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[2025] NSWSC 1315
General information, not legal advice.
Supreme Court of NSW
2025-11-14
Garling J
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Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott [2025] NSWSC 1315
Hearing dates: 26 August 2025
Date of orders: 14 November 2025
Decision date: 14 November 2025
Jurisdiction: Common Law
Before: Garling J
Decision: (1) Order that, until further order, these proceedings (2023/279049), Michael Wilson & Partner Ltd v John Forster Emmott, be, and hereby are, stayed.
(2) Order that neither party is entitled to make application for any order in these proceedings with respect to the stay in Order 1 until there has been a final determination (including any appeal) of:
(i) all proceedings presently listed in the High Court of Justice for England and Wales before HH Judge Pelling KC for determination in January 2026;
(ii) all other proceedings in the High Court of Justice for England and Wales between Michael Wilson & Partners Ltd, or Mr Michael Wilson and Mr John Forster Emmott, except for the Part 7 claim (CL-2021-000728), known as the Sinclair Debt claim;
whichever is the later.
(3) The Motion filed by Mr Emmott on 25 May 2025 is otherwise dismissed.
(4) The Motion filed by Michael Wilson & Partners Ltd on 29 May 2025 is dismissed.
(5) Michael Wilson & Partners Ltd are to pay Mr Emmott’s costs of both Motions.
Catchwords: PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Application for variation or rescinding of previous orders – Application for continuation of stay previously ordered
PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks to rescind, set-aside or vary an order made by a Judge of the Supreme Court of NSW regarding the registration of foreign orders based on an alleged error of law and fact – Where said order was made by consent – Whether the order was consented to by the parties in error as a result of an error of fact and foreign law – Insufficient cause shown that the order was made irregularly, illegally or against good faith – No application of the ‘slip rule’ contained in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – Where order sought by the plaintiff does not fall within any identified rules contained within the Uniform Civil Procedure Rules 2005 (NSW), Supreme Court Act 1970 (NSW) or Civil Procedure Act 2005 (NSW) – Where inappropriate for the Court to exercise discretion to set aside an order whilst an appeal is pending with respect to that order – Relief not granted
PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks through Notice of Motion a declaration that a stay ordered by a Judge of the Supreme Court of NSW remains in full force and effects whilst awaiting the outcome of similar proceedings in a foreign jurisdiction – Whether a stay ordered previously has come to an end as a result of the delivery of a foreign judgment – Whether there has been final determination of the defendant’s set-off application – Where stay order contains reference to bankruptcy petitions and statutory demands which have not yet been determined – Where international judicial comity and public interest suggests that overlapping proceedings should not be heard simultaneously in different jurisdictions – Where it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of a set-off application in a foreign court – Where the stay order was made on the basis that there would be a determination of a balancing figure after the completion of set-off – Relief granted
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56(1), 58
Foreign Judgments Act 1999 (Cth) s 6
Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 18.3, 36.15, 36.16, 36.17
Supreme Court Act 1970 (NSW) s 46(4)
Cases Cited: Michael Wilson & Partners Limited v Emmott [2021] NSWCA 315
Michael Wilson & Partners Limited v John Forster Emmott [2025] NSWCA 37
Michael Wilson & Partners Limited v Emmott (No 3) [2025] NSWCA 74
Michael Wilson & Partners Limited v John Forster Emmott (No.4) [2025] NSWCA 152
Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258
Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1435
Michael Wilson & Partners Ltd as assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) v Emmott - Final [2024] NSWSC 1489
Michael Wilson & Partners Limited v Nicholls and Ors [2011] HCA 48; (2011) 244 CLR 427
Michael Wilson & Partners Limited v John Forster Emmott [2024] EWHC 449 (Comm)
Michael Wilson & Partners Limited v John Forster Emmott [2024] EWHC 2731 (Comm)
Michael Wilson & Partners Limited v John Forster Emmott [2025] EWHC 716 (Comm)
Michael Wilson & Partners Limited v John Forster Emmott [2025] EWHC 747 (Comm)
Texts Cited: Not Applicable
Category: Procedural rulings
Parties: Michael Wilson & Partners Ltd (P)
John Forster Emmott (D)
Representation: Counsel:
M Wilson (P)
J Baird (D)
Solicitors:
Michael Wilson & Partners Ltd (P)
Duggan Legal (D)
File Number(s): 2023/279049
Publication restriction: Not Applicable
On 31 August 2023, Michael Wilson & Partners Limited (“MWP”) commenced proceedings by a Summons against John Forster Emmott (“Mr Emmott”), seeking orders pursuant to s 6 of the Foreign Judgments Act 1999 (Cth) with respect to a series of judgments, orders and Costs Certificates arising from various proceedings in the High Court of Justice of England and Wales (“EWHC”).
The Summons also sought orders pursuant to the same legislation for the registration of judgments or orders arising from proceedings in the High Court of the British Virgin Islands (“BVIHC”).
Finally, the Summons sought the registration of judgments and orders made in various proceedings in the New Zealand High Court (“NZHC”).
On 23 February 2024, Mr Emmott filed a Notice of Motion seeking that the Registration Orders be set aside (“Emmott’s First Motion”). He sought additional (or alternative relief), including an order that the proceedings be stayed to a specified time.
On 8 April 2024, MWP filed a Notice of Motion seeking a review of the Dismissal Orders, an extension of time for the Notice of Motion seeking such review and leave to file and serve an Amended Summons. The amendments to the Summons sought to include various further judgments and orders issued in favour of MWP after the Summons was first filed (“MWP’s First Motion”).
It is apparent from the terms of the Summons, the orders of the Registrar and the nature of the orders sought variously by Mr Emmott and MWP in their Notices of Motion, that there has been extensive litigation in a number of countries around the world between MWP, Mr Emmott and others, arising out of an agreement made in December 2001 between MWP and Mr Emmott, that Mr Emmott would join MWP as a Director and shareholder, in effect, from January 2022. At that time, MWP practised as a law firm and a business consultancy from offices in Kazakhstan. It is unnecessary in this judgment to recite the detail of the disputes arising from the termination of that agreement, and the conduct engaged in by MWP, Mr Emmott and others.
For the curious, an overview of the history between 2001 and 2011 can be found in Michael Wilson & Partners Limited v Nicholls and Ors [2011] HCA 48; (2011) 244 CLR 427 at [6]-[30]. As well, further context and background can be found in Michael Wilson & Partners Limited v Emmott [2021] NSWCA 315.
There are two judgments of the EWHC, being Michael Wilson & Partners Limited v John Forster Emmott [2024] EWHC 449 and Michael Wilson & Partners Limited v John Forster Emmott [2024] EWHC 2731, which should be referred to.
In the first of those two judgments of HH Judge Pelling KC in the EWHC, his Honour said this, at [2]:
“I do not intend in this judgment to set out again the general history surrounding this apparently never-ending dispute. It is set out in many of the more than 30 reported earlier judgments I have given in these proceedings. In summary, following an order permitting Mr Emmott to enforce the arbitral award in his favour against Michael Wilson & Partners Limited (‘MWP’) as if it was a judgment and order of the High Court, he obtained a worldwide freezing order against MWP. There followed what can only be described as an avalanche of litigation between MWP and Mr Emmott in England and Wales but also numerous overseas jurisdictions, including Australia, New Zealand and the BVI. It has engaged in England courts at all levels up to and including the Supreme Court; in Australia, courts at first instance and appellate level in at least the state of New South Wales; and the High Court of Australia as well; first instance and appellate courts in the BVI and first instance courts in New Zeeland [sic].”
