Michael Wilson & Partners Limited v Emmott (No. 2)

1. [1]

   In October 2024 I gave judgment on a motion whereby Mr Emmott sought to have the registration of various foreign judgments set aside and/or the proceedings stayed, as well as motions filed by the Company, seeking the registration of further judgments. I concluded that the proceedings had to be stayed until further order: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258. The parties were directed to file proposed orders and submissions about costs, if they could not be agreed.

2. [2]

   Mr Wilson advised by later email sent on behalf of the Company, that the judgment would be appealed because of various alleged errors, which it is unnecessary to explain. That was followed by a further email providing a detailed explanation of other claimed errors, as well as an explanation of a claim that Mr Emmott and his legal representatives had misled the Court and advice that they had been asked to file and serve corrective submissions. None have been filed.

3. [3]

   These are not matters which presently fall to me to deal with.

Orders

1. [4]

   The parties were unable to agree on costs, or the orders necessary to reflect all that had been dealt with in the judgment. The orders Mr Emmott proposed were:

2. [5]

   Those proposed by the Company were:

Costs

1. [6]

   The dispute about costs concerned whether the orders should encompass the costs of the motions to date, or should deal separately with discreet issues.

2. [7]

   The Company’s case was succinctly put in written submissions:

3. [8]

   Mr Emmott’s case was also shortly put:

4. [9]

   I have concluded that there should be no departure from the usual costs order under s 98 of the Civil Procedure Act 2005 (NSW) and r 42 of the Uniform Civil Procedure Rules, that costs follow the event, despite the Court’s undoubted discretion to do so. That being an order in favour of Mr Emmott.

5. [10]

   “Follow the event” refers to the event of the claim or counterclaim, as the case may be, and the practical result of the particular claim over which the parties joined issue: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].

6. [11]

   What was here pursued by the motions was for orders setting aside the judgments which had been registered and/or the stay of the proceedings on the one hand and on the other, registration of further judgments and orders. Both motions were resisted.

7. [12]

   But the parties agreed at the hearing that the registration of some of the judgments in issue had to be set aside and I concluded that the proceedings had to be stayed, given what the parties had joined issue over in the English proceedings which are due to be heard in February 2025. The practical result was that no further judgments have been set aside or registered; the proceedings have been stayed; and the parties will have to be heard further about whatever orders they wish to pursue, once the proceedings in the High Court of Justice, Business and Property Court of England & Wales, Commercial Court are resolved.

8. [13]

   The general rule is that costs will not be apportioned, as the Company seeks: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [25]. Although in an appropriate case, where multiple issues are litigated, the Court may order that a successful party be awarded part only of its costs, with the result that it is deprived of the costs of matters upon which it was unsuccessful, if they took up a significant part of the trial, either by way of evidence or argument: at [24].

9. [14]

   This is not such a case.

10. [15]

    Mr Emmott was successful not only in obtaining agreement that the registration of some of the judgments in issue had to be set aside, but in resisting the registration of further judgments and orders and in obtaining a stay of these proceedings, given:

11. [16]

    I also concluded that the application to set aside the registration of the other disputed judgments and the application to register further judgments and orders, should not be determined before the English proceedings are resolved. That according with the requirements of s 56 and how the resolution of those proceedings should narrow the issues presently lying between the parties in these proceedings: at [100]-[105].

12. [17]

    In the result, I am not satisfied that application of the general costs rule will operate unfairly in this case. I do not consider that Mr Emmott pursued any aspect of his motion unreasonably, or that its pursuit was improperly conducted. He did not fail on any dominant issue, including in respect of the registration of further judgments which the Company pressed, despite the impending hearing in England. By way of contrast, it did not succeed in the case it pursued in respect of either motion.

13. [18]

    In the result I am not satisfied that justice permits it to be accepted that the Company has established that any apportionment of the costs incurred in its resistance and pursuit of the motions to this point is warranted and that a costs order must be made in favour of Mr Emmott.

Orders

1. [19]

   For these reasons I order that:

   1. (1)

      order 3(k) of the Registrar’s 2 February 2024 orders, relating to Items 21 to 24 inclusive referred to in MFI 1, be set aside;

   2. (2)

      these proceedings be stayed until the final determination of the defendant’s 22 July 2022 set off application by the High Court of Justice, Business and Property Court of England & Wales, Commercial Court;

   3. (3)

      the parties confer after the High Court’s judgment is delivered, with a view to identifying the real issues remaining between them;

   4. (4)

      the plaintiff pay the defendant’s costs of the parties’ February and April 2024 motions to date, as agreed or assessed; and

   5. (5)

      the proceedings be listed before the Registrar for further directions at 9.30 am on 11 March 2025, with liberty to apply on 72 hours’ notice in writing, in the event that the High Court’s judgment has not been delivered before that date.