Litigation Fund WCX Pty Ltd v Mitchell (No 4)

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.