Michael Wilson & Partners Limited v Emmott

1. [1]

   ADAMSON JA: The notices of motion which were listed before me for hearing on 5 February 2026 were filed in the context of a commercial dispute between Michael Wilson & Partners Limited (MWP) and John Emmott which has lasted for over a decade and which has been, and is, the subject of litigation between the parties in several courts and several jurisdictions. The longevity and complexity of the dispute was apparent from the detailed description given by Michael Wilson, who appeared on behalf of MWP on 5 February 2026. It is not necessary for the determination of the present applications to summarise his submissions as to the dispute since the ambit of the dispute is not, ultimately, material to the issues for my decision. Further, the allegations made by Mr Wilson in his summary were disputed by Mr Emmott, for whom Mr Baird of counsel appeared. It is not necessary to determine the accuracy of the representations made in the course of Mr Wilson’s submissions.

2. [2]

   There are, relevantly, two proceedings in this Court. In proceedings 2024/416114 (proceedings 114), MWP seeks leave to appeal against orders made by Schmidt AJ on 10 October 2024 and 12 November 2024 in proceedings 2023/279049 (proceedings 049) in the Common Law Division. Relevantly, MWP seeks that proceedings 049 be stayed until the final determination of Mr Emmott’s 22 July 2022 set-off application by the High Court of Justice, Business and Property Court of England & Wales, Commercial Court (the Common Law orders) (Michael Wilson & Partners Limited v Emmott (No. 2) [2024] NSWSC 1435).

3. [3]

   In proceedings 2024/449432 (proceedings 432) in this Court, MWP seeks leave to appeal against orders made by Hammerschlag CJ in Eq on 22 November 2024 and 12 March 2025 (being the date on which the orders were entered) in proceedings 2016/34380 in the Equity Division that, relevantly, there be judgment for Mr Emmott on MWP’s claim and that MWP pay Mr Emmott’s costs in the sum of $221,200 (the Equity Orders) (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 and 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 [2025] NSWSC 179).

4. [4]

   The notices of motion for present determination are:

   1. (1)

      Mr Emmott’s applications in proceedings 114 and 432, filed on 20 November 2025, to dismiss the proceedings on the basis that MWP had neither paid money into Court for security for costs in accordance with the orders made or at all and, further and in the alternative, on the basis that MWP had not paid the amount of $221,200 as a condition of the stay of enforcement of the Equity Orders; and

   2. (2)

      MWP’s application, filed on 9 January 2026, in proceedings 114 to adjourn the hearing of Mr Emmott’s notice of motion referred to in (1) above.

Whether Mr Wilson had a right to appear on behalf of MWP

1. [5]

   I note that the material before me was confined to the Court Books which had been prepared for the notices of motion and an affidavit of Peter Duggan, the solicitor for Mr Emmott, sworn 5 February 2026. (An affidavit sworn by Mr Wilson was filed but not read).

2. [6]

   Before the substantive hearing of the motions began, Mr Baird objected to Mr Wilson appearing for MWP, on the basis that the New South Wales Law Society website did not list him as having a current practising certificate. He relied on the affidavit of Mr Duggan, who deposed to having made a search of the New South Wales Law Society website to ascertain whether Mr Wilson held a current practising certificate and finding that no person of that name was recorded on the website as having a current practising certificate.

3. [7]

   As corporations are obliged to be represented by legal practitioners (Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1), leave is required to permit a corporation to appear by one of its directors. Mr Wilson did not seek leave, maintaining that, whatever the Law Society website said, he was a legal practitioner with a current New South Wales practising certificate. He confirmed that his practising certificate had neither been suspended nor cancelled and remained current. On the basis of his assurances to this effect, I permitted him to appear on behalf of MWP, no question of leave having been raised by Mr Wilson on behalf of MWP.

4. [8]

   Further, as Mr Wilson lives in Kazakhstan and the applications were procedural, I permitted him to appear via Audio-Visual Link.

The orders for security for costs and associated orders

1. [9]

   In early 2025, Mr Emmott sought orders for security for costs of the leave applications in each proceeding in this Court.

2. [10]

   On 14 March 2025, in proceedings 114, McHugh JA made orders which included the following (Michael Wilson & Partners Ltd v Emmott [2025] NSWCA 37):

3. [11]

   On 15 April 2025 Basten AJA made the following orders (Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74) in proceedings 432:

4. [12]

   MWP’s applications for review of these orders were dismissed: Michael Wilson & Partners Ltd v Emmett (No 4) [2025] NSWCA 152. On 9 September 2025, this Court quantified various costs orders made against MWP in favour of Mr Emmott in gross sums of $21,000 and $7,500 (in proceedings 114) and $12,000 and $7,500 (in proceedings 432): Michael Wilson & Partners Ltd v Emmett (No 5) [2025] NSWCA 206

5. [13]

   As referred to above, MWP did not comply with the orders for security for costs within the time provided. Nor did it pay into Court the amount of $221,200 referred to in order (2) made by Basten AJA on 15 April 2025. However, on 2 February 2026, MWP notified the Registrar of this Court that the amounts for security for costs had been transferred to the Court’s account. These amounts were recorded as having been received on 4 February 2026, the eve of the hearing of Mr Emmott’s application for dismissal of the proceedings.

