Michael Wilson & Partners Ltd v Emmott (No 5)

Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 5) [2025] NSWCA 206

Hearing dates: On the papers

Decision date: 09 September 2025

Before: Leeming JA; Mitchelmore JA; Free JA

Decision: In proceeding 2024/416114 (the review of orders made by McHugh JA):
1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.
2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.
3. Refuse the informal application to cross-examine.
4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.
5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.
6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.
7. Otherwise dismiss the notice of motion filed on 1 August 2025.
In proceeding 2024/449432 (the review of orders made by Basten AJA):
1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.
2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.
3. Refuse the informal application to cross-examine.
4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.
5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.
6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.
7. Otherwise dismiss the notice of motion filed on 1 August 2025.

Catchwords: OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral
COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 56, 60, 98, 99
Electronic Transactions Act 2000 (NSW) s 8
Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.2
Supreme Court Act 1970 (NSW) s 37
Uniform Civil Procedure Rules 2005 (NSW) rr 3.7, 42.7

Cases Cited: Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159
Hamod v State of New South Wales [2011] NSWCA 375
Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244
Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Salmon v Albarran (No 2) [2025] NSWCA 115
Wormald v Maradaca Pty Ltd [2021] NSWCA 307

Category: Costs

Parties: Michael Wilson & Partners Ltd (Applicant on notices of motion filed 28 March, 30 April, 2 June and 2 June 2025; respondent to notice of motion filed 1 August 2025)
John Forster Emmott (Applicant on notice of motion filed 1 August 2025, otherwise respondent to various notices of motion)
Michael Earl Wilson (showing cause, and subject of application for third party costs order)

Representation: Counsel:
J Baird (Mr Emmott)
M Wilson, solicitor (Michael Wilson & Partners Ltd, and for himself)
Solicitors:
Duggan Legal (Mr Emmott)

File Number(s): 2024/416114; 2024/449432

Publication restriction: Nil

JUDGMENT

1. THE COURT: On Friday 11 July 2025, this Court dismissed two applications for leave to appeal brought from orders made by McHugh JA and Basten AJA that Michael Wilson & Partners Ltd (MWP) provide security for costs of its appeals on applications for leave to appeal from decisions in separate proceedings in the Common Law Division and Equity Division of this Court: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152. This Court also made orders on two other topics.

2. The first (by order 2) permitted the successful respondent, Mr John Forster Emmott, to make any application for a special costs order “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”.

3. The second (by orders 3, 4 and 5) permitted a barrister, Mr Richard Thomas, whose name was contained on a supplementary submission filed by MWP, to be heard, if he wished, and (by order 6) permitted Mr Michael Earl Wilson, a solicitor, with an entitlement to practise in New South Wales, to be heard why the judgment and the papers should not be referred to the Legal Services Commissioner.

4. These reasons address those two topics. The more important is whether Mr Wilson should be referred to the New South Wales Legal Services Commissioner. It is addressed first, although, as will be seen, the two overlap.

Should Mr Wilson be referred to the Legal Services Commissioner?

3. Orders 5 and 6 made by this Court on 11 July 2025 were as follows:

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.

4. Mr Thomas supplied four emails to the Associate to Justice Leeming on 11 July 2025. They were copied to Mr Emmott’s counsel (Mr Baird). On 16 July, Mr Thomas wrote again saying that he purported to recall the email. When asked to clarify, he said that all his emails should be recalled. On 17 July, Mr Wilson wrote saying that Mr Thomas’ email must be deleted and disregarded in its entirety. We have treated that request as applying to all of Mr Thomas’ emails.

5. It is not necessary to rely on the emails in order to resolve any issue which is before the Court, and we have not done so.

6. Mr Wilson’s email also asserts that the contents of Mr Thomas’ email “were and are inaccurate and wrong”, and adds that the transcript of the hearing on 10 March 2025 and Mr Baird’s submissions were provided immediately upon receipt to Mr Thomas, and “[t]he insinuations to the contrary in the Judgment simply have no basis”. Mr Wilson in his affidavit states, after repeating the gravamen of this, that:

The insinuations and suggestions to the contrary in the Judgment and the Order are entirely baseless, without any foundation whatsoever, and must be withdrawn and sincerely apologised for.

7. Reasons for judgment should, ideally, be self-contained, especially when as here they concern a matter of importance, namely, whether there should be an investigation into whether Mr Wilson should continue to act as a solicitor. For that reason, Annexure “A” to these reasons contains paragraphs [49]-[83] of our earlier judgment, which is confined to the first ground of review of the decision made by McHugh JA. This ground was that McHugh JA should have recused himself.

8. By way of summary, this ground was advanced without the transcript. It was not mentioned by Mr Wilson during his submissions until the end of the day. At that stage it became clear that it was necessary to obtain the transcript, because Mr Baird (who had been there) said that he recalled Mr Wilson not pressing the application, while Mr Wilson said that was not his recollection. The transcript demonstrated that Mr Baird’s recollection was correct, and that Mr Wilson, after obtaining at his request a short adjournment, confirmed that “I don’t have an application to make, your Honour”. That was consistent with there being no order refusing an application for recusal, and no reasons by McHugh JA for his continuing to hear the case. But it is inconsistent with MWP advancing as a basis for review in this Court that McHugh JA should have recused himself from hearing the application for security for costs.

9. When MWP supplied submissions, the position was as stated at [60]:

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.

10. The submissions were not signed, but Mr Thomas’ name was on them, as well as that of MWP. Mr Thomas had not previously, so far as the Court was aware, participated in the application for security for costs or the review of McHugh JA’s order. The reasons concluded at [62]:

It is difficult to see how this has come about. Mr Thomas is a barrister who has previously appeared for MWP in litigation in this Court, years ago, including in Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315. However, so far as the Court is aware, he did not appear in the present applications for review. He was not physically present in Court on 20 June, and there is no reason to think that he attended via an AVL link.

11. That was the context in which the Court said the following (at [63]-[67] of its earlier judgment) before making orders that Mr Wilson show cause:

Consideration

63 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.

64 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.

65 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.

66 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.

67 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.

12. Pausing there, we return to Mr Wilson’s complaint about “the insinuations and suggestions” in the judgment. We take this to be a reference to what was stated in [67] about Mr Thomas not having the role ordinarily expected of counsel, namely, to settle and sign submissions, and leaving open the possibility that he played no role in them. In light of what is now known, we accept that Mr Thomas played a role in drafting the submissions. We note that Mr Wilson’s affidavit does not explain why the submissions were unsigned. Nor does it assert that they were supplied to the Court in the form supplied by Mr Thomas. Most importantly, it contains no account of why the submissions fail to attend to Mr Wilson’s statement following an adjournment that he was not pressing his application.

13. There is an obvious difficulty in Mr Wilson positively asserting (on behalf of MWP) what occurred between him and Mr Thomas, and simultaneously stressing (again on behalf of MWP) that the communications were privileged and this Court must disregard them. It is likely that there has been a waiver, bearing in mind that inconsistency between the conduct of the client and maintenance of confidentiality of communications between client and lawyer may effect a waiver: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]. However, it is not necessary to reach a conclusion on this issue, which we mention only so as to confirm that we have not overlooked Mr Wilson’s demand that the “insinuations and suggestions” be withdrawn. There is no occasion to do so.

14. Paragraphs 27-33 of Mr Wilson’s affidavits (identical affidavits in each proceeding were filed by him) are as follows:

Paragraph 6 of the Orders: No Referral

27. There is no basis whatsoever for the Judgment, and the papers in this Court, to be referred to the Legal Services Commissioner.

28. As explained above and in MWP’s prior evidence and submissions, as the record now shows and proves, the Respondent has misled this Court, as well as the Court below throughout, because the truth of the matter is that for decades he has been and is a judgment debtor and debtor of MWP in all jurisdictions, who owes MWP tens of millions of dollars, and all monies are and always were payable only to MWP, including qua Sinclair, as a result of the Funding Deeds, the Deeds of Novation, the Vesting Letter and the Notice of Demand and related documents, as HHJ Pelling KC has found in the EWHC on 17.06.22 and 26.08.22, as upheld by Popplewell LJ in the EWCA on 29.11.22, and which became Australian judgments on 02.02.24.

29. Without waiving privilege and MWP’s rights of confidentiality, which are expressly reserved and preserved, MWP instructed Mr R. Thomas of counsel, in good time, provided him with all necessary documents and correspondence, as well as detailed instructions, as a result of which Mr R. Thomas of counsel primarily drafted the Recusal Submissions, which were then put in the proper form, agreed, settled between MWP and Mr R. Thomas of counsel in the usual way, and then filed by the NSW Online Registry, approved, stamped and sealed on 27.06.25, and then served on the Respondent in the usual way.

30. MWP ordered transcripts of the hearings of 10.03.25 and 14.03.25 before McHugh JA and 19.03.25, 31.03.25, 14.04.25 and 15.04.25 before Basten AJA, and diligently followed up to obtain the same, but most regrettably and unfortunately, by the time of the hearing on 20.06.25 before this Court, all such transcripts had still not been received, through no fault of MWP. Insofar as MWP is aware, the Respondent made no effort to apply or to obtain any transcripts. On 23.06.25, this Court finally provided MWP with a copy of the transcript of the hearing before McHugh JA on 10.03.25, but not the second transcript referred to in the transcript of 10.03.25, and not that of the hearing of 14.03.25. the Court also did not provide transcript before Basten JA of 19.03.25, 31.03.25, 14.04.25 and 15.04.25, and the same are still awaited by MWP from the transcribers. Transcripts often take much time, even in Australia. Of course, without the benefit of transcripts, it is difficult to precisely remember the events that occurred and what was said or not.

31. With respect to the Court, it is not correct as a matter of law and fact, as set out in MWP’s evidence, the Submissions and, especially, the Recusal Submissions and as is clear from the Transcript of 10.03.25 that MWP could be regarded as or having ever waived its rights as to the recusal of McHugh JA, as the Respondent’s counsel submitted, and as the Court purports to find in the Judgment, when the law and facts are properly known, understood and applied.

32. McHugh JA was duty bound in law to recuse himself, the matter should never have been listed before him, and McHugh JA should have never appeared on the bench, given his duties, liabilities and obligations and judicial oath, including for the reasons advocated by Flaux J in the EWHC, now the Lord Chancellor, and as also did Hamblen J, now Lord Justice Hamblen in the UKSC, in far less circumstances. Instead, McHugh JA wrongly determined he could proceed regardless of his very clear conflicts of interest, firstly at home in discussions over the kitchen table with his wife, second when first appearing on the Bench announcing his decision, and then by rejecting and dismissing and refusing to properly analyse, understand, entertain and consider all of the points, concerns and arguments MWP raised, as can be seen from the Transcript quoted in paragraph 66 on pages 28-32 of the Judgment. As will be seen, MWP raised points of concern, McHugh JA turned to the Respondent’s counsel to support his already made and pre-determined decision, from which he simply would not be swayed, whatever MWP said. MWP very clearly pointed out that it was not correct the proceedings did not have anything to do with the present case, that instead such were part of and a continuation of the same, that the Respondent was bound, concerns as to McHugh JA’s wife, that MWP was left with very serious concerns as well as unease, that in effect all proceedings were part of one whole and not separate, that MWP had been wrongly injuncted and wrongly stayed, that it was not a case of demand and distant litigation. After all of that, and MWP being faced with in effect a fait-accompli by McHugh JA who had clearly already formed a view, and would not be swayed, merely saying it did not, at that moment in time, in light of all that had gone before, having been taken entirely by surprise and without all documents, information and facts available to before it, and without adequate time, including to draft, file and serve a motion/application and with evidence in support, clearly does not and cannot possibly be argued to be and construed as an alleged waiver, as the record shows and proves and when the law is properly understood and applied to the facts. With respect, the conclusion at [57] of the Judgment is wrong in law and in fact.

