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[2026] NSWCA 8
procedural. The adjournment application was dismissed. Emmott's dismissal applications were otherwise dismissed because security had been paid before determination. In proceeding 2024/449432, the conditional...
The Court did not dismiss MWP's leave proceedings because MWP paid the ordered security for costs before the dismissal motions were decided, although it had missed the original deadlines. The Court treated the separate $221,200 payment as a condition for obtaining a stay, not as a payment MWP was independently required to make. Because MWP said it did not want the stay, the Court revoked it. MWP had to pay Emmott's costs of the relevant motions on the ordinary basis, but the Court did not require immediate payment of earlier costs orders.
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2,207 words · generated 08/10/2026
This was a procedural ruling by Adamson JA in two Court of Appeal proceedings, not a determination of MWP’s underlying applications for leave to appeal. MWP sought leave to appeal orders made in separate Common Law and Equity Division proceedings. The applications before Adamson JA concerned security for costs, a conditional stay of enforcement, an adjournment request, and costs.
6 cited instruments linked from this judgment.
In proceeding 2024/416114, MWP sought leave to appeal orders made in the Common Law Division. In proceeding 2024/449432, it sought leave to appeal orders made in the Equity Division, including an order that MWP pay Emmott $221,200 in costs: [2]-[3]. The judgment notes that the wider commercial dispute had lasted over a decade, but says its detail was not material to the motions being decided: [1].
Emmott had obtained security-for-costs orders in both proceedings. On 14 March 2025, MWP was ordered to provide $20,000 security within 14 days in proceeding 2024/416114. That proceeding was stayed until the security was provided: [10]. On 15 April 2025, in proceeding 2024/449432, MWP was ordered to provide $15,000 security within 28 days, and the proceedings were also stayed until security was paid: [11]. A separate order provided that enforcement of the $221,200 costs order would be stayed if MWP paid that amount into Court: [11].
MWP did not pay within the security deadlines and did not pay the $221,200 into Court. Emmott applied to dismiss both proceedings, relying on the security defaults, and also sought relief concerning the unpaid $221,200. MWP paid the security amounts shortly before the hearing: the Registrar recorded receipt on 4 February 2026, the day before the motions were heard: [13]. MWP also sought an adjournment, saying it needed time to brief new counsel and address other court decisions: [14].
The Court refused dismissal based on the security defaults, revoked the conditional stay in proceeding 2024/449432, dismissed the adjournment request, and made costs orders. The underlying leave applications remained to be dealt with separately.
The key distinction was between missing a security deadline and being permanently unable to provide the security later. At [16], Adamson JA rejected the argument that the Court could still dismiss simply because payment had not been made when Emmott filed his motions. A missed deadline did not, without more, disqualify MWP from providing security at a later date. Because the amounts had been received before the Court determined the motions, payment defeated dismissal on that ground: [18].
The judgment describes the ordinary consequence of failing to provide security within the ordered timeframe as a stay until security is provided: [16]. It also recognises that UCPR r 42.21(3) allows the Court to dismiss a proceeding for failure to comply with an order for security for costs. The two points operate together. Non-compliance can expose a party to a dismissal application, but dismissal does not follow automatically where the security is paid before the application is determined.
The Court also mentioned “guillotine” orders, which specify that proceedings will be dismissed if security is not provided by a particular date. Adamson JA observed that such an order is rarely made at the first available opportunity, absent any default: [17]. The judgment does not treat the security orders before it as guillotine orders. Instead, the orders expressly stayed the proceedings until security was paid: [10]-[11].
The $221,200 issue was analysed separately. Basten AJA’s order made a stay of enforcement conditional on MWP paying the amount into Court. Adamson JA construed that as an option: if MWP wanted the stay, it had to pay. The order did not independently compel MWP to pay the amount: [19]. Accordingly, the non-payment was not a default that warranted dismissal of proceeding 2024/449432. But when Mr Wilson said MWP did not want to use the stay, the Court considered it appropriate to revoke the stay: [21].
The adjournment request failed because it would not assist in determining the motions. Once the Court concluded that the security payment defeated the relevant dismissal ground, there was no utility in deferring the hearing. Adamson JA considered that listing the leave applications for directions would better facilitate the just, quick and cheap resolution of the real issues, referring to s 56 of the Civil Procedure Act 2005 (NSW): [15].
