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

Solicitors: Michael Wilson & Partners Limited (Plaintiff) Duggan Legal (Defendant) File Number(s): 2016/034380 Publication restriction: Nil

JUDGMENT

1. When this matter was called on for hearing before me at 10:00am on the morning of the trial, the plaintiff, Michael Wilson & Partners Pty Ltd (MWP), moved (on a motion which had been filed on 13 November 2024 in Court with my leave) to adjourn the hearing. On that application, it was represented by Senior Counsel, Mr G Burton SC, who informed me that he was briefed only on the application and not on the substantive hearing. At all material times, MWP has been represented by Mr Michael Earl Wilson (Wilson) who has also been its solicitor on the record. The motion was supported by the 31st Affidavit of Wilson, sworn on 10 November 2024. In this Affidavit, he deposes to the fact that he was an international equity and capital partner of law firm Baker McKenzie in Sydney and founder of the most successful group of new offices in the entire history of that firm, anywhere in the world.
2. I dismissed the application. I said I would give reasons for the dismissal in my final judgment. Mr Burton SC withdrew. MWP was called outside of Court but, predictably, did not appear. The matter then proceeded to final hearing. I reserved judgment. Before I rose, Mr Burton SC re-appeared and made a further application for an adjournment which I also dismissed. This judgment includes the reasons for both dismissals.

APPLICATIONS TO ADJOURN THE HEARING

1. The first application was, until about 11:30am on the morning of the trial, the most recent in a series of attempts by MWP to avoid the hearing. These included a failed application to the Court of Appeal last Friday: Michael Wilson & Partners Pty Ltd v Emmott [2024] NSWCA 269. On any view, what happened on the morning of the trial was remarkable, to say the least.
2. At 11:38pm last Friday night (that is, after the Court of Appeal judgment), Wilson sent to my Chambers, by email, what, on its face, is copy of a medical certificate by a general practitioner in Kazakhstan. According to the certificate, Wilson has winter flu and bronchitis "causing much coughing and loss of voice". The doctor states that "Wilson will not be capable to participate in the planned hearing (remotely or in person) due to the loss of his voice". The solicitors for Mr John Forster Emmott (Emmott), the defendant, gave MWP notice that the doctor was required for cross-examination. Mr Burton SC said he thought the doctor might be available (by telephone - the Court having established a link to enable Wilson to dial in and hear the proceedings). Mr Burton SC told me that he believed Wilson might be "auditing" the proceedings and there may be the medical officer online as well, but it was 3:30am in the morning in Kazakhstan, and he could not say definitively. [1] My own observation was there were noises on the telephone line consistent with someone listening in. Either way, the doctor was not produced and I rejected the medical certificate. However, even had it been admitted, the adjournment application would have failed because of the plethora of reasons which count against it, as described later. Although the application had earlier been rejected, events later in the morning, shortly to be described, fortify me in my conclusion that the application was spurious.
3. At 1:55am and 3:55am, respectively, on the morning of the trial, Wilson filed, online, Affidavits by two persons known to him, not medical practitioners, who sought to give evidence that, according to their observations, he was not fit to travel. One of the deponents, who describes himself as President and CEO of the national airline of the Republic of Kazakhstan, attached the medical certificate. The Affidavits were inadmissible, and I rejected them. The front page of the Affidavits has Wilson as the solicitor on the record. His supposed indisposition was plainly not such as to prevent him from preparing the Affidavits. There was no evidence from Wilson himself about his state of health.
4. The substantive hearing took about 40 minutes. Almost immediately after the hearing had concluded, two things happened.
5. First, Mr Burton SC re-entered the courtroom and said he had an oral application to make, that the hearing be adjourned until Wednesday 20 November 2024 because Wilson was coming to Australia after all and would leave Kazakhstan (where he lives) that night.
6. Second, Wilson spoke on the telephone link with the Courtroom. He was able to speak, and I could hear him clearly. Indeed, he spoke over me. He repeated that he was coming to Australia. I had previously informed Mr Burton SC and Wilson that I would not entertain remote appearances by practitioners in this matter and I declined to hear from Wilson. Moreover, Counsel was briefed on the oral application and Wilson himself had no speaking role to play.
7. I refused the oral second application. By then, the substantive hearing had concluded. But beyond that, it fell to be dismissed for all of the reasons pertinent to the dismissal of the earlier adjournment application.
8. The inception of this litiscrescence goes back more than 22 years to December 2001 when MWP, a British Virgin Islands corporation controlled by Wilson, made an agreement with Emmott that Emmott would join MWP as a director and shareholder from January 2002. The agreement provided that upon its termination, Emmott had to resign as a director and sell his shares to MWP or its nominee. The agreement was expressed to be governed by the law of England and Wales and included a clause that all disputes go to arbitration in London.
9. A summary of the dispute and litigation which it spawned until 2011 appears in the decision of the High Court of Australia in Michael Wilson & Partners Pty Ltd v Nicholls & Ors (2011) 244 CLR 427, and until 2021, in the decision of the New South Wales Court of Appeal in Michael Wilson & Partners Pty Ltd v Emmott [2021] NSWCA 315; (2022) 396 ALR 497. The judgments of Judge Pelling KC sitting as a judge of the High Court of Justice of England and Wales (EWHC) in Michael Wilson & Partners Ltd v John Forster Emmott [2024] EWHC 449 and Michael Wilson & Partners Ltd v John Forster Emmott [2024] EWHC 2731 are instructive. In the first of these decisions, Judge Pelling KC referred to the fact that numerous orders had been made in that jurisdiction certifying claims and applications by MWP to be totally without merit, up to and including Court of Appeal level, and two extended civil restraint orders (apparently the equivalent to orders under the Vexatious Proceedings Act 2008 (NSW)) have been made against MWP in relation to discrete elements of the litigation between the parties or in related claims. It seems that MWP and unmeritorious claims may not be strangers to one another. Further reference to his Honour's judgments is made later. I also observe that the Court of Appeal considered that some parts of the Affidavits before that Court could fairly be described as scandalous, in terms of criticisms of Ball J's actions, and should have never been made by a legal practitioner in the manner in which they were expressed: Michael Wilson & Partners v Emmott [2024] NSWCA 269 at [24].