33. Accordingly, in light of all of the above, this Court should be aware that MWP will exercise its of appeal to the High Court of Australia, and fully reserves its rights and in all respects. MWP previously succeeded in overturning an earlier erroneous judgment of Justices of Appeal Basten, Young and Lindgren at [2010] NSWCA 222 of 15.09.10, as can be seen from the Judgments and orders of French CJ and Heydon J in the HCA of 01.02.11, and also of Gummow ACJ, Hayne, Heyden [sic], Crennan and Bell JJ in the HCA of 01.12.11 at [2011] HCA 48, all with costs in favour of MWP, and where Basten, Young and Lindgren in this Court which unnecessarily caused so much delay and much loss and damage to MWP from 2010 onwards, and none of which should ever have occurred, as the record now shows and proves.

15. The issue is whether Mr Wilson, who made a groundless application to review an order made by McHugh JA on the basis of apprehended bias, and continued to press that application after being reminded of its seriousness, after being supplied with the transcript, and after being served with the respondent’s submissions pointing out that the application before McHugh JA had not been pressed, should be referred to the Legal Services Commissioner. We would take that course only if there were a real concern that he should not be permitted to act for clients, and only after giving him an opportunity to explain why that course should not be taken.

16. We have reproduced verbatim Mr Wilson’s submissions on that issue, as a matter of transparency and because it is difficult to summarise them. It will be seen that those paragraphs are not directed to Mr Wilson’s conduct or whether he should be referred. They maintain that others (notably, Mr Emmott and McHugh JA) have not behaved as they should have. They disclose no insight into the point which led to referral being raised in the first place, namely, his complaint that McHugh JA had refused to disqualify himself when no such application had been made to him.

17. In the passage of his affidavit directed to why there should be no referral, Mr Wilson merely renews his application, aspects of which seem to be pitched at the level of actual bias against McHugh JA (through the words “who had clearly already formed a view” and “would not be swayed”). The affidavit also includes a statement that the Court should be aware that MWP will exercise its right of appeal, which it has previously done with success. Whether or not MWP or Mr Wilson exercises such rights as it and he has to seek special leave to appeal does not alter this Court’s obligation to take steps directed to protecting the public.

18. Nowhere in Mr Wilson’s affidavit is mention made of the fact that he withdrew the application before McHugh JA.

19. The closest Mr Wilson comes to an explanation is a statement that he was “taken entirely by surprise” and “without all documents, information and facts available to [sic] before it, and without adequate time, including to draft, file and serve a motion/application and with evidence in support”. But the difficulty with that statement is that: (a) at the time, Mr Wilson sought and obtained an adjournment; (b) Mr Wilson made no application or gave any indication he was unable to deal with the information McHugh JA had told him; and (c) all of this is well removed from the critical matter, which is why an application to review on the basis of apprehended bias was made and pressed and continues to be pressed in this Court, even after it has been indicated that it is untenable.

20. In short, there is no explanation of why this Court has been asked to review a decision of a Judge of Appeal on the basis that he should have recused himself, when the applicant made no such application. It is, for example, not said that Mr Wilson forgot that he had abandoned his application, or that Mr Wilson relied entirely on counsel to make the decision even after he had received the transcript and Mr Baird’s submissions to press this ground of review.

the Hearing must be re-convened and re-opened, and the Judgment rescinded, set aside and varied as the Respondent has clearly, cynically and deliberately misled this Court and the Court below, and indeed all courts in Australia, and is and has been committing a litigation fraud, following from and on top of the Emmott frauds on MWP from 2001 to 2005 and the Temujin Partnership fraud from early 09.05 to date, as well as his theft, destruction and diversion as already proven by MWP and of which there is no doubt.

28. Treating the affidavit as an application to reopen, we reject it. Nothing has been put forward to show that there was any error in the orders for security made by McHugh JA and Basten AJA. Had error been shown, nothing has been put forward to dissuade us from the position that we would re-exercise the discretion and order security in no lesser amounts, bearing in mind everything we have seen about the manner in which Mr Wilson and MWP conduct litigation.

29. The affidavit has served the useful purpose of confirming to our minds that the papers and this Court’s judgments should be referred to the Legal Services Commissioner, to investigate whether Mr Michael Earl Wilson should continue to be permitted to act as a legal practitioner in this jurisdiction.

30. The foregoing is sufficient to warrant a referral to the Legal Services Commissioner. What follows confirms the appropriateness of that course.

Mr Emmott’s applications for special costs orders

31. Order 2 made on Friday 11 July 2025 entitled Mr Emmott to apply for any special costs orders sought by him “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”. That order reflected what had been presaged in an earlier letter of 24 April 2025, in his written submissions, and orally at the conclusion of the hearing, where there had been the following exchange:

LEEMING JA: … Mr Baird you have a special application concerning costs.

BAIRD: There is.

LEEMING JA: I’m conscious of that, we can’t deal with that--

BAIRD: Precisely.

LEEMING JA: --in this motion and because it amounts to a special costs order against Mr Wilson personally, he and his client need to take steps, he may need separate representation or his client may not have a difficulty with that but we have to do this sequentially I think--

BAIRD: I accept that, I was about--

LEEMING JA: --but I’m conscious of that.

BAIRD: --to say exactly the same thing. I have attached to my submissions I’ll separately forward to your Honours the short minutes of order that are sought in the event that the review application is dismissed.

32. Mr Wilson was appearing for MWP at that hearing, and was present by audio-visual link. There is no doubt that he had received Mr Emmott’s submissions, which had concluded with a submission that the motion should 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”. Nor is there any doubt that Mr Wilson heard and understood the gravamen of the application flagged on behalf of Mr Emmott. The transcript continued:

LEEMING JA: And it’s helpful because it does mean that Mr Wilson is on notice now of the nature of the order and the precise order that you seek. Mr Wilson thank you, Mr Baird thank you - sorry, yes Mr Wilson.

WILSON: Justice [Leeming], the position procedurally is Mr Baird has no application against me personally, there is no motion--

LEEMING JA: No.

WILSON: --there’s just a passing comment in submission.

LEEMING JA: There’s notice of an intention that in the event that the third and fourth motions fail as the first and second already have then this is one of those unusual cases where the advocate should be the subject of a personal costs order, you’re on notice of that and you have been from the time you received Mr Baird’s submissions. That’s precisely the position, I think, is that right?

WILSON: But there’s no motion, there’s no affidavit or evidence in support--

LEEMING JA: And there’s going to be no determination of it at this stage.

WILSON: Yes, there is no application and of course I’m not a director or shareholder of MWP.

33. Despite the exchange in Court on 20 June 2025, the order made on 11 July 2025 has given rise to an inordinate amount of disputation. What occurred is as follows.

The events of 1 and 2 August 2025

34. Six things happened in quick succession on the afternoon of Friday 1 August 2025 and the following Saturday.

35. First, Mr Emmott filed notices of motion in each proceeding, and a supporting affidavit of his solicitor, Mr Duggan. The Court’s records confirm that this was done electronically, at 3:16pm on Friday 1 August 2025. The motions were materially identical. In the application to review the security ordered by McHugh JA, the orders sought were:

1. An order that the Applicant pay the Respondent’s costs of the Applicant’s Notice of Motion filed 28 March 2025 pursuant to Order 1 of the Orders made on 11 July 2025 on the indemnity basis.

2. An order that the amount of the Respondent’s costs pursuant to Order 1 above be assessed on the gross sum basis in the sum of $21,241.04 or such other amount as this Honourable Court may determine.

3. An order that the amount of the Respondent’s costs of the Applicant’s Notice of Motion filed 18 February 2025 pursuant to Order 4 of the Court’s Orders made 14 March 2025 be assessed on the gross sum basis in the sum of $16,755.04 or such other amount as this Honourable Court may determine.

4. An order that the Applicant pay the amounts referred to in Orders 2 and 3 above without deduction or set off to the solicitors for the Respondent within 14 days of the date of this Order.

5. An order that Michael Earl Wilson, the solicitor for the Applicant, personally pay the amounts ordered in Orders 2 and 3 above without deduction or set off to the solicitors for the Respondent within 14 days of the date of this Order.

6. In the event of failure to comply with Orders 4 and 5 above, an order that the Summons for Leave to Appeal filed 20 January 2025 forthwith be and stand dismissed, with costs.

7. Costs.

8. Such further or other order as to this Honourable Court may seem fit.

36. The motion filed in the proceeding to review the security for costs ordered by Basten AJA took substantially the same form, although the gross sum costs sought in orders 2 and 3 were $12,311.36 and $16,049.72 respectively and the dates in order 3 were different. Orders 1, 4, 5, 7 and 8 were materially identical save as to the dates the orders were made. Order 6 was differently worded but to the same effect.

37. Reading both motions together, what Mr Emmott sought was:

38. a gross sum costs order for both applications for review of the orders for security for costs, calculated on the indemnity basis, in the amount of $21,241.04 + $12,311.36 = $33,552.40;

39. gross sum costs orders in respect of the costs orders made by each of McHugh JA and Basten JA in the amounts of $16,755.04 and $16,049.72 respectively;

40. orders that the amounts be paid within 14 days without deduction or set-off, by each of MWP and Mr Wilson personally;

41. orders that in default of payment, the pending proceedings in this Court be dismissed.

42. The same affidavit sworn by Mr Duggan on 1 August 2025, of 21 pages plus an exhibit of 71 pages, was filed in each proceeding. It mostly concerned the work done in each proceeding and the costs claimed. We shall return to this below.

43. At all times, Mr Wilson has been able to access the file on JusticeLink (the Court’s electronic filing system) and see the documents which have been filed electronically, including precisely when that occurred. In light of the correspondence which ensued, it is desirable to reproduce the coversheet generated by JusticeLink (which is available to the parties’ solicitors) when Mr Emmott’s motion in the proceeding reviewing the security ordered by McHugh JA (2024/00416114) was filed:

44. A similar document was produced in the proceeding (2024/00449432) reviewing the security ordered by Basten AJA. Both documents indicate the time of electronic filing (at the top) and the documents filed (under the heading “Attachment Details”).

45. Secondly, Mr Emmott’s solicitor, Mr Duggan, emailed the filed version of the notice of motion and affidavit, and an unfiled copy of the submissions documents, to the Associate to Justice Leeming, copying in Mr Baird and three email addresses nominated by MWP, being michael.wilson@mwp.kz, Secretaries@mwp.kz and Yermek.Aubakirov@mwp.kz. That email was sent at 4:49pm on Friday 1 August 2025. The first of those emails is regularly used by Mr Wilson.

46. The submissions constitute a coversheet and 5 pages signed by Mr Baird. They are straightforward. Paragraphs 1-3 are introductory. Paragraphs 4-13 summarise the principles applicable to indemnity costs orders and gross sum costs orders. Paragraphs 14-17 summarise the evidence of Mr Duggan. Paragraphs 18-21 contend that gross sum costs orders should be made, because (i) the amount claimed is relatively small, (ii) the hourly rates charged are substantially within the guidelines published by the Costs Assessment Rules Committee, and (iii) the costs of assessment are likely to be disproportionate to the costs in issue, having regard to the conduct of the proceedings to date.

Dear practitioners,

I refer to order 2 made on 11 July 2025, the notices of motion filed by Mr Emmott seeking special costs orders earlier today and the supporting affidavit, and the respondent’s submissions on costs applications filed today. Each of Michael Wilson & Partners Ltd and Mr Wilson have 14 days to file and serve any material and submissions in opposition to the orders sought. The Court will thereafter deal with the application on the papers.

Please direct all future emails in this matter to my email address – today is [the outgoing Associate’s] last day.

45. Fourthly, Mr Wilson responded to all addressees at 5:28pm:

Nothing has been filed or served on MWP at all and the deadline has expired

Emmott is a proven judgment debtor and debtor of MWP and never had any basis in fact or law to seek SFC and has lied to and misled this Court and the Court below as the record shows and proves with knowingly false evidence and false submissions throughout

MWP fully reserves its rights in all respects and is appealing to the HCA

Yours faithfully

46. Fifthly, at 6:10pm that Friday, Mr Duggan responded to Mr Wilson’s email, copying in all addressees:

Dear Tipstaff,

We refer to Mr Wilson’s email below.

Attached are copies of two emails, one in each of the proceedings, which we transmitted to Mr Wilson at 4.49pm today, just before our email to the Court.

Copies of the notices of motion, the affidavit and exhibit, and the submissions were attached to the emails.

We note also that Mr Wilson was copied in on our email to the Court.