In the second of the two judgments referred to above, an order for a case management stay of the proceedings in the EWHC was made by HH Judge Pelling KC, pending the hearing and determination of a claim in this Court.
At [33] of the second judgment of the EWHC, HH Judge Pelling KC said of the case management stay order:
“33. I am fully aware that a step of this sort is exceptional but the circumstances surrounding this litigation are extraordinary and unique at least in my experience. As long ago as February 2019, Peter Jackson LJ concluded his judgment in Emmot v Michael Wilson & Partners Ltd [2019] EWCA Civ 219; [2019] 4 WLR 53 in these terms:
‘Having listened to the history of the litigation between these two solicitors, I protest at the shameful waste of time and money caused by their private dispute, which has now continued for 13 years and left their reputations in tatters. We were told that Mr Emmott's global costs amount to £2·5m, and Mr Wilson's several times that. Courts in four countries have been (and in at least two cases are being, with no end in sight) plagued with their proceedings and counter-proceedings. It appears that Mr Wilson will stop at nothing to prevent Mr Emmott from receiving the award to which, for all his deceit, he is entitled. … Any court in this jurisdiction that has to consider this dispute in future would do well to remember that the overriding objective in civil proceedings includes a duty on the court to save expense, deal with the case expeditiously and fairly, and allot to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; further, that the parties have a duty to help the court to achieve this. This pathological litigation has already consumed far too great a share of the court's resources and if it continues judges will doubtless be astute to allow the parties only an appropriate allotment of court time.’
It is a matter of record that since then at least three new claims were commenced by MWP, there have been applications that have generated 37 judgments from me alone that are reported in the Westlaw database and at least that number of other judgments and rulings that have not made it to that data-base. There have been numerous applications for permission to appeal to the Court of Appeal and as I have said two extended civil restraint orders that have had little or no effect because of necessity they have been made in only some of the issued claims. I refer to this not in relation to the suggestion that these proceedings are abusive but because it shows, regrettably, that the lack of proportionality identified by Peter Jackson LJ has continued. Proportionality lies at the heart of the stay I am imposing.”
It is quite clear from the reasons of HH Judge Pelling KC for granting a case management stay of proceedings in the EWHC, that, in a spirit of international judicial co-operation which would avoid any inappropriate usage of scarce judicial resources in whichever court there was litigation between the parties, it was appropriate for the proceedings before him to await the outcome of the Commercial List proceedings this Court, which were determined by the judgment of Hammerschlag CJ in Eq.
The claim between MWP and Mr Emmott here was filed in the Commercial List of the Equity Division. It was ultimately heard by Hammerschlag CJ in Eq and dealt with by a judgment in favour of Mr Emmott: Michael Wilson & Partners Ltd as assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) v Emmott - Final [2024] NSWSC 1489.
MWP, by Summons filed on 19 February 2025, sought leave to appeal from the final judgment of Hammerschlag CJ in Eq, and from decisions of his Honour not to grant an adjournment of the proceedings.
Mr Emmott sought security for costs of these appellate proceedings. On 15 April 2025, security for costs was ordered by Basten AJA for the reasons which he delivered in Michael Wilson & Partners Limited v Emmott (No 3) [2025] NSWCA 74.
MWP sought leave to appeal from the decision of Basten AJA. On 20 June 2025, leave was refused by the Court of Appeal (Leeming, Mitchelmore and Free JJA) for the reasons set out in Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152.
MWP has not, as yet, lodged the required security for costs of the appellate proceedings. Until it does, these appeal proceedings are stayed.
The two Notices of Motion to which I have referred at [5] and [6] above, were heard, in this Court, by Schmidt AJ on various dates in August 2024, followed by receipt of written submissions. In the proceedings before Schmidt AJ, MWP was represented by Mr G Burton of Senior Counsel and Mr Emmott was represented by Mr Baird of counsel.
Her Honour expressed her conclusions and reasons in a judgment delivered on 10 October 2024: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258 (“the first judgment”). She directed that the parties bring in short minutes of the orders necessary to be made to reflect agreements which had been reached and her Honour’s reasons. The parties were unable to agree on the orders to be made in all respects. However, they agreed in substance on some of the orders.
Her Honour issued a second judgment on 12 November 2024, setting out the orders which she made: Michael Wilson & Partners Limited v Emmott *(N**o.*2) [2024] NSWSC 1435 (“the second judgment”). The orders made by her Honour are as follows:
“(1) Order 3(k) of the Registrar’s 2 February 2024 orders, relating to Items 21 to 24 inclusive referred to in MFI 1, be set aside.
(2) These proceedings be stayed until the final determination of the defendant’s 22 July 2022 set off application by the High Court of Justice, Business and Property Court of England & Wales, Commercial Court.
(3) The parties confer after the High Court’s judgment is delivered, with a view to identifying the real issues remaining between them.
(4) The plaintiff pay the defendant’s costs of the parties’ February and April 2024 motions to date, as agreed or assessed.
(5) The proceedings be listed before the Registrar for further directions at 9.30 am on 11 March 2025, with liberty to apply on 72 hours’ notice in writing, in the event that the High Court’s judgment has not been delivered before that date.”
MWP filed a Notice of Intention to Appeal on 5 November 2024. On 20 January 2025, MWP filed a Summons seeking leave to appeal from the judgments and orders of Schmidt AJ. MWP also sought an extension of time if that was needed.
Mr Emmott sought an order for security for costs of the summons seeking leave to appeal. McHugh JA made an order for the provision of such security: Michael Wilson & Partners Limited v John Forster Emmott [2025] NSWCA 37.
An application for leave to appeal against the decision of McHugh JA brought by MWP was dismissed on 20 June 2025 by the Court of Appeal in the same judgment as it dealt with the application for leave to appeal against the decision of Basten JA (see [17] above): Michael Wilson & Partners Limited v John Forster Emmott (No.4) [2025] NSWCA 152.
MWP has not, as yet, lodged the security for costs ordered by McHugh JA.
In the absence of security, the appellate proceedings against the two judgments of Schmidt AJ are stayed.
There are now two further interlocutory applications which arise in the proceedings heard by Schmidt AJ, which fall for determination in this judgment. Both arise from the terms of the orders made by Schmidt AJ, the events which have since occurred in the EWHC, and a dispute between the parties about the true meaning and effect of the orders of Schmidt AJ.
The first Motion in time was that filed by Mr Emmott on 25 May 2025, (“the second Emmott motion”) seeking the following orders:
“1. A declaration that the stay ordered by Schmidt AJ on 12 November 2024 ([2024] NSWSC 1435) remains in full force and effect.
- Further, or in the alternative, an order that the proceedings be stayed until the final determination of the Defendant’s Application in the High Court of Justice, Business and Property Court of England & Wales, Commercial Court (QBD) dated 22 July 2022.