10. I have endeavoured below to identify the critical events which get us here.
11. MWP ran (and still runs) a law and consultancy practice in Kazakhstan.
12. Mr Robert Colin Nicholls (Nicholls) was a barrister of this Court and was employed by MWP as a Senior Associate from 24 April 2004 until 1 March 2006. Nicholls died on 28 February 2017. Mr David Ross Slater (Slater), a solicitor of this Court, was employed by MWP from 1 December 2005 to 9 January 2006.
13. Each of Nicholls and Slater left MWP. Slater incorporated, in the British Virgin Islands, two companies, Temujin International Ltd (TIL) and Temujin Services Ltd (collectively, the Temujin Companies), to provide legal and consultancy services. TIL opened an office in Almaty, Kazakhstan in January 2006.
14. On 20 December 2005, Emmott signed a Co-operation Agreement in Almaty with Slater, Nicholls and a Mr Arman Shaikanov (Shaikanov), a Kazakh lawyer resident in Almaty. The Co-operation Agreement provided for the establishment of a consultancy to be owned and operated by TIL to provide legal consultancy services in Almaty. It also provided for Emmott to have the option to join the consultancy when he was legally free to do so, if he so elected. He became a consultant to the Temujin Companies pursuant to a written but unsigned Consultancy Agreement dated 13 August 2007 (the Consultancy Agreement).
15. The Consultancy Agreement provides that it is to be governed by and construed in accordance with the laws of New South Wales and disputes are to be resolved by arbitration in London.
16. Nicholls also became a consultant to the Temujin Companies.
17. In July 2008, Nicholls and Slater had an acrimonious falling out with one another. Nicholls apparently departed Kazakhstan. In about 2010, Slater closed TIL's office in Almaty.
18. MWP sued the three of them and the Temujin Companies in various jurisdictions. It sued Emmott in London in arbitration proceedings under the arbitration clause in the Co-operation Agreement between it and Emmott. It sued Nicholls, Slater and the Temujin Companies in this Court.
19. The first instance proceedings in this Court were heard and determined by Einstein J: Michael Wilson & Partners Ltd v Nicholls [2009] NSWSC 1033. MWP substantially succeeded. Nicholls and Slater were held jointly and severally liable to pay it US$3,508,793.91, €555,258.94 and A$4,000,000.
20. Emmott was not a party to those proceedings and is not bound by any findings made in them.
21. The judgment was overturned by the Court of Appeal, [2] which found apprehended bias on the part of the trial judge because his Honour had dealt with a number of applications in Chambers and without notice to MWP. However, the High Court, with compelling reasons, reversed the decision of the Court of Appeal and remitted the matter to that Court for consideration of specified grounds in the Notice of Appeal and Notice of Cross-Appeal: Nicholls v Michael Wilson & Partners Pty Ltd [2012] NSWCA 383. [3] The ultimate outcome was that MWP was held entitled to judgment against Nicholls and Slater for USD$1,106,090 and €618,449 (including pre-judgment interest).
22. In the arbitration, Emmott was held liable to MWP on some, but not all, of the equivalent claims against Nicholls and Slater. However, MWP was held liable to Emmott for payment for his shareholding and for payment of undrawn accumulated profits. The result was a net award in favour of Emmott for USD$667,859 and £3,209,613. The fact that MWP is a claimed judgment debtor of Emmott for a large sum is significant. It was not suggested or claimed in the arbitration that Emmott went into partnership with Nicholls or Slater.
23. Nicholls and Slater were made bankrupt on 16 February 2015 and 22 December 2015 respectively, and the Temujin Companies were later wound up, at the suit of MWP.
24. In 2016, MWP took an assignment of the rights against Emmott of the trustees in bankruptcy of Nicholls and Slater and the liquidators of the Temujin Companies.
25. In February 2016, as assignee, MWP initiated these proceedings by Summons and Commercial List Statement. It sought: 1. contribution from Emmott in respect of the liability of Nicholls, Slater and the Temujin Companies under the NSW judgment (this has been referred to as the Contribution Claim); and 2. a declaration that Emmott, Nicholls and Slater had established a partnership (the Temujin Partnership) and an account of all benefits received by Emmott as a partner (this has been referred to as the Partnership Claim).
26. The initiating process was served on Emmott in England without leave. Emmott sought an order setting aside the service because it was not authorised under the Uniform Civil Procedure Rules 2002 (NSW) (UCPR) or, alternatively, for a permanent stay on forum non conveniens grounds.
27. Ball J (as his Honour, Ball JA, then was) permanently stayed the proceedings: Michael Wilson & Partners Pty Ltd v Emmott [2019] NSWSC 218.
28. MWP appealed. The appeal and application for leave to appeal were listed for concurrent hearing on 25 November 2019. On the morning of the hearing, Wilson applied to have the hearing date vacated to enable him to brief counsel. The Court granted the application on terms requiring the provision of additional security for Emmott's costs.
29. The procedural history leading up to the appeal is set out in Michael Wilson & Partners Pty Ltd v Emmott [2020] NSWCA 245 at [1]-[23]. The history included a failure by Wilson to comply with orders of the Court.
30. Ultimately, the Court of Appeal heard the appeal and allowed it in part. The effect of the judgment was to grant leave to MWP to serve proceedings on Emmott in England insofar as they related to the Partnership Claim but to stay the Summons permanently with respect to the Contribution Claim: Michael Wilson & Partners Pty Ltd v Emmott [2021] NSWCA 315; (2022) 396 ALR 497. [4]
31. Emmott applied to the High Court of Australia for special leave to appeal, which application was dismissed with costs on 8 September 2022: Emmott v Michael Wilson & Partners Limited; Michael Wilson & Partners, Limited v Emmott [2022] HCASL 142.
32. It is the Partnership Claim which is now to be tried.
33. As Commercial List Judge since early 2022, Ball J case managed these proceedings. Since 18 November 2022, there have been no less than 18 appearances, mostly before his Honour, for directions and determination of motions brought by both sides. Additionally, orders have been made in Chambers by consent. When Wilson appeared, Ball J permitted him to do so remotely by telephone or audio-visual link (AVL). The occasions upon which the matter has occupied the Court include: 1. 18 November 2022 (MWP was represented by Senior and Junior Counsel, and Emmott by Junior Counsel); 2. 30 January 2023 (MWP was represented by Senior and two Junior Counsel, and Emmott by Junior Counsel). His Honour dealt with various motions; 3. 24 February 2023 (MWP was represented by Wilson via AVL). His Honour stood the matter over to 31 March 2023; 4. 21 April 2023 (MWP was represented by Wilson via AVL). Orders were made for service by MWP of any further evidence by 3 July 2023 and for Emmott to serve evidence in response by 31 July 2023. The matter was stood over to 1 September 2023 with a view to taking a hearing date; 5. 14 July 2023 (MWP was represented by Junior Counsel, and Emmott by Junior Counsel). Counsel for MWP said that it had put on its evidence. MWP had filed a motion for discovery but did not wish to move it at that time. His Honour stood the motion over to 1 September 2023, giving MWP leave to file and serve an Amended Notice of Motion; 6. 31 August 2023 - his Honour made orders in Chambers listing the motion on 6 October 2023. On 5 October 2023, the listing was changed to 10 November 2023. 7. 10 November 2023 (both parties were represented by Junior Counsel). Ball J ordered that neither party may file a motion without leave of the Court, with such application for leave to be supported by a short outline of submissions not exceeding one page, and a short affidavit not exceeding three pages, with annexures and exhibits not exceeding ten pages; 8. 16 November 2023 (both parties were represented by Counsel. Wilson was present in Court). His Honour made orders in relation to discovery and security for costs; 9. 16 February 2024 (both parties were represented by Counsel). There were two motions before the Court: one in relation to security for costs and another seeking further discovery. His Honour reserved judgment. His Honour gave judgment on 28 February 2024: 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) (No 3) [2024] NSWSC 163; 10. 1 March 2024 (both parties were represented by Counsel). MWP asked for a hearing date. Amongst others, there were directions for MWP to serve all further evidence. His Honour made a guillotine order with regard to MWP's evidence; 11. 16 April 2024 which led to a judgment handed down by his Honour on 24 April 2024: 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 (No 4) [2024] NSWSC 438 concerning an application by MWP to file what was described as a 'Further Restated and Further Amended Summons' and a 'Restated and Further Amended Commercial List Statement'; 12. 10 May 2024 where his Honour directed that MWP file and serve the final version of its Summons and Commercial List Statement in accordance with his Honour's judgment delivered on 24 April 2024; 13. 14, 17 and 21 June 2024 before Stevenson J (Wilson appeared for MWP and Counsel appeared for Emmott). Stevenson J made orders for the service of expert evidence; 14. 28 June 2024 (MWP was represented by Wilson and Emmott by Junior Counsel); and 15. 23 August 2024 (MWP was represented by Wilson and Emmott by Junior Counsel). Ball J expressed an intention to set the matter down for hearing commencing 18 November 2024. Wilson, on behalf of MWP, said they had not had a chance to consult as to dates and were happy to provide them by Monday. Counsel for Emmott gave an estimate of four to five days. Wilson gave an estimate of ten days. Wilson informed his Honour that Mr Burton SC was briefed.
34. What this history demonstrates is that, on numerous occasions, MWP had Counsel briefed and that the case was intensively case managed by his Honour with full participation by both sides until it was fully ready for hearing when (as is more fully referred to below) his Honour set it down with a three-month lead time.
35. In the meantime, on 11 July 2024, MWP obtained a certificate of taxation in the High Court of Australia certifying that its costs against Emmott (in respect of his unsuccessful special leave application) had been assessed and allowed at $28,561,97.
36. On 26 July 2024, MWP purported to serve on Emmott, by email to him in the United Kingdom and to a solicitor said to be acting for him in other matters, a bankruptcy notice.
37. On 26 August 2024, the matter came before Ball J. Wilson appeared for MWP and Counsel appeared for Emmott. His Honour asked for the parties' estimates of the time required for the hearing. Junior Counsel for Emmott gave an estimate of four to five days. There was reference by Junior Counsel for Emmott to an estimate of four days having been given by Senior Counsel for MWP who had previously appeared in the matter, but Wilson indicated that this estimate was related to a preliminary issue whether the Temujin Partnership had been established. Wilson said at least two weeks was necessary. I need not determine whose estimate was better, suffice it to say that, in my estimation, five days, for all issues, is generous. I observe that the practice in the Commercial List is that cases start on the fixed date and run to conclusion. They do not become part-heard. Although the matter was fixed before me on an estimate of five days, it would have run to its conclusion even if it took ten or fifteen.
38. Ball J proposed to set the matter down for hearing, commencing 21 July 2025. Counsel for Emmott then drew to his Honour's attention the existence of the bankruptcy notice and submitted that there was an intention (on the part of MWP) to delay the hearing of these proceedings so that MWP could move to bankrupt Emmott before this case was heard. Counsel said that, if MWP were to undertake to the Court not to take any further action on the bankruptcy notice, there would be no objection to that hearing date. Wilson, on behalf of MWP, was not prepared to give that undertaking. His Honour said that he would set the matter down commencing on 18 November 2024. Wilson maintained that they were not available in November or December 2024 because of prior commitments. His Honour repeated (twice) that MWP had a choice of agreeing to a stay of the bankruptcy notice or facing a hearing on 18 November 2024.
39. His Honour said "I am not going to permit this case to go off on the basis that you are able to bankrupt the defendant in circumstances where the issues in this case are relevant to the question of bankruptcy. Now, that is your choice".
40. The hearing concluded with the following exchange: HIS HONOUR: Very well, I've heard enough. This matter is ready for hearing. The matter is in the Commercial List and the parties ought normally expect that the matters in this list will be heard promptly. This matter has already taken too long to come to a hearing. In those circumstances, I set the matter down for hearing commencing on 18 November. I will make the usual order for hearing. I'll adjourn. WILSON: MWP is not available on those dates, your Honour.
41. On 5 September 2024, Stevenson J, in Chambers, refused leave to MWP to file a motion dated 4 September 2024. [5] His Honour gave reasons: Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott) (No 5) [2024] NSWSC 1127. After referring to an exchange on the transcript between Wilson and Ball J on 26 August 2024, his Honour said at [6]-[13]: There was some discussion of whether counsel evidently retained by the plaintiff, Mr Burton SC, was available during the week commencing 18 November 2024. His Honour said: "I have here an email which says that your counsel is available between 18 and 25 November." It does appear that His Honour was mistakenly referring to an email from the defendant's solicitors which spoke of the defendant's counsel's availability. But that temporary misapprehension did not affect the outcome as, immediately following his Honour making the statement I have set out at [7] above, the following exchange took place: "WILSON: I haven't seen any such email. How have you got such an email? I've not seen one. I left for the dates of Mr Burton which I haven't received. I've been chasing him this morning. HIS HONOUR: In that case, you're in no position to say your counsel's not available." It was on that basis, and on the basis of Mr Wilson's refusal to give an undertaking concerning the bankruptcy notice, that his Honour fixed the matter for hearing on 18 November 2024. In those circumstances, I am not persuaded that I should give the plaintiff leave to bring an application to vacate the hearing date, nor to vacate the date. The hearing date is over two months away. If Mr Burton is not available on 18 November, the plaintiff has adequate time to retain alternate counsel. The plaintiff's notice of motion of 4 September 2024 is dismissed.
42. I respectfully agree entirely with Stevenson J's approach.
43. By Summons filed in August 2024, MWP sought orders under the Foreign Judgments Act 1991 (Cth) for the registration of a number of foreign judgments and orders which had been made against Emmott. Schmidt AJ ordered that those proceedings be stayed pending determination of Emmott's set off proceedings: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258. Her Honour observed that the application was dealt with by the Registrar without notice to Emmott, and Wilson did not disclose to the Registrar that MWP had already taken steps to enforce disputed judgments and orders in proceedings in England or that Emmott had brought proceedings in England for orders setting off against some of those judgments, judgments in Emmott's favour.
44. On 2 October 2024, MWP lodged a Creditor's Bankruptcy Petition against Emmott in the Federal Circuit & Family Court of Australia, based on the High Court costs order.
45. On 4 November 2024, Emmott filed a Notice Stating Grounds of Opposition to the Bankruptcy Petition. His grounds include invalid service of the bankruptcy notice and his counterclaim against MWP arising out of the London Arbitration in amounts of USD$667,859 and £3,209,613, which have been registered as judgments in the United Kingdom.
46. In addition, Emmott claims an entitlement to costs arising from the London Arbitration exceeding £2 million. He has brought the proceedings referred to above in England for an order that he is entitled to set off costs orders in his favour against any costs orders made in favour of MWP against him.
47. Wilson unsuccessfully applied to strike out Emmott's set-off proceedings and for an order debarring Emmott from further participating in any of the various claims or applications in the EWHC until after Emmott pays some costs due: Michael Wilson & Partners Ltd v John Forster Emmott [2024] EWHC 449. The EWHC ordered, on a case management basis, that the proceedings in that Court be stayed generally until after final judgment in the trial before this Court, save and except for an application dated 20 October 2023 which was listed for hearing on 1 November 2024 (the nature of the application and what happened with it is not clear to me). One of the bases upon which Wilson challenges Emmott's asserted right of set-off is that Emmott assigned his claim against MWP to a litigation funder (Sinclair - who has also since been made bankrupt) and MWP bought this claim from Sinclair's bankrupt estate.
48. Leaving aside the proceedings which were set down for 1 November 2024, none of the pending EWHC proceedings was to be heard before this case.
49. When Ball J set these proceedings down for hearing, his Honour made the Usual Order for Hearing being Annexure 3 to Practice Note SC Eq 3. Paragraphs 13 to 16 provide: 13. No later than five working days before the hearing the plaintiff shall file, paginated and indexed, a Court Book in electronic form with two physical copies, intended to be tendered at the hearing by any party. Any party may apply to the Court for an order limiting the documents to be included in the hard copy version of the Court Book. The index of documents should indicate documents the tender of which is agreed and, in relation to the documents as to which there is no agreement, which documents they are and whether lodged on behalf of the plaintiff or on behalf of any other party to the proceedings and, if so, which party. 14. No later than two working days before the hearing all parties' barristers or solicitors shall cause to be filed a folder of all affidavits, statements and reports to be relied upon at trial with an index setting out in alphabetical order: 14.1 the name of the deponent or maker of the statement or report; 14.2 the date of the affidavit, statement or report; and 14.3 a short statement identifying the role of the deponent or the maker of the statement or report. Each lay affidavit which refers to documents must include cross references to where those documents can be found in the court book. 15. No later than two working days before the hearing each barrister or solicitor shall cause to be filed and served a short outline of submissions; a statement of the real issues for determination; a list of authorities; and a chronology of relevant events. 16. Compliance with orders 13, 14 and 15 is to be by delivery to the trial Judge's Associate or, if the identity of the trial Judge is unknown at the time for compliance, by delivery to the List Judge's Associate.
50. It is apt at this point to draw attention to ss 56(1)-(4)(a) (in particular, sub-s (4)(a)) of the Civil Procedure Act 2005 (NSW) (CPA) which provide: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)-- (a) any solicitor or barrister representing the party in the proceedings, […]
51. The effect of sub-s (4)(a) is to have placed on MWP a statutory duty to comply with directions of the Court and, on Wilson, a direct statutory obligation not to cause MWP to fail to do so.
52. On 31 October 2024, MWP filed a Summons in the Court of Appeal seeking leave to appeal the fixing by Ball J on 26 August 2024 of the trial date of 18 November 2024. On 7 November 2024, MWP filed, in the Court of Appeal, a Notice of Motion for expedition of the Summons.
53. No compliant Court Book was delivered to my Chambers by Friday 8 November 2024. Accordingly, my Associate, on my instructions, wrote to the parties at 10:50am that day: Dear Practitioners, As you would be aware, the hearing of this matter is set down to commence on Monday, 18 November 2024, before his Honour, the Chief Judge in Equity. On 26 August 2024, Ball J made the usual order for hearing (Annexure 3 to Practice Note SC Eq 03). Paragraph 13 of the usual order requires the filing by the plaintiff of a Court Book no later than five working days before the hearing. Paragraphs 14 and 15 require various other documents including written outlines no later than two working days before the hearing. Five working days before the hearing is today. The Court Book is accordingly due today. The other documents are due on Wednesday next. Compliance with paragraph 13 is to be by delivery of the Court Book to me. His Honour re-iterates that he requires punctilious compliance with the usual order for hearing and accordingly expects the Court Book to be delivered by close of business today. His Honour has instructed me to draw, respectfully, to the attention of the practitioners that section 68(4) of the Civil Procedure Act 2005 places obligations directly on the practitioners not to cause a party to be in default of the Court's orders and directions. Your attention is also drawn to section 61(3) of that Act under which, if a party fails to comply with a direction of the Court, the Court may, amongst others, dismiss the proceedings. Yours faithfully, Janet Duong Associate to the Hon Justice Hammerschlag, Chief Judge in Equity
54. This drew the following response from Wilson: Dear Associate, We have sent the Court Book to you by WeTransfer, as shown by the enclosed. The structure of the Court Book is as follows: PART 1 (sections A to B) PART 2 (section C) PART 3 (sections D to G) MWP's Team is still working on PART 2 (section C) as noted and such will be sent later. There also remains the completed Bundle as explained in MEW-15, as to the documents cited in the prior Einstein J Liability and Quantum Judgments, by which we say Mr Emmott is and has always been bound, the SII and TQA on which we rely and to which we refer. Yours faithfully, Michael Wilson & Partners, Ltd
55. No physical Court Book or part of one was (or has been) received from MWP.
56. On Monday 11 November 2024, my Associate notified the solicitors on both sides that I had listed the matter for pre-trial directions on Tuesday 12 November 2024 at 10:00am. There then passed a series of communications which it is not necessary to recount, suffice it to say that, for the convenience of Counsel, I re-listed the matter at 8:15am on Wednesday 13 November 2024.
57. On 12 November 2024, my Associate wrote the following to the lawyers for both sides: Dear Practitioners, To accommodate the convenience of counsel, his Honour has listed the matter for directions at 8:15am, 13 November 2024 in Court 7D. His Honour requests that counsel be in a position to: Explain the failure to produce a Court Book in accordance with the usual order for hearing (a matter which is hampering his Honour's preparation for the trial); Give an indication when the failure will be remedied; Confirm that written outlines and other documents required by the usual order will be provided tomorrow; and Provide the Court with a proposed trial plan (indicating the witnesses to be called and expected lengths of cross-examination and argument). Kind regards, Janet
58. On 12 November 2024, Schmidt AJ made certain further orders in the proceedings before her Honour, including costs orders against MWP: Michael Wilson & Partners Limited v Emmott (No. 2) [2024] NSWSC 1435.