47. Mr Duggan’s email attached emails he had sent to the same three email addresses in Kazakhstan, which themselves attached filed versions of the notice of motion and affidavit, and an unfiled written submission.

48. Sixthly, Mr Wilson sent a further email in this chain to Justice Leeming’s (new) Associate at 11:28am on Saturday 2 August 2025, copying in Mr Duggan and the other two Kazakhstan addressees:

Dear Associate,

In order to comply with Order 2 of 110725, the Judgment Debtor and Debtor of MWP in all jurisdictions had to file and serve any Notice of Motion, evidence, material and submissions in support within 21-days and, thus, before the close of business AEST on 010825. The Judgment Debtor and Debtor of MWP has failed to do so, accordingly, he is out of time, and therefore has no right to make and pursue any such application.

In any event, as we have noted and explained in our evidence (including MEW-6) and as the record unequivocally shows and proves the Judgment Debtor and Debtor of MWP in all jurisdictions has cynically and deliberately misled the Court below and this Court throughout, because he has long had nothing left and long been owed no monies by MWP as Messrs Baird and Duggan also always knew, but instead is a judgment debtor and debtor of MWP in all jurisdictions, in enormous sums, including given MWP’s rights qua Sinclair. The NSWCA itself held (and which is and has always been directly on point and applicable the Judgment Debtor and Debtor of MWP in all jurisdictions): “A party that is a judgment debtor of another has no standing in equity to insist that the other provide security for costs.” Indeed, the law in Australia is clear, such a proven and established Judgment Debtor and Debtor of MWP in all jurisdictions, including qua Sinclair has no right to even apply for, let alone seek to obtain and maintain SFC and such is unlawful, an abuse of process and a collateral attack and prevented by equity, for example see: [2012] FCAFC 57, [2022] FCA 885, [2022] FCA 1371, [2002] FCA 496 and [2025] FCA 469, by way of example only.

Therefore the Motions of the Judgment Debtor and Debtor of MWP could never have been properly filed and the relief sought in the Court below, and SFC sought, and the Judgment Debtor had no proper basis to resist and oppose MWP’s Motions, and filed and served false evidence and made false oral and written submissions in support, leading to the Judgment of 110726, which is wrong in law and fact and which we shall appeal to the HCA.

The Judgment Debtor and Debtor of MWP, and Messrs Baird and Duggan are obliged to file and serve corrective evidence and submissions, as well as to retract and apologise for all that has gone before.

49. We shall return to the legal effect of the emails when dealing with Mr Wilson’s submissions concerning service. For present purposes, it suffices to note two things:

50. First, even if in fact Mr Wilson had not received any of the attachments to either of the two emails sent by Mr Duggan (being (1) the email to him in advance of that sent to Justice Leeming’s Associate, (2) the email sent at 4:49pm to Justice Leeming’s Associate into which the three Kazakhstan email addresses were copied), he demonstrably knew that the Court had received the notice of motion and affidavit and submissions, and had considered them sufficiently to make directions for a timetable for any response. Mr Wilson knew this because his email of 5:28pm on the Friday responded to the email containing those directions.

51. Secondly, Mr Wilson knew that Mr Duggan was claiming that the notice of motion had been filed. It was at all times open to Mr Wilson or anyone else from MWP who was registered with the Court’s electronic system to check JusticeLink to see what had been filed electronically.

The emails of Monday and Tuesday 4 and 5 August 2025

50. Mr Duggan received a notification from the Court on Monday 4 August, advising him that the motions were listed before the Court on 11 August at 9am. He wrote, copying in Mr Wilson, to the Registrar advising of the email from Justice Leeming’s Tipstaff that the motions would be dealt with on the papers. The Registrar responded later that day advising that the listings had been vacated and the motions would be dealt with on the papers.

51. Mr Duggan also filed a further affidavit, which did nothing more than to state that subsequently to his affidavit sworn on 1 August 2025, he had received five emails from Mr Wilson. Four of the five were emails between the parties which did not include the Court, and the fifth was Mr Wilson’s email to Justice Leeming’s Associate at 11:28am on Saturday 2 August mentioned above. The emails are important, and are reproduced as Annexure ‘B’ to these reasons. They accuse Mr Duggan and Mr Baird of serious misconduct, doing so in intemperate terms. The emails include the following:

52. “you, Baird and your client have consistently lied to and misled the Court below, and also the NSWCA”;

53. “Like Robinson before you, it seems clear that after your retirement from private practice, you prefer to conduct litigation as a hobby working from your kitchen table at home, rather than doing crossword puzzles and enjoying life, long after work and reaching the normal current retirement age of 67 in Australia”;

54. “the Judgment Debtor and Debtor of MWP in all jurisdictions has cynically and deliberately misled the Court below and this Court throughout”;

55. “We await your reply to the enclosed and receipt of retraction, updating and evidence and apologies for your knowingly false evidence and false submissions, and for so misleading all courts, wasting public resources, costs and time, pay all of our costs and damages caused”;

56. “We fully reserve our rights and in all respects as a result of the litigation fraud the Judgment Debtor and Debtor of MWP in all jurisdictions has and is conducting and in which litigation fraud you and Baird are knowing participants, filing and serving false motions, false submissions, false evidence, when you know and always knew the same to be untrue, as also did the Judgment Debtor”, and

57. “… you and Baird are and have been acting improperly unethically and in knowing, cynical and deliberate material breach throughout”.

58. We pause to note that none of us has ever encountered such correspondence, from a New South Wales solicitor to another New South Wales solicitor, written in such terms.

59. Further, it was written while the Court was reserved on whether Mr Wilson ought be referred to the Legal Services Commissioner.

60. Still further, r 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) provides that a solicitor must “be honest and courteous in all dealings in the course of legal practice”.

Courtesy and civility by and between practitioners are critical to the administration of justice, respect for and the reputation of the legal profession and ultimately, respect for the rule of law. “The importance of courtesy in the legal system, and in the relationship between the legal profession, the court system, and general public should not be understated”: Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [28] (de Braekt). The Full Bench of the Western Australian Supreme Court in de Braekt at [30] also referred to the admonition of Benham CJ of the Supreme Court of Georgia in Butts v State 546 SE 2d 472 at 486 (2001):

“Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.”

This same passage was quoted with approval by the Full Court of the Supreme Court of the Australian Capital Territory in Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117; (2009) 231 FLR 399 at [23].

The importance of legal practitioners displaying an appropriate standard of courtesy and civility was emphasised by Allsop J in Barghouthi v ING Custodians Pty Limited [2003] FCA 636 at [16] who said “[c]ourtesy and civility are not bourgeois affectations. They are not the mark of the effete or inept litigator. They are part of a practitioner’s overriding duty to the court, indeed to the standards of the profession and to the public.” We agree.

Other authorities are to like effect: Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 667; Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [105]-[106]; McDonald v Legal Services Commissioner (No 2) [2017] VSC 89 at [6]; Barkla v Allianz Australia Insurance Limited [2018] FCA 2070 at [79]; see also G E Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 8th ed, 2025) at 767; FT Horne, Cordery on Solicitors (Butterworths, 8th ed, 1988) at 273.

As will be seen, the Respondent’s correspondence both before and indeed after the Tribunal’s decisions was grossly discourteous, coarse, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional …

56. Unlike the communications from Mr Sideris, Mr Wilson did not employ expletives. His emails were not coarse. Nor did they contain improper threats. But otherwise, Mr Wilson’s emails answered the description of “grossly discourteous”, “disrespectful”, “gratuitously offensive” and “wholly unprofessional”. The conclusion that they were in serious breach of a basic element of Mr Wilson’s professional obligations as a solicitor is inescapable.

57. They were not isolated examples. Mr Duggan exhibited to his affidavit of 1 August 2025 further emails from Mr Wilson to him, including:

58. Email of 24 April 2025 commencing “What nonsense you write … Your email and letter are misconceived and rejected as yet further evidence of the pure fiction and contrived fantasy on your part, and that of Baird, being entirely contingent and fellow-stakeholders with the Judgment Debtor and soon to be bankrupt, like all of Sinclair, Slater and Nicholls before him and which is his destiny” (this email was in response to a courteous letter from Mr Duggan stating that in his opinion the application for review did not have reasonable prospects of success, and anticipating the special costs orders which were subsequently sought by the present motion); and

59. Email of 15 May 2025 commencing “What arrant nonsense you write, as always and where the contents of your email is patently totally without merit. You are cynically and deliberately misleading all courts in Australia and acting in continued and material breach of your professional duties as officers of the Court …”.

60. Mr Duggan also annexes two emails sent by Mr Wilson to the Registrar on the afternoon of 9 May 2025, copied to Mr Duggan and the two other Kazakhstan addressees following the making of timetabling directions. These were responses to emails from the Registrar advising that MWP’s motion would be set down on 20 June 2025, and vacating a directions hearing on 12 May 2025. The first concluded:

With respect, you are not entitled to purport to unilaterally dictate and impose the R’s orders on MWP when a hearing as to our Motion has been listed and arranged by the Court itself and notified to the parties and served.

MWP fully reserves its rights and in all respects, given the violation of our rights, breaches and clear impropriety which has occurred.

59. The second was as follows:

Dear Registrar,

Further to the enclosed in light of the impropriety and breach of MWP’s rights which have occurred, we shall apply to rescind and set-aside your most regrettable and unfortunate adoption of entirely inappropriate and unworkable orders proffered by the Judgment debtor and debtor of MWP in all jurisdictions.

This is a repeat of your prior conduct, as the record shows and proves and the prior Orders were rescinded and set aside, as these will be.

Yours faithfully,

Michael Wilson & Partners, Ltd

60. Pausing there, the reality is that Judges, Registrars and all officers of this Court who deal with unrepresented litigants all too often receive rude or abusive communications when the litigant is dissatisfied with the outcome. All have, and need to have, relatively robust approaches when such communications are received. That is not to excuse the conduct of a minority of unrepresented litigants, but to acknowledge its reality. However, Judges, Registrars and other court officers are invariably entitled to civil communications from members of the profession. We cannot think of circumstances when it could be appropriate for a solicitor to have occasion to send emails to a Registrar of this Court accusing him of impropriety. It is not entirely clear, but it seems that the source of Mr Wilson’s dissatisfaction was that the Registrar had set down one of MWP’s applications for review some six weeks in the future, and MWP had intended to seek a slower timetable. Even if that be wrong, there was no basis to accuse, repeatedly, the Registrar of impropriety.

61. Returning to the correspondence of 4 August 2025 in which the Court was included, Mr Wilson also responded to the Registrar’s email on 4 August 2025 at 3.56pm:

Dear Registrar,

Nothing has been served on MWP prior to the expiry of the deadline last week, accordingly the Respondent is out of time and there are no valid Motions before the Court as the record shows and proves.

Yours faithfully,

Michael Wilson & Partners, Ltd

62. The following day, Tuesday 5 August, the Registrar responded:

Reference is made to the email correspondence below.

MWP and Mr Wilson have until next Friday, 15 August 2025 to file and serve evidence and submissions in response, should they so choose.

Should MWP and Mr Wilson not wish to exercise that right, but are instead content to rely upon what has been said concerning service of the Motions, that position should be confirmed via return email, and the Court will then proceed to determine the outstanding Motions accordingly.

63. Mr Wilson responded the following day, 6 August 2025, at 4:11am AEST:

Dear Registrar,

MWP will indeed be filing and serving detailed further evidence, as well as applying, including given there is no doubt Mr Emmott is a judgment debtor and debtor of MWP in all jurisdictions, including Australia and is and was never entitled to apply as he has and is and has been committing what can only be described as a litigation fraud of epic proportions.

The seven emails received after 11pm Friday 15 August 2025 and the following weekend

64. There were no further emails after 6 August until 15 August 2025, which was the day (a) specified in Justice Leeming’s Associate’s email, and (b) confirmed in the Registrar’s email. Mr Wilson sent an email at 11:11pm AEST which warrants reproduction in full:

Dear Tipstaff,

With reference to the emails enclosed, by Order (2) of the Orders of 11.07.25 Mr Emmott was granted the right to apply as to his alleged costs by motion filed and served within twenty-one (21) days, namely by 01.08.25, together with all evidence and other material in support, including submissions of no more than 5 pages.

