidence, over by 9 January 2025. He has had conduct of these proceedings for years and is a highly experienced legal practitioner whom, one would expect, would have little difficulty in responding to the material relied upon by Emmott in respect of the gross sum costs order.

Wilson provided no evidence of what efforts, if any, were made to comply with the Court’s directions and MWP did not move for an extension until 16 January 2025, after the deadline had expired.

In the end, however, I determined to accede to his application for extra time – until 3 March 2025 – principally because the costs detriment to Emmott was assuaged by an undertaking by Wilson to pay Emmott’s costs thrown away by the indulgence. There will be additional delay, but it will not be extensive, and I imposed a guillotine order on MWP. The costs being claimed by Emmott are not insubstantial. Also, Emmott has his final judgment.

I directed that any reply evidence or submissions from Emmott be filed and served by 10 March 2025.

An affidavit and further submissions both dated 10 March 2025 were received.

Before making the costs assessment, I record that on 5 February 2025, there was referred to me an application, made online, by MWP that Wilson be given leave to appear remotely on 7 February 2025 because its “costs lawyers” were not available as one of their members, Mr Dudman, passed away shortly before “Xmas”, his replacement was otherwise booked and engaged on matters in Queensland and MWP’s costs counsel were not available on the day. I refused the application. My Chambers informed MWP accordingly.

On 5 February 2025 at 11:56am, Wilson emailed my Associate:

Also, on 5 February 2025 at 5:01pm, Wilson emailed my Associate the following email (excluding material attached):

On 6 February 2025, Wilson emailed my Associate saying that he was travelling to Australia to arrive on Friday morning. He requested that the hearing be scheduled for 2pm instead of 10am in case delays occurred. Wilson emailed my Associate the following email (excluding material attached):

In fact, Wilson appeared at 10am and argued the motion.

During the course of argument, he raised the fact that I would not permit him to appear remotely and conveyed that he wished to appear remotely in future. He opposed my dealing with the gross sum costs application on the papers.

He asked me why I would not let him appear remotely.

He has persistently acted unethically by frequently and improperly addressing contentious correspondence on matters of substance including complaints of serious professional misconduct levelled at Emmott’s lawyers, directly to me, via my Associate, without leave and plainly with the intention of influencing my decision-making in these proceedings. The language used by him is, at its lowest, disrespectful to the Court.

His behaviour has offended rule 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) which provides:

More importantly, it has offended the cardinal principle enunciated by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 as follows:

Allowing Wilson to appear remotely would hamper the Court’s ability to supervise his conduct as an officer of the Court. The correspondence from Wilson, which causes the most concern are his emails of 23 November 2024 at 11:28pm, 26 November 2024 at 6:55pm, 29 November 2024 at 4:42am, 1 December 2024 at 10:54pm and 3 December 2024 at 5:21am. It is appropriate to include them in full.

Section 98(4)(c) of the CPA provides:

Apart from the costs order which I made on 22 November 2024, Ball J (as his Honour then was) made orders against MWP on 30 January 2023, 31 March 2023, 28 February 2024 and 28 April 2024. Duggan explains that there was difficulty in separating items of costs between the various costs orders. This does not matter, as I have ordered MWP to pay Emmott’s costs of the proceedings.

On 3 March 2025, at the following times Wilson filed the following:

The expert report is unexceptional and well-prepared.

Wilson’s 38th affidavit repeats some material from earlier affidavits and is directed largely to matters irrelevant to this costs assessment, such as:

In Gabrielle v Abood (No 4) [2023] NSWCA 100 (Bell CJ, Kirk and Adamson JJA), the Court said of the discretion given to the Court by s 98(4)(c) of the CPA to make a gross sum costs order that it is not confined and may be exercised when the circumstances warrant its exercise. The Court went on to say:

The Court will, of course, also bring to bear its own experience with respect to costs.

Duggan provides adequate material in relation to the costs that have actually been incurred by Emmott. Emmott’s total claim (excluding cents) is for:

These figures are eminently reasonable, especially bearing in mind that MWP constantly produces written material which has to be considered and often dealt with. Examples appear above and in the Schedule. If anything, the charges are on the cheap side. The hourly rates are comparatively modest when measured against rates routinely charged by practitioners and seen by the Court in complex matters, of which this is one. Nevertheless, there should be applied a discount of 10% to the solicitor’s fees to reflect the difference between indemnity costs and party and party costs. This would bring the total to $260,726.

There should be applied a further discount of 15% to the total to reflect the fact that MWP does not have the opportunity to challenge the assessment. This results in $221,617. The figure does not take account of the fact that part of the costs to be paid by MWP are on the indemnity basis. (I interpolate that in his most recently served material Emmott claims $230,593.66.)

Remarkably, Mr Jones’ assessment of costs – making various adjustments downward of both the ordinary and indemnity costs components is $216,283 plus $4940 for the gross sum costs application, making a total of $221,223 (a difference of $394 from the discounted amount of $221,617).

I consider that Emmott is entitled to the costs of the gross sum costs application.

Given the de minimis difference between Emmott’s claim discounted and MWP’s assessment, I consider that the appropriate order is that the plaintiff pay to the defendant the sum of $221,200 (being MWP’s figure, rounded down to the nearest hundred - in respect of which MWP can have no complaint) as a gross sum instead of assessed costs.

Between 18 November 2024 and 17 December 2025 my Chambers received numerous written communications from MWP/Wilson, including but not limited to: