Federal Court of Australia

Michael Wilson & Partners, Ltd v Emmott (No 3) [2025] FCA 1186

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs thrown away by the adjournment of the hearing fixed for 20 August 2025 in the sum of $9,764.61.

2.    The costs referred to in Order 1 be payable forthwith.

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

REASONS FOR JUDGMENT

MOORE J:

1    These reasons concern the costs thrown away by an adjournment sought by the applicant (MWP). They should be read with Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment), which sets out some background matters.

2    On 16 April 2025, I made orders, inter alia, that:

(a)    issues pertaining to the jurisdiction of the respondent and service of the bankruptcy notice (the Jurisdiction and Service Issues) be determined separately from, and in advance of, all other issues in the proceedings; and

(b)    the Jurisdiction and Service Issues be listed for hearing on 20 August 2025 (the hearing).

3    MWP has at all times been represented by Mr Wilson, a solicitor admitted to practice in Australia but who is based in Kazakhstan. Mr Wilson has undertaken all court appearances thus far for MWP.

4    Mr Wilson has sworn various affidavits in the proceedings. On 29 July 2025 (i.e. approximately three weeks before the hearing), the solicitor for Mr Emmott sent a letter to MWP which:

(a)    enclosed a notice that Mr Wilson was required for cross-examination; and

(b)    enclosed a copy of r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Conduct Rules), which affects whether Mr Wilson could appear as an advocate for MWP in the hearing at which he would give evidence and be cross-examined.

5    Rule 27.1 of the Solicitors’ Conduct Rules relevantly provides as follows:

In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.

6    At a case management hearing on 12 August 2025, counsel for the respondent, Mr Baird, raised an issue with Mr Wilson appearing in a proceedings when he is also required for cross-examination.

7    On the morning of 18 August 2025, my Chambers received an email from MWP requesting an adjournment of the hearing on 20 August 2025 so as to allow time to brief counsel: specifically, “so that it has time and proper chance to locate, agree terms with, brief and bring counsel up to speed, which is no small task”. I granted an adjournment later that morning.

8    Mr Emmott seeks the costs thrown away by the late adjournment of the hearing. Mr Emmott filed an affidavit giving evidence about his claimed costs. They comprise:

(a)    counsel fees of $5,000, being one day of fees at the rate of $5,000 per day;

(b)    solicitors’ fees at an hourly rate of $545.00, being a total of $2,180.00 for “preparing, finalising and attending to swear affidavit and compiling exhibit, attending to file and serve affidavit, email correspondence with the applicant’s solicitor and the Court, correspondence and teleconferences with counsel and with the respondent”; and

(c)    Mr Emmott’s China Airlines return air fare from London to Sydney calculated at an exchange rate of $1.00 to 0.4793 GB pounds (being the exchange rate of that day), being a total of $2,584.61,

amounting to a combined total of $9,764.61.

9    There was a case management hearing held on 20 August 2025. At that hearing, Mr Wilson requested an opportunity to respond to Mr Emmott’s application for costs and evidence as to costs. Accordingly, I made orders that:

(a)    by 4:00 pm on 27 August 2025, the applicant file and serve any evidence in response to the affidavit of Mr Duggan sworn on 19 August 2025; and

(b)    by 4:00 pm on 27 August 2025, the applicant file and serve any submissions on the question of costs thrown away by the adjournment of the hearing listed at 10:15 am (AEST) on 20 August 2025.

10    No evidence or submissions were filed by MWP in accordance with that timetable. In light of the orders made in my previous judgment, I will not have regard to anything filed after 29 August 2025 in relation to costs.

11    I have concluded that MWP should pay the costs associated with the late adjournment of the hearing. Not only had the issue of MWP’s representation been raised expressly some three weeks prior to the hearing, but it should have been evident to MWP in any event that its plan to have Mr Wilson conduct the advocacy at the hearing on 20 August 2025 was problematic in light of MWP’s choice to have Mr Wilson swear affidavits on the substantive matters in the proceedings, having regard to r 27 of the Solicitors’ Conduct Rules.

12    As to the quantum of those costs, I find that Mr Emmott has incurred the costs identified above, that these are costs thrown away by the adjournment, and further that the claim for costs thrown away is relatively modest in the circumstances.

13    I will order that MWP pay costs thrown away by its late request for an adjournment in the amount of $9,764.61. I will order that these costs are payable forthwith. In the circumstances, Mr Emmott should not be out of pocket for these costs.

Associate:

Dated:    24 September 2025