59. After midnight on 13 November 2024, Wilson emailed my Associate the Notice of Motion seeking to adjourn the hearing, the 31st Affidavit of Wilson, written submissions under the name of Mr Burton SC, and a copy of a decision of the New South Wales Court of Appeal on the approach to be taken by the Court in exercising the powers of the Court under the case management provisions of the CPA.
60. The matter came on before me at 8:15am on 13 November 2024. MWP was represented by Mr Burton SC and Emmott by Mr J Baird of Counsel.
61. Mr Burton SC sought leave to file in Court a Notice of Motion seeking leave to vacate, adjourn and re-list the hearing scheduled for 18 November 2024. Unusually, the Notice of Motion seeks an order for costs in favour of MWP against Emmott with interim payment to be made and paid on account by him to MWP.
62. I gave leave to MWP to file the Notice of Motion and made it returnable before me on 10:00am on the first day of the trial (that is, 18 November 2024).
63. Mr Burton SC was not in a position to explain the default in delivery of the Court Book. He told me that preparation of the critical section of the Court Book containing the primary documents was well underway. He told me that the order for the filing of submissions and the like would not be complied with. He told me that he was briefed on the application to adjourn the hearing, but not on the hearing itself.
64. Mr Baird told me that his side had complied with the requirement to provide written submissions but that a physical Court Book with Emmott's documents, whilst under preparation, was late because MWP had not provided its Court Book. There is substance in this excuse. He told me Emmott's Court Book would be available imminently. He informed me that the other documents which were due that day would be provided on time.
65. Against this background, MWP moved to adjourn the hearing date.
66. Mr Burton SC told me that there was a draft, "indeed probably near a final draft, statement of issues and outline of submissions for opening". He sought to hand them up on the basis that "even if your Honour is against this application, because I cannot appear but at least your Honour would have something because Mr Wilson will not be appearing". [6] I declined to take the documents. It is inappropriate for the Court to take into account, or indeed to be asked to take into account, written argument from a party planning not to appear at an oral hearing. There may be exceptional circumstances in which the Court might give leave for this to occur, but that is not this case: see Cadence (90) Investments Pty Ltd as trustee of GDC Discretionary Trust v Simon Dougal Chalmers [2019] NSWSC 1168 at [25]-[29].
67. Documents entitled 'MWP's Opening Statement of Issues', and 'Brief Notes and Outline Opening Submissions' were filed electronically at around 1:00am on 18 November 2024. It is not clear whether these were the drafts referred to by Mr Burton SC, but I have disregarded them.
68. MWP relied on the 31st Affidavit of Wilson. The proffered reasons for the adjournment were: 1. Wilson's indisposition (of which he gives no evidence himself); 2. unavailability of both Wilson and MWP for the hearing due to prior and longstanding commitments, and lack of time properly to prepare. He provided a list of attendances he had, has and will have in related matters in different courts in the Eastern Caribbean and the United Kingdom; 3. visa renewal issues involving the Migration Police and the Ministry of Foreign Affairs in Kazakhstan; 4. unavailability of MPW's witnesses (including expert witnesses) due to their prior commitments. The expert witnesses are said to be located in Philadelphia USA and Kazakhstan; 5. Mr Burton SC was not available for all of the five days of hearing. Despite its best efforts, MWP was unable to identify, instruct and brief alternative counsel; 6. the perceived prejudice to Emmott by being subject to the bankruptcy petition prior to 21 July 2025 is no longer correct because the bankruptcy petition which was listed to be heard on 12 November 2024 has been adjourned until February next year and, when it next returns to Court, it is only to fix a date. Accordingly, this trial could be adjourned and dealt with before the bankruptcy petition is heard; 7. five full days is not adequate for this hearing; 8. Emmott destroyed the hard disk drive of his laptop computer at the Temujin Partnership; and 9. applications for disclosure have been declined in these proceedings, Notices to Produce and Subpoenas were required to be drafted and arguments on compliance to be dealt with, so as to afford sufficient opportunity to produce documents for hearing and prepare based on such material. MWP needs the opportunity to issue Subpoenas to various witnesses (apparently mostly out of Australia).
