Litigation Fund WCX Pty Ltd v Mitchell (No 3) - [2025] NSWCA 67

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67
Hearing dates: 3 April 2025
Date of orders: 11 April 2025
Decision date: 11 April 2025
Before: Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
Decision:
(1)   The applicant’s notice of motion filed on 11 March 2025 is dismissed;
(2)   Within seven days of the date of this judgment, the respondents file written submissions not exceeding three pages setting out the orders they seek in relation to costs and the reasons for those orders;
(3)   Within a further seven days the applicant file written submissions not exceeding three pages in response;
(4)   Within a further four days, the respondents file written submissions not exceeding one page in reply;
(5)   The question of the costs of the notice of motion be determined on the papers.

Catchwords:
COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 183
Corporations Act 2001 (Cth), s 1335
Roads Act 1993 (NSW), s 179
Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), r 42.21, 51.50(1)

Cases Cited:
Antov v Bokan [2019] NSWCA 40
Collier v Lancer [2013] NSWCA 185
Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 147
Harrington Services Pty Ltd (in liq) v Harrington [2003] NSWCA 89
Kimberly Developments Pty Ltd v Bale [2024] NSWCA 12
Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27
Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33
Mitchell v Roads and Maritime Services (now known as Transport for NSW)(No 2) [2024] NSWSC 1165
Mitchell v Road and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593
Pioneer Park Pty Ltd (in liq) v ANZ Banking Corporation [2007] NSWCA 344
Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206
Strata Consolidated (Aust) Pty Ltd v Bradshaw [2000] NSWCA 225
SuchandPty Ltd v Jonathon Kingsley Colbran and Richard Stone as Receivers and Managers of Suchand Pty Ltd [2024] NSWCA 250
Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302
Winnote Pty Ltd (in liq) v Page (2005) 64 NSWLR 244; [2005] NSWCA 362

Category: Procedural rulings
Parties: Litigation Fund WCX Pty Ltd (Applicant)
Darren and Rosaline Mitchell (First Respondents)
Roads and Maritime Services (now known as Transport for NSW) (Second Respondent)
Representation:
Counsel:
R Coshott (Applicant, with leave)
J Redwood SC with H Cooper (First Respondents)
Solicitors:
Ironbridge Legal (First…

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] NSWCA 67
Decision Date: 11 April 2025

CaseChat Overview and Summary

WCX Pty Ltd (the applicant) sought a review of a decision made by a Judge of Appeal of the Supreme Court of New South Wales. The Judge of Appeal had granted security for costs in favour of the respondents, Mitchell and others. The applicant contended that this decision was erroneous, either involving an error of principle or being plainly wrong.

The central legal issue before the Court of Appeal was whether the Judge of Appeal had erred in principle or made a plainly wrong decision in granting security for costs. Specifically, the applicant challenged the Judge of Appeal's finding that special circumstances were not a prerequisite for ordering security for costs under section 1335 of the *Corporations Act 2001* (Cth).

The Court of Appeal found no error of principle in the Judge of Appeal's decision. It was held that the Judge of Appeal correctly determined that special circumstances were not required under section 1335 of the *Corporations Act 2001* (Cth) when considering an application for security for costs. Consequently, the applicant's application for review was dismissed. The court then made orders regarding the filing of written submissions on the costs of the notice of motion, with the question of costs to be determined on the papers.

Orders

Orders of the court

(1) The applicant’s notice of motion filed on 11 March 2025 is dismissed;

(2) Within seven days of the date of this judgment, the respondents file written submissions not exceeding three pages setting out the orders they seek in relation to costs and the reasons for those orders;

(3) Within a further seven days the applicant file written submissions not exceeding three pages in response;

(4) Within a further four days, the respondents file written submissions not exceeding one page in reply;

(5) The question of the costs of the notice of motion be determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67
Hearing dates:	3 April 2025
Date of orders:	11 April 2025
Decision date:	11 April 2025
Before:	Mitchelmore JA at [1] McHugh JA at [2] Ball JA at [3]
Decision:	(1) The applicant’s notice of motion filed on 11 March 2025 is dismissed; (2) Within seven days of the date of this judgment, the respondents file written submissions not exceeding three pages setting out the orders they seek in relation to costs and the reasons for those orders; (3) Within a further seven days the applicant file written submissions not exceeding three pages in response; (4) Within a further four days, the respondents file written submissions not exceeding one page in reply; (5) The question of the costs of the notice of motion be determined on the papers.
Catchwords:	COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 183 Corporations Act 2001 (Cth), s 1335 Roads Act 1993 (NSW), s 179 Supreme Court Act 1970 (NSW), s 46(4) Uniform Civil Procedure Rules 2005 (NSW), r 42.21, 51.50(1)
Cases Cited:	Antov v Bokan [2019] NSWCA 40 Collier v Lancer [2013] NSWCA 185 Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 147 Harrington Services Pty Ltd (in liq) v Harrington [2003] NSWCA 89 Kimberly Developments Pty Ltd v Bale [2024] NSWCA 12 Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33 Mitchell v Roads and Maritime Services (now known as Transport for NSW)(No 2) [2024] NSWSC 1165 Mitchell v Road and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593 Pioneer Park Pty Ltd (in liq) v ANZ Banking Corporation [2007] NSWCA 344 Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 Strata Consolidated (Aust) Pty Ltd v Bradshaw [2000] NSWCA 225 SuchandPty Ltd v Jonathon Kingsley Colbran and Richard Stone as Receivers and Managers of Suchand Pty Ltd [2024] NSWCA 250 Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 Winnote Pty Ltd (in liq) v Page (2005) 64 NSWLR 244; [2005] NSWCA 362
Category:	Procedural rulings
Parties:	Litigation Fund WCX Pty Ltd (Applicant) Darren and Rosaline Mitchell (First Respondents) Roads and Maritime Services (now known as Transport for NSW) (Second Respondent)
Representation:	Counsel: R Coshott (Applicant, with leave) J Redwood SC with H Cooper (First Respondents) Solicitors: Ironbridge Legal (First…