As of the date hereof, no motions, evidence, material in support or submissions have been served by Mr Emmott on MWP at all, indeed, we have heard nothing at all from Mr Duggan and have received no correspondence or documents from him since 29.07.25, accordingly, MWP assumes Mr Duggan has downed tools and ceased to act. We have carefully checked our systems and servers and nothing at all has been received from him. Perhaps, Mr Emmott is now acting as a litigant-in-person as he does in all of the UK, the BVI, the Bahamas and NZ.

Although we have received nothing from Mr Duggan since 29.07.25, having checked the NSW Online Registry, the chronology of events is as follows:

1. by Order (2) of the Orders of 11.07.25 Mr Emmott was granted the right to apply as to his alleged costs by motion filed and served within twenty-one (21) days, namely by 01.08.25, together with all evidence and other material in support, including submissions of no more than 5 pages – this has never occurred since nothing has been served at all;

2. on 01.08.25, it would appear that someone filed two (2) notices of motion, attached to each of which was an affidavit as one pdf (93 pages), and as a result of which the court generated the usual “notice of motion acknowledgement” at about 3:16pm in relation to both of NSWCA Nos.2024/00416114 (Recognition) & 2024/00449432 (TPIDIAPT). It seems that no submissions at all have been drafted, filed or served;

3. on or prior to 01.08.25, nothing was served on MWP as we communicated to you same day in reply to your email enclosed;

4. on 04.08.25, someone filed two second and further affidavits (13 pages) at or about 1:16pm, of which of course, you were not aware on 01.08.25, and where no second round or further evidence on a later date was permitted and allowed;

5. on or prior to 04.08.25, nothing still had been served on MWP as we communicated to the Registrar on the same day in reply to his email enclosed;

6. on 04.08.25, we received an email from the Registrar, saying that Notices of Listing of 04.08.25 had been cancelled, though no such things were ever provided to and served on MWP; and

7. as of today, 15.08.25, nothing at all has been served on MWP, and as mentioned above we have heard nothing at all from Mr Duggan since 29.07.25.

Accordingly, we now seek directions requiring Messrs Emmott, Baird and/or Duggan to formally notify the court and file and serve the necessary forms if, indeed, as would appear to be the case Mr Duggan has downed tools and ceased to act since 29.07.25.

If needs be, we can provide draft Short Minutes of Order for consideration by the Justices.

Further, we now seek directions requiring Messrs Emmott, Baird and/or Duggan to comply with Order (2) of the Orders of 11.07.25 and to serve MWP with the notices of motion and all evidence and other material in support, including any submissions in relation to each of NSWCA Nos.2024/00416114 (Recognition) & 2024/00449432 (TPIDIAPT), separately, after which MWP will then have fourteen (14) clear days to respond as directed and in the usual way, given the ≥132 pages of new material, and where we do not yet know about the submissions.

As of today, nothing at all has been served on MWP, contrary to Order (2) of the Orders of 11.07.25, and accordingly, we respectfully submit MWP is not obliged to respond until it has been so served as required by the Court.

Finally, please note that the hearing before HHJ Pelling KC proceeded on 05.08.25, from which there is no doubt Mr Emmott is and has been a judgment debtor and debtor of MWP in all jurisdictions for decades, and owes MWP many millions of dollars, including not only qua Sinclair, but also by Australian judgments, and accordingly in law and in equity had no proper basis to apply for and seek security for costs. The hearing before HHJ Pelling KC will resume on 12.01.26, after Mr Emmott files and serves his evidence on 19.08.25, which he failed to do from 07.04.25, in breach of the CPR and the CCG, whereas MWP had filed and served all of its evidence, including forensic accounting evidence with assistance from Fellows of the ICAEW.

65. The references in that email to affidavits of 93 and 13 pages, and “the ≥132 pages of new material” establish that Mr Wilson had seen the notice of motion and Mr Duggan’s affidavits of 1 and 4 August 2025 in support.

66. On Saturday 16 August 2025, at 10:09am and 10:11am, Mr Baird resent to Mr Wilson emails sent by Mr Duggan to Mr Wilson into which Mr Baird had been copied, on 1 August 2025. Mr Baird’s emails were unquestionably received, and prompted Mr Wilson’s response at 9:10pm that Saturday (Justice Leeming’s Associate was copied in to all these emails):

Dear Sirs,

Thankyou [sic] for your emails, which we shall review in detials [sic] and revert. As you know, we have been sent and received by emails at all [sic] by and from Mr Duggan and his Duggan Legal since 290725, though our system is and has always been working properly and normally, and we have no problems sending and receiving emails, indeed none of our emails to Mr Duggan have bounced or failed to get through. Seems there is a real and serious problem with his email systems and processes, as also occurred in 11.24.

As to any Written Submissions, we note that the same are still missing, as PJD informed the NSWCA as follows:

“We also attach a copy of the respondent’s submissions on costs applications dated 1 August 2025 (covering both proceedings) which we have attempted, thus far unsuccessfully, to file. ….We will forward a sealed copy of the respondent’s submissions once we have been successful in filing them..”

Looking at the list of documents filed in the NSW Online Registry, it would actually appear that the submissions may never have been filed as the same do not appear there, as they would if they had ever been filed, approved, issued, stamped and sealed ready for use and service.

Accordingly, please now also send to us the Written Submissions, as actually filed, approved and sealed.

67. That led to a response by Mr Baird on Sunday afternoon at 3:43pm as follows:

Dear Sir,

Sealed copy of Respondent’s Submissions filed 1 August 2025 is now attached, as served on you by Mr Duggan (copies of his emails are also attached).

It is patently obvious that you have blocked all of Mr Duggan’s emails to you, in order falsely to assert non-service on you.

I do not appreciate being your service agent.

68. Mr Wilson responded almost immediately, at 3:51pm AEST:

Dear Sirs,

Thankyou for your email enclosed, as you know service is not effective on a weekend or holidays, so any date will be Monday 180825.

Our high-quality systems and servers all work fine and of course we have never and would not block Duggan, the fault is entirely at his end and we note he works from home, has no office, no IT systems, no IT managers and department with IT professionals and no support, unlike MWP which is properly organised and well managed and supported with high-quality equipment and an IT Team. It is Emmott’s duty to solve the Duggan problem.

We invite you to withdraw and apologise for your false insinuations which are wrong and inappropriate.

The week commencing Monday 18 August 2025

69. Justice Leeming’s Associate responded to all addresses at 8:56am on the morning of Monday 18 August:

Dear practitioners,

I acknowledge receipt of the following emails over the weekend:

• Email from Michael Wilson on 15/8/2025 at 11:11pm

• Email from John Baird on 16/8/2025 at 10:09am

• Email from John Baird on 16/8/2025 at 10:11am

• Email from Michael Wilson on 16/8/2025 at 9:10pm

• Email from John Baird on 17/8/2025 at 3:43pm

• Email from John Baird on 17/8/2025 at 3:46pm

• Email from Michael Wilson on 17/8/2025 at 3:52pm

The Court has before it Mr Emmott’s motion seeking various costs orders. That motion was flagged at the hearing, and provision was made for it in the Court’s orders of 11 July 2025. If any submissions or evidence are proposed to be relied on in opposition to the orders sought, they should be supplied in the next seven days, ie no later than 10am Monday 25 August 2025 (AEST), by being filed and sent by email to me with a copy to Mr Emmott’s legal representatives. That time will permit MWP and Mr Wilson a full further week to respond. In the absence of anything being supplied by 10am Monday 25 August 2025 (AEST), the Court will assume that all of the orders sought by Mr Emmott are opposed and will proceed to determine the motion.

Based on what is said in Mr Wilson’s email of 11:11pm last Friday, and the emails which ensued over the course of the weekend, there is no occasion for a further direction hearing.

Finally, I have also been asked to remind you of the obligation for communications to be courteous and civil, and of this Court’s recent decision in Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 at [19]-[21].

Could practitioners kindly acknowledge receipt of this email.

70. Mr Baird acknowledged receipt at 12:27pm that afternoon. Mr Duggan responded to that email at 2:02pm that Monday, as follows:

Dear Associate,

Thank you for your email below, the contents of which are noted.

Given the circumstances I feel that a personal explanation is required.

In answer to the assertions of Mr Wilson:

1. I have neither “downed tools” nor “ceased to act” as alleged by Mr Wilson.

2. Sealed copies of the respondent’s notices of motion in each proceedings filed on 1 August 2025, and the affidavits in support, and an unsealed copy of the respondent’s submissions on the costs applications, were forwarded by me by way of service to the applicant’s email addresses michael.wilson@mwp.kz, secretaries@mwp.kz and yermek.aubakirov@mwp.kz by emails sent at 4.49pm on 1 August 2025.

3. The applicant’s email addresses were also copied in on my email to his Honour’s former associate … at 4.49 on 1 August 2025. Attached to that email were sealed copies of the respondent’s notices of motion and affidavits in support, and an unsealed copy of the respondent’s submissions on the costs applications.

4. I sent further emails to the applicant’s email addresses on 1 August 2025 at 6.09pm, on 4 August 2025 at 1.44pm, on 4 August 2025 at 2.16pm, on 4 August 2025 at 3.56pm and on 5 August 2025 at 2.22pm. I note that Mr Baird provided copies of the substantial emails to you over the weekend.

5. As far as I am aware, the other addressees of each of the emails referred to above received their emails.

71. No response was received by any of the Kazakhstan-based addressees acting for MWP.

72. That led to a further email from Justice Leeming’s Associate on Wednesday 20 August 2025 at 10:25am:

Dear Mr Wilson,

I refer to my email of Monday morning below. Could a representative of Michael Wilson & Partners Ltd kindly confirm receipt. This email is addressed to each of the three email addresses supplied on the notices of motion filed on 28 March 2025 and 30 April 2025 applying to review the decisions of McHugh JA and Basten AJA.

73. On Friday 22 August 2025, at 10:53pm AEST, in response to and attaching that email, Ms Zhanar Kobzhassarova responded as follows:

Dear Colleagues,

Thank you for your email attached, and we apologise for the slight delay in replying, but Mr Wilson was travelling all night on Sunday into Monday, and was then involved in hearings through Thursday, working from overseas.

As we have explained, most regrettable and unfortunately, there has been and is a continuing problem with Mr Duggan’s emails, which upon and after technical and forensic analysis and investigations by our professional IT team, appear not to have ever been transmitted by him to MWP since 29.07.25, through no fault of MWP, its systems and servers. Our IT team have provided email and server logs proving this technical fact and have requested Mr Duggan to provide transmission reports from his end, given that he works from home, but unfortunately he has failed to engage and to provide the same, or to have his IT professionals contact and work with our IT team in order to solve his problems, but has chosen not to do so for reasons, which are unclear.

Accordingly, with reference to order 2 of the orders of 11.07.25 and the deadline of 01.08.25, we did not receive the material concerned until Monday, 18.08.25, as the record shows and proves, even though we alerted all of Messrs Emmott, Baird and Duggan to the problems with Mr Duggan’s domestic email system.

As we have explained, material comprises a motion of 4 pages in each appeal/reopening application, though we have still not received that as filed and sealed in both. There is then Mr Duggan’s affidavit of 21 pages in each appeal/reopening application, and then 2 exhibits of 73 pages in each appeal/reopening application, though it appears that such affidavit and exhibit have not been separately filed, as required by the CPA and UCPR (see UCPR 35.1), and approved, stamped and sealed versions not served on us still. This means a total of 196 pages. In addition, although not envisaged by order 2, it transpires that Mr Duggan took it upon himself to file and serve 2 further affidavits of 4 pages each on 04.08.25, plus 2 further exhibits of 8 pages each making a further 24 pages. Further, there are 2 sets of costs submissions in each appeal/reopening application of 6 pages each citing numerous provisions of law, cases and authorities that have not been provided, and which submissions have not been filed, approved by the Court, stamped and sealed, and therefore not served. In total, all of this material comprises 232 pages and the filed, approved, sealed and stamped affidavits and submissions have not yet been served.

