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[2025] NSWCA 152
respondent. The review motions filed on 28 March and 30 April 2025 were dismissed with costs; the 2 June 2025 adjournment motions had already been dismissed, and the Court made further directions concerning a...
MWP asked the Court to review two orders requiring it to provide security for costs and to postpone those reviews until after an English court hearing. The Court refused to postpone the reviews because the English proceedings were not shown to affect the security question, while delay and expense would be disproportionate. It also rejected the reviews: MWP had not established current, readily enforceable assets in Australia, and the Court considered the orders justified even if there had been an error. A transcript further showed that Mr Wilson had chosen not to make a recusal application at the hearing before McHugh JA. The Court dismissed the review motions with costs and set processes for considering a special costs application and possible referral of the conduct issues to the Legal Services Commissioner.
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Michael Wilson & Partners Ltd (MWP) is incorporated in the British Virgin Islands. Its solicitor, Michael Wilson, lives in Kazakhstan. The dispute arose from two separate sets of proceedings in the NSW Supreme Court, from which MWP sought to appeal or obtain leave to appeal. In each, Mr Emmott sought security for costs.
On 14 March 2025, McHugh JA ordered MWP to lodge $20,000 security within 14 days, with the proceeding stayed until it did so ([11]). On 15 April 2025, Basten AJA ordered $15,000 security within 28 days, again staying the proceeding pending payment ([8]). MWP sought review of both orders under s 46(4) of the Supreme Court Act 1970 (NSW).
MWP also applied to adjourn the review hearings until after a two-day hearing in England, which it said would clarify that Mr Emmott owed it substantial sums ([14]). The Court dismissed those adjournment motions on 20 June 2025 and proceeded to hear the reviews ([3], [19], [25]).
The reasons identify three central evidentiary problems. MWP produced no clear, up-to-date evidence of Australian assets against which a costs order could readily be enforced; it did not provide the material underlying the appeals to support its asserted strong prospects; and it initially did not provide the transcript needed to resolve what had occurred on the recusal issue ([13]).
The Court dismissed the review motions with costs on 11 July 2025. It also made directions concerning a possible special costs order, Mr Richard Thomas’s possible involvement in supplementary submissions, and whether the papers should be referred to the Legal Services Commissioner. Those directions left the latter matters unresolved ([68]-[70]).
The Court began with the character of a s 46(4) review. It is “not an appeal” ([27]). The applicant must show material error of law or fact, disregard of a material consideration, consideration of an irrelevant matter, or a decision that is plainly unreasonable and therefore wrong. The Court emphasised the “heavy burden” described in earlier NSWCA authorities ([28]-[29]). Since the original security decisions were discretionary procedural decisions, that demanding review approach was important.
The practical issue was not simply whether MWP said it had assets or held judgments against Mr Emmott. The Court focused on whether Mr Emmott could readily enforce a costs order against MWP’s Australian assets ([33], [38]). Mr Wilson asserted that MWP had significant funds at St George bank in Barangaroo, but no current bank statement or evidence of the balance was produced. The financial statements showed deposits for 2022 but did not identify where they were held ([34]-[37]). The Court also noted uncertainty about whether any asserted funds were subject to security and the possibility they could be transferred outside Australia ([40]).
The Court distinguished MWP’s receivables and asserted judgment debts from assets readily available to meet a costs order. Even assuming MWP owned the judgment debts it described, that did not answer the enforcement question ([38]). The evidence also established that MWP had a large secured debt to its lender ([39]). On the record, the conclusions of McHugh JA and Basten AJA about doubt over accessible assets and the risk that MWP could not pay costs were, in the Court’s words, “unassailable” ([40]).
The Court added an alternative basis for the result. Even if the original judges had made an error requiring the Court to reconsider the discretion, it would itself have ordered security in at least the amounts already ordered ([41]-[42]). That reasoning matters because the dismissal did not rest only on the review threshold. The Court also explained that re-exercising the discretion would not have produced a more favourable security outcome for MWP.
The adjournment applications failed for related case-management reasons. The Court did not accept that MWP’s success in England was assured; the pleadings, evidence and submissions in that case were not before it ([20]). More fundamentally, it could not see how the English court’s decision would materially affect whether the security orders should be reviewed ([21]). An adjournment would cause delay and increase costs contrary to s 56 of the Civil Procedure Act 2005 (NSW) ([22]). Section 60’s proportionality objective was also relevant: the Court considered the sums at stake modest and the resources being spent on the applications grossly disproportionate ([23]). It further described the real issues as whether the underlying decisions were attended by appealable error, not when MWP’s security reviews should be heard ([24]).
The recusal issue turned on the transcript. At the March hearing, McHugh JA disclosed that he had briefly appeared for MWP in earlier litigation and that his wife had accepted a brief for the Law Society in a separate matter involving Mr Wilson. He asked whether Mr Wilson wished to make an application or have a short adjournment to consider doing so. After an adjournment, Mr Wilson said: “I don’t have an application to make” ([56]). The Court concluded that this was an informed decision not to seek recusal on either disclosed basis ([57]). When MWP later maintained that McHugh JA should have recused himself, its submissions did not address the transcript or Mr Wilson’s recorded response ([60], [65]).
The judgment does not purport to establish a new general test for security for costs. It applies the existing statutory review framework under s 46(4), citing authorities for both the nature of review and the substantial burden on an applicant ([27]-[29]). The Court’s contribution is principally its application of those principles to the evidence and procedural history before it.
Before this decision, the cited authorities had established that review is not a conventional appeal and requires a material error or a plainly unreasonable decision, while making clear that the applicant faces a heavy burden. The judgment cites McGinn v Cranbrook School, Transglobal Capital Pty Ltd v Yolarno Pty Ltd and Fokas v Mansfield (No 3) on the review test, and Rinehart v Welker, Kiri Te Kanawa, Lo v Iverarch, Collier v Lancer and Litigation Fund WCX Pty Ltd v Mitchell (No 3) on the burden ([27]-[28]).
The decision applies those principles to a foreign company whose evidence did not establish current Australian assets readily available to satisfy a costs order. It does not say that foreign incorporation alone automatically determines every security application. Rather, the Court notes MWP’s place of incorporation, the absence of current evidence of accessible local assets, the secured debt, and the repeated appellate applications as features of the case before it ([30], [39]-[41]).
The reasons also clarify the relationship between a security order and review of that order. The underlying appeals were stayed because MWP had not provided security, but the Court held that the stays could not extinguish MWP’s statutory entitlement to seek review. Requiring compliance before review would allow the order under challenge to frustrate the statutory review right ([16]-[18]). The Court drew an analogy with Mohareb v Palmer (No 3), which concerned access to justice in the context of a restriction under the Vexatious Proceedings Act 2008 (NSW) ([16]).
The judgment does not state that the statutory review test changed after this case, nor does the supplied text identify a later decision adopting or modifying its reasoning. Its main significance in the provided materials lies in applying established review principles, and in the specific proposition that a stay attached to a security order does not prevent review of that order.
At [27], the Court says: “An application under s 46(4) is not an appeal.” In plain English, the reviewing court does not simply reconsider the original decision from the beginning. The applicant must identify a recognised kind of material error or show that the decision was plainly unreasonable.
At [33], the Court identifies the central asset question: “the extent to which Mr Emmott could readily enforce any costs order in his favour against assets of MWP in Australia.” This explains why assertions about MWP’s overall wealth or its claims against Mr Emmott did not, by themselves, answer the security applications. The focus was on practical enforcement of a costs order.
At [39], the Court concludes: “The evidence fails to establish that MWP owns any readily realisable assets in Australia in 2025.” The point is evidentiary. The Court did not treat the asserted bank account or receivables as established local funds available to meet costs, because the material did not demonstrate their current amount, location or practical availability ([34]-[38]).
At [41], the Court says that, even if error had been established, it would have ordered security in at least the amounts originally set. In plain English, the review applications could not succeed merely by identifying a defect in the original reasons if the same security outcome would follow from the evidence before the reviewing Court.
At [57], the Court says Mr Wilson “in an informed way, after an adjournment, confirmed that MWP had no application to make” based on the disclosed matters. That passage explains why the later claim that the judge should have recused himself was inconsistent with the recorded hearing.
At [65], the Court describes the maintained recusal complaint as “demonstrably baseless” in light of what occurred. The Court tied that conclusion to the transcript and the supplementary submissions, rather than deciding the issue on competing recollections.
The decision is particularly relevant where a party seeks review under s 46(4) of a Judge of Appeal’s interlocutory procedural order. The applicant should expect to meet the material-error threshold and the heavy burden identified at [27]-[29]. The judgment illustrates that voluminous material or numerous grounds will not substitute for evidence and submissions that directly address the reasons for the order.
It is also relevant where a foreign company resists security for costs by pointing to assets, receivables or judgments. The Court’s analysis focuses on whether assets are located within Australia and readily available to satisfy a costs order, rather than merely whether the company asserts that it owns valuable claims ([33]-[40]). In this case, the missing current bank statement and lack of evidence identifying the location of deposits were significant.
The decision may also be relevant to applications to delay a procedural hearing pending the outcome of other litigation. The Court examined whether the proposed decision could materially affect the matter before it and weighed delay, expense, proportionality and the actual issues in the pending proceedings ([20]-[24]). The judgment’s conclusion was grounded in the specific lack of demonstrated connection between the English hearing and the security reviews.