- Costs.
- Such further or other order as to this Honourable Court may seem fit.”
“1. In accordance with and pursuant to the law, the CPA and the UCP [sic], MWP hereby seeks to rescind, set-aside and vary order (1) of the orders of Schmidt AJ issued and made in this Court on 12.11.24, setting aside order 3(k) of the Judgment/Orders of Senior Deputy Registrar P. Clayton of 02.02.24 (the “Recognition Judgment/Order”) relating to Items 21 to 24 inclusive referred to in MFI 1 (the “Schmidt Orders”), in accordance with the Direction Orders of Senior Deputy Registrar J. Hedge of 19.05.24 (the “Directions Order”), made as a result of a remote hearing attended by all parties.
- In an ex-tempore judgment of HHJ Pelling KC, sitting as a High Court judge, in the Commercial Court of the B&PC of the EWHC of 15.01.25, to which proceeding and judgment the Respondent/Judgment Debtor is party and by which he is bound, it was found and held that there is no limitation issue under section 24(1) of the English Limitation Act 1980, being the applicable law, as can be seen from the Notes to section 24, Volume 2 of the White Book at paragraph 8/64 reflecting the findings by Lords, Browne-Wilkinson, Lloyd of Berwick, Nolan, Hoffman, Hope of Craighead, sitting in the House of Lords in Lowsley and Another v. Forbes (Trading as L.E. Design Services) at [1981] 3 All ER 897of [sic] 29.07.98, so that Order (1) of the Schmidt Orders were consented to by the parties and made in error and arose as a result of a mistake and error of fact and English law, and should be rescinded, set-aside and/or varied.
3. That the Respondent/Judgment Debtor shall pay all of MWP’s costs of this Notice of Motion on the indemnity basis, to be assessed if not agreed and with an interim payment on account of the same to be made by the Respondent/Judgment Debtor to MWP within a period of no later than fourteen (14) days, free and clear of all and any bank charges, setoffs, withholdings, deductions, cross-claims or counterclaims.
- Such further or alternative orders as the court considers appropriate.
- Liberty to apply on three (3) days prior written notice.”
These two Notices of Motion came on for hearing before me on 26 August 2025. At that hearing, Mr Wilson appeared for MWP, and Mr Baird of counsel appeared for Mr Emmott. The Motions were heard together. The evidence which was read was taken in both Motions.
In support of the second MWP Motion, MWP provided a Court Book which consisted of 6,647 pages across eight volumes. It is apparent that this Court Book replicated the one supplied to Schmidt AJ for the proceedings heard by her Honour, to which had been added some further documents which post-dated her Honour’s judgments. With respect to the bundle provided by MWP, it is necessary to record that the vast majority of the Court Book was not specifically referred to and the Court was taken to comparatively few of the pages in that Court Book. Indeed, the Court was not taken, by MWP, to the documents of most significance to the resolution of these proceedings.
When the evidence for Mr Emmott on the Notices of Motion was being read, Mr Wilson, for MWP, indicated that he wished to cross-examine Mr Emmott on his affidavits.
I enquired of Mr Wilson whether notice had been given to Mr Emmott’s lawyers of that requirement, and if so, when. Mr Wilson asserted that he had done so by email. Counsel for Mr Emmott took instructions and informed the Court that, at no time, had either his solicitors, or he personally, received any such email. He submitted that he and his instructing solicitor were unaware of any requirement for Mr Emmott to give evidence, and that the absence of such requirement meant that Mr Emmott, who had been present in Sydney during the week before the hearing was to take place, had left Australia.
I informed Mr Wilson that he would need to produce evidence of his email being sent to Mr Emmott’s solicitors and that he could renew his application if that became available to him.
Although, in course of the hearing of the Motions, Mr Wilson informed the Court that arrangements were in place to attempt to obtain a copy of that email, the application to cross-examine Mr Emmott was not renewed, and the email was not ever produced to the Court, or to Mr Emmott’s lawyers. The application to cross-examine Mr Emmett, accordingly, lapsed.
Even if the application had been renewed, it would have been necessary for the Court to have considered whether it would have been appropriate and relevant to the issues falling for consideration for cross-examination to have been permitted.
In order to understand the issues which were put before the Court for its determination, it is necessary to set out some parts of both the first and second judgments of Schmidt AJ.
After briefly sketching the background and context of the litigation, her Honour noted that the Registrar was not informed, prior to making the Registration Orders and the Dismissal Orders, that MWP had taken steps to enforce disputed judgments and orders by way of bankruptcy proceedings in the EWHC. Her Honour noted that the Registrar was not told that Mr Emmott had, by an application filed in the EWHC on 22 July 2022, sought “… set off orders in relation to various of those judgments, given costs orders which have been made in his favour”.
At [7], her Honour noted:
“The English set off application was due to be heard in July 2024, but was adjourned until February 2025 because of problems with Mr Wilson’s appearance on the day fixed for the hearing. There in issue is costs orders made in favour of the Company, which it claims total almost 6 million pounds, as well as the costs orders made in favour of Mr Emmott, which he claims total over 2.4 million pounds.”
“Also yet undecided in England is the enforcement of the arbitral award made in favour of Mr Emmott with the sum awarded now claimed to exceed 5 million pounds. There, the question of the set off of costs orders made in favour of the Company also arises to be determined.”
“17. Given what the parties have advanced, despite this, it appears that they are incapable of sensible agreement about costs orders made in Australia. That has had the result that despite what is on foot elsewhere in respect of the Company’s English enforcement proceedings and Mr Emmott’s set off application, the Company intends to pursue Mr Emmott’s bankruptcy in Australia, relying on the disputed foreign judgments, despite the impending hearing in England.
- Since the judgments were registered in February, the Company has served an Australian bankruptcy notice on Mr Emmott. It has also notified him and indicated to the Court that it intends to pursue those bankruptcy proceedings here, irrespective of the English proceedings.
- Were the Company to proceed as it intends in Australia, it appears inevitable that Mr Emmott, who will also be entitled to rely on unpaid costs orders made in his favour in other jurisdictions, as well as the orders which resulted from the arbitral proceedings, will resist such enforcement. As explained in Porter, Re Slater (No 3) [2021] FCA 688 at [152], in bankruptcy proceedings the Court also having power to set off a costs order against a judgment sum.
- That being so, it follows that in the foreshadowed bankruptcy proceedings, issues of the same kind as those which have to be determined in the proceedings presently listed for hearing in the High Court of England and Wales in February 2025, will arise. Although once they are decided in England, it appears that the outcome will bind them.
- It should be observed that the prospect of these parties litigating the same matters in both England and Australia, which seems entirely likely, does not accord with the public interest. That is reinforced by the factual complexity of the parties’ litigious history, which the evidence and submissions led in these proceedings has shed some light on. Still, the Company is intent on pursuing the course it has embarked on here, rather than awaiting the outcome of the English set off application listed for hearing in February.”
Her Honour noted, at [23], that the likely outcome of the February 2025 hearing in the EWHC of the set-off application would be a “balancing costs order” being made by the EWHC. Her Honour noted that, even if that Court’s conclusions were later disturbed by an appeal, “… some type of balancing order will result”.
