Federal Court of Australia

Michael Wilson & Partners Ltd v Porter [2022] FCA 336

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    Leave to appeal be refused.

3.    The respondents’ application for security for costs be dismissed.

4.    The proceeding be dismissed with costs, such costs to include all the costs of the proceeding.

5.    The respondents’ costs be quantified on a lump sum basis.

6.    On or before 21 April 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

7.    On or before 5 May 2022, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

8.    On or before 12 May 2022, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

9.    The quantification of the lump sum be referred to a Registrar of the Court for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J:

Introduction

1    This is an application for an extension of time and for leave to appeal against a judgment of a single judge of the Court. There is also a conditional cross-application for security for costs in the event that leave to appeal is granted.

2    Back in August 2016, the Court made orders pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) (CBI Act), Art 17(1) of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade and r 14.03 of the Federal Court (Bankruptcy) Rules 2005 (Cth) (Bankruptcy Rules): Palmer (Trustee), in the matter of Slater (Bankrupt) (No 2) [2016] FCA 960 (Gleeson J). The orders recognised the administration of the bankrupt estate of David Ross Slater by Julie Palmer as trustee pursuant to a bankruptcy proceeding in the Croydon County Court in the United Kingdom as a foreign proceeding and a foreign main proceeding within the meaning of Arts 2(a) and 2(c) of the Model Law, respectively.

3    There were also orders pursuant to s 6 of the CBI Act and Arts 21(1)(e) and (g) of the Model Law entrusting the administration and realisation of all Mr Slater’s assets located in Australia to Jason Lloyd Porter and Richard Moretti as local representatives of the trustee, and giving them all powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act 1966 (Cth). Messrs Porter and Moretti are the respondents in the present proceeding.

4    The proceeding below was commenced in April 2020 by the respondents as the local representatives of the trustee. Having realised the Australian assets of the bankrupt estate of Mr Slater, they sought and were ultimately granted, on 25 June 2021, orders to the following effect:

(1)    Declaring that the respondents are entitled to be paid a certain sum, namely $128,221, in payment of the costs, charges and expenses of the administration of their appointment, and that that sum be paid as a priority payment in accordance with s 109 of the Bankruptcy Act;

(2)    Declaring that the respondents are justified in paying Michael Wilson & Partners Ltd (MWP) a certain sum, namely $18,815, as a priority payment;

(3)    Quantifying, on a lump-sum basis, the costs of a previous costs order against MWP in the proceeding in the sum of $9,125;

(4)    Ordering MWP to pay the costs of the proceeding in the lump sum of $39,568;

(5)    Providing for those lump sum costs orders to be set off against the priority payment amount referred to in order (2); and

(6)    Discharging the respondents from their appointment as local representatives of the trustee.

(See Porter, in the matter of Slater (No 3) [2021] FCA 688 (Markovic J).)

5    MWP is the applicant for leave to appeal. It seeks by a draft amended notice of appeal to have all the orders below set aside, for the application by the respondents to be dismissed, and for the respondents to pay its costs of the application.

6    The primary judge granted MWP leave pursuant to r 2.03 of the Bankruptcy Rules to be heard in the proceeding. MWP did not apply to be joined as a party to the proceeding, and was not joined as a party. It is nevertheless common ground that MWP would have been a proper party to the proceeding and could have been joined. MWP is a creditor of Mr Slater’s estate and was the petitioning creditor in the UK proceeding.

7    An insight into the saga behind MWP’s claim against Mr Slater, and the extensive litigation in many countries over more than 15 years of which the present proceeding forms only one small part, can be gleaned from two comparatively recent judgments of courts of appeal, near and far: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; 396 ALR 497 at [8]-[11] and Michael Wilson & Partners Ltd v Emmott [2019] EWCA Civ 219; [2019] 4 WLR 53 (MWP v Emmott 2019 EWCA) at [5]-[11]. In the latter judgment (at [5] per Gross LJ), the litigation was described as a “seemingly interminable, unhappy … saga”.