Finally, the transcript discussion illustrates the importance of the contemporaneous record when a later application alleges that a judge should have recused himself. Here, the disclosed matters, the opportunity for an adjournment and the applicant’s recorded response were central ([56]-[57]). The reasons do not purport to decide every possible recusal scenario, but they show why the hearing transcript mattered to the particular ground advanced.
The supplied judgment contains no later decisions applying, distinguishing or criticising Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152. It was decided on 11 July 2025, and the text provided does not include subsequent treatment. It would therefore be unsupported to describe how later courts have treated it.
Within this judgment, the Court relies on earlier NSWCA authority for the review test and the heavy burden, including McGinn, Transglobal Capital, Fokas, Rinehart, Kiri Te Kanawa, Lo, Collier and Litigation Fund WCX ([27]-[29]). It also refers to Mohareb by way of analogy when explaining why a stay imposed by a security order should not prevent review of that order ([16]). Those are the precedent relationships visible in the supplied reasons.
The judgment’s own treatment should be read with its procedural limits in view. It is a decision about review of two security orders on a particular evidentiary record, alongside related adjournment motions. It does not decide the merits of MWP’s underlying appeals or the separate disputes about the effects of registered foreign judgments ([10], [24], [32]).
The reasons leave the merits of MWP’s underlying appeals unresolved. The Court noted that the evidence and submissions from the courts below were not fully before it and did not determine whether the underlying decisions were attended by appealable error ([32]). It identified those underlying issues as distinct from the security reviews and the timing of those reviews ([24]).
The Court did not resolve the parties’ dispute about the precise effect of the Registrar’s and Schmidt AJ’s orders concerning overseas judgments. It expressly stated that nothing in its reasons should be taken as expressing a view on that dispute ([10]). Nor did it determine whether MWP required an extension of time for one proposed appeal ([10]).
The reasons also leave open the eventual outcome of Mr Emmott’s proposed special costs application. The Court gave him 21 days to file a notice of motion and supporting material, and said it would then make directions as appropriate ([70]). Likewise, the Court did not decide whether to refer its judgment and papers to the Legal Services Commissioner. Mr Wilson was given an opportunity to show cause, and Mr Thomas was invited to explain any involvement in the supplementary submissions ([67], [70]).
Finally, the judgment does not provide later judicial treatment of its reasoning. Any assessment of whether later courts have adopted, limited or distinguished it requires sources beyond the judgment supplied here.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Hearing dates: 20 June 2025
Date of orders: 20 June 2025, 11 July 2025
Decision date: 11 July 2025
Before: Leeming JA; Mitchelmore JA; Free JA
Decision: On 20 June 2025:
In each of proceedings 2024/416114 and 2024/449432, dismiss the motions filed by Michael Wilson & Partners Ltd on 2 June 2025.
On 11 July 2025:
In each of proceedings 2024/416114 and 2024/449432:
1. Dismiss the motions filed by Michael Wilson & Partners Ltd on 28 March 2025 and 30 April 2025 with costs.
2. Any application by Mr Emmott for a special costs order to be made by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages, noting that the Court will thereafter make directions as appropriate as to the exchange of evidence and submissions.
3. Note that a copy of these reasons will be supplied directly by the Court to Mr Richard Thomas at the email address nominated by the Australian Capital Territory Bar Association, namely, richardthomascanberrabarrister@gmail.com.
4. Direct Mr Wilson to supply a copy of these reasons to Mr Richard Thomas.
5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today.
6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Catchwords: PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed
PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed
OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60
Supreme Court Act 1970 (NSW), s 46
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Collier v Lancer [2013] NSWCA 185
Fokas v Mansfield (No 3) [2017] NSWCA 315
Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274
Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67
Lo v Iverarch [2009] NSWCA 92
McGinn v Cranbrook School [2016] NSWCA 226
Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258
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 v Emmott [2021] NSWCA 315
Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74
Michael Wilson & Partners Ltd v John Forster Emmott (No 2) [2025] NSWCA 59
Michael Wilson & Partners v Emmott [2024] NSWCA 269
Michael Wilson & Partners, Limited v John Forster Emmott [2025] NSWCA 37
Mohareb v Palmer (No 3) [2021] NSWCA 39
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136
Category: Procedural rulings
Parties: Michael Wilson & Partners Ltd (Applicant on notices of motion filed 28 March, 30 April, 2 June and 2 June 2025)
John Forster Emmott (Respondent)
Representation: Counsel:
M Wilson, solicitor (Applicant)
J Baird (Respondent)
Solicitors:
Self-represented (Applicant)
Duggan Legal (Respondent)
File Number(s): 2024/416114; 2024/449432
Publication restriction: Nil
THE COURT: Michael Wilson & Partners Ltd (MWP) is a company incorporated in the British Virgin Islands. Mr Michael Earl Wilson is a solicitor, with an entitlement to practise in New South Wales, although he resides in Kazakhstan. For many years, there has been litigation between MWP and the respondent, Mr John Forster Emmott. It is unnecessary to summarise that litigation, and to do so would substantially add to the length of these reasons to no useful end.
MWP brought four applications which are before the Court as presently constituted. Two are applications to review interlocutory decisions of Judges of Appeal ordering modest amounts of security for costs against MWP in respect of appeals or applications for leave to appeal which MWP has brought from orders made in separate proceedings in the Equity and Common Law Divisions of this Court. The other two are applications by MWP to adjourn MWP’s own applications for review. In each case – save for an aspect of further written submissions concerning a complaint about a failure of one judge to recuse himself, which is addressed at the conclusion of these reasons – Mr Wilson appeared for MWP.
We dismissed the adjournment applications at the hearing on 20 June 2025 indicating that we would give reasons later; our reasons are at [14]-[25] below. We proceeded to hear the applications for review of the decisions to order security for costs. Unfortunately, it was necessary for the Court to obtain and supply to the parties a copy of the transcript of the application for security for costs before McHugh JA because it had not been tendered at the hearing before us and there was a dispute about what the judge had disclosed and whether Mr Wilson on behalf of MWP had made an application for recusal which was refused. Although this Court made directions for the swift exchange of submissions, MWP did not comply with them, and when submissions were supplied, they gave rise to a very serious issue. All this has delayed delivering judgment.
The most recent aspects of the litigation, which give rise to the four applications made to this Court, may be summarised as follows. They derive from orders made by the Supreme Court in its Equity Division, constituted by Hammerschlag CJ in Eq, and its Common Law Division, constituted by Schmidt AJ.
72 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. 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”. 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.
73 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).
74 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.
75 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.
76 This Court is not the plaything of parties or practitioners.
77 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.
78 Hence, my refusal of both applications to adjourn. (footnotes omitted)
Substantively, Hammerschlag CJ in Eq proceeded to dismiss MWP’s partnership claim, giving reasons for doing so at [79]-[90]. Judgment was entered in favour of Mr Emmott.
MWP seeks leave to appeal, to the extent leave is necessary, from each of the refusals to grant an adjournment on 18 November 2024, as well as from the dismissal of its claim. Its summons was filed on 19 February 2025.
Mr Emmott promptly sought security for the costs. There was a hearing which commenced on 31 March 2025 but was extended to 14 April 2025 “to allow MWP to put on evidence in support of its claim that it had assets in Australia” (see Basten AJA’s reasons at [20]). On 15 April 2025, Basten AJA ordered that MWP provide security for Mr Emmott’s costs, in the amount of $15,000, within 28 days, and stayed the proceedings until that security has been paid: Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74.
The first and second applications before this Court are MWP’s application for review, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW), of the order for security for costs made by Basten AJA, and MWP’s application to adjourn the hearing of that application for review. Both are motions in proceeding 2024/449432.
Separately from the above, on 2 February 2024, a Registrar made orders registering some judgments MWP had obtained overseas. Schmidt AJ made orders on Mr Emmott’s application on 10 October 2024 and 12 November 2024 setting aside some of the orders recognised by the Registrar, and staying the proceedings: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258 and Michael Wilson & Partners Limited v Emmott (No 2) [2024] NSWSC 1435. There is a dispute between the parties as to the precise effect of what both the Registrar and her Honour did, and nothing in these reasons should be taken to express a view on any aspect of that dispute. MWP sought leave to appeal, by summons filed on 20 January 2025. There is a question whether MWP needs an extension of time, and once again it is unnecessary and inappropriate to express a view on that issue.
On 18 February 2025, Mr Emmott filed a notice of motion seeking security for costs, and following a hearing on 10 March 2025, on 14 March 2025 McHugh JA ordered that security in the amount of $20,000 be lodged within 14 days, with the proceedings being stayed until that occurred: Michael Wilson & Partners, Limited v John Forster Emmott [2025] NSWCA 37.
The third and fourth applications before this Court are MWP’s application for review, pursuant to s 46(4) of the Supreme Court Act, of the order for security for costs made by McHugh JA, and MWP’s application to adjourn the hearing of that application for review. Both are motions filed in proceeding 2024/416114.
MWP read no fewer than ten affidavits in support of the applications before the Court. All were made by Mr Wilson. There was some overlap. Much of what was said turned out to be controversial. Hundreds of pages of documents were tendered. However to anticipate what follows, three important things were absent:
Despite the applications being about security for costs of appellate proceedings brought by a British Virgin Islands company whose solicitor was based in Kazakhstan, and despite important aspects of the reasoning of both judges addressing the difficulties of enforcing any adverse costs order against assets in Australia, there was no clear evidence of any such assets.
Despite Mr Wilson’s repeated submission that both appeals had strong prospects of success, neither the evidence which had been before each of Hammerschlag CJ in Eq or Schmidt AJ nor any submissions in support of those appeals was placed before the Court.
