Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593

Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593

The plaintiffs, acting in a representative and fiduciary capacity and compelled by the funder's conduct to bring the application, should be awarded indemnity costs, as they should not be left out of pocket for acting in the interests of the represented class. A gross sum costs order is appropriate as the evidence supports the claimed amount and avoids unnecessary delay and assessment costs. Costs should be payable forthwith to avoid delay and enable the proceedings to progress, given trust funds had been exhausted. The funder should also pay the costs of the first defendant as the unsuccessful party to the application.

Parties
Plaintiffs/applicants: Darren Mitchell and Rosaline Mitchell; First Defendant/first Respondent: Roads and Maritime Services (now known as Transport for NSW); Second Defendant/second Respondent: Litigation Fund WCX Pty Ltd
Jurisdiction
Australia
Judgment Date
11 December 2024
Procedural Posture
Representative Proceedings (class Action) – Equity – Commercial List / Post Interlocutory Application: Costs Determination Following Notice of Motion
Outcome
Plaintiffs' costs application granted: indemnity, gross sum, forthwith; funder to pay first defendant’s costs; no pre-emptive liberty for personal costs order against Mr Coshott.
Legal Topics
Indemnity Costs, Representative Proceedings, Gross Sum Costs, Costs Payable Forthwith, Party/party Costs, Civil Procedure – Costs Orders
Costs Civil Procedure Equity Indemnity Costs Representative Proceedings Gross Sum Costs Costs Payable Forthwith Party/party Costs +1 more

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Parties

Darren Mitchell and Rosaline Mitchell

Plaintiffs/applicants

Roads and Maritime Services (now known as Transport for NSW)

First Defendant/first Respondent

Litigation Fund WCX Pty Ltd

Second Defendant/second Respondent

Procedural Posture

Representative Proceedings (class Action) – Equity – Commercial List / Post Interlocutory Application: Costs Determination Following Notice of Motion

Legal Issues

  1. 1 Whether the plaintiffs are entitled to indemnity costs for their application
  2. 2 Whether costs should be ordered as a specified gross sum
  3. 3 Whether costs should be payable forthwith

Ratio Decidendi

The plaintiffs, acting in a representative and fiduciary capacity and compelled by the funder's conduct to bring the application, should be awarded indemnity costs, as they should not be left out of pocket for acting in the interests of the represented class. A gross sum costs order is appropriate as the evidence supports the claimed amount and avoids unnecessary delay and assessment costs. Costs should be payable forthwith to avoid delay and enable the proceedings to progress, given trust funds had been exhausted. The funder should also pay the costs of the first defendant as the unsuccessful party to the application.

Court Disposition

Plaintiffs' costs application granted: indemnity, gross sum, forthwith; funder to pay first defendant’s costs; no pre-emptive liberty for personal costs order against Mr Coshott.

Orders

  • The second defendant is to pay the plaintiffs' costs of the notice of motion filed 10 May 2024 (including the application for costs) on an indemnity basis.
  • Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiffs are entitled to a specific gross sum in respect of their costs in the total amount of $134,607.95 plus GST.