69. On 15 November 2024, the Court of Appeal disposed of MWP's application for leave to appeal from Ball J's decision to fix the matter, by dismissing it with costs: Michael Wilson & Partners v Emmott [2024] NSWCA 269. I observe that there was no indication to that Court of any health issue of Wilson. To the contrary, Mr Burton SC informed the Court of Appeal that Wilson "is running it on Monday and for the week". Mr Burton SC also told the Court of Appeal that he could not appear and that Wilson had not been able to obtain, at short notice, any alternative Counsel. [7] The reference to short notice is somewhat puzzling because Mr Burton SC told me that he had informed Wilson in August of this year that he was unavailable for the November fixture. [8]
70. MWP's application before me to vacate the hearing is entirely without merit and spurious: 1. Wilson's avowed inability to speak or travel to Australia is undermined by his coming on the telephone line and speaking audibly and clearly and telling me (as did Mr Burton SC) that he was now going to come to Australia. Additionally, it makes it puzzling that Mr Burton SC told me that the only way he could communicate with Wilson, given the situation with his voice over the weekend, was by email. [9] Perhaps it was coincidental that Wilson spoke on the telephone line and Mr Burton SC re-entered the courtroom immediately after the case was over. Either way, it must be the case that between the dismissal of the initial application and the re-appearance of Counsel, instructions to make the oral application and inform the Court that Wilson was coming to Australia, were given and taken; 2. the nature and extent of the other attendances and commitments of MWP and Wilson which were said to prevent their attendance is short of detail. As the Court of Appeal remarked at [50], after having been informed that Wilson would be running the case next week, "it appears therefore that Mr Wilson has been able to rearrange the longstanding client commitments referred to in his affidavit". [10] Absent from Wilson's Affidavit is any reference to conveying to any of the other courts the difficulties that might be confronted by MWP in complying with those courts' directions, having regard to the fact that this Court had set down a significant matter for substantive hearing to commence on 18 November 2024. As I observed to Mr Burton SC, if MWP could convey to this Court that it is unavailable because of court commitments elsewhere, it could convey to those courts that it has obligations to this one; 3. the nature of the issues concerning Wilson's visa renewal were not revealed. But it is to be remembered that he is an Australian citizen. There could not have been any visa issue about entry into this country and the Court was told that he was coming. He provided no information about if and when he first sought to make travel arrangements to come to Australia; 4. Wilson provided no details of the alleged problems other witnesses have. There was no evidence of any communications with witnesses as to their availability or lack of it. Wilson had been informed that the expert witnesses MWP proposed to call could be cross-examined remotely, and Wilson himself was not required for cross-examination; 5. there was more than enough time to brief other counsel. There is no evidence of any attempt to do so, or of any communications with Mr Burton SC about his availability. I infer that Wilson's evidence on this would not have assisted him. Mr Burton SC stressed that the matter was complex and required a lot of preparation. This type of matter is entirely run of the mill in this List. There are many Senior and Junior Counsel at the Sydney Bar (leaving aside Counsel from other Bars in Australia who regularly appear interstate) who would have no difficulty in conducting it competently; 6. MWP wished to have, as it now turns out, an illusory forensic advantage of trying to bankrupt Emmott before substantive proceedings between them, here and in the United Kingdom, in which there are claimed money liabilities going both ways, are determined. The only thing that made the case urgent in the first place was MWP's plainly deliberate forensic decision not to agree to defer the bankruptcy case. It cannot have its cake and eat it too. In this context, Mr Burton SC submitted that an adjournment could be given on conditions, which were entirely a matter for the Court. He did not proffer any such conditions or any undertakings. In particular, he eschewed the suggestion that the bankruptcy petition not be proceeded with. He made it clear, however, that if there was an adjournment, a costs order against MWP was inevitable, but did not proffer any undertaking on behalf of MWP that those costs would be paid promptly or indeed at all. Mr Burton SC repeated the submission that there was now no urgency because the bankruptcy proceedings have been adjourned; 7. the four-day estimate, if inadequate, would not have affected the hearing; 8. Emmott's alleged destruction of information has already occurred and is hotly disputed; and 9. there was more than enough time available to move the Court for leave to issue subpoenas and serve notices to produce. Some of the identified witnesses are overseas. The Court would not be in a position effectively to subpoena them. What evidence they would give is not specified.
71. I consider it to be clear that, from 26 August 2024 when Ball J set these proceedings down for hearing, MWP had no intention of prosecuting them on the set down date, but sought to obtain some forensic or collateral advantage by prosecuting bankruptcy proceedings against Emmott. Each of the following is a compelling consideration which drives to that conclusion (the cumulative effect approaches the overwhelming): 1. failure to accept Ball J's invitation to defer the bankruptcy petition or proffer such a deferral to this Court on this application; 2. failure by Wilson, a highly experienced solicitor and litigant, to brief (or indeed to establish any attempt to brief) counsel for the trial, having been told in August that Mr Burton SC was unavailable; 3. non-compliance by Wilson, a highly experienced solicitor and litigant, with orders of the Court for the preparation of the case, without any explanation despite my Associate's email on 12 November 2024 requesting Counsel to be in a position to give an explanation; 4. bringing repeated applications for adjournment of the trial date (including the unmeritorious ones dealt with by this judgment) and moving the Court of Appeal to set aside the fixing of the trial date; and 5. a submission to Judge Pelling KC in October 2024 that this trial would not take place on the date it is listed because Wilson had instructed MWP's lawyers to appeal from the decision of the Court to list the trial on this date and for the length of time, and it is likely to be tried only in mid-2025: Michael Wilson & Partners Ltd v Emmott [2024] EWHC 2731 (Comm) at [17(iv)]; 6. proffering as a basis for an adjournment plainly spurious assertions about Wilson's inability to get to Australia because of health reasons; and 7. failure to adduce any evidence about endeavours to make timely travel arrangements to get to Australia (although it should be observed that, if competent Counsel had been briefed, Wilson's personal presence in Court would not have been essential).
72. On the other side of the scale, Emmott has complied with the procedural directions imposed by the Court. His Court Book was late, but this was no doubt due to MWP's default. Judge Pelling KC observed that MWP maintains that it is entitled to recover circa US$70m from Emmott in these proceedings: Michael Wilson & Partners Ltd v Emmott [2024] EWHC 2731 at [14(ii)]. Emmott is a solicitor of the Court, and the pendency of a bankruptcy petition against him, together with these proceedings, are matters of singular significance to a person in that position. The proceedings have been on foot for a long time, and the trial date set for months. He is entitled to have them disposed of. They remain urgent for Emmott: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
73. Finally, there is the not insignificant matter of the judicial resources which have been allocated to this hearing and which would have been wasted. As it happens, the substantive hearing was completed in one day and there has been time available to prepare this judgment. Cases in this list are fixed to run on time and good reason is required to vacate or adjourn hearing dates. There are no such reasons here.
