Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100

Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100

Leave to amend the notice of appeal is granted, as the amendment is not so hopeless as to warrant refusal in the absence of authority to that effect. All notices of motion are dismissed, as neither side established special circumstances justifying security for costs, and the notice to produce serves a legitimate forensic purpose in the context of the allowed amendment and the issues concerning inconsistent verdicts and accessorial liability.

Parties
First Appellant: Robert Colin Nicholls; Second Appellant: David Ross Slater; Third Appellant: Temujin Services Limited; Fourth Appellant: Temujin International Limited in its own capacity and as trustee of the Temujin Trading Trust; Fifth Appellant: Temujin International FZE; Respondent: Michael Wilson & Partners Limited
Jurisdiction
Australia
Judgment Date
05 May 2010
Procedural Posture
Appeal / Interlocutory Application in Ongoing Appeal
Outcome
Leave to amend the notice of appeal granted; all notices of motion dismissed with successful parties' costs to be costs in the appeal.
Legal Topics
Security for Costs, Notice to Produce, Inconsistent Verdicts, Abuse of Process, Amendment of Notice of Appeal
Practice and Procedure Security for Costs Notice to Produce Inconsistent Verdicts Abuse of Process Amendment of Notice of Appeal

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Parties

Robert Colin Nicholls

First Appellant

David Ross Slater

Second Appellant

Temujin Services Limited

Third Appellant

Temujin International Limited in its own capacity and as trustee of the Temujin Trading Trust

Fourth Appellant

Temujin International FZE

Fifth Appellant

Michael Wilson & Partners Limited

Respondent

Procedural Posture

Appeal / Interlocutory Application in Ongoing Appeal

Legal Issues

  1. 1 Whether security for costs should be ordered for appeal or cross-appeal under Uniform Civil Procedure Rules 2005 r 51.50 and r 42.21.
  2. 2 Whether notice to produce documents relating to an arbitral award should be set aside as lacking legitimate forensic purpose.
  3. 3 Whether amendment to notice of appeal concerning effect of London Arbitration Award should be allowed.

Ratio Decidendi

Leave to amend the notice of appeal is granted, as the amendment is not so hopeless as to warrant refusal in the absence of authority to that effect. All notices of motion are dismissed, as neither side established special circumstances justifying security for costs, and the notice to produce serves a legitimate forensic purpose in the context of the allowed amendment and the issues concerning inconsistent verdicts and accessorial liability.

Court Disposition

Leave to amend the notice of appeal granted; all notices of motion dismissed with successful parties' costs to be costs in the appeal.

Orders

  • Leave to the appellants to amend the notice of appeal in accordance with the document initialled by the judge on 5 May 2010 and placed with the papers.
  • All notices of motion dismissed with the successful parties' costs to be costs in the appeal.