Her Honour then referred to bankruptcy proceedings in the Federal Court of Australia, and at [26] said:
“It follows that in England, once a balancing order is made in respect of the disputed judgments which are also there in issue, consequential orders will be made. Logically, such orders are likely to set aside earlier orders which arise to be considered in these proceedings. If he is successful, once made, Mr Emmott will be entitled to rely on such orders to set aside the registration of the disputed judgments in this Court and to resist their enforcement here. If he is not, the parties ought then to be capable of resolving much of what remains in issue in these proceedings.”
Her Honour then went on to consider whether the Registration Orders should be set aside, or alternatively, whether the proceedings should be stayed.
Her Honour noted that, shortly before the hearing of the Motions listed before her, that MWP had filed a Second Further Amended Notice of Motion which sought leave to further amend its Summons “… seeking the registration of other foreign judgments which will be relied on in the English set off application”.
Her Honour then went on to consider what issues she was being asked to resolve. At [38], her Honour said:
“38. What was in issue thus included whether:
(1) this Court is the appropriate Court in which to register the judgments;
(2) the registration of any further judgments should be entertained before the English proceedings are determined;
(3) Mr Wilson should be joined as a party to these proceedings;
(4) the extensions of time sought to file the Company’s notice of motion should be granted;
(5) in obtaining the Registration Orders, the Company made the disclosures required by the Rules and, if not, whether the failure to do so involved any abuse of process;
(6) the Registrar’s orders made on 2 February 2024 should be set aside; and
(7) the proceedings should be stayed pending determination of the set off application in the High Court of England and Wales.”
Her Honour noted at [39], that it was ultimately accepted between the parties that the Registrar had erred in registering some of the judgments.
At [40], her Honour expressed her conclusions in this way:
“40. For reasons which follow, I have concluded that:
● this Court is the appropriate Court in which to pursue the registration of the disputed foreign judgments;
● the proceedings should be stayed pending determination of the set off application which is listed for hearing in the High Court of England and Wales;
● Mr Wilson should not now be joined as a party to these proceedings, his joinder not being relevant to the resolution of the real issues now lying between the parties; and
● other issues (including whether an extension of time should be granted and whether further judgments should be registered) should not, at this stage, be determined.”
“41. That is because the resolution of the English proceedings in the near future will impact the rights of both the Company and Mr Emmott and result in orders affecting some, at least, of the judgments and orders which remain in dispute.
- I am satisfied that even if the disputed judgments were capable of being registered in February 2024, the adjournment of the English bankruptcy proceedings until the resolution of the set off application, currently prevents their enforcement in England, until further order. Justice does not permit some different practical result in Australia.
- It rather requires that the enforcement of the challenged judgments in Australia should likewise be prevented, until the English proceedings have been determined. That can best be achieved by these proceedings being stayed until final orders in respect of the set off application have been made in England.
- Given the parties’ history, there is of course a real prospect that the final outcome of what is being litigated in England will not be known until the outcome of an appeal.
- Despite this, once the outcome of the English litigation is known, the Company will be in a position to know what judgments and orders it is entitled to pursue further in Australia. The parties should then confer about an appropriate way forward, in accordance with the obligations imposed on them by s56 of the Civil Procedure Act.
- At this stage I am satisfied that this course is likely to help best achieve the just, quick and cheap resolution of the real issues lying between these parties, bearing in mind the Court resources that litigation here will otherwise utilise, potentially only to be overtaken by the outcome of the English litigation.”
Her Honour returned to the question of a stay at [84]. She identified the essential question which she was called upon to resolve as “… whether these proceedings should be stayed**, pending the resolution of the English set off proceedings”. Her Honour noted that the Court was required to act in accordance with the dictates of justice and the provisions of s 58 of the Civil Procedure Act 2005 (NSW).
Her Honour declined to accept the proposition that permitting MWP to pursue in Australian courts, arguments which would be canvassed and determined in the EWHC in February 2025, would accord with the application of the overriding purpose specified in s 56(1) of the Civil Procedure Act 2005 (NSW), namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Her Honour noted that permitting MWP to proceed in Australia would put the parties to unnecessary costs and would risk contradictory judgments being given by English and Australian courts about the same matters, at unnecessary cost and inconvenience to the Australian community. Her Honour noted that the parties would be bound by the resolution of their dispute in the English courts and, further, that it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of the English set-off application is known. Her Honour concluded at [88]:
“I am thus satisfied that justice requires that these proceedings be stayed, pending the determination of the proceedings in the High Court of England and Wales, given that the hearing of the English enforcement proceedings has been deferred, pending the determination of what is in issue in the High Court of England and Wales in relation to set off.”
“91. What is listed for hearing in February 2025 is Mr Emmott’s claim about the set off of unpaid judgment debts in respect of costs which he owes the Company, against those which it owes him. There is also a dispute about the respective amounts of those costs, as well as in relation to the arbitral award.
- On the Company’s case it is owed costs in excess of 5,911,934 pounds, but Mr Emmott claims it is owed some one tenth of this amount. What the correct figure is need not be determined in these proceedings, that being the subject of the hearing listed in the High Court in February 2025.” (emphasis added)
“102. There are thus significant issues lying between the parties about matters not easily resolved, many of them due to be resolved in the English proceedings in February 2025. That being the case I am satisfied that these issues would better await the resolution of those proceedings, that likely to significantly reduce what is really in issue between the parties in these proceedings.
- I am satisfied that justice requires that the parties have the opportunity to consider the outcome of the English proceedings, which ought to put them into a position where the disagreement about the registration of the remaining of the challenged judgments, can relatively shortly be agreed. Unless set aside on an appeal the parties will, after all, be bound by the orders made in the English proceedings.
- Compliance with the obligations imposed on them by s 56 of the Civil Procedure Act should thus result in an agreement about the further orders which should then be made in these proceedings.
- In all those circumstances I am satisfied that the appropriate order now to make is to stay the proceedings, rather than to determine, at this stage, what other judgments and orders, if any, must have their registration set aside.”
In her second judgment, Schmidt AJ set out the orders that each party contended for.
Relevantly to Order (1) in the Second MWP Motion, both parties agreed, although their proposed orders were expressed in somewhat different words, that Order 3(k) of the Registrar’s orders should be set aside. The making of this order by the Registrar was specifically challenged in Emmott’s First Motion.
The differences in language do not affect the substance of what each party was contending for, namely that the particular order of the Registrar should be set aside.
With respect to the terms of the stay to be granted, the parties did not agree. They also did not agree with respect to costs. Her Honour, for the reasons which she expressed, made the orders set out above at [21].
It is to be observed that her Honour’s reasons for granting the stay exhibited the same attention to international judicial co-operation as had been shown by HH Judge Pelling KC, when he ordered a case management stay of proceedings in the EWHC.
It will be necessary to come to the submissions and arguments dealing with the two Notices of Motion, but it is first instructive to identify what has, in fact, happened in the EWHC since the delivery of Schmidt AJ’s two judgments.
