Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd (No 2)

The proceeding concerned an application by Litigation Fund WCX Pty Ltd (the applicant) for an order that a director of Homebuilding Pty Ltd (the respondent) be personally liable for the costs of the proceedings. The applicant sought to recover costs from the director, alleging improper conduct in the carriage of the proceedings. The application was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether the director of Homebuilding Pty Ltd should be ordered to pay the costs of the proceedings personally. This required the Court to consider the circumstances under which a non-party, specifically a director of a company involved in litigation, could be made liable for costs. The Court had to assess the director's conduct in the litigation and determine if it warranted the imposition of personal costs liability.

The Court refused the application, finding no basis to order the director to pay the costs. The Court noted that the director's conduct in the litigation was not improper or unreasonable. Furthermore, there was no evidence before the Court that Homebuilding Pty Ltd was insolvent, nor was there any evidence that the director had personally funded the proceedings. These factors were critical in the Court's determination that the threshold for making a non-party costs order against the director had not been met.

The Court made no order as to the costs of the subsequent costs applications.