8    There were a number of delays in the proceeding below which the primary judge found were solely caused by MWP’s involvement which added considerably to the length of the hearing. Her Honour said that the proceeding, which was characterised as concerning an application for directions as to the distribution of funds under the respondents’ control and approval of their remuneration, should ordinarily have been disposed of within a short timeframe. MWP was represented in the proceeding below by Michael Wilson. Mr Wilson is a director of the company (and presumably the person from whom MWP takes its name) and a solicitor on the roll of solicitors of the Supreme Court of New South Wales. He is resident in Almaty, Kazakhstan.

9    Her Honour found that MWP failed to comply with court timetables, sought and was granted an adjournment in order to retain counsel or a solicitor (other than Mr Wilson) but failed to do so, cross-examined at length traversing matters that had little relevance to the matters in issue, and filed and sought to rely on prolix material much of which was irrelevant to the matters in issue and which was argumentative and inflammatory. All of those matters contributed to the length and complexity of the proceeding.

10    The work undertaken by the respondents as local representatives of the trustee was to realise the principal asset of Mr Slater in Australia, being a property at 41 Ainslie Crescent, Ainslie in the Australian Capital Territory. There was some complexity to that, the reasons for which need not be gone into for present purposes. Eventually the property was sold and, after the mortgagee was paid and the costs of sale were deducted, the sum of $110,660 was realised. It was paid by the respondents into a bank account pending the directions they sought in the proceeding.

11    With regard to the respondents’ remuneration, her Honour considered the amount of work undertaken, the complexity of the work and various additional steps required to be taken, and was satisfied that the amount claimed was reasonable. In coming to that conclusion, her Honour considered various matters raised by MWP. As mentioned, her Honour approved the remuneration sought in the sum of $128,221.

12    With regard to the justification for paying MWP the sum of $18,815 as a priority payment in accordance with s 109(10) of the Bankruptcy Act, her Honour found that that sum was for expenses indemnified by MWP for the maintenance of the Ainslie property. The respondents did not seek for any greater sum to be paid. Notably, MWP did not seek any greater sum by way of application in the proceeding, and her Honour left open the possibility of MWP doing so in a future properly constituted proceeding.

13    With regard to discharging the respondents from their appointment, her Honour found that they had realised the only asset identified in Australia, that there were no extant instructions from the trustee and that the trustee consented to their discharge. Her Honour was accordingly satisfied to make such an order.

14    Her Honour then dealt with the legal costs questions in considerable detail and ultimately found there to be proper justification to make the orders identified above.

Should there be an extension of time?

15    As mentioned, the orders were made on 25 June 2021. Mr Wilson initially did not appreciate that leave to appeal would be required. If leave to appeal was not required, and all that was required to initiate an appeal was the filing of a notice of appeal, that was required to have been done within 28 days after the orders were made: r 36.03 of the Federal Court Rules 2011 (Cth). The notice of appeal should therefore have been filed on or before 26 July 2021.

16    On 26 July 2021 at 11:57 pm AEST, MWP lodged an application for an extension of time under r 36.05 to file a notice of appeal, and a draft notice of appeal. The application was accepted for filing and stamped as such on 30 July 2021. However, because it was lodged electronically after 4:30 pm on a business day it is taken to have been filed on the next business day, which in this case was 27 July 2021: r 2.25(3)(b). On that basis, only an extension of one day would be required. Mr Wilson, however, sought an extension of time until 4 October 2021, i.e., a period of more than two months. He said in his affidavit that the reason for seeking such an extension was because he is based abroad and that due to the on-going COVID-19 pandemic it had not been possible for him to travel to Australia as he had intended. Since his application was accompanied by a draft notice of appeal, it is inexplicable why he did not seek only a one day extension, or simply delete the word “draft” from the draft notice of appeal and lodge it for filing some eight hours earlier.

17    At the first case management hearing, the question of whether leave to appeal was required was raised. That led to MWP eventually filing an application for leave to appeal on 23 December 2021.