Despite the first ground of review of the orders made by McHugh JA being a claim that he should have recused himself, there were no reasons for any refusal to recuse, nor indeed the transcript of what had occurred. At the end of the hearing on 20 June 2025, there was a large dispute about what McHugh JA had disclosed and whether Mr Wilson had made an application that his Honour should recuse himself.
As had occurred at first instance before Hammerschlag CJ in Eq, on 2 June 2025 MWP applied to vacate its own applications for review of the security for costs orders made by Basten AJA and McHugh JA. MWP claimed that it had very strong prospects of obtaining relief at a two day hearing, set down in London on 5 and 6 August 2024, as a result of which the position that Mr Emmott owed millions of pounds to MWP would be made clear. Mr Wilson said this was “directly relevant to the issue of security for costs because when we have the declaration, which we’re confident of getting shortly after 6 August, [be]cause the evidence is overwhelming, it will be clear that, that that is the case” (Tcpt 20 June 2025, T6.31-34).
Both substantive proceedings in this Court (appealing or seeking leave to appeal from the orders made by Hammerschlag CJ in Eq and Schmidt AJ) were themselves stayed by reason of MWP’s failure to provide security. One of the curiosities of this litigation is that on the one hand MWP has failed to provide security thereby causing its own appeals to be stayed, while on the other hand MWP has sought to review the orders for security for costs but did not wish its review applications to proceed on the allocated hearing date.
We mention this because a question arose whether the effect of the extant stay following upon the failure to provide security had any impact on the motions presently before the Court. After hearing from the parties, we were of the view that the stays conditionally ordered by each of McHugh JA and Basten AJA could not have the effect of denying the party directly affected by those orders its statutory entitlement to seek review under s 46(4) of the Supreme Court Act. Any other conclusion would permit the order made by the Court constituted by a single Judge of Appeal to frustrate the right of review conferred by statute. Another way of putting this is that it could not be correct that a party, in order to avail itself of a right of review of an order that it pay security for costs, must first comply with that order before it can be reviewed. There is some similarity with the point made by Basten JA in Mohareb v Palmer (No 3) [2021] NSWCA 39 at [11], in the context of an order under the Vexatious Proceedings Act 2008 (NSW):
It would not generally be conducive to the proper administration of justice that a person subject to a prohibition imposing significant constraints on his or her access to justice should not be allowed to challenge the very order which imposed those constraints.
Finally, incidental to that entitlement is that party’s entitlement, in an appropriate case, to seek relief to adjourn the hearing of its application for review.
After hearing from the parties on that point, we advised the parties that we were of that view: Tcpt 20 June 2025, T13.38-45.
We proceeded to complete the hearing of MWP’s applications to adjourn the hearing of its review applications. We made orders dismissing those applications shortly following argument at the hearing, indicating that we would provide reasons in due course. Our reasons are as follows.
First, it is (to put it mildly) far from self-evident that MWP’s complete success following a two day hearing before an English court is assured. The fact that the matter is listed with an estimate for two days suggests some measure of complexity and contestability. The pleadings or other process, evidence and submissions before the English court were not before this Court, even if it were (which we very much doubt) appropriate for this Court to predict the outcome of the litigation in the English court.
Secondly, we fail to see how an order made by, or reasons for judgment given by, the English court, will materially bear upon the strength or otherwise of the applications to review orders for security for costs in pending appeals brought by MWP.
Thirdly, acceding to the applications would inevitably cause delay and increase costs, contrary to the duties imposed on the Court by s 56 of the Civil Procedure Act 2005 (NSW).
Fourthly, we bear in mind how low the stakes are. The applications sought to be vacated are MWP’s own applications to review decisions of two Judges of Appeal to order modest amounts of security for costs of MWP’s applications for leave to appeal from separate judgments of the Common Law Division and the Equity Division of this Court. Section 60 of the Civil Procedure Act has particular relevance to all four applications brought by MWP, and especially its doubly adjectival applications to vacate the hearing of its applications to review orders to provide security for costs. This Court is obliged to implement its practice and procedure with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. The importance and complexity of applications to review orders for security for costs is relatively trivial. The amount of litigants’ resources being spent and court time being consumed to challenge the obligation to provide small amounts of security, which will only not be returned to MWP in the event that an adverse costs order is made against it, is grossly disproportionate. Mr Wilson has read no fewer than ten affidavits in support of the applications, and most are long (they comprise 142, 48, 55, 32, 19, 122, 24, 89, 32 and 19 paragraphs) because Mr Wilson seems unable to write directly when a more prolix alternative is available (examples are given below).
An application under s 46(4) is not an appeal. It has been generally accepted that the applicant for review must show that, in the decision sought to be reviewed, there has been a material error of law or fact, or a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: McGinn v Cranbrook School [2016] NSWCA 226 at [1], [4] and [42]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [22].
A series of decisions has noted the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal’s order set aside: see without being exhaustive Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]; Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14]; Lo v Iverarch [2009] NSWCA 92 at [29]; Collier v Lancer [2013] NSWCA 185 at [20] and Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 at [20].
The decisions to order security for costs are discretionary, and matters of practice and procedure. The principles governing review and the heavy burden upon applicants in such cases in the authorities summarised above loom large in connection with the review of orders for security for costs.
MWP is a company incorporated in the British Virgin Islands, and is a prime candidate for an order for security for costs. Indeed, as Mr Wilson acknowledged during the hearing, MWP has in the past regularly provided security for costs.
At least some of the underlying decisions which are the subject of the application for leave to appeal are discretionary decisions of practice and procedure (notably, the two decisions by Hammerschlag CJ in Eq to decline to vacate the hearing). It is self-evident that those decisions involve no question of principle or public importance, which would mean that the Court will not ordinarily grant leave absent a strong case.
Nonetheless, Mr Wilson maintained that MWP had a very strong case. The short answer to that is that although the assertion was advanced forcefully and repeatedly, he did not explain why it was so clear that each of Schmidt AJ and Hammerschlag CJ in Eq had fallen into error. It was difficult to do so, because the written submissions and appeal books which would assist in establishing MWP’s case were not before us. Despite the hearing taking a full day, in which Mr Wilson addressed for the large majority of the time, his oral submissions did not attend to this. Indeed, despite the volume of the material tendered by MWP in the hearing in this Court, it appeared that the material which had been before Schmidt AJ and Hammerschlag CJ in Eq was not all before us.
WILSON: … Mr Emmott owes us at least what we’ve proven he owes us at least 1.1 million pounds. So, in a scenario where MWP cannot get paid its debts and judgment debts by Mr Emmott, for MWP to then have to put up security is grossly unjust and grossly unfair, because Mr Emmott refuses to pay his Australian judgment debts, and makes no - but seeks security for costs at the same time.
LEEMING JA: But Mr Emmott will say that it’s MWP continually, this year at least, bringing its own applications that gives rise to his incurring costs and the concomitant obligations for MWP, which happens to be in the British Virgin Islands, and you are going to take us at some stage to the assets against which, other than by way of set-off, Mr Emmott could execute any money judgment of this Court. Is that a good time to do that? I’m just looking at the time. It’s now half past 12, and this application was set down for two hours, and I apologise we started late. Are you able to take us to the assets that you say Mr Emmott could execute against readily?
WILSON: If I could just finish section 11 first because it relates to the Sinclair point.
LEEMING JA: Yes.
LEEMING JA: They do show, for your benefit, short term bank deposits for the year ended 31 December 2022 of US$118,000. But the real limitation, unless there’s some aspect of them in the notes that I haven’t seen, is that the document doesn’t identify - Mr Wilson has just dropped out.
WILSON: No, I’m still here.
LEEMING JA: Vision has dropped out. It’s come back. The financial statements don’t identify the location of the bank deposits or other current assets, and I thought you were going to point to them to explain here’s an easy Australian based asset against which any judgment could be executed.
WILSON: We have significant cash in Australia at St George private bank in Barangaroo.
LEEMING JA: As you said, and all I want please is some evidence.
Mr Wilson then moved to a different topic. He was accorded a further opportunity after the luncheon adjournment to identify up-to-date evidence of Australian bank accounts, and he attempted to do so (Tcpt 20 June 2025, T42-46). But there is, so far as we can see, no up-to-date evidence of what amount of money, if any, MWP has in any Australian bank account in its name.
Mr Wilson maintained at some length that MWP owned many judgment debts, which were recognised and enforceable in this jurisdiction. Let that be assumed, favourably to MWP. The fact that MWP owns those assets does not answer the issue presented by Mr Emmott’s applications for security for costs, which is whether MWP has assets against which any costs order could readily be enforced.
The evidence fails to establish that MWP owns any readily realisable assets in Australia in 2025. However, it does establish that MWP has a large secured debt to its lender.
The restrained conclusions of McHugh JA at [24] that “there is doubt whether it has assets within the jurisdiction, or otherwise, easily and conveniently available to satisfy a costs order” and of Basten AJA at [35] that “there is reason to believe that, if unsuccessful in obtaining leave, MWP will be unable to pay the costs of the respondent” and “it has no assets in Australia against which an order could be enforced” are unassailable. On the evidence before this Court, they are plainly correct. Even if there is (as Mr Wilson repeatedly said during his address) significant money in an Australian bank account, there is at least a question whether it is subject to an existing security, and in the event that an adverse costs order is made and is enforceable, there must be a risk that MWP will transfer all such funds outside Australia.
If there were any error in the decisions made by McHugh JA and Basten AJA to order security for costs, then this Court would re-exercise the discretion, based on the evidence before it. Enough has been said already to establish that even if there were error, this is a plain case for an order for security in at least the amounts ordered by their Honours. MWP is an overseas company which has not supplied up-to-date evidence of any assets owned by it in Australia, which on the evidence has granted security over all of its assets, and which has repeatedly brought applications in this Court seeking to appeal from a wide range of orders, none of which have on the material before us been shown to be anything more than reasonably arguable. It is palpably obvious that MWP ought to be ordered to supply security for costs against the possibility that some or all of its appeals fail. Indeed, in light of the time and resources spent on the applications for review, and the manner in which MWP at least when represented by Mr Wilson conducts litigation, it is more than possible that we would order larger amounts of security for Mr Emmott’s costs.
In short, even if error had been established requiring this Court to re-exercise the discretion, we would have ordered security, and it would not have been in a lesser amount.
Even though nothing turns on it, we shall address the individual grounds of review, although we shall do so relatively concisely:
Paragraph 8(a) complains that Basten AJA failed to “record, recite and accept the fact that there are very many judgments, rulings, orders, default and final costs certificates in favour of MWP”. They are not directly relevant to whether an overseas company should be permitted to appeal without providing security for costs. The same paragraph complains that the evidence “proves beyond all doubt that not only does MWP have assets in Australian, but has very significant assets in Australia since it is trite law and accounting that, of course, receivables comprise assets”. But the relevant question, which was the question posed by Basten AJA, is whether there are Australian assets against which a costs order could be enforced.
Paragraph 8(b) maintains that it was trite law that MWP has an appeal as of right. But [37] and [38] of Basten AJA’s reasons distinguished the interlocutory orders refusing to vacate the hearing, from which an appeal lies with leave, from the final orders made by Hammerschlag CJ in Eq. In any event, if there were an appeal as of right, that would not greatly alter the exercise of discretion concerning an order for security for costs.
Paragraph 8(c) complains that Basten AJA erred in failing to accept that based on the IFRS Financial Statements and various judgment debts, MWP was in good financial standing, has a strong financial position and significant assets in the jurisdiction. This is addressed above.
Paragraph 8(d) reiterates the point that MWP owned receivables, as well as other assets said to be in Australia. As noted above, Mr Wilson was unable to point to evidence establishing Australian assets against which a costs order could be executed.
Paragraph 8(e) complains that Basten AJA failed to accept and find that Mr Emmott is impecunious. This is not relevant. It also complains that he has no liability for costs. He has an Australian solicitor and counsel, and MWP has not established that they are not entitled to be paid, at least contingently.
Paragraphs 8(f), (g) and (h) complain about his Honour setting aside a notice to produce. It appears that the notice was not tendered before us. But (as was raised with Mr Wilson at Tcpt 20 June 2025, T29.21) it is difficult to see how this could materially bear upon the order the subject of review.
Paragraph 8(i) complains that Basten AJA “erred in failing to find and accept that it could never be just, fair, equitable or right to require MWP to provide security in favour of the Respondent in circumstances where MWP is the very clear overall winner in the Emmott and Temujin Partnership fraud litigation”. This is not how the discretion to order security for costs is exercised.
c) in relation to paragraphs 2-3 on unnumbered page 3 and throughout the Judgment, R. McHugh JA fails to record, recite and accept the fact that MWP’S judgments, rulings, orders, default and final costs certificates (“MWP Judgments”) were in very large part successfully reciprocally recognised under the Treaty in force between the UK and Australia, and not merely the FGA, so that the same also became Australian judgments and entered the Australian legal system, and were not merely registered, and further that permission was granted to MWP to enforce by Senior Deputy Registrar P. Clayton in the CLD of the NSWSC on 02.02.24 (the “Recognition Order”), requiring the Respondent to pay MWP ≥US$5m, plus ongoing interest and costs, and which accordingly proves beyond all doubt that not only does MWP have very significant assets in the jurisdiction, but also that the Respondent is and has long been a judgment debtor and debtor of MWP in the jurisdiction and for very significant sums, and further that the Recognition Order has never been stayed, varied, rescinded or set aside;
a) Nowhere in and throughout the Judgment, does Basten AJA record, recite and accept the fact that there are very many judgments, rulings, orders, default and final costs certificates in favour of MWP and against the Respondent, and all of which are final, binding and incapable of further appeal or challenge and which require the Respondent to pay MWP ≥US$5.5m, plus ongoing interest and costs, for very large sums of money by the Order of Senior Deputy Registrar P. Clayton in the CLD of the NSWSC on 02.02.24 (the “Recognition Order”) were successfully reciprocally recognised, registered and permission granted to MWP to enforce the same under and in accordance with the International Treaty in place between the United Kingdom and the Commonwealth of Australia, comprising the “Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland, providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters”, No.27 of 1994, which entered into full force and effect on 01.09.94 (the “Recognition and Enforcement Treaty”), which is implemented in Australia through the Foreign Judgments Act 1991 (Cwlth), as amended (the “FJA”), and the Foreign Judgments Regulations 1992 (Cwlth), as amended (the “FJR”) so that all of the Recognised Judgments thereby became Australian judgments, entered the Australian legal system, and further where permission was granted to MWP to enforce the same, and all of which proves beyond all doubt that not only does MWP have assets in Australian, but has very significant assets in Australia since it is trite law and accounting that, of course, receivables comprise assets, and further shows and proves that the Respondent is and has long been a judgment debtor and debtor of MWP in the jurisdiction and for very significant sums and, further, the Recognition Order has never been stayed, varied, rescinded or set aside, and instead remains in full force and effect;
Similarly, ground 8(m) of the motion to review McHugh JA’s orders resembled 8(i) of the motion to review Basten AJA’s order. Those happen to be two of the most verbose grounds. The grounds in all occupied nearly six pages (in the case of the application to review orders made by Basten AJA) and slightly more than six pages (in the case of McHugh JA).
Some of the grounds challenged rulings on evidence, which were not sought to be developed during the hearing. One was a complaint about whether an extension of time was required, but that did not materially affect the discretion.
Three classes of grounds deserve separate mention. Paragraph 8(r) complains of a failure to find that Mr Emmott misled Schmidt AJ. That is a serious finding, not lightly to be made on an interlocutory application such as this. In any event, the materials on which that conclusion was said to rest were not before this Court.
Paragraph 8(b) complains that on 14 March 2025, when the matter was listed for judgment, “MWP connected in time by Cisco Webex” but was “left waiting online and never allowed into the hearing”. It was also said that “a prior version of the judgment of 14.03.25 was handed down and provided to the Respondent, but the same has not been provided to MWP, in breach of its rights”. This was not developed by Mr Wilson in the hearing, and was raised by the Court in the afternoon as to whether it was pressed. Mr Wilson did not abandon it. There is nothing in the point. MWP was free to attend in Sydney by local practitioner to receive judgment. MWP was also perfectly entitled not to attend and have the judgment emailed to its lawyers. If there was a technological difficulty at the time judgment was delivered, nothing turns on it. It is not suggested that Mr Wilson did not rapidly receive by email a copy of the judgment. The judgment posted on CaseLaw records that it was amended on the day it was handed down, with the annotation “14 March 2025 – ‘Parties’/‘Representation’ – correction”. That annotation does not identify what the amendment in fact was, but whatever it was, it is plain that it was not material to the order made.
(a) R. McHugh JA should have but failed to recuse himself, despite his having acted previously for MWP, as counsel, M.H. McHugh AC KC having acted as a mediator paid for by MWP and where R. McHugh JA’s wife is apparently briefed in a matter adverse to MWP which gave and give rise to apprehensions of apparent or apprehended lack of impartiality and/or bias, which should in the ordinary course of events have ensured that the matter was not listed before and did not involve R. McHugh JA.
LEEMING JA: … The more important question in a way is ground 8(a), it’s a really serious thing to say that there should be a rehearing because the judge gave the apprehension of bias. The law in this country is that we deal with those allegations first because if they’re made out you’re entitled to a trial before an unbiased tribunal and appropriately it’s the first ground of your motion seeking review. You’ve said absolutely nothing about--
WILSON: Yes.
LEEMING JA: --it in a long day. Do you press it? If you do--
WILSON: Well, I--
LEEMING JA: --I really want to--
WILSON: Yes.
LEEMING JA: --know when you made an application to McHugh J to recuse himself or if you didn’t what explanation there is for your not doing so. Mr Wilson--
WILSON: I did make an application.
LEEMING JA: --in all seriousness I want to make it absolutely plain, it’s a very serious thing to make such an application and I’m sure you’re conscious of the seriousness of it.
WILSON: I am very conscious of it, I was extraordinarily surprised to see a barrister who we instructed for eight months not, not appearing. Richard McHugh is a barrister who acted for MWP with Clayton Utz for many years in relation to the New South Wales 1 proceedings and further he explained at the beginning of the hearing that his wife apparently is instructed on some other matter adverse to MWP of which I have no knowledge and thirdly his father was the mediator in August 2022 paid for by MWP between the parties as the result of an order of Stevenson J and our MWP’s position--
LEEMING JA: Mr Wilson, as I said I’m interrupting because this is very serious, you’ve sworn an affidavit that says MWP has also now discovered that R McHugh J’s wife a lady called Kate Morgan SC has been briefed in the matter adverse to MWP. You told us not 20 seconds ago that McHugh J disclosed that fact to you at the hearing. Please think very carefully about this. Can both of those statements be true? If not, which is not?
WILSON: Both are true. At the beginning of the hearing McHugh J said he’d had a conversation in the kitchen with his wife who he said was instructed in the matter relating to MWP of which he had at that time no knowledge. And we’ve now been informed that she is instruct[ed in] proceedings adverse to MWP but McHugh J gave us no information about that matter. So, our position is McHugh J shouldn’t have heard this application, (a) because he has acted historically for MWP in similar proceedings in England where Flaux J, Hamblen J now Lord Justice … acted, they disclosed and Flaux and Hamblen recused themselves, where they’d acted previously with Mr Emmott.
LEEMING JA: Did you ask--
WILSON: And secondly, he then disclosed--
LEEMING JA: Did you ask for McHugh J to--
WILSON: --his wife--
LEEMING JA: --recuse himself?
WILSON: Yes, and he declined, he said he’d got no conflict. I’ve never in my entire career anywhere in the world had a judge sitting on a matter who was a former barrister acting for MWP or any client of ours and that’s the position that Julian Flaux took and Hamblen LJ took in relation to Mr Emmott where they’d previously been instructed by him on unrelated matters.
LEEMING JA: What should this Court do to resolve this? Things that are very important happened at the hearing of which you complain. You haven’t given us the transcript.
WILSON: Only because I haven’t yet got it, I can undertake to get you the transcript as - and provide it to you the moment it’s provided to me by Auscript.
LEEMING JA: Prima facie, you must have, is this right, you personally knew that MWP had once retained Richard McHugh senior counsel as he then was, nine years earlier.
WILSON: And I raised it at the hearing and obviously McHugh J knew that when he decided to take this hearing but in, but in similar situation Julian Flaux, Lord Justice now and Hamblen LJ when they’d acted for Mr Emmott on other matters, unrelated, recused themselves. I apply that standard.
LEEMING JA: So, you say that you made a formal application to McHugh J to recuse himself at the beginning of the hearing and he refused?
WILSON: Yes, he thought it was no, it was no impediment on him hearing the matter that he’d acted for MWP in relation to this very claim many years ago. He thought that was irrelevant to whether he could hear the matter.
LEEMING JA: Just a moment Mr Wilson, Mr Baird, normally in such circumstances a judge would give reasons or ask whether reasons are not required and if reasons weren’t required the matter would go on, if they were required they’d be given. We don’t have the transcript of what happened, I figure you were there. Doing the best you can, I’m sorry to put you on the spot but it’s a matter of seriousness and the authorities say this is the first thing we have to deal with, and it is a matter of some concern that it’s only come up because I’ve raised it rather than your opponent, is there a way of short circuiting this, just based on your recollection?
BAIRD: The answer to your Honour’s question is twofold. Firstly, the transcript will be necessary, I was going to give this Court because I think I have an obligation to do so my own honest recollection of what occurred before McHugh J as I was counsel appearing on that date. My recollection is that his Honour came onto the bench and raised the question of whether there was an apprehended bias question in relation to his hearing the matter at the outset. His Honour raised two matters; the first was that he had when counsel, senior counsel I think at the time, appeared for MWP in the proceedings before Einfeld J was referred to as NSW 1, his Honour made the observation he did not see how appearing for MWP back at that distant point in time could impact upon his ability to hear the matter fairly.
His Honour then raised another matter which was that he was aware that his wife was briefed in relation to, I’ll have to be careful what I say, other proceedings involving Mr Wilson personally.
LEEMING JA: Okay.
BAIRD: In which she had been instructed by the Law Society of New South Wales. I was asked for my observation, I said that the High Court’s ruling in Ebner covered the matter and there was nothing of which I was aware that would impact upon his Honour’s ability to hear the matter but subject to that his Honour should determine the matter. My recollection is then there was a short adjournment for Mr Wilson to obtain instructions and consider the matter and this is very important your Honour, my recollection is that when the Court readjourned McHugh J asked whether Mr Wilson continued to maintain or would, let me be precise, whether Mr Wilson would press an application that McHugh J recuse himself by reason of apprehended bias and the answer to that question from Mr Wilson was “No.”
Mr Wilson in this court abjured an application to recuse McHugh J which is entirely to the contrary of what Mr Wilson has just informed this Court and that is a very serious matter, your Honour, whether my recollection is correct or not can only be determined by reviewing the transcript. That’s my honest recollection, your Honour.
LEEMING JA: Thank you. This Court isn’t going to determine anything on the basis of what people say and thank you, you did exactly as I asked, it’s helpful. Mr Wilson, Mr Baird, what the Court will do is take its own steps to get the transcript. I don’t know why those steps haven’t been taken, I’ve said that before and it doesn’t get any better by repetition, it’s quite likely that I will be able to get the transcript faster than you because of the position I hold. We will make copies of the transcript available to both of you, we’ll do that as soon as we can.
This matter really must be resolved sooner rather than later so what I’m minded to do is to give each of you leave to put on submissions not exceeding five pages confined to the first ground which is paragraph I think 8(a) of the notice of motion, apprehended bias within three working days from when the transcript is able to be got to you. I don’t know when that’s going to be, I’d hope it’s in the next 48 hours.
BAIRD: Yes.
LEEMING JA: Mr Wilson, if you do want to say anything in response to Mr Baird I think you’re entitled to do so but the matter is quite important and if you do continue to press ground 8(a) you should be assured it’s going to be determined on the basis of what the transcript records happened rather than what you or Mr Baird recollect happened, that’s just unfair to both of you.
WILSON: Yes, your Honour. I do want to response, that isn’t my recollection. We did order the transcript on 15 March, sorry 30 April, and we haven’t got it yet, not the lack of trying on our side. These things sometimes happen, I’ve had to wait six months for transcripts in some jurisdictions. The points we make is in similar scenarios before the English High Court Julian Flaux and Hamblen LJ recused themselves where they had acted for Mr Emmott in unrelated matters for clients. We’ve never had a situation anywhere in the world in the history of our client litigation or MWP’s litigation where a barrister instructed by one party then goes onto hear the matter appointed to the bench
And the final point I make is as Mr Baird knew at the time and knows very well Mr McHugh’s father was also a mediator between the parties. So, you have McHugh J acting for MWP for a period of more than six month in this very litigation, his wife apparently adverse and his father as the mediator, Mr Baird didn’t venture.
LEEMING JA: Well, all of that is going to go nowhere if the transcript records that you on behalf of your client as Mr Baird puts it abjured any objection to McHugh J sitting. Mr Wilson, it’s 10 past 4 does that complete your oral address?
WILSON: Yes, Justice.
The essential points are that Mr Wilson was put squarely on notice of Mr Baird’s recollection that after McHugh JA had raised his own former involvement in having been briefed to appear for MWP, and disclosed some involvement of his wife, there had been an adjournment following which Mr Wilson advised he would not press an application for recusal. That of course is consistent with the absence of any reasons from McHugh JA explaining why he had rejected Mr Wilson’s application. Mr Wilson was also on notice of the Court’s view that bringing an application that a judge failed to recuse himself for apprehended bias was a very serious thing, and that if it turned out that Mr Baird’s recollection was correct, that would be an end of the matter.
At the conclusion of the hearing on 20 June 2025, the Court ordered:
1. Note that the Court will take steps rapidly to obtain the transcript of the hearing before McHugh JA.
2. Grant leave to all parties to supply by email to my associate submissions not exceeding five pages, to be supplied within three working days after the parties receipt of the transcript confined to paragraph 8(a) of the notice of motion which is that McHugh J should have but failed to recuse himself.
3. Subject to that, judgment is reserved on the two outstanding notices of motion.
The transcript was obtained and supplied to the parties on 23 June 2025.
Mr Baird’s recollection was correct.
HIS HONOUR: All right, thank you. Before we get started there are a couple of matters that I should raise with the parties. The first of them concerns my own involvement. Mr Baird is unlikely to know this and I suspect Mr Wilson is unlikely to remember. I appeared very briefly in the initial litigation between the parties for Michael Wilson Partners in obtaining a worldwide freezing order. This was I think in 2006. It was from Palmer J. It was obtained ex parte and after that I was involved in the proceedings for a short time. I can’t remember how long and I can’t remember the nature of that involvement and I was then replaced. But on the list of cases that Mr Wilson provided, one of them comes back to I think it was a freezing order. Just pardon me a moment. I’ll see if I can find it.
It was number 93 on the list of Mr Wilson’s cases and it says “NSWSC Freezing and Disclosure Order as against all Seven Defendants”. The date is 6 October 2006 and that accords with my recollection that I appeared in that proceeding. I’m not suggesting that it gives rise to any difficulty. I can’t remember anything about it and it doesn’t have anything to do with the present case but I just thought I should raise that for the parties’ consideration.
BAIRD: Thank you. Could I indicate for my client’s part there is no suggestion that that involvement of your Honour at an earlier stage in any way has anything to do with the issues in this case. Could I actually indicate for the Court’s assistance that that was a separate piece of litigation in which Messrs Nicholls and Slater were defendants and my client was not a party to those proceedings.
HIS HONOUR: I’m grateful for that. The passage of time has meant that I didn’t even realise that your client was not a party to those proceedings. In any event, I had appeared, as I recall, for Michael Wilson Partners.
BAIRD: No objection.
HIS HONOUR: Mr Wilson, does it give rise to any difficulty for you?
