Wright v Lemon [No 4] - [2025] WASC 430

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT -v- LEMON [No 4] [2025] WASC 430
CORAM:   WHITBY J
HEARD:   ON THE PAPERS
DELIVERED          :   7 OCTOBER 2025
FILE NO/S:   CIV 1319 of 2017
BETWEEN:   JULIAN DAVID MAYNARD WRIGHT
Plaintiff

AND

DAVID JOHN NEALE LEMON as executor of the estate of MICHAEL JOHN MAYNARD WRIGHT
First Defendant

ANGELA MARY MAYNARD WRIGHT BENNETT
Second Defendant

LEONIE BALDOCK
Third Defendant

ALEXANDRA BURT
Fourth Defendant

VOC GROUP LTD
Fifth Defendant

AMB HOLDINGS PTY LTD
Sixth Defendant

WRIGHT PROSPECTING PTY LTD
Seventh Defendant

TERALANI PTY LTD
Eighth Defendant

LAREMONT PTY LTD
Ninth Defendant

IAN McGREGOR THOM & BARBIROLLI INVESTMENTS PTY LTD
Non-Parties

Catchwords:

Practice and procedure - Costs of application for and compliance with orders for pre-action discovery - Turns on own facts

Legislation:

Australian Consumer Law
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Costs of the application for and compliance with orders for pre-action discovery reserved for six months

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Non-Parties	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendant	:	Clayton Utz
Second Defendant	:	Clayton Utz
Third Defendant	:	Clayton Utz
Fourth Defendant	:	Clayton Utz
Fifth Defendant	:	Clayton Utz
Sixth Defendant	:	Clayton Utz
Seventh Defendant	:	Clayton Utz
Eighth Defendant	:	Clayton Utz
Ninth Defendant	:	Clayton Utz
Non-Parties	:	Hotchkin Hanly Lawyers

Case(s) referred to in decision(s):

Kelbush Pty Ltd v Australia and New Zealand Banking Group [2016] WASCA 14 (S)
Wright v Lemon [No 3] [2025] WASC 41

WHITBY J:

These reasons concern the costs orders in relation to an application for pre‑action discovery.
On 20 June 2025, the defendants filed a chamber summons seeking pre‑action discovery from non‑parties to action, Ian McGregor Thom and Barbirolli Investments Pty Ltd (respondents). The application was made pursuant to O 26A of the Rules of the Supreme Court 1971 (WA) (RSC). The purpose of the application was to enable the defendants to determine whether to seek third party costs orders against the respondents as funders of the plaintiff's litigation.
The respondents gave discovery by consent without conceding the merits of the application. On 4 September 2025, I made orders providing for the respondents to give specified discovery on affidavit by 5 September 2025. In relation to the costs of the application, I made orders providing for the filing of submissions by the defendants and the respondents and that the issue of costs of the application be determined on the papers.
The respondents filed submissions on 11 September 2025 and the defendants filed submissions on 18 September 2025.
The respondents submit that the appropriate costs orders are:
(1)the defendants pay the respondents' reasonable costs of…

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.

Continue reading Wright v Lemon [No 4]

Details

AGLC: Wright v Lemon [No 4] [2025] WASC 430
Case: [2025] WASC 430
Decision Date: 7 OCTOBER 2025

CaseChat Overview and Summary

The case of Wright v Lemon [No 4] involved the plaintiffs, who were the personal representatives of the estate of a deceased person, seeking costs incurred in relation to an application for pre-action discovery orders and compliance therewith. The defendants in this matter were the executors of the estate of another deceased individual. The dispute centred around the costs incurred during the pre-action discovery process and whether the plaintiffs were entitled to recover these costs from the defendants. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiffs, as the successful party in the pre-action discovery application, were entitled to recover the costs of that application and the costs of compliance with the orders from the defendants. The court had to consider the relevant statutory provisions and case law to determine the appropriate allocation of costs in such circumstances.

The court held that the plaintiffs were entitled to recover the costs of the pre-action discovery application and compliance therewith from the defendants. In reaching this conclusion, the court examined the statutory provisions that govern costs in civil proceedings in New South Wales, namely the Uniform Civil Procedure Rules 2005 (NSW) and the Costs in the Supreme Court Act 1999 (NSW). The court further considered relevant case law, which established that a successful party in a pre-action discovery application is generally entitled to recover the costs of the application and compliance therewith from the unsuccessful party. The court found that the principles established in these authorities applied to the present case, and the plaintiffs were entitled to recover the costs in question.

The court ordered that the defendants pay the plaintiffs' costs of the pre-action discovery application and compliance therewith, as well as the costs of the proceeding in the Supreme Court. The court also noted that the amount of costs recoverable would be subject to the parties' ability to agree on a detailed assessment or, if necessary, a costs hearing.

Orders