74. This Court is not the plaything of parties or practitioners.
75. If MWP is suffering any forensic misfortune, it is of its own making. Justice does not dictate that it be given the indulgence it seeks. Indeed, justice dictates that it should not be.
76. Hence, my refusal of both applications to adjourn.

THE SUBSTANTIVE DISPUTE

1. In the Partnership Claim, MWP seeks: 1. declarations that: 1. Emmott, and each of Nicholls and Slater, entered into the Temujin Partnership, as and from early September 2005, or such other date as the Court determines; 2. the business of the Temujin Partnership was carried on by them in common with a view of profit, until it was dissolved by the bankruptcy of Nicholls on 16 February 2015, at which point Emmott, Nicholls and Slater continued to carry on between the three of them in partnership the same business in common with a view of profit, until that partnership was dissolved by the bankruptcy of Slater on 22 December 2015, at which point Emmott, Nicholls and Slater continued to carry on between the three of them in partnership the same business in common with a view of profit, until that partnership was dissolved by the death of Nicholls on 28 February 2017, at which point Emmott and Slater continued to carry on between the two of them in partnership the same business in common with a view of profit, and that, at all material times, there continued an arrangement, agreement, and understanding between them, and their designates and nominees, whether acting directly or indirectly, and which continues to date; and 3. each partner is entitled to an equal share of the partnership, arrangement, agreement, and understanding, or such share as this Court shall determine; and 1. (briefly stated) orders that Emmott is liable to allow inspection of all originals, disclose, allow the carrying out of an inquiry, the taking of account, proprietary tracing and bring to the account of MWP, as the assignee of the rights of Slater, Nicholls and the Temujin Companies, and an inquiry, proprietary tracing and an account be conducted of all dealings of the alleged partnerships.
2. The central and determinative issue is whether Emmott was, at any time, in such a partnership with any of Nicholls or Slater. In the absence of proof of any asserted applicable foreign law, this falls to be determined on the basis of the law of this State: Neilson v Overseas Project Corporation of Victoria Ltd (2005) 223 CLR 331 at [125].
3. Section 1(1) of the Partnership Act 1892 (NSW) provides that partnership is the relation which exists between persons carrying on a business in common with a view of profit and includes an incorporated limited partnership.
4. Section 2 provides that in determining whether a partnership does or does not exist, regard shall be had to certain specified rules. It is not necessary to set them out here, suffice it to say that the sharing of gross returns does not of itself create a partnership and receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, although receipt of such a share or of a payment contingent on, or varying with, the profits of a business does not of itself make the person a partner in the business.
5. Characterisation of the relationship between the parties must proceed by reference to the contract which reflects and governs the legal relationship between them, and by reference to the rights and obligations to which the contract gives rise: CFMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 165.
6. The Consultancy Agreement provides that Emmott will provide consultancy services on a non-exclusive basis to TIL. His title would be Senior Consultant and he would be entitled to receive consultancy fees. Emmott did not share in the profits of TIL. His consultancy fee was not conditioned upon fees he earned. He never issued invoices on behalf of TIL or took part in its management.
7. Emmott is not and has never been a director of the Temujin Companies. Slater was the sole director of, and shareholder in, TIL.
8. Nicholls too was a consultant. The evidence does not establish a partnership between two consultants.
9. Neither the Co-operation Agreement nor the Consultancy Agreement constitute a partnership agreement between Emmott and any other person. They are inconsistent with the existence of the asserted partnership relationship.
10. Emmott was not carrying on business in common with Slater or Nicholls.
11. There is no evidence before the Court which establishes any partnership between Emmott and Nicholls or Slater, or any of them. To the contrary, the constituent contractual documents show that they were not partners and I positively so find.
12. It is appropriate to note that, even if the Temujin Partnership had been established, it would by no means necessarily follow that the Court would grant the consequential relief in the form claimed by MWP. In the event, it is not necessary to decide this question.

CONCLUSION

1. The thrust of Emmott's argument is that there is no partnership as asserted by MWP and I have so found.
2. The defendant is entitled to judgment, and I will so order.
3. I record that, had the case not been disposed of on the merits, I would have, pursuant to ss 61(1) and (3)(a) of the CPA, [11] dismissed the proceedings for non-compliance by MWP with orders of the Court anyway.
4. In all the circumstances, the question arises whether the Court should exercise the power, which it undoubtedly has, to make a declaration (contrary to that sought by MWP) that the Temujin Partnership as defined in the Further Restated and Further Amended Commercial List Statement was never established. I will discuss this and costs with whomever appears for the parties when this judgment is handed down.
5. I record that, after I reserved judgment, my Chambers received multiple email communications from Wilson. I have disregarded them.
6. The exhibits are to be returned.

Endnotes

1. NSWSC T3,22-24 (18 November 2024).
2. Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222.
3. Meagher, Barrett JJA, Sackville AJA.
4. Leeming, Brereton JJA, Emmett AJA.
5. Leave was required because of the order made by Ball J on 10 November 2023.
6. Tcpt, 18 November 2024, p 6(40)-7(6).
7. Tcpt, 15 November 2024, p 4(46)-5(17).
8. Tcpt, 18 November 2024, p 16(42)-17(14).
9. Tcpt, 18 November 2024, p 5(40).
10. Michael Wilson & Partners v Emmott [2024] NSWCA 269 at [50].
11. Sections 61(1) and (3)(a) provide that the Court may give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings and that, if a party to whom such a direction has been given fails to comply with it, the Court may dismiss the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2024