If and when Mr Duggan complies with the CPA, the UCPR and properly files and serves all of this material, duly approved, stamped and sealed, given that it comprises more than 232 pages and includes a second and further affidavit, for which there is no leave, and obtains leave, then MWP will need 28 days to digest the same, consult with its costs lawyers and experts (without waiving privilege), draft, file and serve its considered and detailed response, given that Mr Wilson is travelling overseas (including to Australia and back) until the end of next week. Our IT professionals have established and proven that the problem is that of Mr Duggan and not of MWP as to his email systems.

Accordingly and with great respect, it is not possible for MWP to reply substantively within 7 days. 28 days is required after everything has been properly filed, approved, stamped and sealed, and served, and leave obtained to the further evidence not envisaged by the orders.

The emails of the week commencing Monday 25 August 2025

74. On the morning of Monday 25 August 2025, at 8:58am, Justice Leeming’s Associate responded:

Dear Ms Kobzhassarova and practitioners,

Thank you for your email. The Court is conscious that the application was flagged in Court on 20 June 2025 in the presence of Mr Wilson, and was the subject of the Court’s orders made on 11 July 2025. Even if there have been difficulties receiving the documents, the probability that such an application would be made was known to MWP and Mr Wilson. The additional affidavits arose from statements by Mr Wilson that he had not received Mr Duggan’s emails. The Court is not minded to accept your observations concerning material which has not been filed or sealed, or the claimed need for any further application for leave to be made by Mr Emmott.

The Court considers that MWP and Mr Wilson have already had a reasonable time within which to respond. Nevertheless, the Court will grant a further extension of one week, until Sunday 31 August 2025. It should not be thought that any further extensions of time will be granted.

Could Ms Kobzhassarova kindly acknowledge receipt of this email.

75. Mr Duggan confirmed receipt. There was no acknowledgement of receipt from Ms Kobzhassarova or anyone else on behalf of MWP, until at 3:22am AEST on 1 September, Ms Zhanar Kobzhassarova wrote:

Dear Associate,

Thank you for your email of 25.08.25.

Please be aware that MWP has successfully filed the 7th Affidavit of Mr Wilson in both appeals, and has served the same. MWP is in the process of drafting a further and 8th Affidavit of Mr Wilson, dealing with the outstanding issues, as shown by the 7th Affidavit, as well as its submissions in opposition, that involves input from its costs lawyers, Messrs Blackstone Legal Costs, and costs counsel, for which more one more week is needed through and including 08.09.25.

As the Court is aware, most regrettably and unfortunately, MWP did not receive and was not served by Mr Emmott with his Notices of Motion, affidavits and submissions in support until 18.08.25, due to ongoing problems that have been encountered since 29.07.25 with Mr Duggan’s email server and systems, given that he works from home, has no office, no staff, no IT professionals, no systems and servers. MWP’s IT team of professionals have very carefully checked, and there is no doubt at all that the problem is and has entirely been on his side, and remains so. Insofar as MWP is aware, no steps have been taken and no measures implemented by Mr Duggan to solve his technical problems, for reasons, which are unknown. Further the affidavits have also still not been filed and served.

In addition, from 17.08.25 until 28.08.25 Mr Wilson of MWP, its solicitor and corporate legal representative, had to travel to and from Australia, involving two days and two nights of travel, and a five-hour time-zone change on each of 17-19.08.25 and on 27-28.08.25. There is a public holiday (Constitution Day) in Kazakhstan on Monday, 01.09.25, so that from 29.08.25 until 02.09.25 our offices will be closed and staff not working.

Accordingly, we respectfully request an extension of time until and including 08.09.25. Of course, we have no interest in delay, given that Mr Emmott is a very substantial judgment debtor and debtor of MWP in all jurisdictions and has been so for decades, and MWP’s appeals are meritorious and likely to succeed, just as we succeeded before the High Court of Australia in 2011, before this Court in 2014 and 2015, again before this Court in 2021 and 2022, in the HCA in 2022, and given we have successfully recognized most of our judgments in Australia in 2024, with the rest well underway.

Yours faithfully,

Michael Wilson & Partners, Ltd.

76. On Tuesday 2 September, Justice Leeming’s Associate responded:

Dear practitioners,

I refer to Ms Kobzhassarova’s email received at 3:22am on Monday 1 September, which refers to a further (“7th”) affidavit of Mr Wilson. I note that Mr Wilson has filed affidavits in each proceeding at 6:55pm and 6:58pm on Sunday 31 August, although the affidavits are dated 25 August 2025. Each affidavit refers to an exhibit of 179 pages. The exhibit has not been filed. Based on the index, pages 1-28 appear to be communications to or from the Court, but the balance of the exhibit appears not to be before the Court. If it is the intention of Michael Wilson & Partners Ltd or Mr Wilson to rely on the exhibit, it will be necessary for a copy to be made available to the Court.

Could a representative of each party acknowledge receipt of this email.

77. Mr Wilson responded to that email at 2:37pm on Wednesday 3 September:

Dear Associate,

Thank you very much indeed for your kind email of 020825, safely received.

Would the Court of Appeal like MWP to provide the Exhibit to MEW-7 as filed in the Recognition and TPIDIAPT Appeals and Reviews by WeTransfer, as they are OCReadable, hyper-linked and bookmarked, and accordingly in a “smart” format for ease of use and navigation, or provide a link to upload the same, as they done before? [sic]

Obviously, such “smart” electronic features and functionality are entirely “lost” with physical printed versions, though we appreciate some people prefer the same.

As noted, we are also working on and will lodge, file and serve MEW-8, index and exhibit just as soon as we are now able, given that very significantly Mr Emmott has now admitted in his own evidence in the EWHC signed and dated with a statement of truth in the UK he has nothing left, as indeed has been the case for decades so that there is no doubt he very clearly misled Schmidt AJ and D. Hammerschlag CJ (Eq) below, is and has been a debtor and judgment debtor of MWP (including qua Sinclair) in all jurisdictions, including Australia, for decades, as the record has long unequivocally shown and proven, and by law is not entitled to security for costs.

78. Later that afternoon, at 4:37pm, Justice Leeming’s Associate responded as follows:

Dear Mr Wilson and practitioners,

Thank you for your email. The Court is aware of the informal application in Ms Kobzhassarova’s email of 1 September for a further week to supply evidence. Although the Court is conscious that the application is made without evidence and has not heard from Mr Emmott, the Court is minded to accede to this further extension of time, on the basis that in the period ending 31 August, Mr Wilson was travelling for two days and a third day was a local holiday.

Michael Wilson & Partners Ltd and Mr Wilson have until 10am AEST Monday 8 September to file and serve such additional affidavits and submissions on which they seek to rely. Within that time, the exhibit to Mr Wilson’s latest affidavit should be filed, if reliance is sought to be placed upon it.

The most convenient course will be to file it electronically, as occurred with Exhibit PJD-1, and to email a copy of the document to me and Mr Emmott’s legal representatives. There is no need for any additional electronic hyper-linking or bookmarking to occur; indeed, the exhibit should be in the form that was present before the deponent on 25 August when the affidavit was sworn. It is desirable that the file size not be too large, which may hinder its transmission. A black and white version scan is perfectly acceptable.

Could a representative of each side kindly acknowledge receipt of this email.

79. Finally, by email received at 6:12am on Monday 8 September, Mr Wilson responded:

Dear Associate,

We confirm the Exhibit to MEW-7 has now also been successfully filed and uploaded into the NSW Online Registry in both appeals, as also has MEW-8, Index and Exhibit in both appeals, as directed by your email of 030925.

Unfortunately, in the limited time allowed, available and given the extensive work required and much to our regret and despite great effort, we have not yet been able to complete the drafting of our submissions, as well, to go with and alongside the same, and kindly request another 7-days to also complete and lodge the same now all evidence is in.

Due to the timetable set by HHJ Pelling KC on 030825, after the Judgment Debtor caused the hearing to be adjourned and relisted, it was only on Tuesday, 020925 that all evidence was complete and CE-filed in the EWHC Declaration Claim and Application and from which it became and is now 100% clear that even Mr Emmott admits on his own case he is and has long been a judgment debtor and debtor of MWP in all jurisdictions, consequent on his own evidence, with a statement of truth, which means he never had any proper basis in law to apply for and seek security for costs and misled the Court below.

80. We first deal with Mr Wilson’s request for further time to supply submissions. First, the submissions to which further time for a response is sought occupy five pages and a coversheet, and were supplied five weeks ago, and even if there was some difficulty receiving them, on any view Mr Wilson has had them since 16 August, more than three weeks ago. Secondly, MWP and Mr Wilson knew that when the most recent extension of time was granted, the Court was of the view they had already had a reasonable time within which to respond, and that although a further week was given, they were warned that “[i]t should not be thought that any further extensions of time will be granted”. Thirdly, in those circumstances, it is remarkable that no evidence is put forward to justify the assertion that it was impossible to complete submissions. Fourthly, Mr Wilson’s 7th and 8th affidavits (the 7th was filed on 31 August but sworn on 25 August, the 8th was sworn and filed on 8 September) are 58 and 102 paragraphs long respectively. The exhibits exceed 300 pages. A great deal of each affidavit is in the form of submissions. For example, there are sections in the 8th affidavit titled “MWP’s brief comments on the two (2) Notices of Motion of 01.08.25”, “MWP’s overview comments on Mr Duggan’s unnumbered affidavit and its exhibit of 01.08.25 (that has not been separately filed, approved, sealed and served in both Reviews & Appeals, as required by the CPA, the UCPR and the law)”, “MWP’s comments on the unfiled, unsealed and unserved affidavits of Mr Duggan of 04.08.25” and “MWP’s comments on Mr Baird’s sets of submissions (that have not been filed, approved, sealed and served) in relation to both Reviews & Appeals”. Those headings apply to paragraphs 37-96 of the affidavit, and accurately describe those paragraphs.

81. In those circumstances, the Court was of the view that no further extension of time was warranted, and advised the parties and Mr Wilson by email to that effect at 10:40am on Monday 8 September.

82. The Court has had regard to the submissions contained in the 7th and 8th affidavits.

Mr Wilson’s affidavit filed on Sunday 31 August 2025

83. Mr Wilson filed identical affidavits on Sunday 31 August 2025 at 6:55pm and 6:58pm (one in each proceeding), although sworn on 25 August, perhaps in an attempt to comply with the extended timetable. The affidavit contains in paragraph 8 the following summary of the position:

In summary, the position is as follows:

1. the Written Submissions of 6 pages exceed the 5-page limit, and further have not been filed by the Respondent, approved, stamped and sealed, as well as served on MWP in each of the Reviews & Appeals;

2. equally and further, the unnumbered affidavit of Mr Duggan of 01.08.25 has also not been filed by the Respondent, approved, stamped and sealed, as well as served on MWP;

3. the Respondent did not apply for, has not obtained and has not permission to file and serve the two further affidavits of Mr Duggan in both Reviews & Appeals of 05.08.25;

4. the material filed and served by the Respondent comprises 6 pages of Submissions, 8 pages of Motion, 21 pages of the Affidavit of 01.08.25, 72 pages of its exhibit, and 4 pages of the Affidavit of 04.08.25, 9 pages of its exhibit; and

5. therefore, the Respondent has put a further 120 pages of new material before the Court and burdened MWP with the same, not all of which has yet been filed, approved, stamped, sealed and served, as is required, as summarised above, and all of which was only received by MWP on 18.08.25, through no fault of MWP. If one counts the pages of the Written Submissions, Motions, Affidavits and their exhibits, by reference to each of the Reviews & Appeals, the total is much more.

84. In large measure, that summary is incorrect.

85. Contrary to point 1, Mr Baird’s submissions were five pages and a coversheet. There was no requirement for them to be filed. There was no non-compliance with the Court’s orders. Even if that were not so, any non-compliance is technical in the extreme, and would not disentitle Mr Emmott from relying on them.

86. Contrary to point 2, Mr Duggan’s affidavit of 1 August 2025 (including its exhibit) was filed on 1 August 2025 at the same time as Mr Emmott’s motion, and is acknowledged as having been filed on the sealed coversheet reproduced above. Mr Wilson’s statement that it was necessary also for the affidavit to be “stamped” and “sealed” is incorrect.