Consideration

1. [14]

   Mr Wilson submitted that it was necessary in the interests of justice that the motions for dismissal be adjourned to permit him to brief new counsel and to instruct that new counsel on the effect of various decisions made by other Courts, including, most pertinently, a decision and orders made by Judge Pelling KC, sitting as a Judge of the UK High Court, on 14 January 2026. He submitted that, such was the complexity of the proceedings and the importance of these orders, an adjournment of at least two months would be required for that purpose.

2. [15]

   It was not necessary for me to hear from Mr Baird as I considered that, for the reasons given below, the applications for leave ought not be dismissed as security for costs had been paid before the determination of the motion. In these circumstances, there was no utility in deferring the hearing of the dismissal motions. It would better facilitate the just, quick and cheap resolution of the real issues in the proceedings to list the leave applications before the Registrar with a view to their expeditious determination by this Court: see s 56 of the Civil Procedure Act 2005 (NSW). Accordingly, in the course of the hearing on 5 February 2026, I dismissed MWP’s application for adjournment of the motion in proceedings 432. Although the motion for adjournment was filed only in that proceeding and not in proceedings 114, it appeared that the application was, in effect, made in both proceedings.

3. [16]

   Mr Baird’s primary submission on behalf of Mr Emmott was that, as the amounts for security for costs had not been paid when the notices of motion were filed, the Court could still dismiss the proceedings for breach of those orders, notwithstanding that the amounts had been received by the Court on the eve of the hearing of the notice of motion. I reject that submission. A failure by a party against whom an order for security for costs has been made to comply with the timeframe stated in the order does not, without more, disqualify the party from providing security for costs at a later date. The usual effect of a failure to provide security within the time frame stipulated in the order for security is that the proceedings are stayed until security is provided. This is commonly expressly provided by the orders for security (as it was in order (3) made by McHugh JA and order (5) made by Basten AJA). A failure to comply with such an order also renders the party which is obliged to provide security susceptible to an application for dismissal of the proceedings under UCPR, r 42.21(3), which provides that the Court may dismiss a proceeding for failure to comply with an order for security for costs.

4. [17]

   A so-called “guillotine order” may be made (that the proceedings are dismissed if security is not provided by a particular date) but such an order is rarely provided at the first available opportunity, absent any default.

5. [18]

   On this basis, I consider that the payment by MWP of the two amounts of security is sufficient to defeat the application for dismissal on the basis of non-compliance with the orders for security.

6. [19]

   Mr Baird also submitted that MWP’s failure to pay $221,200 into Court, as envisaged by order (2) made by Basten AJA, was a default which ought warrant dismissal of proceedings 432. I do not accept that submission. The effect of Basten AJA’s order (2) was that, if MWP wished to have a stay of the order that it pay Mr Emmott $221,200, it would need to pay that amount into Court. However, there was no obligation on MWP to pay $221,200 under order (2). Thus, it cannot be said that MWP was in default of the order. Accordingly, the fact that MWP has not paid $221,200 into Court is not a matter which warrants dismissal of proceedings 432.

7. [20]

   It follows that the primary relief sought by Mr Emmott in his motions for dismissal must be refused.

8. [21]

   However, Mr Emmott also sought an order that the stay ordered by Basten AJA in order (2) be revoked, on the basis that MWP had not paid $221,200 into Court. Mr Baird proposed that this Court make an order that, if MWP failed to pay this amount into Court within 7, or 14, days, order (2) be revoked. I would have been disposed to make such an order. However, Mr Wilson informed me that MWP did not want to avail itself of the stay in order (2). Having regard to this indication and the length of time which MWP has had to pay the $221,200 into Court and has not done so, I am persuaded that it is appropriate that order (2) be revoked, as sought by Mr Emmott.

Costs

1. [22]

   As to costs, Mr Emmott sought the following orders, as a condition of an extension of time to enable MWP to “properly progress its summonses seeking leave to appeal”:

2. [23]

   As a preliminary point, I do not consider it to be apposite to regard MWP as requiring an extension of time. Its proceedings in this Court were stayed as it had not paid security for costs. Now that it has paid the security, the stay has been lifted, with the consequence that its proceedings in this Court can continue.

3. [24]

   Mr Baird submitted on behalf of Mr Emmott that proposed order (a) above ought be quantified in the sum of $16,500, being $8,250 for each proceeding. He submitted that it was appropriate that the costs be quantified in a gross sum to avoid the costs of assessment and in accordance with what had occurred in earlier applications in this Court and in the Court below before Hammerschlag CJ in Eq.