WILSON: Yes, your Honour, I wanted to mention I did, indeed, remember that and our position is that it, the response is, for the reasons set out in our submissions and the evidence, that the respondent is, indeed, bound by those judgments and those orders, including those freezing orders and that, that’s our position as advocated by Mr Bennett AO KC.
HIS HONOUR: But, Mr Wilson--
WILSON: So our--
HIS HONOUR: --the more immediate question was does it give rise to any difficulty in my hearing the matter today?
WILSON: From, from MWP’s side, not, your Honour, no, it doesn’t.
HIS HONOUR: All right, thank you for that. That was the first matter I wanted to raise. The second matter I wanted to raise was matter of which I suspect, Mr Wilson, you’ll be unaware but I raise it purely in the interests of full disclosure, not because I think it gives rise to any difficulty. As I understand it, you are a party to a proceeding I don’t even know in what Court, I assume it’s in the Supreme Court of New South Wales, involving the Law Society of New South Wales. As I understand it, that’s a proceeding in which you are seeking a review of something that the Law Society has done. I don’t know what that thing is and I don’t know on what basis the review is sought, but the reason I raise it is that I was told by my wife that she has accepted a brief to appear for the Law Society in that matter.
As I say, I can’t see that it has any connection to this proceeding in any way. I don’t know anything about the content of it. As I say, I don’t even know what the subject matter of it is but I just wanted to raise that matter and I suspect you would not know that because, as far as I know, my wife has had nothing to do in that proceeding as of yet. I think she as yet notionally holds a brief but I don’t know that she would have appeared in Court. Again, I don’t see that it gives rise to any issue but wanted to raise that so that you would be fully informed, Mr Wilson.
WILSON: Yes, your Honour, I wasn’t aware that counsel were at all involved. I, I don’t know. Could you tell the name of your wife?
HIS HONOUR: Her name is Morgan. The fact that counsel is involved at all, I don’t even know the nature of the involvement. All I know is that she holds some kind of brief.
WILSON: MWP’s, MWP’s solicitor had some contact with a, a, a Morgan about her retaining for MWP’s side. I’m, I’m surprised by all this.
HIS HONOUR: Her legal name is Katherine Morgan. She goes by Kate. She is a senior counsel.
WILSON: Yes, I mean, that, that’s the name that our solicitors approached I think but we didn’t know that the other side had - I mean, the other side haven’t filed any document at all and, and haven’t appeared save by employed staff, so it takes me by surprise--
HIS HONOUR: The question of--
WILSON: --and there, there was some discussion between - I can’t remember the first name of the barrister - a barrister called Morgan and our solicitors, so I, I--
HIS HONOUR: Mr Wilson, I can’t see for my part that it gives rise to any difficulty at all but it did seem to me that, in the circumstances it was something that I would at least disclose so that you could consider whether it gives rise to any issue for you. As I say, for my part I know nothing about the nature of the proceeding. I don’t know what the subject matter of it is. I don’t have any information in connection with it at all other than the fact that, as I understand it - and I should say I understand this as a result of a very brief conversation this morning--
WILSON: Well, your, your Honour, I’d, I’d, I’d prefer you not to talk about that other matter.
HIS HONOUR: No. No, Mr Wilson, I certainly wasn’t talking about the other matter at all, but given that I’m a judge of the Court and that my wife is a practitioner who often appears in the Court, it’s necessary to make sure that there aren’t conflicts, and so that’s why, if I know that I’m sitting in a matter, as appropriate from time to time, I’ll make an inquiry to determine whether or not there may be a conflict and, as it happens, given that this litigation that we’re dealing with today is part of a long-running litigation, it was appropriate to determine whether or not my wife had any involvement and it was only on that basis that I found out the very little that I know. So, Mr Wilson, certainly I haven’t discussed the matter with my wife beyond what I’ve raised with you so far and I don’t propose to discuss it with my wife.
WILSON: Your Honour, I’m, I’m afraid it does leave me with some concerns. Obviously it’s, it’s unfortunate.
HIS HONOUR: Mr Wilson, the only concern that could be relevant from the point of view of whether or not we can proceed today is whether it gave rise to a reasonable apprehension of bias as that concept is understood in light of Ebner’s case. As an experienced practitioner of the Court and one who’s been involved in a good deal of litigation you would, I expect, be familiar with the Ebner test.
WILSON: Yes. Yes, your Honour.
HIS HONOUR: Yes.
WILSON: Yes, your Honour, I’m fully familiar with that because, of course, as you will be aware Basten JA found Einstein to be biased and the High Court overturned that. No, I’m, I’m aware of that. Of course, I’m not suggesting bias. It just leaves me with some, some unease because, obviously, as that matter moves forward knowledge may flow.
HIS HONOUR: Just to be clear, I’m sitting on this matter today alone. There’s been no administrative arrangement made for any other aspect of it so this is the only part of the case I’m dealing with, which is today, and the concern you expressed about knowledge flowing, you certainly need have no concern about that. Everybody observes their professional obligations are they are required to, including in respect of knowledge. So the question becomes do you wish to make an application or do you wish even to adjourn for five minutes or some short period of time to consider whether you wish to make an application? As I say, I don’t have any concern about the subject matter myself at all but I thought I should raise it with you.
WILSON: Yes. Yes, your Honour, I, I would like a short time. I mean, the, the, the, the, the point, the, the, the point of these proceedings, your Honour, is they, they very much are a part of the prior proceedings and prior judgments which all remain unsatisfied and the freezing order remains ongoing and our case, just so you’re aware, our case in this litigation is that Mr Emmott, as Einstein found, is and always was the preeminent moving partner and, as Einstein found, the backbone of the plot and the person who controlled each and every step. So our position is that those judgments and orders remain on foot and Mr Emmott is, in fact, bound by them. So I think that gives you--
HIS HONOUR: No, that doesn’t give rise to any concern with me I thought you said a moment ago.
WILSON: No, I just wanted you to be aware of that, your Honour, because they’re, they’re not separate proceedings. Unfortunately we’ve been round the circles because you may not be aware but in 2009 the Arbitral Tribunal had to defer the issues involved in Mr Emmott breaching partnership to this Court because of destruction of documents, non-disclosure, refusal to bring witnesses, et cetera.
HIS HONOUR: Can I just ask you this, Mr Wilson? Can I just ask you to focus on the immediate question, which is there are two matters I’ve raised: one was my own involvement in a case in 2006 in respect of which you’re saying that gives rise to no concern about my ability to hear the application today, and the second matter is the one that I raised about my wife’s involvement in some other proceeding that involves you, and the question is do you want to have a short adjournment to consider whether you wish to make any application? I’m certainly not in any way concerned about the issue myself and I’m not encouraging you to take any particular course but I’m giving you the opportunity if you wish to take it?
WILSON: Yes, your Honour, I, I was just trying to explain, perhaps not very well, that, that this litigation involving this respondent is, in fact, all part and parcel of the same thing and our case is that - so it, it, it’s not the question of there was a proceeding in 2006 that’s long over. The, the history of this matter was the, the respondent refused to join New South Wales 1, which we call it, and then wrongly injuncted MWP and wrongly stayed MWP for all the period of time since you were involved and here we are and, and obviously this proceedings concerns the recognition of our judgments against him. But I just wanted you to be aware of that because it, it’s not a case of that is dim and distant litigation that’s got no relevance to this. It’s very relevant.
HIS HONOUR: First of all I might ask Mr Baird if what I’ve said gives rise to any issues as far as his client is concerned.
BAIRD: None whatsoever and, in accordance with the principles in Ebner, in my submission, there is nothing there that could give rise to a reasonable apprehension of bias on your Honour’s part having regard to the disclosure made today.
HIS HONOUR: All right, thank you, Mr Baird. Mr Wilson, what course do you want to take?
WILSON: I, I would like a 15 minute break, your Honour, so I can make a phone call if that’s okay. I, I don’t, I don’t personally see a problem and I accept your Honour’s summary of the situation. I just wanted to, to check the position, if I may.
HIS HONOUR: All right. It’s now just after a quarter to 3. I’ll adjourn for 15 minutes. That will eat into the time we have this afternoon but I’ll adjourn for 15 minutes to allow you to consider your position and we’ll deal with it--
WILSON: Thank you.
HIS HONOUR: --upon my return.
SHORT ADJOURNMENT
HIS HONOUR: Mr Wilson?
WILSON: Yes, your Honour, thank you very much. I, I just checked the - your involvement I think did end in December 06 from our records through Clayton Utz. Your wife’s name is familiar to us. Our, I think our solicitors were in touch with her but they haven’t, they, they didn’t retain her. So I, I, I don’t have an application to make, your Honour.
HIS HONOUR: Thank you, Mr Wilson. That’s helpful.
Paragraph 8(a) of the Review Application filed 2 June 2025 ought never to have [been] put forward by the applicant as a ground of review of the decision of Justice McHugh of 14 March 2025.
Mr Emmott’s submissions also stated that the application for review “ought accordingly to be dismissed with costs on the indemnity basis, such to be payable personally by the solicitor for the applicant in an amount fixed by the Court”.
MWP’s submissions were not filed until 10.51pm on Friday 27 June 2025. They did not address what had been said on behalf of Mr Emmott. They did not refer to the transcript which had been supplied to Mr Wilson earlier that week. They did not refer to the disclosures by McHugh JA, the adjournment, or Mr Wilson’s statement after that adjournment that he had no application to make. They simply reiterated that McHugh JA should have recused himself.