87. In relation to point 3, Mr Wilson is right to say that Mr Duggan’s affidavit of Monday 4 August 2005 was filed in both proceedings without leave. It attached five emails from Mr Wilson to him, all of which post-dated 1 August and which were directly relevant to the question before the Court whether Mr Wilson should be referred to the Legal Services Commissioner. All of them are also relevant to whether MWP had consented to communications by email. All were known to Mr Wilson because he was their author, and the fact that they had been sent and received was uncontroversial. We will grant leave to Mr Emmott to rely on the affidavit.

88. Point 4 exaggerates the scope of the material. The submissions occupy 5 pages and a coversheet. The orders sought in the motion occupy a single page; the rest is formal. The exhibit to the first affidavit is mostly itemised tax invoices rendered by Mr Duggan and Mr Baird, and costs disclosures by each, while the exhibit to the second affidavit comprises five emails sent in the previous 72 hours by Mr Wilson.

89. Point 5 is (to say the least) contentious in its claims that: (a) some of the material relied on by Mr Emmott had not been “filed, approved, stamped, sealed and served, as is required”; (b) “the material was only received by MWP on 18 August 2025”, and (c) “through no fault of MWP”.

90. The affidavit claims that the whole of the difficulty in service of the documents rested with Mr Duggan. It is difficult to summarise the tone and syntax of Mr Wilson’s prose, which is better reproduced verbatim:

without any foundation, Messrs Duggan and Baird have wrongly accused MWP of making it up and pretending there is no problem, without a scintilla or shred of evidence and without any basis whatsoever. Of course, it is and was wholly unsatisfactory and unacceptable for MWP to suddenly start to receive a whole morass of emails and their attachments from Mr Bard commencing on 16.08.25, and which is ongoing, and where no documents were served on MWP until 18.08.25, and all documents have still not been received. Obviously, this situation meant that on 18.08.25, when I was travelling all night and the next day, MWP suddenly and unexpectedly was confronted by and had to begin to cope with a mountain of new material and avalanche of new documents it had never heard of, seen or received before that began to arise en masse and without the same ever before being issued, transmitted and received in a timely manner, so it was able to review, consider, digest and respond to the same in the ordinary course. What Mr Duggan and the Respondent should have done is to accept Mr Duggan’s email problems, not to deny the same and falsely accuse MWP, and work with MWP and its IT team and professionals to identify the problem with Mr Duggan’s email and his systems and fix the same in a professional and courteous manner, instead of trying to throw mud, insults and false accusations at MWP, when they had no basis to do so, and where MWP’s IT team has clearly established the problem is with Mr Duggan and no one else, as the record shows and proves. In November 2018, something similar occurred before D. Hammerschlag CJ (Eq), when Mr Duggan and the Respondent pretended they had issued notice of intended cross-examination of Dr Y. Lyubalin of International SOS, my doctor at the time, when in actual fact they never had, as set out in MWP’s evidence as to the Reviews & Appeals, which will not be repeated here. Accordingly, it would seem that subject to technical analysis at Mr Duggan’s end he never actually sent any emails and their attachments since 29.07.25, presumably to further damage and prejudice MWP, which should never have occurred. (Emphasis added.)

91. The conclusion in bold advanced by Mr Wilson cannot be the case. All of Mr Duggan’s emails attaching documents were copied to Justice Leeming’s Associate, and those attachments include the documents relied on (being the notice of motion, two affidavits including their exhibits, and the short written submissions). Contrary to the conclusion of that passage, the Court knows that Mr Duggan did in fact send the emails, which were actually received by the Court including their attachments, and with the semblance of having also been sent to each of the three Kazakhstan email addresses nominated by MWP. Justice Leeming’s Associate responded to the emails shortly after they were received. His “reply all” email to all addressees reached Mr Wilson, who in turn replied a few minutes later.

92. What is more, Mr Wilson knew, personally, that the Court had received the emails, even if for some reason the attachments were not received by him. His email of 1 August 2025 responded to directions made by the Court for the timing of any response.

93. Mr Wilson also knew from the outset that Mr Duggan was claiming that the notice of motion and affidavit had been filed. The fact of the matter is that the documents were filed and available on JusticeLink, and were accessible to any lawyer registered with the Court to access from anywhere in the world at all times after 3:16pm on Friday 1 August 2025. It should not need to be said, but any competent solicitor engaged in litigation in this Court needs to be familiar with the Court’s electronic filing system.

94. Nowhere does Mr Wilson explain why, when faced with Mr Duggan’s statements that a notice of motion and affidavit had been filed with the Court, which had been received by the Court and which was the subject of directions, neither he nor some other person within MWP checked JusticeLink to obtain copies of the documents.

95. The exhibit to the 7th affidavit is 179 pages. The first 28 pages are emails and the notice of listing of the 1 August motions to which reference has been made, and some further emails between the solicitors, concerning this and other matters, only one of which need be summarised. That is an email from Mr Wilson to (among others) Messrs Baird, Duggan and Emmott sent on 17 August:

Dear Sirs,

None of the materials sent through by Mr Baird will be served on MWP until 180825 and we fully reserve all of our rights as to the same, given Mr Duggan would appear to have downed tools and ceased to act since 290725, presumably for non-payment. There is nothing at all wrong with MWP’s topnotch quality IT equipment, servers and systems. Our IT Team have checked and nothing has been transmitted by Duggan to MWP since 290725, as the record shows and proves.

We now also enclose the attached Reply Submissions by way of formal service on you, as filed, approved, stamped and sealed

As you know, the Set-Off Application was finally determined on 150125, as the record shows and proves and cannot be conflated with and has nothing to do with the Declaration Application/Claim of 07.04.25, and you are committing a collateral attack and an abuse of process.

No leave has been granted for any further evidence by the Judgment Debtor/Debtor of MWP in all jurisdictions, and for decades now, as the record shows and proves.

96. That email (a) lacks the professional courtesy to be expected in communications between solicitors (first paragraph), (b) illustrates that MWP and Mr Wilson treated service of submissions by email as effective (second paragraph), and (c) makes a serious allegation of “collateral attack and an abuse of process” against the recipients (third paragraph).

97. Pages 29-164 and 175-179 concern the litigation in the United Kingdom. They are not relevant to the motions before this Court. Pages 165-172 concern a point made in relation to Mr Emmott’s residential address to which reference will be made below. Pages 173 and 174 are British Virgin Islands documents purporting to show that MWP has its registered office at the office of Harneys Corporate Services Ltd in Tortola, that MWP’s sole director is MWP Corporate Finance Limited, and its sole shareholder is “WFA-Windsor Fine Arts Establishment”; they are relevant to the claim for a personal costs order against Mr Wilson.

Mr Wilson’s 8th affidavit sworn and filed on 8 September 2025

98. Paragraphs 1-15 are introductory. Paragraphs 16-26 and pages 45-49 of the exhibit deal with email problems. They include an email from a System administrator of 19 August stating two possibilities: either “[t]he sender did not actually send the emails” or “[t]he issue originates on their side”. The suggested resolution was that “the sender should provide proof of sending the emails – such as an outgoing message”. Evidently at some stage the outgoing messages from Messrs Duggan and/or Baird were supplied and an email log. Mr Wilson subsequently wrote, on 30 August 2025, to Messrs Duggan, Baird and Emmott, apparently cutting and pasting part of a further response, which suggested that Mr Duggan’s “mail server (smpt.hosting-cloud.net) could not find MX records (Mail Exchange records) for the mwp.kz domain in the global DNS system”. The response suggested that “the failure is likely to be one of the following situations on the sender’s side: 1. Temporary failure of the hosting-cloud.net provider’s DNS resolver … 2. DNS caching issues … 3. Incorrect configuration of the sender’s server”. It will not be necessary to resolve the source of any failure by MWP to receive certain emails.

99. Paragraphs 27-30 contend that MWP enjoys rights of set-off, which should not be excluded by this Court’s order. Paragraph 30 states:

To seek to exclude MWP’s unarguable rights of set-off, cross-claim and counterclaim, as suggested by the Judgment Debtor, would be wholly improper, grossly unjust, manifestly unfair, contrary to the law and the deeds and documents, by which the Judgment Debtor is bound.

100. These reasons do not determine whether or not MWP has a right of set-off, but MWP’s point that this Court’s order should not preclude any such right is sound.

101. Paragraphs 31-36 address the proposition that Mr Emmott is a judgment debtor. This is not relevant to the motion.

102. Paragraphs 37-96 and the conclusion in paragraphs 97-102 are relevant to the claim for costs, and are best addressed in the course of considering that claim.

There was effective service upon MWP

103. We focus first on the position of MWP. Mr Wilson’s statements in his emails of 5:28pm on Friday 1 August and 11:28am on Saturday 2 August about the orders for filing a motion are incorrect, at least insofar as they concern MWP. The position is as follows:

104. Despite the extensive correspondence, Mr Wilson has never identified with precision how it is said that “Nothing has been filed or served on MWP at all”.

105. The order was for the notice of motion to be filed and served within 21 days, “together with any material in support including submissions not exceeding five pages”. The terms of the order provided that the notice of motion was to be filed, but did not extend to requiring any affidavits or submissions to be filed. The distinction was conscious – it is not unusual in applications for gross sum costs orders for the exhibits to affidavits to be very large. As it turned out, the exhibit was filed. Insofar as Mr Wilson’s complaint was that the submissions had not been filed, it was misplaced because there was no requirement to do so.

106. In any event, the matter is to be treated as one of substance rather than form. The “real issues” in this phase of the litigation for the purposes of s 56 of the Civil Procedure Act 2005 (NSW) are whether MWP and Mr Wilson received notice of the special costs orders sought by Mr Emmott and the basis on which they were sought, not whether there has been punctilious compliance with technical aspects of the Court’s orders, such as whether a short submission signed by counsel sent to the other side was also filed.

107. It is clear that from no later than 5:01pm on Friday 1 August 2025 Mr Wilson (and through him MWP) must have known that Mr Duggan and the Court were proceeding on the basis that Mr Emmott had filed the application which had been flagged (in Mr Wilson’s presence) at the hearing on 20 June 2025, as well as by Mr Duggan’s letter of 24 April 2025 in advance of the hearing.

108. It is also clear that even if Mr Wilson received none of the emails which he maintains he did not receive, it was open to him and others within MWP to access the notice of motion and affidavit on JusticeLink.

109. MWP has very regularly communicated with Mr Duggan by email, being one of the emails nominated as the “Contact email” on the originating processes in both proceedings (as well as in all four of the motions brought by MWP). The “contact email” on the front page of all four of the motions filed by Michael Wilson & Partners Ltd were the three Kazakhstan email addresses to which Mr Emmott’s documents were sent by email. MWP is to be taken to have consented to the use of email for the service of notices of motion such as contemplated by order 2 made on 11 July 2025, such that r 3.7 of the Uniform Civil Procedure Rules 2005 (NSW) is engaged, read together if necessary with s 8 of the Electronic Transactions Act 2000 (NSW).

The substance of the application

Application for indemnity costs

108. Mr Emmott seeks orders that the costs of the motions dismissed by this Court be awarded on an indemnity basis. Section 98(1)(c) of the Civil Procedure Act authorises such an order.

109. All four of the applications – being the applications for review of the orders that MWP provide security for Mr Emmott’s costs in amounts of $20,000 and $15,000, and the applications to vacate the applications for review – were hopeless. It is sufficient to say the following:

110. It is absurd to think that any review of the discretion to order security for costs of applications brought by a British Virgin Islands company, which was unable to adduce clear evidence of assets against which an Australian costs order could readily be enforced, would result in lesser amounts of security, or no security, being ordered. MWP did not seek to demonstrate that the amounts of security were excessive having regard to the likely cost of defending the applications for leave.

111. It is equally absurd to think that this Court would permit MWP to adjourn its own applications for review pending a hearing in August in an English court, thereby increasing delay and costs contrary to s 56 of the Civil Procedure Act, on the basis that as a result of that hearing, MWP’s position would be confirmed. (Indeed, with the benefit of the hindsight now contained in Mr Wilson’s 7th affidavit, it is clear that the hearing did not resolve the dispute, but that hindsight is unnecessary to conclude that the application to vacate was hopeless.)