18    It is now common ground that leave to appeal is required. I will return to the reason for that. In the meanwhile, so far as the question of an extension of time is concerned, by r 35.13 of the Rules, an application for leave to appeal was required to be filed within 14 days after the orders were made. That means that it should have been filed on or before 12 July 2021. Given that the application for an extension of time and draft notice of appeal were filed on 27 July 2021 as explained, the required extension would have been a mere 15 days.

19    The respondents accept that they have suffered no prejudice as a consequence of the small delay before the application for an extension of time was filed, although there have been considerable delays since then. Be that as it may, the respondents accept that an extension of time should be granted, and I will make such an order if leave to appeal is granted; if leave to appeal is to be refused, then there is no point in granting an extension of time.

Is leave to appeal required?

20    As mentioned, the applicant for leave to appeal, MWP, was not a party to the proceeding below. However, MWP could have been joined as a party below.

21    A person who, without being a party, is either bound by an order, or is aggrieved by it, or is prejudicially affected by it, or is sufficiently interested in it, can appeal, but only with leave. It does not require much for such a person to obtain leave: leave to appeal is given, as a rule, if the person applying, though not a party to the proceeding, might properly have been made a party. See Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; 281 ALR 38 at [32] per Emmett, Nicholas and Robertson JJ.

22    However, there is another reason why leave to appeal is required. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that an appeal shall not be brought from an interlocutory judgment unless the court or a judge gives leave to appeal. The question then is whether the judgment from which MWP wishes to appeal is an interlocutory judgment within the meaning of that provision.

23    The policy of s 24(1A) is that the time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties. In broad terms, a judgment is treated as final if it finally disposes of the rights of the parties, otherwise it is an interlocutory order. The policy supports a general principle, namely that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. See Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at [42] per French J, Beaumont and Finkelstein JJ agreeing.

24    Save for quantification of the respondents’ costs and expenses in the administration of their appointment and the quantified costs orders, the orders below do not finally determine the legal rights of the parties; they are essentially orders along the way in the administration of a bankrupt estate. To the extent that any one order might be considered final, the most likely candidate is the declaration as to the local representatives’ entitlement to costs and expenses. However, in circumstances where some of the orders are final in nature and others interlocutory, all of the orders are to be considered “interlocutory”: Anying Group Pty Ltd v Wang [2012] FCA 702 at [8] per Flick J citing Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767 at 767-768 per Gibbs CJ, Murphy and Wilson JJ agreeing.

25    There is in any event some controversy on the question of whether a declaration is a final order, the general position being that there is no such thing as an interlocutory declaration: Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [143] per Hayne and Callinan JJ. But, some forms of declaration have been held to be interlocutory: N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd [2014] FCA 288; 220 FCR 166 at [8] per Rangiah J and Power Ledger Pty Ltd v Griffiths [2021] FCA 624; 308 IR 147 at [24] per Banks-Smith J.

26    In the present case, the declaration in order (1) provides for payment of the local representatives’ costs and expenses from the proceeds of the property that was sold locally, but if those costs and expenses were not to be paid from those proceeds then they would have to in any event be paid from the bankrupt estate more generally, presumably by the trustee who would then be indemnified from the estate. In that sense, the order is not final; it is merely administrative. It can only be considered final inasmuch as it determines the amount of the costs and expenses that the respondents can recover.

27    The declaration in order (2) concerning the local representatives being “justified” in paying MWP a sum of money as a priority payment is much like a direction under the now repealed s 511 of the Corporations Act 2001 (Cth) (the equivalent powers now being in s 90-15 of the Insolvency Practice Schedule (Corporations)) – it offers protection for the liquidator who complies with such directions, but does not affect or in any way finally determine the substantive rights of creditors and is therefore interlocutory: Georges v Seaborn International Pty Ltd (Trustee) [2012] FCA 294 at [27] per Murphy J.

28    The order discharging the respondents from their appointments is not final. If there was some reason for them to be reappointed, an appropriate application could be brought and they could be reappointed.

29    In the circumstances, there is little doubt that leave to appeal is required on the basis that the judgment is an interlocutory judgment.

Should leave to appeal be granted?

30    The following principles apply to the question of whether leave to appeal from an interlocutory judgment should be granted:

(1)    In exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the FCA Act that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

(2)    Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused.