On 17 and 18 December 2024, Mr Emmott’s application to the EWHC for a set‑off was heard by HH Judge Pelling KC (“the December hearing”).
On 15 January 2025, HH Judge Pelling KC delivered his reasons for judgment and made orders: Michael Wilson & Partners Ltd v Emmott [2025] EWHC 747 (Comm).
It is clear from these reasons that HH Judge Pelling KC had heard and was giving judgment in respect of three applications which were heard in December. One of those applications was that made by Mr Emmott by Notice dated 22 July 2022. That application sought a declaration in these terms:
“A declaration that, as a matter of principle, [Mr Emmott] is entitled to set off a judgment debt in his favour against the claimant (‘MWP’) against various cost orders obtained by MWP against him in various different claims, concerned with or related to his attempts to enforce his judgment against MWP.”
The other two applications can be put to one side.
In the course of the December hearing, MWP put into evidence, before the Court, a spreadsheet, said to be current at that time, which was described by HH Judge Pelling KC in his judgment as a document purporting:
“… to set out all the sums which are due and owing from MWP to Mr Emmott including interest accumulating on that sum from time to time and all sums which are alleged by Mr Wilson on behalf of MWP to be due to MWP from Mr Emmott, as a result of various transactions and costs orders over a number of years made by courts both in England and Wales and elsewhere around the world.”
At the end of the December hearing, HH Judge Pelling KC reserved judgment and adjourned the proceeding for delivery of judgment on 15 January 2025. On that date, MWP, through Mr Wilson, presented a further iteration of the spreadsheet to the Court through the medium of his 61st Witness Statement.
I interpolate to say here, that Mr Wilson and MWP clearly thought that such a spreadsheet, and the calculations, were relevant to the proceedings being dealt with at the December hearing. Otherwise, Mr Wilson would not have tendered the document and an updated version of it.
HH Judge Pelling KC noted the claim being made in the 61st Witness Statement of Mr Wilson, which was to the effect, in summary, that MWP owed no money to Mr Emmott, who, in fact, owed substantial sums of money to MWP. At [6] of his reasons, his Honour noted that, notwithstanding all that Mr Wilson had written, the orders sought by MWP were limited to directions to Mr Emmott to file and serve evidence in response to the spreadsheet, including specified material.
On 15 January 2025, as the judgment states at [9], Mr Wilson raised new, and unforeshadowed arguments about the net position between the parties, including a limitation argument. At [13], his Honour discussed Mr Wilson’s attempts to re-open the application and rely on limitation arguments.
In the course of his reasons of 15 January 2025, HH Judge Pelling KC said at [38]:
“38. In my judgment, therefore, there can be no real doubt that in principle, Mr Emmott is entitled to set off his liability under costs orders as and when they arise in these proceedings against the judgment sum together with interest as it has accrued down to the date when the right to set off is asserted. As I have said, set off operates as a defence and will generally arise where there is a dispute either before a court at determining a summary judgment application on the cross claim or an insolvency court determining an application to set aside a statutory demand or adjudicating upon a winding up or bankruptcy petition. Generally, it is inappropriate to expect a court to resolve such an issue other than in the context of such proceedings, where the issue that arises can be determined in the relevant context. There will generally be a need to determine the state of account at such a hearing. There may well be a dispute as to when the set off should be applied, which will be relevant to how interest should be treated as accumulating on the judgment on the one side, and on the sums due under the costs order on the other. There may be issues as to what, if any, sums should be treated as set off prior to considering the particular costs order concerned as there would be in this case, on the basis that MWP seeks to assert that the right of set off has been lost by reference to a myriad of different transactions, with only those about which there is no dispute or which can be established to the summary judgment standard being available to be taken into account.”
“45. More importantly, no attempt has been made to provide any coherent supporting evidence. It was only at the end of the weekend before the hearing that commenced on Tuesday 16, December, that a bundle of material was produced. This was so, even though the application had been listed for months, and Mr Emmott had been asking for such material for weeks, if not months prior to the start of the hearing. This material was not in the form of a witness statement, but of various documents or extracts from documents said to support what is alleged in the spreadsheet. Mr Emmott complained in the strongest terms about this, on the basis that he had been seeking the underlying material to support what was contained in the spreadsheet for months, and he had had no chance to respond sensibly to the material given when it was served. I agree.
- In my judgment, this was in effect, if not by intention, a forensic ambush that would have given MWP an illegitimate procedural advantage over Mr Emmott. It is something I am not prepared to countenance. In fact however it does not matter because there are many more fundamental objections to Mr Wilson’s approach.”
I also interpolate here that Mr Wilson, on behalf of MWP, provided evidence, which he contended substantiated MWP’s claim that the declaration as to set‑off ought not be made because there were no sums remaining which Mr Emmott could set off: see [42] of the judgment. In other words, the existence of a net balance sum was regarded by Mr Wilson as being in issue at the December hearing.
At [48], his Honour referred to the trial of what he described as “the Part 7 claim”. At [49], his Honour said:
“MWP has commenced a part 7 claim against Mr Emmott, bearing the number CL-2021-000728, in which many of the claims referred to in the spreadsheet, although not all, have been claimed against Mr Emmott. No doubt Mr Emmott will plead set off in defence of that claim in addition to any other affirmative defences advanced concerning the effect of the various instruments relied upon, for example. If and when that claim comes to trial, the issues that arise will be resolved, and what Mr Wilson claims to want, namely, the final account between him and Mr Emmott will be the result. There may be other procedural routes to what Mr Wilson wishes to achieve that are quicker or cheaper. However, that is one of the routes at least that will enable the set off factual issues to be resolved finally.”
“Returning the application, I am prepared to declare that as a matter of general principle, Mr Emmott is entitled to resist enforcement of the costs order made against him by reference to the judgment debt. However, all questions concerning whether in fact such a defence is available must be resolved either at the hearing of the application to set aside the statutory demands when the issue will be whether Mr Emmott has established a right to set off to the limited level required for such an application, or at the trial of the Part 7 claim or any other claim or application issued by MWP where the issue can be properly resolved – something that will involve MWP preparing an account along the lines explained earlier and supporting the sums claimed in it with proper evidence, which in the case of proving the costs claims may involve nothing more than producing the orders containing the summary assessment or the orders of the SCCO evidencing the detailed assessments or default assessments.”
“Mr Wilson expressed the view that any judgment I gave dealing with the general principle but not determining the factual issues that arise in relation to the sums that MWP maintains are due … would result in courts around the world simply concluding that set off was available. In my judgment, no court anywhere reading this judgment could conclude that was what its effect was or was intended to be. All that this judgment resolves is whether, as a matter of English law, Mr Emmott is in principle entitled to seek to set off against any costs order made against him in favour of MWP so much of the judgment debt owed by MWP to Mr Emmott as remains unpaid or unaccounted for by earlier setoffs. Whether as a matter of fact set off is available will depend upon a careful factual analysis at any particular date when set off has been asserted by Mr Emmott of the state of account between MWP and Mr Emmott. What test a court will apply in resolving that factual question will depend on the nature of the application being determined and the law that governs the application.”