Costs reflected both the result and the work the motions had caused. MWP accepted it should bear the costs of the dismissal applications. The Court accepted that position because MWP paid only at the “eleventh hour”, after Emmott had incurred the costs of bringing the applications: [25]-[26]. The Court did not order indemnity costs or immediate payment. It ordered costs on the ordinary basis and allowed further material to be filed about whether they should be quantified as a gross sum: [26], [29].
The judgment applies the existing procedural framework identified in its reasons. It refers to UCPR r 42.21 as the source of the security-for-costs orders and the possibility of dismissal for failure to comply: [10]-[11], [16]. It also describes the usual effect of missing a deadline as a stay until security is provided: [16]. It does not set out the full text of the rule or purport to replace that rule with a new test.
The practical clarification in this ruling is about timing. On the facts before Adamson JA, late payment received before determination of the dismissal motions was sufficient to defeat dismissal based on the security default: [18]. This was not a finding that late payment will always prevent dismissal. The judgment qualifies its statement with “without more”, recognises the dismissal power under r 42.21(3), and notes the possible use of a guillotine order: [16]-[17]. The result therefore depends on the terms of the relevant orders and the circumstances before the Court.
The judgment also clarifies the difference between a mandatory payment obligation and a conditional procedural benefit. The order concerning $221,200 did not require MWP to pay simply because it existed. Payment was the condition for obtaining a stay of enforcement. The Court treated the choice not to pay as meaning MWP could not retain that stay, rather than as a breach requiring dismissal: [19]-[21].
As to costs, the decision records the Court’s usual practice that costs orders of the type at issue are payable at the conclusion of proceedings. The judge was not persuaded to depart from that practice: [27]. This ruling did not finally quantify the new costs. It directed evidence and submissions on a possible gross-sum order and noted that the matter would be dealt with on the papers: [29], [33].
The text does not establish a broader change to the law before this decision or provide later appellate treatment. It is safest to understand it as a fact-specific application and explanation of the procedural consequences of late security payment and a conditional stay.
At [16], Adamson JA said a missed timeframe “does not, without more, disqualify the party from providing security for costs at a later date.” In plain English, missing the original deadline does not itself mean the party can never provide the security. Here, the payment had arrived before the Court decided whether to dismiss.
The same paragraph states that the “usual effect” of failing to provide security on time is that proceedings are stayed until it is provided. This means the proceedings are generally paused while security remains unpaid. The Court also noted that UCPR r 42.21(3) permits an application for dismissal. A stay and the possibility of dismissal are therefore distinct procedural consequences.
At [18], the judge concluded that payment of the two security amounts was “sufficient to defeat the application for dismissal” based on non-compliance. That was the direct application of the principle to the timing in this case: the amounts were received on 4 February, before the 5 February hearing: [13].
At [19], the judgment explains that MWP had to pay $221,200 only “if” it wished to obtain the stay of enforcement. In plain English, the payment was the price of using the stay, not a separate order compelling payment. This is why the Court rejected non-payment as a basis for dismissing the appeal proceeding. The Court then revoked the stay after MWP said it did not wish to rely on it: [21].
At [15], the adjournment request was refused because there was “no utility in deferring” the dismissal motions. The Court considered the state of the motions and the appropriate next step, rather than deciding the wider dispute. It pointed to directions before the Registrar as a way to progress the leave applications.
On costs, [26] explains why MWP had to pay Emmott’s costs of the dismissal motions: it had paid security at the eleventh hour, after Emmott had needed to bring the applications. But [27] says existing costs orders were not to be paid forthwith, because the usual practice was payment at the end of proceedings. The distinction is between liability for the costs and the time when payment is due.
The ruling is most directly relevant to a procedural situation with these features: a court has ordered security for costs by a specified date; the order stays proceedings pending payment; the deadline is missed; and the security is paid before a dismissal application is determined. On those facts, this judgment supports the proposition that late payment can defeat dismissal based on the missed security deadline: [16], [18].
The outcome may not translate directly where the order expressly provides for automatic dismissal, where the security remains unpaid when the Court determines the application, or where there are additional circumstances beyond the bare fact of late payment. The judgment expressly recognises both the dismissal power and the possibility of a guillotine order: [16]-[17]. It does not decide how every differently worded order would operate.
The ruling is also relevant where an order gives a party a stay on condition that it pay a specified amount. The important question is whether the order imposes payment as an obligation or makes payment a condition of receiving the stay. Here, the Court read the order as conditional and held that non-payment did not warrant dismissal: [19]. When the party said it did not want the stay, revocation was appropriate: [21].