MWP’s submissions were not signed, but they conclude as follows:
Richard Thomas
In Chambers
Respectfully submitted,
Michael Wilson & Partners, Limited
Refs: MEW/YKA/zzk/nnm/zap
27 June 2025
The point of the grant of leave to supply further submissions was to address the issue that had arisen at the end of the hearing, concerning whether a recusal application had been made by Mr Wilson. The precise role played by Mr Thomas in those submissions (if any) is not clear, and the Court’s directions will provide an opportunity to him to explain his involvement. However, it is difficult to see how those submissions could have been filed in the form they took by anyone who had been briefed with an explanation of the reason for the grant of leave to supply further submissions, or the transcript of what had occurred before McHugh JA, or with Mr Emmott’s succinct submissions based on that transcript.
Putting to one side the position of the counsel named on the document (to which we shall return), there is no reason to doubt that Mr Wilson acting on behalf of MWP was personally aware of the document filed late in the evening (Australia time) on the Friday, bearing the name “Michael Wilson & Partners, Ltd” and his initials.
In the face of what occurred on 10 March 2025 and what was said of it in Mr Emmott’s submissions of 24 June 2025, the course taken in MWP’s submissions is inexplicable. The complaint before us that McHugh JA should have recused himself was demonstrably baseless, given what had in fact occurred before his Honour. It was also clear that the complaint could not sensibly be maintained after the transcript of what occurred at the hearing was made available. Mr Wilson acknowledged that it was a very serious allegation. Yet despite not making any recusal application at the hearing before McHugh JA, he raised it as a ground of review before this Court and then maintained it despite the transcript having been provided to MWP, and despite Mr Emmott’s submissions. The precise role played by Mr Thomas is not clear, but it is clear that Mr Wilson was at all times, including when the supplementary submissions were filed, the solicitor on the record for MWP.
This is not the only respect in which Mr Wilson’s conduct of these applications as a solicitor has been unsatisfactory and concerning. Forty-six separate grounds of review are advanced in relation to two decisions to order a British Virgin Islands company to provide modest amounts of security for costs, with the prolixity of the grounds serving only to conceal how repetitive they are. That ten affidavits were read in support of the applications in this Court was also utterly disproportionate to what is involved. Parts of those affidavits were and are hotly in issue, including the strength of the underlying appeals and whether “MWP has significant assets in the jurisdiction”. Although Mr Wilson claimed to be familiar with the prohibition upon a legal practitioner being simultaneously a witness and an advocate, his conduct of the present applications on behalf of MWP demonstrated at best that he did not understand the rule and at worst that he flagrantly breached it, because much of his evidence is contested. Mr Wilson also has no understanding of the obligation only to provide submissions to judicial staff after judgment has been reserved in accordance with leave. Annexed to these reasons are the submissions supplied by Mr Wilson after judgment was reserved which fall outside the leave granted.
For those reasons, MWP’s motions filed on 28 March and 30 April 2025 should be dismissed. We note that each of those proceedings is presently stayed, in light of the failure by MWP to provide the security ordered. There is no reason why costs should not follow the event.
The outstanding issues concern Mr Emmott’s application for a special costs order, an opportunity for an explanation from Mr Thomas, and an opportunity for Mr Wilson to explain why the papers should not be referred to the Legal Services Commissioner. The directions below address those issues.
The Court’s orders, in each of proceedings 2024/416114 and 2024/449432, are as follows:
1. Dismiss the motions filed by Michael Wilson & Partners Ltd on 28 March 2025 and 30 April 2025 with costs.
2. Any application by Mr Emmott for a special costs order to be made by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages, noting that the Court will thereafter make directions as appropriate as to the exchange of evidence and submissions.
3. Note that a copy of these reasons will be supplied directly by the Court to Mr Richard Thomas at the email address nominated by the Australian Capital Territory Bar Association, namely, richardthomascanberrabarrister@gmail.com.
4. Direct Mr Wilson to supply a copy of these reasons to Mr Richard Thomas.
5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today.
6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Judgment was reserved on 20 June 2025, subject to leave granted to supply by email to the Associate to Leeming JA submissions not exceeding five pages, within three working days after the parties’ receipt of the transcript of proceedings before McHugh JA, confined to paragraph 8(a) of the notice of motion which was that McHugh JA should have but failed to recuse himself.
On the morning of 23 June 2025, the Associate to Leeming JA sent both parties a copy of the transcript of the proceedings before McHugh JA on 10 March 2025.
On 23 June 2025 at 11.39am, Mr Wilson sent the Associate the following email:
Dear Associate,
As to the hearings before McHugh JA, as the Justices know there should be two (2) Transcripts, not one, namely of 10.03.25 and also of 14.03.25, whilst as to the hearings before Basten AJA there should be Transcripts of and for 19.03.25, 31.03.25, 14.04.25 and 15.04.25, as per our records.
Please can those Transcripts also be provided as well, as discussed during the Hearing with the Justices late on Friday, 20.06.25.
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Mr Wilson,
The terms of order 2 made by the Court of Appeal in the hearing last Friday were confined to the transcript of the hearing before McHugh JA. The transcript for 14 March 2025 is attached.
The terms of that order also make clear that the leave granted by the Court is confined to 8(a) of the notice of motion, in respect of the proceedings before McHugh JA.
Yours faithfully…
Dear Associate,
Thank you for your email below.
We attach the respondent’s submissions in accordance with the orders of the Court made on 20 June 2025.
The submissions are served on the applicant by virtue of Mr Wilson being copied in on this email.
We would be grateful if you would bring the submissions to their Honours’ attention.
Kind regards,
Peter Duggan
Dear Associate,
Further to our email enclosed, please would the Court be so kind as to further help and assists by providing MWP with the Transcript for 14.03.25, since we were not allowed into such hearing despite being online, waiting, as set out in paragraph 8 (b) of the Motion, as discussed with the Justices on 21.06.25, and were never provided with the prior version of the judgment of 14.03.25. MWP ordered the Transcript itself previously, and again just now, in the usual way, through the NSW Online Registry, but despite trying very hard has still been unable to obtain the Transcript for 14.03.25 and the system indicates periods of 4-6 weeks waiting time.
As to the Transcript for the hearing on 10.03.25, as provided on 23.06.25, if the Justices look at page 10 just below the number 30 in the left hand margin, it states “FOR JUDGMENT SEE SEPARATE TRANSCRIPT”, please could such further judgment also be provided so that the Transcript is complete, and as we have never seen the same?
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Mr Wilson,
The transcript when judgment was delivered on 14 March 2025 has been supplied to you by email of 24 June 2025.
If you wish to seek to obtain a copy of the ruling by McHugh JA, I suggest you approach his Honour’s chambers, ensuring that you copy in the other party to all emails.
I note that submissions were due at 4pm today.
Yours faithfully…
Dear Associate,
Very many thanks, indeed for your email, as you might know there is a minus 5 hour time-zone difference as between Sydney, NSW which is on AEST, and here in Central Asia, where the Defendant also lives with his Uzbek wife and works on his case, at this time of year (6 hours in your summer down-under).
The Transcript so very kindly provided and for which we are most grateful on 240625 for 140325 (which, despite numerous efforts and orders and with the best will in the world) we had been unsuccessful in obtaining through no fault of MWP clearly says at 30-33 on page on 19:
“HIS HONOUR: Mr Wilson, this is my ruling on the issue.
FOR JUDGMENT SEE SEPARATE TRANSCRIPT”
but which, unfortunately, is still missing and has not been supplied or provided, so far.
As so very kindly now suggested by you, we shall proceed to contact HH’s Chambers to see if he has the same, as well as the prior version of the main judgment which clearly exists, but which for reasons not clear has never been provided to us – as you know, we were waiting online as directed and in good time, but were not allowed in, hence the hand-down and discussions as to orders occurred ex-parte, and currently we have no idea what was said or what occurred on that day, hence our request for, efforts to obtain and need for the further missing Transcript, as well as the prior version of the judgment we have still not seen and been provided with, try as we might.
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Associate,
Further to our email attached and pending receipt of the missing transcript of judgment, as well as we the prior version of the judgment of Mr Justice R. McHugh, meanwhile we enclose MWP’s Written Submissions on the recusal issue, as lodged by the NSW Online Registry, approved, stamped and sealed for Justices M. Leeming, S. Free and A. Mitchelmore.
Please would you be so kind as to acknowledge safe receipt.
We confirm that we have separately served the Respondent/Judgmen Debtor/Debtor.
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Associate,
Many thanks, indeed, for your email, and for so circulating to the relevant chambers.
Please be aware that, unfortunately, we are still waiting for the missing Transcripts from the Chambers of McHugh JA, and also of the prior version of his judgment provided to the Respondent, but not to MWP.
