Litigation Fund WCX Pty Ltd v Daren Mitchell (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Litigation Fund WCX Pty Ltd v Daren Mitchell (No 2) [2025] NSWCA 33

Hearing dates:

On the papers

Date of orders:

10 March 2025

Decision date:

10 March 2025

Before:

Griffiths AJA

Decision:

(1) Litigation Fund WCX Pty Ltd is to pay the first respondent’s costs of the notice of motion filed 24 January 2025 and the notice of motion filed 14 January 2025 on an indemnity basis.

(2) Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the first respondent is entitled to a specific gross sum in the total amount of $69,336.33 (plus GST).

(3) The first respondent’s costs are payable forthwith by Litigation Fund WCX Pty Ltd such that they are payable within 28 days hereof.

Catchwords:

COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — application for indemnity costs — costs of two notices of motion

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(4)(c)

Cases Cited:

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) (2023) 113 NSWLR 381; [2023] NSWCA 311

Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27

Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593

Texts Cited:

Nil

Category:

Costs

Parties:

Litigation Fund WCX Pty Ltd (Applicant)
Darren and Rosaline Mitchell (First Respondent)
Roads and Maritime Services (now known as
Transport for NSW) (Second Respondent)

Representation:

Counsel:
R Coshott (Applicant, with leave)
J Redwood SC and H Cooper (First Respondents)

Solicitors:
Ironbridge Legal (First Respondents)
Crown Solicitor for NSW (Second Respondent)

File Number(s):

2024/00351500

Publication restriction:

Nil

JUDGMENT

1. On 28 February 2025, I published reasons for judgment in Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27. The reasons related to why the Court made an order for security for costs in favour of the first respondent and granted the Funder’s application for a stay (which was uncontested) but subject to a condition sought by the first respondent that the Funder pay into Court the amount of the judgment debt.

2. These reasons relate to costs and take into account the first respondent’s submissions filed 7 March 2025 and a supporting affidavit by their solicitor, Mr Trevor Withane, affirmed 25 February 2025. The applicant failed to provide submissions or any evidence within the stipulated time. The Court made orders that the issue of costs would be determined on the papers.

3. These reasons assume a familiarity with my previous reasons. I shall also adopt the same abbreviations.

Should the first respondent obtain an order for costs on an indemnity basis?

4. The first respondent sought costs of both their notice of motion filed 24 January 2025 and the Funder’s notice of motion filed 14 January 2025 on an indemnity basis.

5. In brief, the first respondent contends that the…