The decision also provides a costs example where a party’s late compliance prevents dismissal but the opposing party has already incurred costs bringing the motion. The Court ordered the late-paying party to bear the relevant costs on the ordinary basis, while declining indemnity costs and immediate payment of earlier costs orders: [25]-[29].
The supplied judgment does not cite any later decision treating this ruling as applied, followed, distinguished, or otherwise considered. The judgment was decided on 10 February 2026, and the material provided contains no subsequent history.
The cases listed in the judgment are earlier decisions, not later treatment of this ruling. They include the orders that created the security and conditional-stay arrangements, and earlier costs and procedural decisions involving the parties: [2]-[3], [10]-[12]. The judgment also refers to Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 and Rippon v Chilcotin Pty Ltd at [30] in connection with an argument about issue estoppel or abuse of process. Adamson JA expressly said it was unnecessary to decide that point because the application for immediate payment of costs failed on other grounds.
Accordingly, the source supports describing the ruling’s reasoning and result, but not asserting how later courts have adopted or limited it.
The judgment does not define the limits of the “without more” qualification at [16]. It resolves the case where the ordered security was received before the dismissal application was determined, but does not specify what additional circumstances might make late payment insufficient.
It also does not decide the effect of a guillotine order that expressly provides for dismissal after a fixed date. The judge observes that such orders are rarely made at the first available opportunity absent default, but does not analyse the enforcement of one in a case where the deadline has passed: [17].
The reasons do not determine whether, or in what circumstances, an application for dismissal would succeed if security remained unpaid when the application was heard. The Court identifies the power in UCPR r 42.21(3), but the security in this case had been received before the hearing: [13], [16]-[18].
On the $221,200 order, the decision turns on the wording and purpose of the particular order as Adamson JA construed it. It does not decide how an order framed as an unconditional payment obligation, rather than a condition for a stay, would be treated. Nor did the Court decide the separate abuse-of-process or issue-estoppel argument raised in relation to costs: [30].
Finally, the new costs were not quantified in the judgment. The Court directed the parties to file material concerning a gross-sum costs order, with the application to be dealt with on the papers: [29], [33]. The later determination of quantum is not included in the supplied source.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Michael Wilson & Partners Limited v Emmott [2026] NSWCA 8
Hearing dates: 5 February 2026
Decision date: 10 February 2026
Before: Adamson JA
Decision: In proceedings 2024/416114
(1) Dismiss the notice of motion filed by John Emmott on 20 November 2025.
(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.
In proceedings 2024/449432
(3) Revoke order (2) made by Basten AJA on 15 April 2025.
(4) Otherwise dismiss the notice of motion filed by John Emmott on 20 November 2025.
(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.
In proceedings 2024/416114 and 2024/449432
(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) 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) Direct John Emmott to file any evidence and submissions in reply to his application in (5) above within 18 days hereof.
(9) Note that any application for a gross sum costs order will be dealt with on the papers.
(10) List the matter before the Registrar for directions on 16 February 2026.
Catchwords: CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs
CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order
CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion
COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice
LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 42.21
Cases Cited: Michael Wilson & Partners Limited v Emmott (No. 2) [2024] NSWSC 1435
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
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
Michael Wilson & Partners Ltd v Emmott [2025] NSWCA 37
Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74
Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Category: Procedural rulings
Parties: Michael Wilson & Partners Limited (Applicant)
John Forster Emmott (Respondent)
Representation: Counsel:
M E Wilson (Applicant)
J Baird (Respondent)
Solicitors:
M E Wilson (Applicant)
Duggan Legal (Respondent)
File Number(s): 2024/416114; 2024/449432
Decisions under appeal
[This headnote is not to be read as part of the judgment]
Preliminary issue: whether Michael Wilson could appear for Michael Wilson & Partners Limited (MWP)
Before the substantive hearing of the motions began, an objection was made on behalf of John Emmott to Michael 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. Mr Wilson confirmed that his practising certificate had neither been suspended nor cancelled and remained current. On the basis of his assurances to this effect, he was permitted by the Court to appear on behalf of MWP on the basis that he was a legal practitioner with a current practising certificate.
The notices of motion for determination were:
(1) Two applications by Mr Emmott in proceedings 114 and 432 to dismiss the proceedings on the basis that MWP had not paid money into Court for security for costs in accordance with the orders made 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 orders made in the Equity Division; or, in the alternative, that the stay of enforcement be revoked as the $221,200 had not been paid; and
(2) An application filed by MWP in proceedings 114 to adjourn the hearing of Mr Emmott’s notices of motion referred to in (1) above.
