Litigation Fund WCX Pty Ltd v Mitchell (No 4) - [2025] NSWCA 106

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Mitchell (No 4) [2025] NSWCA 106
Hearing dates: On the papers
Date of orders: 21 May 2025
Decision date: 21 May 2025
Before: Mitchelmore JA; McHugh JA; Ball JA
Decision:
(1)   The applicant pay the first respondents’ costs of the notice of motion filed on 11 March 2025 on an indemnity basis;
(2)   The amount of the costs referred to in (1) be fixed as a gross sum;
(3)   Within 21 days of today’s date, the applicant file and serve any evidence on which it relies and a short outline of written submissions not exceeding 5 pages on the quantification of the gross sum;
(4)   Within a further 7 days, the first respondents file and serve a short outline of written submissions not exceeding 2 pages in response; and
(5)   The amount of the gross sum be fixed on the papers.

Catchwords:
COSTS – where respondents seek indemnity costs – where applicant advanced unmeritorious grounds in application for review – indemnity costs granted
COSTS – where respondents seek gross sum costs order – where there is a real doubt about whether applicant can meet a costs order against it – gross sum costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Corporations Act 2001 (Cth), s 1335
Supreme Court Act 1970 (NSW), s 46(4)

Cases Cited:
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Degmam Pty Ltd (In liq) v Wright (No. 2) [1983] 2 NSWLR 354
Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27
Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33
Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67

Category: Costs
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 Respondents)

File Number(s): 2024/351500
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Court of Appeal

Citation:

Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 and Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33

Date of Decision:

28 February 2025 and 10 March 2025

Before:

Griffiths AJA

File Number(s):

2024/351500

JUDGMENT

THE COURT: On 11 April 2025, the Court delivered judgment (see Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 (WCX 3) in which it dismissed an application by Litigation Fund WCX Pty Ltd (WCX) for a review under s 46(4) of the Supreme Court Act 1970 (NSW) of decisions of Griffiths AJA delivered on 28 February 2025 (see Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 (WCX 1

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 106
Decision Date: 21 May 2025

CaseChat Overview and Summary

WCX Pty Ltd (the applicant) sought indemnity costs and a gross sum costs order against the respondents in proceedings before the Full Court of the Supreme Court of Western Australia. The dispute concerned the applicant's unsuccessful application for review, where the respondents contended that the applicant had advanced unmeritorious grounds.

The Full Court was required to determine whether the applicant should pay the first respondents’ costs of a specific notice of motion on an indemnity basis, and whether those costs should be fixed as a gross sum. The court also considered the practical implications of any costs order, given a real doubt about the applicant's ability to meet such an order.

The court reasoned that indemnity costs were warranted due to the applicant advancing unmeritorious grounds in its application for review. In relation to the gross sum costs order, the court found it appropriate to fix the costs as a gross sum, acknowledging the uncertainty surrounding the applicant's capacity to satisfy a standard costs order. The court outlined a process for the parties to make written submissions on the quantification of the gross sum.

The court ordered that the applicant pay the first respondents’ costs of the notice of motion filed on 11 March 2025 on an indemnity basis, with the amount to be fixed as a gross sum. Directions were given for the filing of written submissions by both parties regarding the quantification of this gross sum, with the final amount to be fixed on the papers.

Orders

Orders of the court

(1) The applicant pay the first respondents’ costs of the notice of motion filed on 11 March 2025 on an indemnity basis;

(2) The amount of the costs referred to in (1) be fixed as a gross sum;

(3) Within 21 days of today’s date, the applicant file and serve any evidence on which it relies and a short outline of written submissions not exceeding 5 pages on the quantification of the gross sum;

(4) Within a further 7 days, the first respondents file and serve a short outline of written submissions not exceeding 2 pages in response; and

(5) The amount of the gross sum be fixed 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 4) [2025] NSWCA 106
Hearing dates:	On the papers
Date of orders:	21 May 2025
Decision date:	21 May 2025
Before:	Mitchelmore JA; McHugh JA; Ball JA
Decision:	(1) The applicant pay the first respondents’ costs of the notice of motion filed on 11 March 2025 on an indemnity basis; (2) The amount of the costs referred to in (1) be fixed as a gross sum; (3) Within 21 days of today’s date, the applicant file and serve any evidence on which it relies and a short outline of written submissions not exceeding 5 pages on the quantification of the gross sum; (4) Within a further 7 days, the first respondents file and serve a short outline of written submissions not exceeding 2 pages in response; and (5) The amount of the gross sum be fixed on the papers.
Catchwords:	COSTS – where respondents seek indemnity costs – where applicant advanced unmeritorious grounds in application for review – indemnity costs granted COSTS – where respondents seek gross sum costs order – where there is a real doubt about whether applicant can meet a costs order against it – gross sum costs order made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4)(c) Corporations Act 2001 (Cth), s 1335 Supreme Court Act 1970 (NSW), s 46(4)
Cases Cited:	Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Degmam Pty Ltd (In liq) v Wright (No. 2) [1983] 2 NSWLR 354 Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33 Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67
Category:	Costs
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 Respondents)
File Number(s):	2024/351500
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Court of Appeal Citation: Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27 and Litigation Fund WCX Pty Ltd v Darren Mitchell (No 2) [2025] NSWCA 33 Date of Decision: 28 February 2025 and 10 March 2025 Before: Griffiths AJA File Number(s): 2024/351500