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.
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.
These are not matters which presently fall to me to deal with.
[2]
Orders
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:
"1. Order that Order 3(k) of the Orders dated 2 February 2024 (relating to Items 21 to 24 inclusive referred to in MFI 1) be set aside.
2. Order that these proceedings otherwise be stayed until the final determination of the Defendant's Application in the High Court of Justice, Business and Property Court of England & Wales, Commercial Court (KBD) dated 22 July 2022 for an order that the Defendant is entitled to set off any order for costs made against him in favour of the Plaintiff against the judgment debt the Defendant has against the Plaintiff.
3. Order that the Plaintiff pay the Defendant's costs of:
(a) The Defendant's Notice of Motion filed 23 February 2024; and
(b) The Plaintiff's Notice of Motion filed 6 April 2024 (as subsequently amended); including of the hearings on 12, 13 and 28 August 2024.
4 Relist the proceedings for further directions on February 2025.
5 Liberty to apply on 72 hours' notice in writing."
Those proposed by the Company were:
"1. Order that Order 3(k) of the Orders of Senior Deputy Registrar P. Clayton, dated 2 February 2024, relating to Default Costs Certificate No. DCC/000028/2019, issued by the Senior Courts Costs Office on 12 February 2019, be set aside.
2. Order that these proceedings shall otherwise be stayed, pending the final determination of the Defendant's Application in the High Court of Justice of England & Wales, King's Bench Division, Business and Property Courts, Commercial Court dated 22 July 2022, seeking an order granting the Defendant a right of setoff against the Plaintiff, with respect to the alleged judgment debt the Defendant once had against the Plaintiff.
3. Order that the Defendant pay the Plaintiff's costs in relation to the issue of this Court being found to be the appropriate court with jurisdiction to reciprocally recognise and register the various foreign judgments, rulings, orders, default and final costs certificates issued in favour of the Plaintiff and against the Defendant, on the ordinary basis, to be assessed, if not agreed.
Order 4. that the Plaintiff pay the Defendant's costs of the relief sought in paragraph 2 of the Defendant's Notice of Motion of 22 February 2024, filed on 23 February 2024 on the ordinary basis, to be assessed, if not agreed.
5. Relist the proceedings for further directions on February 2025, after judgment has been handed down by HHJ Pelling KC in the Setoff Application, listed to be heard on 17-18 February 2025 in CL-2014-000916.
6. Liberty to apply on 72 hours' notice in writing."
[3]
Costs
The dispute about costs concerned whether the orders should encompass the costs of the motions to date, or should deal separately with discreet issues.
The Company's case was succinctly put in written submissions:
"3. It needs to be made clear in the orders, for the assistance of the parties and costs assessor (if required), that the costs of obtaining the temporary stay (only through 02.25) of the proceedings formed part (the plaintiff submits a quite small part) of the costs of the proceedings.
4. Most of the written material, oral argument and the bulk of the hearing related to the substance and merits of the issues in the proceedings, the determination of which has been temporarily stayed (only through 02.25). It should be made clear that the costs of all such issues remain open, and available for determination once the proceedings re-enliven in 02.25, and are determined.
5. It is appropriate to recognise in the orders, again for the assistance of the parties and costs assessor (if required), that the only contested issue determined in the proceedings, apart from the temporary stay(only until 02.25) was the discrete issue found (at reasons [74]-[77]) that this Court was, indeed, an appropriate court for the recognition and registration of the judgments. This was contested by the defendant and the plaintiff succeeded on that basal matter. (The continuing recognition and registration on 7 February 2024 of the default costs certificate was not pressed after the granting of permission to appeal concerning it was notified by the EWCA on 23 April 2024.)."
Mr Emmott's case was also shortly put:
"2. In paragraph 106 of Her Honour's Judgment dated 10 October 2024, Her Honour made clear that she intended to make an order that costs should follow the event, namely that the plaintiff should pay the defendant's costs of the applications and of the hearing. There is no occasion to depart from this ruling.
3. Neither is there occasion to depart from the usual rule that the successful party ought to have the whole of its costs.
4. It is not usual to separate out the various issues upon which each party might have had success and apportion the relative costs on an issue by issue basis, except where it can clearly be seen that the costs related to a separate or discrete issue which occupied a substantial part of the hearing time.
5. That is not the case in the present case. The issue as to jurisdiction occupies minimal time during the hearing and was dealt with succinctly by Her Honour at [74]-[78] Judgment. This does not warrant a separate order for costs."
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.
"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].
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.
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.
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].
This is not such a case.
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:
Relevant provisions of the Civil Procedure Act: at [84]-[85].
What was to be heard in England in February 2025 in respect of the disputed set off claim: at [86].
That it would involve unnecessary cost and inconvenience to the Australian community to not grant the stay, given that the parties will be bound by the resolution of their dispute in the English courts in which they have repeatedly litigated with each other.
Further, that it would be contrary to public policy to permit the same matters to be litigated in Australian courts, before the outcome of the English proceedings are known, given what impact that might have on these proceedings: at [87]-[92].
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].
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.
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.
[4]
Orders
For these reasons I order that:
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. 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. the parties confer after the High Court's judgment is delivered, with a view to identifying the real issues remaining between them;
4. the plaintiff pay the defendant's costs of the parties' February and April 2024 motions to date, as agreed or assessed; and
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.
[5]
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Decision last updated: 13 November 2024