Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141

Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141

The appellants failed to show any basis for disturbing the primary judge's orders on costs, failed to adduce evidentiary foundation for capping costs, and failed to adduce evidence for Mr Slater's damages claim. The value of assets subject to the freezing orders should be reduced to reflect the real value of the respondent's entitlements. Security for costs and damages undertakings should be released as there is no longer liability or damages claim subsisting.

Jurisdiction
Australia
Judgment Date
31 May 2013
Procedural Posture
Appeal and Cross Appeal in Civil Proceedings / Post Judgment Determination of Costs, Freezing Orders, Ancillary Matters
Outcome
Appellants required to pay respondent's pre-1 December 2011 appeal costs; each party to bear its own costs post that date; no variation to trial costs order; freezing orders continued but sums reduced; various orders made for release of security and costs consequences as set out.
Legal Topics
['costs' 'security for Costs' 'freezing Orders' 'ancillary Orders' 'damages' 'equitable Compensation']
['civil Procedure' 'equity'] ['costs' 'security for Costs' 'freezing Orders' 'ancillary Orders' 'damages' 'equitable Compensation']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Civil Proceedings / Post Judgment Determination of Costs, Freezing Orders, Ancillary Matters

Legal Issues

  1. 1 ['Whether costs order should reflect partial success of defendants' 'Whether costs entitlement of successful party should be capped' 'Whether freezing orders should be continued or varied' 'Whether claim for damages as a result of freezing order should be remitted for determination' 'Whether security for costs and undertakings should be released']

Ratio Decidendi

The appellants failed to show any basis for disturbing the primary judge's orders on costs, failed to adduce evidentiary foundation for capping costs, and failed to adduce evidence for Mr Slater's damages claim. The value of assets subject to the freezing orders should be reduced to reflect the real value of the respondent's entitlements. Security for costs and damages undertakings should be released as there is no longer liability or damages claim subsisting.

Court Disposition

Appellants required to pay respondent's pre-1 December 2011 appeal costs; each party to bear its own costs post that date; no variation to trial costs order; freezing orders continued but sums reduced; various orders made for release of security and costs consequences as set out.

Orders

  • ["The Appellants pay the Respondent's costs of the Court of Appeal proceedings No 2009/298561 incurred prior to 1 December 2011." 'No order as to the costs of Court of Appeal proceedings No 2009/298561 incurred after 1 December 2011, parties to bear their own costs.' 'Orders 30-32 made by Einstein J on 11 December...