MWP neither complied with the orders for security for costs within the time provided nor paid into Court the amount of $221,200. However, on 4 February 2026, the eve of the hearing of Mr Emmott’s application for dismissal of the proceedings, MWP’s payment of the amounts for security for costs was recorded as having been received by the Court.
Mr Emmott pressed the motions for dismissal on the basis 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 the amounts had been received by the Court before the hearing of the notice of motion.
MWP pressed the motion for adjournment of Mr Emmott’s motions.
The Court (Adamson JA) held, dismissing the applications in part**:**
Dismissal applications
(1) 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: at [16].
Revocation of conditional stay
(2) The conditional stay was revoked as MWP confirmed that it did not want to avail itself of the stay and had not paid, and would not pay, the $221,200 into Court: at [21].
Adjournment application
(3) There was neither reason for, nor utility in, deferring the hearing of the dismissal motions: at [14]-[15].
Costs
(4) Although MWP ought be liable for the costs of the dismissal applications and it is appropriate for those costs to be quantified in a gross sum, it is not appropriate to require MWP to pay those costs, or costs of orders already made by the Court, forthwith. The usual practice is for such costs to be payable at the conclusion of the proceedings, and the Court was not persuaded to depart from the usual practice: at [25]-[27], [29]. Costs of the adjournment application to follow the event in accordance with the general rule in UCPR, r 42.1: at [28].
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.
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).
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).
The notices of motion for present determination are:
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
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).
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.
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.
Further, as Mr Wilson lives in Kazakhstan and the applications were procedural, I permitted him to appear via Audio-Visual Link.
In early 2025, Mr Emmott sought orders for security for costs of the leave applications in each proceeding in this Court.
On 14 March 2025, in proceedings 114, McHugh JA made orders which included the following (Michael Wilson & Partners Ltd v Emmott [2025] NSWCA 37):
(1) Pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the Applicant provide security for the Respondent's costs of the application for leave to appeal in the amount of $20,000.
(2) The security referred to in Order 1 above be paid into Court within 14 days of the date of these orders.
(3) The proceedings be stayed until such time as the security ordered pursuant to Orders 1 and 2 above is provided.
(1) Set aside the notice to produce served by the applicant on the respondent on 19 March 2025.
(2) Upon the applicant paying into court the amount of $A221,200, being the gross sum for costs determined by Hammerschlag CJ in Eq on 12 March 2025, stay the order requiring payment of that amount to the respondent pending determination of the applicant’s application for leave to appeal and, if leave be granted, the determination of the appeal.
(3) Pursuant to s 1335 of the Corporations Act 2001 (Cth), or pursuant to UCPR, r 42.21, order that the applicant provide security for the respondent’s costs of the application for leave to appeal in an amount of $A15,000, to be paid into court within 28 days.
(4) The applicant is to pay the respondent’s costs of the motions.
(5) Stay the proceedings until the security fixed by order (3) has been paid into court.
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
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.
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.
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.
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.
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.
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.
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.
It follows that the primary relief sought by Mr Emmott in his motions for dismissal must be refused.
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.
(a) MWP pay the costs of Mr Emmott’s notices of motion filed 20 November 2025 in each proceeding on an indemnity basis, to be assessed summarily and paid forthwith upon assessment to the respondent without deduction or set off as a condition of the extension granted.
(b) MWP pay forthwith the sums of $21,000, $7,500, $12,000 and $7,500 respectively, in total $48,000, pursuant to the Court’s orders of 9 September 2025 to Mr Emmott without deduction or set off as a condition of the extension granted.
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.
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.
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.
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).
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.
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.
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.
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.
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.
For the reasons given above, I made the following order:
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.
For the reasons given above, I make the following orders:
In proceedings 2024/416114
In proceedings 2024/449432
In proceedings 2024/416114 and 2024/449432
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Michael Wilson & Partners Limited
Emmott [2026] NSWCA 8
(2001) 53 NSWLR 198
The adjournment application was dismissed. Emmott's dismissal applications were otherwise dismissed because security had been paid before determination. In proceeding 2024/449432, the conditional stay of enforcement was revoked. MWP was ordered to pay specified motion costs on the ordinary basis. The Court directed evidence and submissions on a possible gross-sum costs order and listed the matter for directions.
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.