“3. All questions concerning whether there was any and if so what part of the judgment debt remained due to Mr Emmott at the date when each right to set off was claimed, must be determined either at the hearings of MWP’s bankruptcy petitions against Mr Emmott or Mr Emmott’s applications to set aside MWP’s statutory demands (in each case to the evidential standard that applies to such petitions or applications), or at the trial of MWP’s Part 7 Claim as to the Sinclair debts owed by Mr Emmott to MWP in CL-2021-000728.”
It is abundantly clear from the terms of the in-principle declaration, and the terms of this order, that HH Judge Pelling KC had not finally determined the issue of what the net balance was, either in favour of MWP, or else, Mr Emmott.
On 20 March 2025, HH Judge Pelling KC delivered a further judgment which dealt with whether the case management stay ordered by his Honour on 1 November 2024 should be, or should not be, reimposed in light of the events which had occurred. In that judgment, his Honour described what had occurred in the proceedings before him and identified the claim being made in this Court, which was the subject of the judgment of Hammerschlag CJ in Eq. His Honour noted that MWP had launched an appeal from the judgment of Hammerschlag CJ in Eq to the New South Wales Court of Appeal. Further, he noted what he had earlier recorded about the possible effect upon the matters being debated before him if MWP succeeded on its appeal with respect to the judgment of Hammerschlag CJ in Eq.
His Honour continued the case management stay with some limited exceptions. Included in those exceptions was:
“Any further application or claim MWP may choose to bring (if so advised) for a declaration and/or judgment, ruling and order that, in the events that have happened there are no sums remaining due and owing from MWP to Mr Emmott and all and any appeals therefrom.”
His Honour’s reasons are contained in Michael Wilson & Partners Limited v John Forster Emmott [2025] EWHC 716 (Comm).
It then appears that, on 7 April 2025, MWP commenced a further claim against Mr Emmott, by which it applied for a “declaration judgment ruling and/or order” which, although expressed in various ways, was intended to determine the underlying question of whether, as MWP claimed, it was owed money by Mr Emmott, or not. In other words, it was intended to result in a finding of the net balance between the parties. These new proceedings were apparently brought under Part 8 of the UK Civil Procedure Rules.
In any event, the set-off proceedings seeking to identify the balance owing (if any) to MWP, were due to be heard before HH Judge Pelling KC in August 2025. They did not proceed at that time. All extant proceedings, including the Part 8 claim, were adjourned until January 2026 for a two-day hearing.
The orders made by HH Judge Pelling KC on 5 August 2025, also dealt with the filing and service of evidence, and outlines of arguments to be made. It is entirely clear from these orders that both parties were, at that stage, still to complete their evidence.
As yet, there has been no determination of the question of whether MWP is owed money by Mr Emmott, or whether Mr Emmott is owed money by MWP. Nowhere has there been a definitive judgment setting out what the balance of the accounts between the two parties may be.
It is against this factual background that the Court came to hear the Second Emmott Motion and the Second MWP Motion.
It needs to be recalled, at the outset, that MWP filed a Notice of Intention to Appeal with respect to the two judgments of Schmidt AJ, which was served on Mr Emmott on 6 November 2024. On 18 January 2025, MWP filed a Summons in the New South Wales Court of Appeal, seeking leave to appeal against both judgments of Schmidt AJ. A Notice of Appeal, also dated 28 January 2025, was filed together with the Application for Leave.
Paragraph 2 of the Notice of Appeal was in the following form:
“The appellant appeals against the whole of the first judgment and decisions of Schmidt AJ in the NSWSC CLD on 10.10.24 at [2024] NSWSC 1258, in which reasons were delivered and the decision was recorded on the cover as ‘Proceedings are stayed’, though in respect of which no final orders were entered and made as the same were reserved, pending further evidence, argument and submissions, in the usual way, and most importantly, the second and final judgment of Schmidt AJ in the NSWSC CLD at [2024] NSWCA 1435, was only handed down on 12.11.24 and, in particular, the related final orders of 12.11.24 that were only made and issued after the final and second judgment was handed down on 12.11.24. Of course, it is trite law and practice that one appeals only final orders and not mere judgments.”
The Notice of Appeal then sets out in a prolix, rambling and unfocused way, 15 grounds of appeal against the first judgment of Schmidt AJ. The Notice of Appeal slips between identifying a specific ground and making submissions, and setting out argument with respect to those grounds. It is unnecessary to set out the many pages of argument and grounds.
The orders sought in the appeal include the following:
“2. Set aside the two (2) judgments and decisions of Schmidt AJ, recorded on 10.10.24 and 12.11.24 at [2024] NSWSC 1258 and at [2024] NSWSC 1435, granting a stay of proceedings in the Common Law Division of the NSWSC No. 2023/00279049 and the final orders that were only issued, entered and made on 12.11.24.”
It is difficult to encapsulate, in an entirely satisfactory manner, the substance of the written submissions. It is clear that the principal form of relief in MWP’s second Motion is that set out in Order 1 – where MWP seeks an order of the Court rescinding, setting aside and varying (Order 1) the orders of Schmidt AJ, which order was made by consent, and which set aside Order 3(k) of the Registration Orders of the Registrar on 2 February 2024.
The contention of MWP is that that order:
“… was consented to by the parties and made in error and arose as a result of a mistake and error of fact and English law, being the applicable law, and accordingly the Order should be rescinded, set aside and/or varied.”
In oral address, Mr Wilson for MWP accepted that the order of Schmidt AJ was made by consent. He submitted that the order was made on the basis of an understanding of English law in respect of limitations. He submitted that by reason of a judgment made some months after the orders of Schmidt AJ were made (i.e., the judgment of 15 January 2024 of HH Judge Pelling KC), that limitation period issue was reconsidered, with the consequence that ,as the law had changed, the earlier consent order had been agreed to by mistake.
Mr Wilson accepted that MWP had not filed any evidence establishing, as a matter of fact, that he, on behalf of the company, or the company itself, held the requisite belief upon which he asserted that the company had acted in consenting to the order before Schmidt AJ. Instead, he accepted that his argument was that:
“… there is no direct evidence of the requisite belief at a time prior to the order being sought, but you seek to submit that I should draw that conclusion by inference arising from the fact that the state of the law as to limitations was ‘x’ at the relevant time and was later demonstrated to be ‘y’; ‘x’ and ‘y’ being opposites.”
On this point, counsel for Mr Emmott submitted that:
There was no evidence put before the Court as to the circumstances surrounding, and the belief of, MWP, or Mr Wilson, before consent to the order was given. Such evidence would be essential to support the ground as a basis for the orders being sought by MWP;
Given that the order made by Schmidt AJ was a final order, the Court, except on appeal, has only limited power to set aside the order. It does not have the power to do so outside those powers conferred on it by the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);
Rule 36.15 of the UCPR was inapplicable as a source of power because, in the circumstances (which I have earlier described) it cannot be said that the judgment ‘… was given or entered, … irregularly, illegally or against good faith’. Mr Emmott pointed to the fact such a claim was not being articulated;
Mr Emmott submitted that r 36.16 of the UCPR was equally inapplicable. A Notice of Motion for setting aside or varying of the order was not filed either before the entry of the Order sought to be set aside, or else within 14 days after the Order was entered. Mr Emmott submitted that the second MWP Notice of Motion was filed over six months after the order was made and entered;
Accordingly, Mr Emmott submitted that the Court could not make the order sought.