112. Further, the manner in which the applications were prosecuted, by adducing hundreds of pages of irrelevant material, by failing to adduce the most relevant material (notably, a current bank statement of MWP’s bank account at an Australian bank), and by pressing a claim that McHugh JA should have disqualified himself when no such application was made to him, are further reasons for indemnity costs to be ordered.

113. We shall order costs on an indemnity basis.

Application for costs in a gross sum

111. Section 98(4)(c) of the Civil Procedure Act authorises the Court to make a costs order which specifies a gross sum:

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

…

(c) a specified gross sum instead of assessed costs, or

112. The provision confers a wide discretion. The applicable principles may be seen in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820] and Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 at [30]-[38]. In Hamod at [816], Beazley JA said:

… the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability …

113. Beazley JA added at [817] that:

The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment.

114. This is a plain case for the Court exercising its discretion under s 98(4)(c) that costs be paid in a specified gross sum. Based on the way all four of the applications made by MWP were prepared and prosecuted, any assessment of the costs would likely involve needless time and complexity, vastly exceeding the amount at stake. Against this, Mr Wilson says that “[t]he only proper, safe and reliable way forward and order [sic] is for all and any alleged costs to be taxed, assessed and certified” (7th affidavit, para 44; 8th affidavit, para 102). We do not agree.

115. The first point mentioned by Beazley JA in the passage from [816] reproduced above, namely, the relative responsibility of the parties, is especially relevant in a case like this. There is a significant difference between Mr Emmott incurring costs by choosing to bring two applications for security for costs for short appeals or applications for leave to appeal, and Mr Emmott incurring costs by responding to MWP’s application to review the orders that it provide modest amounts of security.

116. For that reason, it is appropriate to consider at the same time the applications for gross sum costs orders of (a) the applications by Mr Emmott for security for costs in the first instance and (b) MWP’s unsuccessful review.

117. It is a little unusual for this Court having dismissed an application for review to be asked to make a gross sum costs order for the proceedings at first instance: see Wormald v Maradaca Pty Ltd [2021] NSWCA 307 at [16] and Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) at [57]. However, it is appropriate in this case to take that course. For one thing, the costs have all been incurred in proceedings in the Court of Appeal. For another, Basten AJA has ceased to hold an appointment as an Acting Judge of Appeal, having turned 78 (although by reason of s 37(3A) of the Supreme Court Act 1970 (NSW) he is entitled to “despite the expiration of the period of the person’s appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period” and for that purpose is taken to continue to be a Judge). Thirdly and most importantly, there is considerable overlap in the evidence relied upon in each application. The Court as presently constituted has already reviewed the decisions of both McHugh JA and Basten AJA, and it would be inefficient to the parties and to the Court for there to be three separate applications made to the Judges of Appeal who heard the applications for security for costs at first instance and also to the three Judges of Appeal who reviewed each application.

118. However, we must first address various submissions advanced by Mr Wilson.

(a) Mr Wilson’s submissions that no costs should be payable

119. Mr Wilson’s 7th and 8th affidavits propound a number of arguments against the order of costs.

120. In paragraph 39 of the 8th affidavit, it is said that Mr Duggan’s affidavit of 1 August was not “filed, approved, stamped, sealed and served in both Reviews & Appeals, in breach of the CPA, the UCPR and the law and, accordingly, are inadmissible”. A similar point is made in paragraph 87, concerning Mr Duggan’s 4 August affidavit. We disagree.

121. In the 7th affidavit, under the headings “The Respondent has misled this Court and the Court below throughout” (paragraphs 11-22), “The Respondent is a judgment debtor and debtor of MWP in all jurisdictions and cannot claim costs and security for costs” (paragraphs 23-27) and “MWP is the clear overall winner” (paragraphs 28-30), there are reprises of arguments which Mr Wilson has previously sought to develop. They are not relevant to costs, save in relation to Mr Emmott’s application for an order that costs be paid “without deduction or set-off”, which we shall in due course address. The same is true of the substantially similar points in paras 31-36 and 95 of Mr Wilson’s 8th affidavit.

122. Under the heading “[t]he Respondent has no actual or genuine liability for costs and never has had” in Mr Wilson’s 7th affidavit, it is asserted that Mr Emmott is unable to incur any actual and genuine liability to lawyers, because of his impecuniosity and because he was unable to satisfy the implied warranty of being ready, willing and able to perform. This is developed in the 8th affidavit, by reference to the absence of proof of payment (paras 40, 43). We do not agree. It is sufficient to note that an impecunious person can validly enter into a conditional costs agreement, which is sufficient for the purposes of the law of New South Wales to engage the indemnity principle.

123. Mr Wilson’s 8th affidavit also asserts that some pages of the disclosure letters and costs agreements have not been signed (paras 41-42), and says that he has called for inspection and testing of the originals, which have not been supplied. Indeed, at para 77 he asserts that “[i]n MWP’s opinion, this purported contract is a ‘sham’”. We do not accept these submissions, which are insufficient to ground the allegation of sham, or to impugn the validity of the documents.

124. Mr Wilson maintains that “Mr Baird does almost all the work with the Judgment Debtor, and not Mr Duggan, so that most of Mr Duggan’s alleged time and costs are not properly claimable and recoverable” (8th affidavit, para 44). Mr Wilson then states at length, in a paragraph occupying an entire page, that the position “is very much a repeat and mirror situation” of what Mr Wilson says occurred many years ago, in the United Kingdom, concerning Messrs Robinson and Shepherd (8th affidavit, para 45). After setting out details, Mr Wilson says that MWP “believes the same tactics and strategy are being deployed in Australia”, and the point of the gross sum costs order is to avoid “the strictures and scrutiny of the process of taxation, assessment and certification”. We disagree. The costs sought are relatively small. The costs of assessment would be disproportionate to the amount of the costs at stake, and may well exceed those costs. As will be seen below, we shall adopt a significant discounting to some of the claimed costs, but not on the basis put forward by Mr Wilson, which amounts to assertions unsupported by evidence.

[T]he Respondent could not have concluded the purported costs disclosure and costs agreements on 18.02.25, 19.02.25 and/or 11.03.25 at pages 11-12 and 33-36 of the exhibit with an address of xxxxx because he had sold such property in 2016”.

127. Even if there is an error in Mr Emmott’s address, that does not invalidate the costs agreements.

128. Mr Wilson also states in his 7th affidavit that there is no evidence of payments being made by Mr Emmott to his lawyers (para 37). He goes on to say that Messrs Baird and Duggan “will only look to get paid from monies extorted from MWP” (7th affidavit, para 39). The failure to comply with the indemnity principle is also prominent in Mr Wilson’s 8th affidavit (paras 61, 71, 72). Putting to one side Mr Wilson’s choice of verb, even if the agreement were one which was wholly conditional in the sense that there was no obligation upon the client to pay until and unless a favourable costs order was made, that does not stand in the way of the making of a costs order.

129. Mr Wilson also says at length that there was no evidence of payment of Mr Baird’s fee notes, or that they were provided to Mr Emmott. He suggests that they are “even financing and paying out-of-pocket costs and expenses from their own monies” (8th affidavit, para 67; see also para 61). None of this stands in the way of the making of a gross sum costs order.

130. Mr Wilson also says that “MWP will wish to cross-examine Mr Duggan and Mr Baird” as well as Mr Emmott, on the absence of any actual or genuine liability for costs (8th affidavit, para 98). No affidavits from Mr Baird or Mr Emmott were read, and to that extent Mr Wilson’s application is misconceived. Two affidavits by Mr Duggan have been read, but MWP does not have an entitlement to cross-examine on an interlocutory application for special costs orders. The application is refused.

131. Paragraphs 90-96 of Mr Wilson’s 8th affidavit are, both in form and in substance, submissions responding to those of Mr Baird. They are as follows:

MWP’s comments on Mr Baird’s sets of submissions (that have not been filed, approved, sealed and served) in relation to both Reviews & Appeals

90. As the record shows and proves, Mr Baird’s submissions (6 pages) have not been filed, approved, sealed and served in both Reviews & Appeals, as required by the CPA, the UCPR and NSW and Australian law, and accordingly are inadmissible.

91. Further, the submissions exceed the page limit imposed.

92. As noted and explained in MEW-7 and above, the Judgment Debtor is clearly acting in breach of the indemnity principle, as he has no costs and no genuine or actual liability for costs.

93. I have already shown and explained in MEW-7 and above, and which is also illustrated by MWP’s emails of 01.08.25 at pages 2-4 of exhibit PJD-2, the Judgment Debtor has no right in law and equity to seek and claim costs and security for costs as a judgment debtor and debtor of MWP in all jurisdiction and where all monies and recoveries belong to and have to be paid to MWP, qua Sinclair. The Judgment Debtor fails to disclose, address and deal with these fundamental points.

94. There is no basis in law or fact for Mr Baird’s submissions at paragraphs 32-37 on pages 5-6, as proven by MEW-7, I am not a director, officer or shareholder of MWP.

95. It is the Judgment Debtor, his solicitors and counsel who have misled the Court throughout, as the Judgment Debtor’s own evidence in the EWHC now unequivocally shows and proves. Very simply, the Judgment Debtor never had any basis to apply for or seek security for costs, and in doing so deliberately sought to mislead the Court, as on his own case, he is owed no monies by MWP and is MWP’s judgment debtor and debtor in all jurisdictions, of which fact there is no doubt. The Judgment Debtor and Debtor has been committing a litigation fraud of mammoth and gargantuan proportions in Australia since 2016 to date, as can be seen from his failed injunction that was lifted by the EWCA on 31.01.18, the UKSC on 31.07.18, and his failed stay that was lifted by this Court on 17.12.21, and the HCA on 08.09.22, and where his further recognition stay failed and was lifted on 15.01.25, and his September 2015 ACT recognition application also failed, all with costs to MWP that remain unpaid.

96. Mr R. Thomas of Silk Chambers advised MWP (without waiving privilege) throughout, and drafted and settled MWP’s submissions as to the recusal application, which clearly was apposite and had merit, and which MWP is advised by counsel will prevail on appeal, as quite clearly, McHugh JA as one of MWP’s barristers in NSW-1 could not have sat and was obliged to not hear or be at all involved in MWP’s appeal, given his father was also engaged by and acted for MWP and was paid by MWP as a mediator, and given his wife’s potential work for and instruction by MWP.

132. It will be clear that we do not accept the submissions in paragraphs 90-93 and 95-96. It is unnecessary to express a view on the submission in paragraph 94.

(b) the costs of the original applications for security for costs

133. Mr Emmott incurred:

134. solicitor’s costs of $11,336 plus counsel’s fees of $8,150 plus disbursements of $748 in obtaining an order for security for costs from McHugh JA, and

135. solicitor’s costs of $7,848 plus counsel’s fees of $9,500 plus disbursements of $1,496 in obtaining an order for security for costs from Basten AJA.

136. Mr Duggan is a sole practitioner. His costs agreement with Mr Emmott is in evidence. His hourly rate of $545 is at the bottom of the range of rates for practitioners with more than 10 years of experience (he has been in practice for 44 years) in the Guideline dated 24 October 2023 issued by the Costs Assessment Rules Committee. (Mr Duggan has proceeded on the view that because Mr Emmott resides overseas, his fees do not attract GST.) Mr Wilson complains that Mr Duggan’s rates are excessive (8th affidavit, para 50) but we disagree, subject to one qualification. Mr Duggan personally undertook all aspects of the legal work done at the solicitor level, including many tasks which could suitably have been done by a junior solicitor or even a paralegal (for example, “[f]inalising affidavit and collating and marking annexures” and “[a]ttending to file notice of motion for security for costs and affidavit of PJ Duggan”). That is one reason the amounts claimed need to be discounted.

