Michael Wilson & Partners Ltd v Emmott (No 2) [2022] NSWCA 48

Michael Wilson & Partners Ltd v Emmott (No 2) [2022] NSWCA 48

The security for costs provided by bank guarantees was not engaged because the appellant was substantially successful in the appeal; as the defined event in the guarantees (unsuccessful appeal with adverse costs order) did not occur, the guarantees must be released. Costs ancillary to provision of bank guarantee are not recoverable.

Jurisdiction
Australia
Judgment Date
25 February 2022
Procedural Posture
Appeal / Consequential Orders Following Appeal Determination
Outcome
Appellant released from security obligations; respondent ordered to return bank guarantees; respondent to pay appellant's costs of the motion on the ordinary basis; no order for interim payment.
Legal Topics
['security for Costs' 'bank Guarantee' 'interlocutory Costs' 'consequential Orders']
['civil Procedure' 'costs'] ['security for Costs' 'bank Guarantee' 'interlocutory Costs' 'consequential Orders']

Case Brief

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Procedural Posture

Appeal / Consequential Orders Following Appeal Determination

Legal Issues

  1. 1 ['Whether security provided for costs of appeal covers interlocutory costs orders' 'Whether the appellant is released from its obligation to provide security after the appeal is allowed' 'Recoverability of costs ancillary to bank guarantee provision']

Ratio Decidendi

The security for costs provided by bank guarantees was not engaged because the appellant was substantially successful in the appeal; as the defined event in the guarantees (unsuccessful appeal with adverse costs order) did not occur, the guarantees must be released. Costs ancillary to provision of bank guarantee are not recoverable.

Court Disposition

Appellant released from security obligations; respondent ordered to return bank guarantees; respondent to pay appellant's costs of the motion on the ordinary basis; no order for interim payment.

Orders

  • ["The appellant be released from its obligation to provide security to the respondent for the respondent's costs of the application for leave to appeal and the appeal." 'The respondent forthwith return to the appellant or its nominated bankers both of the originals of the guarantees provided in accordance with the...