Michael Wilson & Partners Limited v Emmott (No 2)

1. [1]

   ADAMSON JA: On 10 February 2026, I dismissed two notices of motion filed by John Emmott on 20 November 2025 and ordered Michael Wilson & Partners Limited (MWP) to pay the costs of these motions and of MWP’s notice of motion filed on 9 January 2026: Michael Wilson & Partners Limited v Emmott [2026] NSWCA 8. I made directions for Mr Emmott regarding an application for a gross sum costs order.

2. [2]

   The relevant principles were summarised in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] (Bell CJ, Kirk JA and myself), as follows:

3. [3]

   The principal purpose of quantifying costs in a gross sum is to avoid the expense, delay and aggravation of taxation of costs. The benefit to the applicant of such an order is the saving in time and cost. The price for that benefit is that the process is conducted on a broad brush basis, subject to the constraint that there must be a logical, fair and reasonable basis for any such order.

4. [4]

   Mr Crispin of counsel submitted on behalf of MWP that no gross sum costs order ought be made as the quantum of such an order ought be nil. He submitted that, if such an order were made, the quantum would be required to be returned immediately to MWP by the operation of a litigation funding deed entered into on 4 April 2007 (the deed). He submitted that the effect of the deed was that Mr Emmott was required to pay all or any funds received by him from MWP to Thomas Sinclair and that, as Mr Sinclair had assigned his rights under the deed to MWP, the funds would need to be returned to MWP. Thus, Mr Crispin submitted that there was no point in ordering MWP to pay any amount to Mr Emmott since that amount would be required to be returned immediately to MWP. It was on this basis that Mr Crispin submitted that any award of costs higher than nil would be futile.

5. [5]

   It is neither necessary nor desirable, for the purposes of addressing Mr Emmott’s application for a gross sum costs order, to determine the effect of the deed. Just as it is irrelevant when determining whether to make a costs order against a party, that the party may be indigent or insolvent, it is also irrelevant that the deed may operate on any payment made by MWP to Mr Emmott in the manner for which Mr Crispin contended (as to which I express no view).

6. [6]

   In the alternative, Mr Crispin challenged the quantum sought by Mr Emmott and sought that a discount of 15% ought be made. He contended that the evidence relied on by Mr Emmott indicated that Mr Duggan, Mr Emmott’s solicitor, charged for work which could have been done by a paralegal or clerk and briefed Mr Baird of counsel for hearings, including those before a Registrar, in circumstances where counsel was not required.

7. [7]

   Mr Emmott’s evidence of the quantum sought is contained in an affidavit sworn on 17 February 2026 by his solicitor, Mr Duggan. Mr Duggan explained the hourly rates charged, including by Mr Baird, counsel in the matter, and provided his opinion as to the reasonableness of such rates. He also explained the basis of the claim for costs and annexed the itemised invoice issued to Mr Emmott for the relevant work. Further, Mr Duggan opined as to the appropriate discount rate which is generally applied to arrive at an appropriate figure. I accept that Mr Duggan, as an experienced solicitor, is qualified to express such opinions. I also accept that the discounts applied are fair and reasonable.

8. [8]

   I am satisfied that the approach taken by Mr Duggan was logical, fair and reasonable. The litigation between MWP and Mr Emmott is complex and lengthy. Mr Duggan and Mr Baird have been involved in the litigation on behalf of Mr Emmott for a considerable time. I accept that it was appropriate that they conduct the litigation rather than engage others to do so at a lesser hourly rate. Further, although directions hearings before a Registrar may not always require counsel to be briefed to appear, it is not unreasonable in proceedings such as these to brief counsel who is familiar with the matters to appear. Indeed, it may be false economy not to do so. I have made a further slight discount to the amounts proposed (which were already fairly discounted by Mr Duggan, as appears from his affidavit), consistent with the broad-brush nature of the task.

9. [9]

   Allowing for these matters, I consider that the costs orders in 2024/416114 ought be quantified in the sum of $8,500 and the costs orders in 2024/449432 ought be quantified in the sum of $9,500.

10. [10]

    Mr Emmott also seeks that costs of preparing the gross sum application be quantified in a gross sum of $1,690 for both proceedings (or $845 for each). I propose to allow $500 in respect of each proceeding.

Orders

1. [11]

   For the reasons given above, I make the following orders:

   1. (1)

      Order that the costs in order (2) made on 10 February 2026 be quantified in the gross sum of $8,500.

   2. (2)

      Order Michael Wilson & Partners Limited to pay John Emmott’s costs of the gross sum application in the gross sum of $500.

   3. (3)

      (1) Order that the costs in order (5) made on 10 February 2026 be quantified in the gross sum of $9,500.

   4. (4)

      (2) Order Michael Wilson & Partners Limited to pay John Emmott’s costs of the gross sum application in the gross sum of $500.