Litigation Fund WCX Pty Ltd v Mitchell (No 5)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Litigation Fund WCX Pty Ltd v Mitchell (No 5) [2025] NSWCA 149

Hearing dates:

On the papers

Date of orders:

11 July 2025

Decision date:

11 July 2025

Before:

Mitchelmore JA; McHugh JA; Ball JA

Decision:

Applicant pay first respondents $24,000.00 (inclusive of GST) in respect of the first respondents’ costs of the notice of motion filed on 11 March 2025

Catchwords:

COSTS – gross sum costs order – assessment of gross sum – no issue of principle – order made

Cases Cited:

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119

Hamod v State of NSW [2011] NSWCA 375

Idoport Pty Limited v NAB, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23

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

Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

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)
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

1. THE COURT: On 21 May 2025, the Court ordered that the applicant pay the costs of the first respondents (the Mitchells) of a notice of motion filed on 11 March 2025 on an indemnity basis and that the amount of those costs be fixed as a gross sum: see Litigation Fund WCX Pty Ltd v Mitchell (No 4) [2025] NSWCA 106. The notice of motion sought a review of a decision of Griffiths AJA delivered on 28 February 2025 by which his Honour ordered that (1) the applicant provide security in the amount of $70,022.50 in respect of an appeal from orders made by the primary judge (McGrath J) on 20 September 2024 and 11 December 2024; (2) a gross sum costs order made by the primary judge against the applicant in favour of the Mitchells in the amount of $134,607.95 be stayed pending the hearing and determination of the appeal against that order; and (3) the applicant pay the Mitchells’ costs of the motions before his Honour on an indemnity basis and fixed in a gross sum of $69,336.33 (plus GST) and that those costs be paid within 28 days.

2. This judgment concerns quantification of the Mitchells’ costs. It assumes familiarity with the Court’s earlier judgment and uses the same abbreviations as used in that judgment.

3. The Mitchells claim costs in the amount of $27,824.50 inclusive of GST. That amount is made up of the following amounts:

1. Professional fees of their solicitors incurred in…