This Court, when asked to vary or set aside an order given after judgment, is, in the absence of consent, only capable of so doing in accordance with r 36.15 or r 36.16 of the UCPR. Mr Emmott made it plain that he was not consenting to any setting aside, or variation, of Schmidt AJ’s order.
After the hearing concluded, Mr Wilson sent, to the Court, an email in which he indicated that, in support of MWP’s Second Motion, he relied upon UCPR rr 36.15 and 36.17; UCPR rr 18.1 and 18.3; s 46(4) of the Supreme Court Act 1970 (NSW) (”Supreme Court Act”), “and the CPA 2005”.
I accept the submission of counsel for Mr Emmott that rr 36.15 and 36.16 have no application in the circumstances here. The Order sought to be varied was made (and entered) by Schmidt AJ because both parties consented to it, or the substance of it. There is no basis put before the Court which could amount to “sufficient cause being shown” that the Order was made “... irregularly, illegally, or against good faith”. On the contrary, the Order was made entirely regularly.
I also accept the submissions of counsel for Mr Emmott that the fact that the Second MWP Motion was first filed over six months after the Order was made, means that the power conferred on the Court by r 36.16 cannot be exercised. The second MWP Motion is out of time, and the power to set aside an order is unavailable.
The second Emmott Motion arises from a contention by MWP, which was adhered to firmly by Mr Wilson, on behalf of MWP, in his submissions before me, that the stay ordered by Schmidt AJ had come to an end as and from 15 January 2025, because of the effect of the judgment of HH Judge Pelling KC, delivered at that time.
It is clear that there is a substantive issue between the parties as to the effect of the stay ordered by Schmidt AJ, and also as to the substance and effect of the proceedings in the EWHC, over which HH Judge Pelling KC presides.
Mr Emmott submits that, having regard to the terms of Orders 1 and 2 of HH Judge Pelling KC on 15 January 2025, it is simply impossible to conclude that there has been any final determination of Mr Emmott’s set-off application, as contemplated by Schmidt AJ in her orders.
Mr Emmott supports this submission by reference to the nature of the proceedings to be heard by HH Judge Pelling KC in January 2026. He draws attention to the fact that the formal sealed order of the EWHC refers to a range of proceedings commenced variously between 2006 and 2024, and notes that the orders were made with respect to each of those proceedings. In particular, Mr Emmott draws attention to the terms of Order 3, which include a reference to various bankruptcy petitions or statutory demands, which have not yet been determined, and the trial of the Part 7 claim in the EWHC, with respect to what is known between the parties as the “Sinclair debts”. He submits that those matters have not been completed.
Mr Emmott further draws attention to the 2024 case management stay judgment of HH Judge Pelling KC, which involves the same proceedings, and which proceeded in a way which I have earlier described as expressing a degree of international judicial comity, which contemplated that the EWHC proceedings, with some exceptions, would be stayed, pending finalisation of proceedings in Australia arising from the judgment of Hammerschlag CJ at Eq.
Put differently, Mr Emmott submitted that it was entirely plain from the judgments in the EWHC, that there has been no final determination of his claim for a set-off, which had two components to it: first, a question as to whether it was a matter of general principle that Mr Emmott was entitled to a set-off, and, secondly, whether, upon proper calculations, Mr Emmott would owe MWP any money at the end of the computation of setting-off various amounts, or whether, in fact, MWP would owe him money.
Mr Emmott pointed to the fact that there has been no balancing judgment, or one which, in any way, reaches a net financial position between the parties, and that such a judgment would not, at the earliest, be expected until delivery of judgment consequent upon the hearing in January 2026, and perhaps any appeal therefrom. Mr Emmott also contended that the completion of other proceedings would also be likely to be relevant.
“that the claimant is entitled to set off any order for costs made against him in favour of the defendant against the judgment debt the claimant has against the defendant.”
Accordingly, MWP submitted that those proceedings had been fully resolved by the first order made in January 2025, and as nothing further remained to be determined, Order 2 of the orders of Schmidt AJ of 12 November 2024 had fallen in, so that the stay no longer persisted.
Mr Wilson pointed to the fact that, separately from the July 2022 application, in order to facilitate a determination of what monies were owing by one party to the other, MWP had chosen to commence the Part 8 proceedings to which reference has been made. He submitted that it was these proceedings which are to be determined in January 2026. As they are separate proceedings commenced after the stay ordered by Schmidt AJ, they did not fall within the terms of her Honour’s orders.
It seems to me that, in order to understand the relief that Schmidt AJ was granting, the starting point is to be found in her Honour’s reasons.
In the course of her first judgment, Schmidt AJ at [7] noted, by reference to what her Honour described as the “English set*-*off application”, that there was in those proceedings:
“… in issue … costs orders made in favour of the Company which it claims total almost 6 million pounds, and as well as the costs orders made in favour of Mr Emmott which he claims total over 2.4 million pounds.”
Her Honour particularly noted, at [21], that it did not accord with the public interest that both parties should be litigating “the same matters in both England and Australia”. Her Honour was concerned that that seemed likely, unless some relief was granted. Her Honour noted in that regard, that MWP was intent on pursuing the course it had embarked upon in this Court, unless the relief sought by Mr Emmott in the first Emmott Motion was granted.
Her Honour further noted that MWP ought to have disclosed
“… the position in relation to the ongoing proceedings in the English courts which are considering the parties’ rights of set off, including in relation to the disputed judgments”.
“… into one judgment which specifies the amount, if any, Mr Emmott is liable to pay the Company in respect of all of these costs judgments and orders.”
Her Honour was there considering, in effect, which court was the appropriate one to be seized of the determination of a significant question between the parties which would fix an amount owed by Mr Emmott to MWP, or else owed by MWP to Mr Emmott.
Against that background, her Honour determined to stay these proceedings, pending the resolution of the proceedings in the EWHC. That this was her Honour’s intention is plain from her reasons. At [87], her Honour identified the fact that the parties may be put to unnecessary costs if the proceedings in Australia were dealt with, or there may be a risk of contrary judgments being given by English and Australian courts about the same matters, which would be costly and inconvenient to the Australian community. And, further, that the parties would be bound by the resolution of their dispute in the English courts. In those circumstances, her Honour was satisfied that it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of the English set‑off application is known.
What was being litigated in Australia was the entitlement to have various foreign judgments registered. There is no point in registering those judgments unless MWP was intending to enforce them – including by taking bankruptcy proceedings against Mr Emmott. But in those proceedings, Mr Emmott would be entitled to claim that the debts were not due and owing because he was entitled to a set‑off. It was in order to avoid these Australian re-litigation proceedings, that her Honour determined it was inappropriate and contrary to public policy to permit similar matters to be litigated in Australia and England.
It is clear that her Honour had in mind that, at the conclusion of proceedings in the EWHC, there would be a determination of the balancing figure after all judgments, debts and orders for costs were set-off against each other, including by calculation of outstanding interest and so on. It was with the intention of providing the parties with the time and opportunity in an orderly and procedurally fair manner to obtain a judgment on the merits from the EWHC, that her Honour stayed the proceedings.