(3)    If a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.

(See Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2]-[4] per Allsop CJ, Rares and Lee JJ.)

31    The draft amended notice of appeal identifies the following six grounds of appeal:

1.     The learned judge erred in law in considering that the Australian representatives of the UK Trustee could bring an application for the recovery of their administration costs, charges and expenses (“costs”) of Australian assets, pursuant to s 6 of the CBI Act and Art 21(1)(g) of the Model Law.

2.     The learned judge erred in considering that the Application by the Australian representatives was an application by the Trustees {J[79]}.

3.     The learned judge erred in holding that the remuneration sought by the Australian Representatives was both reasonable and proportionate, when some of the costs were occasioned by the conduct of the UK Trustee {J[103]-[104]}, and not by the creditor.

4.     The learned judge erred in granting the declarations sought by the respondents, and ought to have held that the respondents’ costs should not be reimbursed out of the net proceeds of sale of an asset in the Bankrupt’s estate.

5.     The learned judge ought to have dismissed the application by the Australian representatives as incompetent, as the estate of the bankrupt was vested in the UK Trustee (and therefore subject to the control and supervision of the UK Courts in accordance with the Insolvency Act (UK) and Insolvency Rules of England & Wales).

6.     Further or alternatively, the learned judge erred in declaring that the appellant MWP was only entitled to the sum of $18,815 when MWP had also provided £10,000 to the UK Trustee.

32    As the respondents point out, and MWP accepts, apart from appeal grounds 3 and 4, none of the grounds sought to be raised in the appeal were raised or argued in the Court below. MWP would accordingly require leave from the Full Court to argue those points, but no explanation has been given as to why they were not raised below. MWP was legally represented below, so any considerations that may apply to the advantage of unrepresented parties, and in particular to unrepresented natural persons whose liberty or status is at stake, do not apply.

33    In that regard, it is trite, and elementary, that a party is bound by the conduct of its case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against it, to raise a new argument which, whether deliberately or by inadvertence, it failed to put during the hearing when it had the opportunity to do so. See University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 at 71.

34    Leave may be granted to raise a new point on appeal if it is a bare legal point which, had it been raised below, would not have resulted in the trial having been run any differently, and in particular if no new or different evidence would have been led: Squire v Rogers [1979] FCA 85; 27 ALR 330 at 337 per Deane J. However, as observed by Allsop J (Drummond and Mansfield JJ agreeing) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [38]:

the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at the trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected.

35    It is submitted on behalf of MWP that grounds 1 and 2, both of which essentially raise the same point, constitute a bare legal point which, if raised below, would not have resulted in the trial being run any differently. The point is, essentially, that the primary judge’s order with regard to the respondents’ costs and expenses was expressly made pursuant to Art 21(1)(g) of the Model Law on the application of the respondents as local representatives, and not on the application of the foreign trustee. However, Art 21(1) of the Model Law, in the chapeau, provides that relief under that provision can be granted “at the request of the foreign representative”, i.e., in this case the trustee. Similarly, although relief might have been available under Art 21(2) of the Model Law, that can also only be done “at the request of the foreign representative”. On that basis, it is said that the relief was incompetent.

36    The respondents point out that the relief was sought in the amended application under the Model Law “or, alternatively, the general law”. They submit that even if it is correct that the relief was not available under the Model Law, it was available under the general law. The prejudice arising from the point not having been raised below is that there was no particular focus on that basis for the relief, whether in evidence, submissions or the judgment. They say that such relief was available under the principles in Re Universal Distributing Co Ltd [1933] HCA 2; 48 CLR 171. It may also have been available under the Bankruptcy Act as the orders appointing them as the trustee’s local representatives gave the respondents all powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act.

37    The respondents say that there is another answer to the point. They submit that had the point been raised below, they could have applied under Art 22(3) as persons “affected by relief granted under article … 21” to “modify” the relief that was granted in the original proceeding before Gleeson J. The modification of the original orders that they could have sought would have been to add a condition, under Art 22(2), to their appointment to provide for the payment of their costs and expenses in the administration of their appointment from the proceeds of the Australian assets, or to give them the standing to apply under Art 21(1) and/or (2) for such payment. It is not necessary to decide whether the point is good, but I do accept that it is a point that might have been successfully argued had the applicant’s point encapsulated by grounds 1 and 2 been raised below.