Meanwhile, the Justices should be aware that there are very well advanced bankruptcy and sequestration hearings listed as to the Respondent:
- in and before the I&CL of the B&PC in the KBD of the EWHC as to the Judgment Debtors UK Bankruptcy and Sequestration of his Worldwide Assets and Estate, as a result of the 3 CBP’s and 27SD’s (the equivalent of Australian Bankruptcy Notices) as to his still unpaid multi-million pound final and binding judgment debts in the UK before I&CCJ Burton on 150725, as to which the relevant UK Bankruptcy Case Numbers are, as follows:
BR-2018-000444 (MXP CFO Appeal Monies Repayments and Interim Payments)
BR-2018-000445 (BCC 410/2015, MEW 1st Committal Costs)
BR-2018-000701 (NZHC and NZCA Costs)
BR-2018-001611 (NZHC & UKSC Debts)
BR-2019-001503 (Tomlinson MWP Debts)
BR-2020-000579 (Pelling Order 301120 £15,875 Costs Payment)
BR-2020-000580 (Pelling 3rd Contempt Order 201120 £255,000 Payment)
BR-2021-000065 (STCM Error Debts)
BR-2021-000147 (Tomlinson J/Arduina DCC Debts)
BR-2021-000262 (Sinclair Debts)
BR-2022-000256 (EWCA/UKSC NSW Injunction Debts)
BR-2022-000461 (Arduina Purchased Debts)
BR-2022-000550 (HHJ Pelling KC/Popplewell LJ Confirmed Sinclair Debts)
BR-2023-000102 (WWFO Rescission HHJ Pelling KC £250,000)
BR-2023-000339 (TPDO MXP CFO Appeal Monies Dismissal HHJ Pelling KC Debts)
BR-2023-000457 (Receivership/WWFO Increase Dismissal HHJ Pelling KC Payment £50,153)
BR-2023-000595 (Arbitration Costs Debts)
BR-2023-000614(Arbitration Costs/Interim Payment Refunds)
BR-2023-000663 (Payments on Account qua Sinclair)
BR-2024-000519 (Teare J Order Repayments)
BR-2024-000625 (HCA Costs Orders and Judgment Debts)
BR-2024-000626 (Slater Debts)
BR-2024-000697 (Arbitration Disallowed Costs Repayments)
BR-2025-000334 (Rowley Contempt Costs/Stay Lifted 150125)
BR-2025-000429 (Sinclair Debts Failed amended Defence)
- in and before Mr Justice Moore in the FCA on 200825 in NSD396/2024 as to a Creditors Petition given the Judgment Debtors final and binding unpaid HCA Judgment debts, as taxed, assessed and certified.
On his own case, the Respondent is hopelessly insolvent and trading whilst insolvent, as he is a serial non-payer of final and binding judgment debts in all jurisdictions, including Australia, as well as NZ, the Bahamas and the BVI so far. Mr Nicholls, his Temujin Partner since 2005, was bankrupted by Lloyd-Jones J in the FCC and Mr Slater, his other Temujin Partner’s UK Bankruptcy of 20.12.15, was reciprocally recognised as a “foreign main” proceeding by Gleeson J in the FCC, after the bankruptcy and sequestration order was made by Sadd J in the Brighton County Court, whilst Mr Sinclair the Respondent’s funder and partner was bankrupted by I&CCJ Prentis in the I&CL on 09.03.21, and such reciprocally recognised in the Bahamas Supreme Court by Charles J, in NZ by Associate Judge Johnson in the NZHC, and in the Superior Court of Arizona, the USA by the Honourable B. Kaiser and P. Thompson. MWP purchased and owns all rights of all of Nicholls, Slater and Sinclair, vis-à-vis the Respondent.
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Mr Wilson,
Judgment is reserved in this matter. The parties will be contacted shortly prior to judgment being delivered. I note that the parties do not have leave to supply any further submissions to the Court, and that there was no leave for your email sent to [the Associate] at 10.56pm on 1 July 2025.
Yours faithfully…
Dear Tipstaff,
Thankyou for your email, and that prior of the Associate to Justice Leeming.
We have just received the enclosed from the Associate to Justice McHugh JA and are reviewing and considering the same, including with our Counsel Team, as we have not seen or provided with the same, before, most regrettably, unfortunately and much to our surprise and disappointment.
We have asked for a copy of the Judgment of 140325, that was actually published, handed and passed to Messrs Baird and Duggan in open court on 140325, when we were not admitted into the hearing via Cisco Webex though we were waiting online patiently and well ahead of time, and which we now know was later corrected, but have been advised by the Chambers of Mr Justice McHugh JA that they no longer have and did not save and retain the same and, thus, that they cannot provide such to MWP, as they must.
Accordingly, we have asked Messrs Baird/Duggan to provide the same to us on 020725, but so far they have not yet even had the courtesy to reply, as they must, let alone to help and oblige their fellow practitioners, despite their fundamental duties as solicitors/officers of the Court, and the overriding purpose/objective.
We hope and trust they will come to their senses.
Yours faithfully,
Michael Wilson & Partners, Ltd.
Dear Tipstaff,
Further to our email of 030725 and the enclosed Transcript finally received from the Associate to Justice McHugh JA which we are reviewing and considering (including with our Counsel Team),
we have finally and only just now received a copy of the Judgment of 140325, that was actually published, handed and passed to Messrs Baird/Duggan in open court on 140325, when we were not admitted into the hearing via Cisco Webex though we were waiting online patiently and well ahead of time.
As the NSWCA is aware, MWP asked Messrs Baird/Duggan to provide the same on 140325, and again on 020725, unfortunately however they did not have the courtesy to reply until today, 070725, despite the overriding purpose and objective and their fundamental duties as solicitors/officers of the Court, as well as the overriding purpose/objective and all of our rights as a judgment creditor and creditor, and qua Sinclair.
We respectfully submit that there is no doubt McHugh JA should have recused himself, just as did Nicholas Hamblen J (as he then was), and also Julian Flaux J (as he then was).
Yours faithfully,
Michael Wilson & Partners, Ltd.
**********
coversheet amended from "NSWSCA" to "NSWCA"
Michael Wilson & Partners Ltd
Emmott
(2011) 93 NSWLR 311
(2004) 60 NSWLR 143
(2009) 239 CLR 175
The review motions filed on 28 March and 30 April 2025 were dismissed with costs; the 2 June 2025 adjournment motions had already been dismissed, and the Court made further directions concerning a possible special costs application, Mr Thomas’s account and Mr Wilson’s opportunity to show cause.
Fifthly, MWP is subject to a duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) of the Civil Procedure Act. The real issues are whether the decisions of Schmidt AJ and Hammerschlag CJ in Eq are attended by appellable error. That is well removed from the orders of security for costs, and still further removed from the question when its applications to review the orders of security for costs should be heard.
For those reasons we dismissed the notices of motion both filed on 2 June 2025 to vacate the hearing, and proceeded to hear the applications for review. Mr Baird flagged an intention to seek a special costs order, and the directions below will permit that application to be made.
Squarely relevant to each application for security for costs was the extent to which Mr Emmott could readily enforce any costs order in his favour against assets of MWP in Australia. Despite the volume of material supplied, there was no documentary evidence addressed to this issue.
Mr Wilson said, repeatedly, that MWP had long banked with an Australian bank (St George), but did not provide any evidence of the current balance. Indeed, and notwithstanding the criticisms by McHugh JA and Basten AJA of the evidence said to support the existence of MWP’s assets, and the supply of voluminous evidence which had not been before either McHugh JA or Basten AJA, the evidence did not include the bank statement. It did not even include testimonial evidence of the balance. Instead, we received the same financial statements of MWP which were summarised by McHugh JA at [23]-[25] and Basten AJA at [32]-[34] of their reasons.
This was squarely and repeatedly raised with Mr Wilson during the hearing. Mr Wilson maintained that MWP should not have to provide security because Mr Emmott owed it large amounts of money, leading to the following exchanges. First, at Tcpt 20 June 2025 T36.5-25:
Paragraph 8(j) complains that Basten AJA erred in failing to find that “MWP’s appeal has substantial merit, involves points of importance and principle, has utility and good prospects of success …”. This has been addressed above.
Paragraph 8(k) complains that Basten AJA was wrong to find that Mr Wilson’s medical evidence was “repetitive, unfocused and hard to assess”. That evidence was not before the Court, and so it is impossible to assess whether Basten AJA’s characterisation was wrong.
Paragraphs 8(m), (n) and (q) reiterate complaints about the failure to find MWP owns substantial assets in Australia, which are answered by what has already been said.
Paragraph 8(o) asserts that “Basten AJA is wrongly and myopically focused in arguing the Respondent’s case for him and for no good and proper reason, without properly, justly and fairly considering the overall truth and reality between the parties”. We note that an application that Basten AJA recuse himself was made, and refused (see Michael Wilson & Partners Ltd v John Forster Emmott (No 2) [2025] NSWCA 59), and was not challenged as part of this review. Otherwise, passing over its discourtesy, a ground which appeals to “overall truth and reality” is not a valid mode of legal submission.
Paragraphs 8(l) and (p) complain that Basten AJA erred in failing to find that by a series of assignments Mr Emmott is a judgment debtor of MWP. Even if that were made out, which is contentious, that is no answer to a claim for security for costs, bearing in mind the entitlement of Mr Emmott’s law firm to the benefit of such a costs order.
Paragraph 8(r) is conclusionary, paragraph 8(s) complains about a separate order made by Basten AJA, paragraph 8(t) complains about costs, while the final and 21st ground of review purported to reserve the right to “supplement, vary and amend this Notice”.
There are occasions when this Court must consider taking the serious step of referring papers to the professional regulator, lest legal practitioners cause harm to their own clients, to other litigants, to the courts, and to public confidence in the legal profession. We would not take that step lightly, nor would we do so without first permitting Mr Wilson to be heard in relation to that course. This Court’s directions will permit Mr Wilson to be heard as to why this Court should not refer his conduct in this matter to the Legal Services Commissioner. They will also entitle Mr Thomas to explain what role he had, if any, in the preparation of the submissions. To be clear about one thing, although the submissions filed on 27 June 2025 fall well short of what is expected of a competent legal practitioner with an appreciation of the circumstances, nothing in these reasons expresses or should be read as expressing any view about Mr Thomas, because it is unclear what his involvement was (if any) and what he was asked to assume.