4. [25]

   MWP accepted that it ought be liable for the costs of the applications for dismissal. However, it submitted that the gross sum ought not be assessed on the basis of Mr Baird’s representations as to costs from the bar table as it had not been served with any material quantifying the costs and wanted a chance to consider the quantum. Further, it submitted that it was not appropriate that costs be ordered on an indemnity basis or that they be ordered to be paid forthwith.

5. [26]

   I accept MWP’s concession that MWP ought be liable for the dismissal motions and its submissions that it is too early to quantify such costs in a gross sum and that MWP ought not to be ordered to pay such costs either on an indemnity basis or forthwith. It is appropriate that MWP be liable for the costs of the dismissal motions. It defeated the applications for dismissal by paying security for costs at the eleventh hour, after Mr Emmott had had to bring the applications and incurred the costs of doing so. Further, it was appropriate for Mr Emmott to proceed with the application which included an application for revocation of the stay granted by Basten AJA in order (2).

6. [27]

   I do not accept that it would be appropriate to require MWP to pay forthwith the gross sum costs orders made by this Court on 9 September 2025, as referred to in paragraph (b) above. The usual practice is for such costs to be payable at the conclusion of the proceedings. I am not persuaded that it is appropriate to depart from that practice in the present case.

7. [28]

   As to the costs of the application made by MWP for an adjournment of Mr Emmott’s motion for dismissal, Mr Wilson submitted that the appropriate order was that there be no order as to costs. I reject this submission. The application for adjournment took more than half of the length of the hearing on 5 February 2025. I am not persuaded that there is any reason why the costs of the adjournment application ought not follow the event in accordance with the general rule: UCPR, r 42.1.

8. [29]

   It is not appropriate to quantify the costs of the motions on the basis of a gross sum at this stage as MWP has not had an opportunity to consider the underlying basis for the claim made by Mr Emmott. However, it is desirable that costs be awarded on the basis of a gross sum. Directions will be made to achieve that result. It may be that MWP will agree on the quantum ultimately sought by Mr Emmott, which would obviate the need for further submissions.

Further matters

1. [30]

   I note for completeness that Mr Baird raised a further point in answer to Mr Wilson’s submissions on costs. He relied on findings made by Loukas-Karlsson J in Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 at [65]-[69] that the second addendum to a funding deed between Mr Emmott and Mr Sinclair (an associated party who became bankrupt and whose choses in action were purchased by MWP) did not have the effect of preventing an order for costs being made in favour of Mr Emmott. Mr Baird submitted that this amounted to an issue estoppel or, as I understand it, an estoppel in the nature of that recognised in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142, in which this Court held that it is an abuse of process for a party to seek to re-litigate a point determined against that party in other proceedings. It is not necessary to decide whether it is an abuse of process for Mr Emmott to seek the orders for costs which he seeks since I have decided, on other grounds, that it is not appropriate that the orders for costs be payable forthwith.

2. [31]

   Mr Baird submitted that MWP ought undertake to prosecute its proceedings in this Court expeditiously and sought an undertaking to that effect. MWP, through Mr Wilson, submitted that it had not failed to prosecute the proceedings expeditiously, since they were stayed (as a result of its failure to provide security), and that it was not necessary that it give the undertaking sought. Proceedings in this Court are generally conducted expeditiously. It is usual for a hearing date to be allocated relatively quickly, once the Registrar is satisfied that the matter is ready to be fixed for hearing. The matter of expedition can be dealt with by the Registrar when making directions for the further conduct of the matters.

Orders

1. [32]

   For the reasons given above, I made the following order:

   1. (1)

      Dismiss the notice of motion filed by Michael Wilson & Partners Limited on 9 January 2026 for an adjournment of the notice of motion filed on 20 November 2025 in proceedings 2024/416114 and 2024/449432.

2. [33]

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

   1. (1)

      Dismiss the notice of motion filed by John Emmott on 20 November 2025.

   2. (2)

      Order Michael Wilson & Partners Limited to pay John Emmott’s costs of the notices of motion filed on 20 November 2025 and 9 January 2026 respectively on the ordinary basis.

   3. (3)

      Revoke order (2) made by Basten AJA on 15 April 2025.

   4. (4)

      Otherwise dismiss the notice of motion filed by John Emmott on 20 November 2025.

   5. (5)

      Order Michael Wilson & Partners Limited to pay John Emmott’s costs of the notice of motion filed on 20 November 2025 on the ordinary basis.

   6. (6)

      Direct John Emmott to file and serve any evidence and submissions on which he proposes to rely in support of an application for an order that the costs orders in (2) and (5) above be paid in a gross sum within 7 days hereof.

   7. (7)

      Direct Michael Wilson & Partners Limited to file and serve any evidence and submissions on which it proposes to rely in response to any application referred to in (5) above within 14 days hereof.

   8. (8)

      Direct John Emmott to file any evidence and submissions in reply to his application in (5) above within 18 days hereof.

   9. (9)

      Note that any application for a gross sum costs order will be dealt with on the papers.

   10. (10)

       List the matter before the Registrar for directions on 16 February 2026.