38    However, perhaps more decisively, the respondents point out with reference to the judgment below that the trustee consented to the making of the orders that they sought. Thus, had the point been raised below, they could likely successfully have sought the consent of the trustee to be joined to the proceeding in order to fulfil the requirement of Art 21(1), if indeed it be a requirement, that the relief be sought at the request of the “foreign representative”. On that basis, I accept that on this point the case may have been run differently below had the point been taken there, such that there is little prospect that MWP would be granted to leave run the point on appeal.

39    Appeal ground 6 challenges order 2 made by the trial judge. That order favoured MWP by authorising the respondents to make a payment in favour of MWP. In circumstances where MWP did not apply for any greater amount, or even apparently oppose that order, there is no reason why leave to appeal would in any event be granted in respect of it. To the extent that MWP says that it should be paid more on account of its contribution to the costs of maintenance and/or sale of the Ainslie property – the sum of £10,000 was mentioned – that can still presumably be sought in the administration of the bankrupt estate; the orders below do not foreclose that.

40    Appeal grounds 3 and 4 relate to the quantification and payment as a priority of remuneration to the respondents for work they performed as local representatives of the trustee.

41    In respect of ground 3, it is submitted on behalf of MWP that there was an unseemly contest between the trustee and the respondents with regard to title to the Ainslie property that resulted in contested litigation in the ACT Supreme Court. Some of the costs and expenses awarded to the respondents are said to arise from that contest. However, the respondents filed only a submitting appearance in the litigation between the trustee and the Registrar-General of Land Titles of the ACT which resulted in title in the respondents being confirmed: Palmer v Registrar-General of Land Titles of the Australian Capital Territory [2017] ACTSC 407; 181 ACTR 1 (Mossop J).

42    MWP submits that there are conflicting decisions in England as to whether at common law the foreign trustee is entrusted with immovable property of the bankrupt or whether it is only a duly appointed local representative or receiver who can take possession and control of such property, and that this is an important point to be resolved. In re Kooperman (1928) 13 B&CR 49; [1928] WN 101 and Kireeva v Bedzhamov [2021] EWHC 2281 (Ch), which declined to follow In re Kooperman, were said to be the conflicting decisions. However, on the point in issue, the latter was upheld by the Court of Appeal on the point in issue and In re Kooperman was disapproved of as authority for the contention that at common law the recognised foreign trustee can claim an interest in immovables in England: Kireeva v Bedzhamov [2022] EWCA Civ 35 at [96] and [104] per Newey LJ, Stuart-Smith LJ agreeing. In England, at least, contrary to MWP’s submission, there is no longer competing authority on the point and the resolution favours the position taken by the respondents in this case in respect of the Ainslie property which had in any event been vindicated by Mossop J in Palmer v Registrar-General.

43    Aside from this point not being identified in the draft amended notice of appeal with any clarity or precision, a defect which could readily be cured, it is not apparent what that contest, which was resolved in the ACT proceeding, has to do with the costs and expenses issues decided by her Honour.

44    To the extent that the real point is that the respondents should not be entitled to costs and expenses arising from a dispute that they had with the trustee, the respondents point out that there was no factual exploration at trial of what costs were duplicated by the trustee and the respondents, or exactly which of the respondents’ costs were incurred in relation to the dispute with the trustee. In any event, there are no factual findings by the primary judge on these questions. The respondents rightly submit that the point is therefore not open to be taken on appeal or, if open, would require some form of remittal for fact-finding.

45    To the extent that MWP’s argument depends on the respondents being characterised as agents of the trustee, there is no finding that they were the trustee’s agents and that issue was not explored at trial. There may be some complexity to properly characterising the relationship between the foreign representative (i.e., the trustee) and the local representatives (i.e., the respondents), particularly taking into account the intervention of the Court in appointing the respondents to their position.

