Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 Hearing dates: 24 February 2025 Date of orders: 28 February 2025 Decision date: 28 February 2025 Before: Griffiths AJA Decision: (1) Grant leave under r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) for Mr Robert Coshott to represent Litigation Fund WCX Pty Ltd.
(2) The time for the first respondents to file and serve a short affidavit by Mr Trevor Withane responding to exhibits 1, 2 and 3 together with short accompanying submissions be extended to 4:00pm on 25 February 2025 nunc pro tunc.
(3) Order Litigation Fund WCX Pty Ltd to provide security for the costs of the first respondents in proceedings no 2024/00351500 in the amount of $70,022.50 (incl GST), such sum to be paid into Court within 14 days.
(4) Those proceedings be stayed until such time as the applicant has provided security for costs in accordance with order 3.
(5) The orders dated 11 December 2024 be stayed pending the hearing and determination of the applicant’s summons seeking leave to appeal, on condition that within 14 days hereof the applicant pay into Court the amount of $134,607.95 plus GST.
(6) Within 7 days hereof, the parties are each to provide brief submissions and any evidence concerning the costs of the first respondents’ notice of motion filed 24 January 2025 and the applicant’s notice of motion filed 14 January 2025.
(7) The issue of costs of the two motions will be determined on the papers and without a further oral hearing.
Catchwords: COSTS — security for costs — relevant factors — where no evidence of financial capacity — where trust monies used to pay costs of earlier application — whether special circumstances required under s 1335 of the Corporations Act 2001 (Cth)
CIVIL PROCEDURE — stay of proceedings — pending application for leave to appeal — where trust monies used to pay costs of earlier application — whether stay should be conditional on payment into Court of the amount of previous unpaid costs order
Legislation Cited: Civil Procedure Act 2005 (NSW), s 183
Corporations Act 2001 (Cth), s 1335
Roads Act 1993 (NSW), s 179
Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 51.50
Cases Cited: Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151
Kimberly Developments Pty Ltd v Bale [2024] NSWCA 12
Litigation Fund WCX Pty Ltd v Aversa [2024] NSWSC 1348
Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd [2025] NSWCA 16
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 2) [2024] NSWSC 1165
Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593
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- Case
- [2025] NSWCA 27
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the application for security for costs and, if so, in what amount. It also had to consider whether to grant a stay of proceedings pending the applicant's application for leave to appeal, and if so, on what conditions. A further issue was whether special circumstances were required under s 1335 of the Corporations Act 2001 (Cth) for the security for costs order, given the use of trust monies.
Griffiths AJA reasoned that the applicant had not provided evidence of its financial capacity to meet potential costs orders. The use of trust monies to pay previous costs orders was a significant factor, suggesting a lack of readily available funds. The court applied the principles relating to security for costs, considering the applicant's financial position and the potential prejudice to the respondents. The court also considered the principles governing stays of proceedings, particularly where an appeal is contemplated and there is an outstanding costs order.
The court ordered Litigation Fund WCX Pty Ltd to provide security for the first respondents' costs in the amount of $70,022.50, to be paid into court within 14 days, and stayed the proceedings until this security was provided. Additionally, the court stayed the orders dated 11 December 2024 pending the determination of the applicant’s summons seeking leave to appeal, conditional upon the applicant paying $134,607.95 plus GST into court within 14 days. The court also made directions regarding submissions and evidence concerning the costs of two notices of motion.
Orders
Orders of the court
(1) Grant leave under r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) for Mr Robert Coshott to represent Litigation Fund WCX Pty Ltd.
(2) The time for the first respondents to file and serve a short affidavit by Mr Trevor Withane responding to exhibits 1, 2 and 3 together with short accompanying submissions be extended to 4:00pm on 25 February 2025 nunc pro tunc.
(3) Order Litigation Fund WCX Pty Ltd to provide security for the costs of the first respondents in proceedings no 2024/00351500 in the amount of $70,022.50 (incl GST), such sum to be paid into Court within 14 days.
(4) Those proceedings be stayed until such time as the applicant has provided security for costs in accordance with order 3.
(5) The orders dated 11 December 2024 be stayed pending the hearing and determination of the applicant’s summons seeking leave to appeal, on condition that within 14 days hereof the applicant pay into Court the amount of $134,607.95 plus GST.
(6) Within 7 days hereof, the parties are each to provide brief submissions and any evidence concerning the costs of the first respondents’ notice of motion filed 24 January 2025 and the applicant’s notice of motion filed 14 January 2025.
(7) The issue of costs of the two motions will be determined on the papers and without a further oral hearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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