In light of the later proceedings in the EWHC, and the orders made by HH Judge Pelling KC for the filing of evidence, and outlining what is to be determined by him in January 2026, it is plain that her Honour’s stay, whilst it was intended to pause these proceedings pending a final determination, including on an appeal, if one is lodged, by one or other party, of the net balance sum, may not have been worded with the precision necessary to deal with MWP’s overly technical approach, which I have earlier noted.
In my view, MWP well understood that was what her Honour intended and had in mind. The terms of MWP’s proposed Order 5 demonstrate this conclusion.
Order 5 of the orders proposed by MWP was in the following terms:
“Relist the proceedings for further directions on February 2025, after judgment has been handed down by HH Judge Pelling KC in the set‑off application listed to be heard on 17 February 2025 in CL-2014-000916.”
A hearing of an application limited to the obtaining of a declaration as to whether, as a matter of general principle, Mr Emmott was entitled to set-off the various costs orders he had obtained in his favour against costs and/or judgments obtained by MWP, is not an application which would have taken two days to be heard. As the subsequent orders made in the EWHC show, the two‑day hearing is required so that the evidence going to calculations of the value at various points in time, of various of the judgments, costs orders and other financial imposts, to which the parties are exposed as a consequence of their more than a decade of litigation, can be weighed up and a conclusion on the merits reached.
MWP seeks now to argue something which is inconsistent with their submissions to this Court, on a basis which is highly artificial and opportunistic, and does not reflect what the EWHC, and Schmidt AJ intended, by way of international judicial comity, namely that in the public interest, only one court should determine the balance sum owing by one party to the other, and that such proceedings were, from an Australian perspective, best placed to occur in the EWHC.
In light of the artificial, and wholly impractical, construction advanced by MWP, accompanied by its threat to proceed with respect to enforcement proceedings, it is appropriate that this Court grants relief of the kind sought in the Second Emmott Motion.
The purpose of the relief is to ensure that there is no doubt about the stay of the Australian proceedings.
It is inappropriate for this Court to vary the orders which were made by a fellow judge of the Common Law Division, in circumstances where there is an appeal on foot which seeks that the Order under consideration here, ought be set aside on the basis that it was made erroneously.
I am satisfied that to quell the controversy between the parties, and for the avoidance of any further doubt, the better course is to make an order reflecting the substance of the Second Emmott Notice of Motion, but in slightly different terms.
I am satisfied that it is appropriate for the determination on the merits of MWP’s claim, that based upon judgments or orders for costs which have been made, and the balance owing between the parties to be determined in the EWHC. The interests of the administration of justice strongly suggest that jurisdiction is best placed to reach that conclusion in a timely and cost-effective manner.
In my view, the orders should be made on the Second Emmott Motion which provide for a stay of these proceedings, until such time as there is a final determination (including on appeal) of the issue between the parties as to whether MWP is entitled to be paid money by Mr Emmott, or else, as he claims, he is entitled to be paid money by MWP. I am conscious that components of this ultimate issue are to be found in a number of pieces of, as yet unresolved, litigation in the EWHC, and the orders must be expressed to take all of those proceedings into account.
The Second MWP Motion has been dismissed. In my view, it was wholly without merit. MWP should pay the costs of that application, because it should never have been brought.
With respect to the costs of the Second Emmott Motion, in my view, Mr Emmott has had substantial success with respect to that Motion. He has established that the stay which was imposed by Schmidt AJ was intended by her, and ought to be understood as being still in existence, notwithstanding the contrary being asserted by MWP. In that circumstance, it is appropriate that costs follow the event. I would order MWP to pay Mr Emmott’s costs of the Motion.
I make the following orders:
Order that, until further order, these proceedings (2023/279049), Michael Wilson & Partner Ltd v John Forster Emmott, be, and hereby are, stayed.
Order that neither party is entitled to make application for any order in these proceedings with respect to the stay in Order 1 until there has been a final determination (including any appeal) of:
(i) all proceedings presently listed in the High Court of Justice for England and Wales before HH Judge Pelling KC for determination in January 2026; (ii) all other proceedings in the High Court of Justice for England and Wales between Michael Wilson & Partners Ltd, or Mr Michael Wilson and Mr John Forster Emmott, except for the Part 7 claim (CL-2021-000728), known as the Sinclair Debt claim;
whichever is the later.
**********
Michael Wilson & Partners Ltd
Emmott [2025] NSWSC 1315
(2011) 244 CLR 427
Rule 36.17 of the UCPR is limited to the purpose of correcting any clerical mistake or an error arising from an accidental slip or omission. That power, generally known as the “slip rule” is wholly inapplicable here, where the application is to set aside an Order in its entirety. No mistake or error in the contents of the Order is complained of.
The other provisions relied upon by MWP are entirely irrelevant as a source of power to make the Order sought. Rules 18.1 and 18.3 deal with the need for, and content of, a Notice of Motion. Section 46(4) of the Supreme Court Act provides for the Court of Appeal to have a power to discharge or vary an order made by a Judge of Appeal.
The principal Order sought by MWP in the Second MWP Motion does not fall within any of the identified rules. This Court does not have the power to make the order.
As well, even if I was persuaded that the Court had a general power to make such an order, any such order would involve the Court exercising a discretion so to do. Given that MWP has sought leave to appeal against all of the orders made by Schmidt AJ, and that appeal has not yet been finalised, it would not be appropriate for this Court to exercise any discretion to set aside an order, whilst there is an appeal pending with respect to that order.
As the second MWP Motion has failed to identify any legal basis for the making of the principal order sought, I have concluded that it is wholly without merit and must be dismissed.
For those reasons, Mr Emmott submitted that there is no interpretation of the orders made by Schmidt AJ which could result in an assertion that the stay her Honour ordered has come to an end.
MWP submitted that the order of Schmidt AJ, read by reference to its terms, cannot be taken to have continued in existence after 15 January 2025, because the only set‑off relief sought by Mr Emmott, was that expressed in his application made in proceedings CL-2014-000916, dated 22 July 2022, which sought relief:
Having considered carefully the terms of any stay order, I have concluded that it is appropriate to exclude from the stay order, the proceedings known to the parties and the EWHC as the “Sinclair Debt claim”. I note that HH Judge Pelling KC excluded these proceedings from the case management stay which he ordered on 17 March 2025: see Michael Wilson & Partners Limited v John Forster Emmott [2025] EWHC 716 (Comm). At [24], HH Judge Pelling KC noted that the Sinclair Debt claim being made by MWP was “highly contentious”, and that the proceedings were “at an early stage”, and that, at the time of his judgment, there was no basis for staying it.
The reason why I think that the Sinclair Debt claim (CL-2021-000728) should be excluded from the stay is that the matter is not yet listed for a final hearing, that the parties should be free to prepare that litigation without any suggestion that they would be in breach of my stay order and that, having regard to the nature of the stay being ordered, it may be unfair to either or both parties, at this stage, to be required to wait until the final determination (including on appeal) of those proceedings before seeking further orders in this Court.