137. Mr Baird is a senior junior. His costs agreement is in evidence. His daily and hourly rates (of $5,000 per day and $600 per hour exclusive of GST) are reasonable. His costs agreement is conditional, and reserves to him the right to charge an uplift of 25%. Mr Wilson complains that this was not mentioned by Mr Duggan, but none of Mr Baird’s invoices charge for an uplift. Mr Wilson also complains that his rates are excessive (8th affidavit, para 51), but we disagree, subject to a similar qualification. Some aspects of the work undertaken by Mr Baird fall into the same category as Mr Duggan. It would be wrong for MWP to be ordered to pay Mr Emmott amounts of costs calculated by reference to Mr Baird (as opposed to a more junior practitioner) when he appeared before the Registrar (he charged $600 in each proceeding on 2 June 2025), or any amount for the costs incurred when appearing to take judgment (he charged $300 in each proceeding on 11 July 2025).

138. Taking a broad approach, the steps undertaken appear reasonable. We do not accept Mr Wilson’s contention that they are “clearly grossly excessive and vastly disproportionate” (8th affidavit, para 47), bearing in mind the need for evidence and the hearing days involved, although we shall return below to the issue of proportionality. Mr Wilson repeatedly asserts that the items charged “are clearly excessive and bear no resemblance to reality” (8th affidavit, paras 56, 58, 60) or “bear very little resemblance to reality” (8th affidavit, paras 55, 57, 69), but we disagree. It is apparent from the itemisation that the work was increased by the need to review and respond to numerous emails sent by Mr Wilson. The application heard and determined by Basten AJA should have been less costly than that heard and determined earlier in the year by McHugh JA, because many of the issues cover the same ground, and indeed that is reflected in a reduction in Mr Duggan’s costs. However, that application encountered further complexities introduced by MWP, notably a substantial notice to produce, which Basten AJA wholly set aside, for reasons given at [8]-[13], and that is reflected in the greater cost of counsel.

Section 60 of the Civil Procedure Act 2005 (NSW) provides that “the practice and procedure of the court should be implemented 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”. We are conscious that the applicants obtained a favourable costs order on their application for security for costs. However, it is far from clear that there has been compliance with s 60, and we think it is likely that on assessment, a costs assessor would be entitled to have regard to the fact that the costs incurred were entirely needless, in the sense that the applicants would have been in a better financial position had they not made any such application.

…

Doing the best we can, and in particular bearing in mind the absence of any tangible benefit to the applicants in their successful application for security for costs, we would proceed as follows.

First, we start with the professional costs of $104,559. Noting that almost half were attributed to the security for costs motion, which achieved no useful end, and making a 25% discount reflecting that the assessment of party/party costs is less than a full indemnity, and applying a broad-brush approach, we would determine $50,000.

146. The position is similar here. Mr Emmott has obtained the benefit of orders which require MWP to provide security for costs in the amount of $35,000 if the applications to appeal from the orders made by Schmidt AJ and Hammerschlag CJ in Eq are to proceed. Accordingly, if the applications fail and he obtains a costs order in his favour, he will more readily be able to recover up to $35,000 of those costs. However, the price of doing so has exceeded $39,000. There has been no tangible benefit to him. (We note that he has also obtained the benefit of interlocutory costs orders in his favour, but that does not significantly qualify the conclusion that there has been no tangible benefit.)

147. Ultimately, on assessment the touchstone for an order of party/party costs (now defined as “ordered costs”) is what is fair and reasonable: Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76. There will be circumstances when it will not be fair and reasonable to require an appellant who has unsuccessfully resisted an application for security for costs to pay more by way of costs than the amount of security which is ordered. Cases where the moving party is worse off, because despite having obtained an order for security for costs, the cost of doing so has exceeded the security ordered, are to be scrutinised carefully in this respect, because they are prima facie examples of where applying ordinary approaches to assessment may not yield a result which is fair and reasonable, having regard to the self-defeating outcome whereby the successful applicant is in fact worse off.

148. That said, the costs incurred by Mr Emmott were increased by unsuccessful obstacles put forward by MWP (for example, the notice to produce in the proceedings determined by Basten AJA). The way his Honour dealt with that is, with respect, salutary. His Honour wrote at [12], concerning one forensic purpose of the notice to produce, namely to determine whether Mr Emmott was a debtor, as follows:

Secondly, the proposition sought to be supported by category two documents is not one which the Court should address in determining whether to order security for costs. To determine the truth of the applicant’s assertions as to the credit balance in its favour resulting from extensive litigation extending over the better part of a decade would be to embark on satellite litigation of a greater magnitude than that decried by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46. Such an exercise would contravene the obligations imposed on the Court and the parties under Pt 6 of the Civil Procedure Act 2005 (NSW) to focus on the just, quick and cheap resolution of the real issues in dispute. It will not be entertained on an application for the small amount of security likely to be required for an application for leave to appeal, or indeed, an appeal.

149. The reasoning in that paragraph is an illustration of a broader principle. Litigants are not free to litigate all issues, especially in doubly or triply adjectival applications such as security for costs of applications to seek leave to appeal from interlocutory decisions concerning the granting of a stay or the vacation of a hearing date. To the contrary, litigants and their lawyers are under a duty to assist the court in facilitating the just, quick, and cheap resolution of the real issues in the proceedings.

150. We return to the task of quantifying the gross sum costs order, in relation to the applications determined by McHugh JA and Basten JA. The actual costs were some $39,000. They must be discounted, in part because of the high hourly rates charged for work that could have been done by less senior practitioners, in part because there will always be a discount in applications such as this, but mostly because they are too high having regard to the security ordered. That said, the costs will have been increased by the approach to litigation adopted by MWP (for example, its notice to produce). We consider that costs in the amounts of $7,500 in each case are appropriate.

151. Fixing upon a number in a case such as this is necessarily somewhat impressionistic. To be as transparent about this as we can, if the same costs had been incurred in relation to a heavy appeal set down for five days where security of say $200,000 was ordered, such that the application secured a tangible benefit and the qualifications addressed above were inapplicable, then the ordinary discounting of the $39,000 in fact incurred would result in gross sums of in the order of $28,000-$32,000. However, because we do not consider that it is fair and reasonable for ordered costs consequent upon an application for security for costs to approximate or exceed the amount of security ordered, there being in those circumstances no tangible benefit to the successful applicant for security, we apply an additional steep discount to reduce the amount to something which is proportionate to the security ordered, although bearing in mind that some of Mr Wilson’s conduct has increased the costs.

(c) the costs of responding to MWP’s applications for review

152. Turning to the applications for review brought in this Court, Mr Emmott had no choice but to respond to the motions seeking review and vacation of the hearing date.

153. The actual costs incurred were $24,217 for the proceedings seeking review of McHugh JA’s order, and $13,954.50 for the proceedings seeking review of Basten AJA’s order. In some cases where there is complete overlap (for example, solicitor’s and counsel’s fees for the hearing day), half of the amount has been allocated to each matter (thus Mr Baird has billed $2,750 for each proceeding on 20 June 2025).

154. The costs are relatively high bearing in mind what was involved, but that is a consequence of the amount of material adduced by Mr Wilson, which was wholly out of proportion to what was involved. Save for the work which could have been done by less senior practitioners, all of the costs appear to have been reasonably incurred. Bearing in mind that qualification, we would reduce the costs incurred by both practitioners by some 10%, resulting in amounts of $21,800 (0.9 x ($12,317 + $11,900)) and $12,500 (0.9 x ($5,504.50 + $8,450)) in proceeding 416114 and 449432 respectively. Bearing in mind that in the assessment of an indemnity costs order, a reduction in the order of 5% upon solicitors’ costs is ordinarily applied. We conclude that costs should be ordered in amounts of $21,000 and $12,000.

Set-off and other procedural orders

155. Mr Emmott seeks orders that the gross sums costs orders be paid “without deduction or set off”, and that they be paid within 14 days. There is no basis for any such order.

156. A gross sum costs order, made pursuant to s 98(4)(c) as an alternative to costs assessment, produces substantially the same result as assessment. The order will support a judgment debt in the amount of the order, and may be executed in the same ways (including garnishee, application to wind up or writ of execution). Whether MWP is entitled to a set off is something that cannot be determined in the abstract. It will turn on the mode of execution, and perhaps also the place where that occurs. It cannot be determined on an application such as this.

157. The costs the subject of all these orders are interlocutory. No good reason has been put forward to depart from the ordinary rule (UCPR r 42.7) that they not be presently enforceable. Indeed, no submissions are directed to this by Mr Emmott. If MWP supplies security and the appeals are heard and determined favourably to MWP, MWP may be expected to obtain a costs order in its favour, and a set-off will apply. On the other hand, if MWP fails to provide security, or for some other reason the appeals are dismissed, then these orders will be enforceable in the usual way.

158. Mr Emmott also seeks orders in each proceeding that if the costs are not paid within 14 days, the summons seeking leave be dismissed. As well as being contrary to UCPR r 42.7, that application conflates the discretion to order security for costs with the ancillary entitlements of a successful party to the costs of an interlocutory application.

159. Mr Emmott also seeks an order that MWP pay the amount of $11,581.50 for the costs of preparing the application for a gross sum costs order. We are not minded to make any such order, bearing in mind the partial success of Mr Emmott on his application and the absence of any tangible benefit in spending more money in obtaining orders for security for costs than the security in fact ordered.

Costs against Mr Wilson personally

160. This Court has power to order that Mr Wilson is personally liable for the costs his client MWP has been ordered to pay, both under s 99 of the Civil Procedure Act and in its inherent jurisdiction to regulate solicitors: see Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [123]-[137].

161. However, there are two obstacles to exercising that jurisdiction in the present case.

162. First, both the Court’s inherent power and that conferred by s 99 turn on Mr Wilson being a legal practitioner. That is why it is not necessary before exercising the power to join him as a party to the proceedings; instead it is sufficient that he has a reasonable opportunity to be heard. To be clear, we are satisfied that Mr Wilson has enjoyed a reasonable opportunity to be heard, for he has been on notice of the application since it was flagged in written and oral submissions at the hearing in June 2025, he has had actual knowledge of the fact that it was made on and from 1 August 2025, he has had access to JusticeLink from that time, and even taking the most favourable view of his evidence about receiving emails, he received the whole of the materials relied upon on Saturday 16 August.

163. However, Mr Wilson is no ordinary solicitor. He is a solicitor of whom we hold serious concerns whether he should be permitted to practise in New South Wales. This litigation has been characterised by (a) meritless points raised by him, (b) prolix and needless complexity, (c) the making of serious allegations against judges, the Registrar and practitioners without foundation, and (d) intemperate discourtesy.

164. True it is that Mr Wilson is a legal practitioner at present, and subject to s 99 and the exercise of this Court’s inherent jurisdiction. However, all of the reasons which favour the making of a personal costs order overlap with the reasons which warrant the serious step of a referral to the Legal Services Commissioner. That latter course is intrinsically protective. On the other hand, the making of a personal costs order is apt to be punitive. In the particular circumstances of this case, it is inappropriate to do both.

165. Secondly, there is at the least a tension between on the one hand a referral of Mr Wilson to the Legal Services Commissioner for investigation as to whether he should cease to be permitted to practise as a solicitor, and on the other hand the exercise of a jurisdiction an element of which is the fact that Mr Wilson is in practice as a solicitor.

166. For those reasons, we do not accede to the application for a personal costs order.

Orders

167. The result is that Mr Wilson’s informal application to reopen the judgment is refused, and this judgment on the papers will be referred to the Legal Services Commissioner. That referral is based upon the matters raised in this Court’s earlier judgment, and Mr Wilson’s response. However, it will be plain from what has been said in relation to the matters arising when dealing with the application for security for costs that those considerations confirm the appropriateness of the referral.

168. On Mr Emmott’s motions, orders for indemnity costs of the applications to review the decisions of McHugh JA and Basten AJA, and gross sum costs for all the costs orders of proceedings in this Court will be made, albeit in substantially smaller amounts than were sought. The other orders sought in the notices of motion will not be made.

169. In light of the partial success concerning special costs orders, there should be no order as to the costs of Mr Emmott’s notices of motion, with the intention that the parties and Mr Wilson bear their own costs.

170. The Court’s orders are:

In proceeding 2024/416114 (the review of orders made by McHugh JA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.

6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

In proceeding 2024/449432 (the review of orders made by Basten AJA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.

6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

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annexure ‘a’

Annexure 'A' - [2025] NSWCA 206 (189 KB, pdf)

annexure ‘b’

Annexure 'B' - [2025] NSWCA 206 (4.20 MB, pdf)