46    In respect of ground 4, it is submitted on behalf of MWP that there is an important issue at stake concerning the indemnity principle. MWP submits that the primary judge was wrong in concluding that the indemnity principle did not stand in the way of the respondents claiming their legal expenses. The underlying premise to that submission is MWP’s assertion that the respondents retained lawyers on the basis that the respondents would not be liable for legal fees save in the event that fees were recovered from someone else. Save possibly in respect of the moderate fees of the respondents’ senior counsel below, because it was found that there was evidence of an arrangement with senior counsel that he would be paid from net sale proceeds, there is no factual finding establishing that premise. It is also not said that her Honour was in error in her factual findings.

47    There is otherwise nothing in the draft amended notice of appeal or MWP’s submissions that provides any reason to doubt the correctness of the orders in relation to the respondents’ costs and expenses, or that demonstrates error in her Honour’s review of the evidence and the application of the relevant principles to the facts as found. The task undertaken by her Honour involved the making of a judgement based upon an evaluative assessment of the evidence before the Court. The Court’s reasons for judgment reflect a detailed and careful analysis of that evidence. The prospects of a successful appeal against those orders is remote.

48    In respect of the application for leave to appeal generally, MWP adduced no evidence to support a finding that there would be substantial injustice if leave to appeal was not granted. In that regard, as mentioned, if order 1 below was set aside as being incompetent on one or other of the grounds advanced by MWP, the costs and expenses of the respondents, or most of them, would in any event be recoverable from the bankrupt estate through the trustee in priority to MWP’s claim as creditor.

49    Since order 2 below is an order in MWP’s favour, there is no prejudice in it. There is also no particular prejudice in regard to order 6.

50    The remaining orders are costs orders. In that regard, appellate courts are loathe to overturn discretionary costs orders made by single judges. This reluctance reflects a history of caution expressed by appellate courts when asked to overturn discretionary judgments generally. See Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 at [113]. Moreover, the first costs order is the quantification of an earlier costs order given in an interlocutory application when that application was dismissed, and no leave to appeal was sought against the dismissal order or the costs order. Even if there was some error of principle in the quantification of the costs, and none is identified in the draft amended notice of appeal or in MWP’s submissions, any adjustment to what are in any event modest amounts is likely to be small.

51    In the circumstances, I find that if leave to appeal was refused there would be no substantial injustice to MWP.

52    There is a further consideration which is particularly telling in deciding whether or not to grant leave to appeal. That is the overarching purpose of the civil practice and procedure provisions in s 37M of the FCA Act, as identified above. In that regard:

(1)    As mentioned, the respondents’ costs and expenses approved by order 1 below amount to $128,221. That is a small amount to be the subject of contest in an appeal in this Court. Even if to one degree or another those costs and expenses were ultimately found to be excessive and they were reduced on appeal, there would still be some amount due, so the amount really in contest is significantly less than the amount that was awarded. If on appeal it was held that none of those costs could be recovered from the proceeds of the sale of the Australian asset, then they would in any event be recoverable in the administration of the bankrupt estate. For that reason, there appears to be little or no point in the appeal on this aspect – the costs and expenses are going to come from what is ultimately the same pot of money.

(2)    The costs orders against MWP are also small amounts, one of which was for the costs of an interlocutory application in which MWP was unsuccessful and is not itself the subject of the proposed appeal. The other is the costs of the proceeding below.

(3)    It is also not apparent what the point would be in setting aside the order discharging the respondents’ appointment as local representatives of the trustee. Then what? The trustee is apparently satisfied that there are no further assets in this jurisdiction to be pursued, and if MWP has a remedy against that view, that is presumably a remedy available in the UK bankruptcy proceeding. The local representatives take their instructions from the trustee, not from MWP as the petitioning creditor.

