Litigation Fund WCX Pty Ltd v Aversa - [2025] NSWSC 469

Supreme Court

New South Wales

Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469
Hearing dates: 25-26 November 2024
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Common Law
Before: McNaughton J
Decision:
(1) The Amended Statement of Claim is dismissed.
(2) The Cross-claim is dismissed.
(3) The plaintiff is to pay the costs of the defendants.

Catchwords:
CONTRACTS – breach of contract – whether binding agreements existed between the parties – whether agreements were lawfully executed on behalf of the plaintiff – s 127 Corporations Act 2001 (Cth) – where plaintiff did not read own affidavit – amended statement of claim and cross-claim dismissed

Legislation Cited:
Competition and Consumer Law Act 2010 (Cth) sch 2, s 243
Contracts Review Act 1980 (NSW), s 7
Corporations Act 2001 (Cth), ss 127, 131
Evidence Act 1995 (NSW), ss 69, 135, 183
Supreme Court Act 1970 (NSW), s 75
Uniform Civil Procedure Rules 2005 (NSW), r 7.1

Cases Cited:
Ling v Pang [2023] NSWCA 112
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104

Texts Cited:
Nil

Category: Principal judgment
Parties: Litigation Fund WCX Pty Ltd (Plaintiff)
Rosario Aversa (First Defendant)
Antonia Aversa (Second Defendant)
Representation:
Counsel:
DC Eardley (Defendant)
Solicitors:
R Coshott (Director of Plaintiff)
Stacks Collins Thompson (Defendant)

File Number(s): 2022/00317496
Publication restriction: Nil

JUDGMENT

By Amended Statement of Claim, filed 31 March 2023, Litigation Fund WCX Pty Ltd (“the plaintiff”) brings an action against husband and wife, Mr Rosario and Mrs Antonia Aversa (“the defendants”), in relation to litigation funding agreements. The agreements were purportedly made to fund proceedings undertaken by the defendants concerning the construction of the WestConnex motorway in the inner west of Sydney (“the Aversa proceedings”).
Mr Robert Coshott is the sole director and shareholder of the plaintiff, a litigation funder. By leave, Mr Coshott appeared for the plaintiff. Leave was required because Mr Coshott no longer holds a practising certificate as a solicitor (see r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW)). In relation to this question, an affidavit, sworn 22 November 2024, was read, annexing minutes of a company meeting held on 18 November 2024 authorising Mr Coshott to represent the company in the hearing of this matter.
There were three purported litigation funding agreements (in relation to three separate properties) signed by the defendants on 18 September 2019 (with two signed by both defendants and one signed only by Mr Aversa (which reflected the ownership of each of the properties)). They were in relevantly identical terms. For convenience, I will sometimes refer to each of these purported litigation funding agreements as “the agreement”.
In essence, the plaintiff claims that the defendants breached the agreement in two respects: first, by failing to gain approval from the plaintiff for changing solicitors conducting the Aversa proceedings (from Murphy Lyons Lawyers to Stacks Collins Thompson), and second, by failing to keep the plaintiff informed of the progress and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 469
Decision Date: 15 May 2025

CaseChat Overview and Summary

The case of Litigation Fund WCX Pty Ltd v Aversa involved a dispute over the existence of binding agreements between the parties and the legality of their execution on behalf of the plaintiff. The matter was heard in the Federal Court of Australia. The plaintiff, Litigation Fund WCX Pty Ltd, alleged that the defendant, Mr Aversa, had breached contractual agreements. Mr Aversa, in turn, denied the existence of such agreements or, alternatively, argued that even if they existed, they were not lawfully executed on behalf of the plaintiff. The crux of the case revolved around the interpretation of section 127 of the Corporations Act 2001 (Cth), which pertains to the authority of individuals to bind a company in contractual matters.

The legal issues before the court included whether binding agreements indeed existed between the parties and, if so, whether these agreements were executed lawfully on behalf of the plaintiff. The court had to consider whether the affidavits and statements presented by the plaintiff were accurate and whether the plaintiff had the necessary authority to execute the agreements. The plaintiff had not read the affidavit before it was filed, raising questions about the reliability and authenticity of the sworn statements.

The court found that the plaintiff had failed to establish the existence of binding agreements between the parties. Furthermore, it was determined that the agreements were not lawfully executed on behalf of the plaintiff. The court emphasised that the plaintiff did not read its own affidavit, which undermined the credibility of the sworn statements. Consequently, the amended statement of claim and cross-claim were dismissed. The court held that the plaintiff did not meet the burden of proof required to establish the existence of binding agreements and that the agreements, if they did exist, were not validly executed.

Orders