Michael Wilson & Partners Limited v Emmott [2020] NSWCA 139

Michael Wilson & Partners Limited v Emmott [2020] NSWCA 139

The appellant did not establish grounds for a stay because the respondent had offered to consent to use of frozen funds sufficient to pay the A$10,000 costs and provide A$12,500 further security, there was no rational basis shown for refusing that offer, and the evidence did not show that the English freezing order or Kazakhstan COVID-19 measures prevented preparation for the August hearing. The respondent was not obliged to comply with the notice to produce because he had contested jurisdiction under a conditional appearance, his applications for costs, security and relief from the notice were ancillary or reactive and did not unequivocally abandon that objection, and by analogy with...

Jurisdiction
Australia
Judgment Date
10 July 2020
Procedural Posture
Civil Procedure Interlocutory Applications in an Appeal / Court of Appeal Determination of Appellant's Stay Application and Respondent's Application Concerning a Notice to Produce
Outcome
The appellant's stay application was refused and the respondent was relieved, until further order, from producing documents under the notice to produce.
Legal Topics
['stay of Orders' 'security for Costs' 'costs Thrown Away' 'notice to Produce' 'submission to Jurisdiction' 'conditional Appearance' 'foreign Defendant' 'freezing Orders' 'covid 19 Pandemic Measures']
['civil Procedure' 'appellate Procedure' 'private International Law'] ['stay of Orders' 'security for Costs' 'costs Thrown Away' 'notice to Produce' 'submission to Jurisdiction' 'conditional Appearance' 'foreign Defendant' 'freezing Orders' 'covid 19 Pandemic Measures']

Case Brief

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Procedural Posture

Civil Procedure Interlocutory Applications in an Appeal / Court of Appeal Determination of Appellant's Stay Application and Respondent's Application Concerning a Notice to Produce

Legal Issues

  1. 1 ["Whether the November orders requiring payment of costs thrown away and further security for costs, the Registrar's listing order, and the respondent's dismissal motion should be stayed pending determination of applications in the United Kingdom concerning English freezing orders." "Whether the November orders and respondent's dismissal motion should be stayed because COVID-19 emergency measures in Kazakhstan impeded the appellant's capacity to prosecute the appeal." "Whether the respondent, who contested jurisdiction and had a conditional appearance, was obliged to comply with the appellant's notice to produce." "Whether the respondent submitted to the Court's jurisdiction or waived objection to jurisdiction by seeking costs, security for costs, and relief from the notice to produce." 'Whether the notice to produce clearly identified specific relevant documents or was oppressive.']

Ratio Decidendi

The appellant did not establish grounds for a stay because the respondent had offered to consent to use of frozen funds sufficient to pay the A$10,000 costs and provide A$12,500 further security, there was no rational basis shown for refusing that offer, and the evidence did not show that the English freezing order or Kazakhstan COVID-19 measures prevented preparation for the August hearing. The respondent was not obliged to comply with the notice to produce because he had contested jurisdiction under a conditional appearance, his applications for costs, security and relief from the notice were ancillary or reactive and did not unequivocally abandon that objection, and by analogy with...

Court Disposition

The appellant's stay application was refused and the respondent was relieved, until further order, from producing documents under the notice to produce.

Orders

  • ["The relief sought in prayer 4 of the appellant's amended notice of motion dated 6 April 2020 is refused." 'Until further order, the respondent is not obliged to produce the documents referred to in the notice to produce served by the appellant on 20 April 2020.']