53    As against the fact that there is little at stake in the appeal, consideration is required to be given to what the appeal would entail. As occurred below, MWP is responsible for very considerable delay in the application for leave to appeal being ready for hearing and coming before the Court. Moreover, it has filed prolix, argumentative, and substantially irrelevant material in support of the application for an extension of time and for leave to appeal, and in opposition to the respondents’ conditional security for costs application. It has filed four affidavits by Mr Wilson which, with annexures or exhibits, amount to nearly 600 pages in total. None of that material is identified as having been part of the record below and much of it clearly was not – Mr Wilson seems to labour under the elementary misapprehension that the leave to appeal application and the prospective appeal provide the opportunity for re-litigating the same issues on a fresh corpus of evidence.

54    Mr Wilson has also burdened my Chambers from time to time with argumentative and prolix correspondence, even after it has been pointed out to him that such conduct is inappropriate and he has been told to desist from it. Many of the documents that have been filed are not on the proper form. MWP’s list of authorities extends to 44 items, only seven of which were referred to in submissions, many of which have little or no bearing on the issues, and its bundle of authorities is a staggering 1,166 pages. None of the case authorities in the bundle is in the form required by the Lists of Authorities and Citations Practice Note (GPN-AUTH), i.e., an authorised series of reports (if available) or another series of reports (if the case has not been reported in an authorised series). Frustratingly, the principal cases that were referred to in argument are not on the list.

55    The relevance of the matters documented in the preceding two paragraphs is that I can have no confidence that any appeal will be run narrowly and efficiently and in accordance with the Court’s Rules and Practice Notes. The appeal is likely to be burdensome and difficult. I am fortified in that view by comments of Peter Jackson LJ in MWP v Emmott 2019 EWCA at [70] about another part of the overall dispute about which this proceeding is only a very small part as discussed at [7] above:

Any court in this jurisdiction that has to consider this dispute in future would do well to remember that the overriding objective in civil proceedings includes a duty on the court to save expense, deal with the case expeditiously and fairly, and allot to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; further, that the parties have a duty to help the court to achieve this. This pathological litigation has already consumed far too great a share of the court’s resources and if it continues judges will doubtless be astute to allow the parties only an appropriate allotment of court time.

56    In short, leave to appeal is not justified when one takes account of the cumulative effect of the following:

(1)    four out of six grounds of appeal being new grounds requiring leave in circumstances where leave is unlikely to be granted;

(2)    the poor prospects of success of the other two grounds in particular given that they are in relation to evaluative matters in respect of which no error in the primary judge’s identification of principle is identified or that they depend on factual findings which were not made below;

(3)    the small amounts and low stakes in contest including that MWP will face no substantial injustice if leave to appeal is not granted and the judgment is wrong; and

(4)    the likely burden of the appeal.

57    In the circumstances, I refuse leave to appeal. The proceeding should simply be dismissed with costs.

The security for costs application

58    The respondents filed an application for security for costs which was conditional on leave to appeal being granted. In an effort to case manage the proceeding as efficiently as possible, I required MWP’s applications and the respondents’ application for security for costs to be listed for hearing together on the basis that I would hear MWP’s applications first and then hear the security for costs application if it arose. As leave to appeal has been refused, that application can be dismissed.

59    However, the costs of that application may not be insignificant in view of the prolixity of MWP’s evidence and also because it served a notice to produce that it said that it would call on at the hearing of the application. I therefore invited counsel to make submissions on the costs of the security for costs application.

60    Mr Bennett QC for MWP submitted that as the security for costs application was not required to be decided, there is no way of telling whether it would have succeeded; it is moot. There was therefore no “event” on which the award of costs could turn, and that the application for costs is premature. He submitted that there should be no order as to costs on the application.

61    Had the unsuccessful proceeding not been commenced, the security for costs application would not have been brought and the costs in relation to it would have been saved. Also, although I am not now required to decide whether the security for costs application would have been successful, there is nothing to suggest that it was frivolous, vexatious or unreasonable. Indeed, the fact that MWP has not paid the quantified costs awards against it, even in respect of the interlocutory costs order that is not challenged by any proposed ground of appeal, and has resisted securing those costs pending the proposed appeal, suggests that there may have been significant merit in the application.

62    In those circumstances, in my view the fair and proper result is that the costs of the proceeding should include the costs of the application for security for costs.

Associate:

Dated:    4 April 2022