Litigation Fund WCX Pty Ltd v Mitchell (No 5)

[2025] NSWCA 149

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 connection with the notice of motion in the sum of $14,410.00 plus GST;

2. Senior Counsel’s fees of $6,000.00 plus GST;

3. Junior Counsel’s fees of $2,210.00 plus GST;

4. An estimated amount of $2,675.00 plus GST for work in relation to the application for costs.

4. The application for a gross sum costs order is supported by an affidavit affirmed on 23 April 2025 by Mr Trevor Withane, the Mitchells’ solicitor, who is a partner of Ironbridge Legal. Attached to Mr Withane’s affidavit is a schedule that sets out a breakdown of Ironbridge Legal’s professional costs which itemises the work done, who did the work, that person’s charge out rate, the time taken (in units of 6 minutes) and the total claimed in respect of that item of work. It is Mr Withane’s evidence that all that work directly relates to the application for review of the decision of Griffiths AJA.

5. In the submissions opposing the Mitchells’ claim, the applicant has taken the schedule attached to Mr Withane’s affidavit and objected to various items on the basis that the work is duplicative (shaded in yellow), the work relates to internal administrative work rather than legal work (shaded in blue), the work was “required due to availability of counsel” (whatever precisely that means) (shaded in red), the work relates to the preparation of a court book that was not used (shaded in green) and the work is unrelated to the motion (shaded with red and green).

6. The Mitchells take issue with each category of objection.

7. In fixing a gross sum, the Court is not undertaking an assessment: Hamod v State of NSW [2011] NSWCA 375 (Hamod) at [819] (Beazley JA, with whom Giles and Whealy JJA agreed). Rather, it is considering what costs ought reasonably be allowed on a gross sum basis, bearing in mind in this case that costs have been awarded on an indemnity basis. Normally, even where costs have been awarded on an indemnity basis it is appropriate to apply some discount to the actual costs incurred by a party in fixing an appropriate gross sum. That discount reflects the fact that even on an indemnity basis not all costs are recoverable on assessment. It also reflects the fact that a gross sum costs order necessarily carries with it the risk that the costs applicant will be over compensated compared to an assessment and at the same time avoids the costs and inconvenience of an assessment: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Idoport Pty Limited v NAB, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [13]; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [38].

8. The Mitchells have provided a detailed breakdown of the actual costs that they have incurred. That provides the Court with a rational and reasonable basis on which to fix a gross sum costs order and an appropriate starting point for determining the gross sum that should be ordered: see Hamod at [820].

9. In this case, there appears to be no reason to discount the amount claimed in respect of counsel fees. However, it is appropriate to discount the solicitor fees by 20 percent. That discount takes account of the fact that the full amount claimed is unlikely to be recovered on assessment and of the benefits that the Mitchells obtain from a gross sum costs order. It also reflects the fact that the costs in this case appear to be high given the nature of the application and the amount in issue in the case.

10. Accordingly, allowing for rounding, it is reasonable to permit the Mitchells to recover $14,000.00 plus GST in respect of solicitor fees and $8,210.00 plus GST in respect of counsel fees, making a total of $24,000.00 (again, rounding).

11. The order of the Court therefore is that the applicant pay the 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.

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Decision last updated: 11 July 2025