Michael Wilson & Partners, Limited v Emmott [2020] NSWCA 245

Michael Wilson & Partners, Limited v Emmott [2020] NSWCA 245

The Notice to Produce was oppressive and vexatious because it sought all documents and correspondence relating to broad and unlimited categories concerning the engagement of present and former lawyers, including documents with no bearing on any issue. The November Orders should not be varied because Wilson had accepted the costs thrown away order as a term of the adjournment and the possibility that Mr Emmott might have no liability for costs did not justify varying security, which would be returned if not needed. Although Wilson had not complied with the security and costs orders, it had applied for variation before expiry and continued to prosecute the proceedings, so dismissal was not...

Jurisdiction
Australia
Judgment Date
02 October 2020
Procedural Posture
Court of Appeal Procedural Motions in Appeal and Application for Leave to Appeal / Review Motion, Variation Motion and Dismissal Motion Heard by the Court of Appeal
Outcome
Variation motion and review motion dismissed with costs; dismissal motion otherwise dismissed, with final 14-day extension to comply and automatic dismissal if non-compliance continues.
Legal Topics
['security for Costs' 'dismissal for Failure to Comply With Security for Costs Order' 'variation of Court of Appeal Orders' 'notice to Produce' 'oppressive or Vexatious Production of Documents']
['civil Procedure' 'appellate Procedure'] ['security for Costs' 'dismissal for Failure to Comply With Security for Costs Order' 'variation of Court of Appeal Orders' 'notice to Produce' 'oppressive or Vexatious Production of Documents']

Case Brief

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Procedural Posture

Court of Appeal Procedural Motions in Appeal and Application for Leave to Appeal / Review Motion, Variation Motion and Dismissal Motion Heard by the Court of Appeal

Legal Issues

  1. 1 ['Whether orders made on 25 November 2019 requiring payment of costs thrown away and further security for costs should be set aside or varied.' "Whether the notice to produce seeking documents relating to Mr Emmott's engagement of lawyers was oppressive or vexatious and should not be complied with." 'Whether the appeal and application for leave to appeal should be dismissed under UCPR r 51.50(2A) for failure to provide security for costs.' 'Whether Wilson should be given further time to comply with Orders 5 and 6 made on 25 November 2019.']

Ratio Decidendi

The Notice to Produce was oppressive and vexatious because it sought all documents and correspondence relating to broad and unlimited categories concerning the engagement of present and former lawyers, including documents with no bearing on any issue. The November Orders should not be varied because Wilson had accepted the costs thrown away order as a term of the adjournment and the possibility that Mr Emmott might have no liability for costs did not justify varying security, which would be returned if not needed. Although Wilson had not complied with the security and costs orders, it had applied for variation before expiry and continued to prosecute the proceedings, so dismissal was not...

Court Disposition

Variation motion and review motion dismissed with costs; dismissal motion otherwise dismissed, with final 14-day extension to comply and automatic dismissal if non-compliance continues.

Orders

  • ['The prayers for relief in paras 1, 2 and 3 of the amended motion dated 6 April 2020 filed on 29 April 2020 be dismissed with costs.' 'The notice of motion dated 24 July 2020 filed on 25 July 2020 be dismissed with costs.' 'The time for complying with Orders 5 and 6 made on 25 November 2019 be extended to the date...