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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Michael Wilson & Partners Ltd v Emmott (No 2) [2022] NSWCA 48 Hearing dates: 25 February 2022 Date of orders: 25 February 2022 Decision date: 25 February 2022 Before: Brereton JA Decision: 1. 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. 2. The respondent forthwith return to the appellant or its nominated bankers both of the originals of the guarantees provided in accordance with the orders of 6 August 2019 and 25 November 2019, being guarantees numbered 55541928 and 555615578, for cancellation, and do all things and execute all documents necessary in order to give effect thereto. 3. The respondent pay the appellant's costs of the motion of 13 January 2022 on the ordinary basis. 4. The Court declines to make an order for interim payment. Catchwords: COSTS — Security for costs — On appeal – Security for costs of appeal provided by appellant in form of bank guarantee – Terms of bank guarantee required appellant to pay costs to respondent "in the event that its appeal is unsuccessful and it is required to do so by Court Order" – where interlocutory costs orders made against appellant – where appellant substantially successful in appeal – Finding that proceedings not "unsuccessful" and guarantee not engaged – Order that security be released COSTS — Security for costs — Security provided in form of bank guarantee — Held, costs ancillary to administering bank guarantee not recoverable in circumstances where guarantee was an indulgence for convenience of party providing security Cases Cited: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315 Category: Consequential orders Parties: Michael Wilson & Partners Ltd (Appellant) John Forster Emmott (Respondent) Representation: Counsel: Michael Wilson (in person) (Appellant) J Baird (Respondent)