Mitchell v Roads and Maritime Services (now known as Transport for NSW) [2022] NSWSC 500

Mitchell v Roads and Maritime Services (now known as Transport for NSW) [2022] NSWSC 500

In representative proceedings brought for the benefit of a litigation funder whose identity is not disclosed, and where the enforceability of an indemnity for costs is uncertain, it is appropriate for the Court to exercise its discretion to order security for costs relying on s 67 of the Civil Procedure Act 2005 (NSW) and the Court's inherent power.

Jurisdiction
Australia
Judgment Date
28 April 2022
Procedural Posture
Representative Proceeding / Interlocutory Application – Security for Costs
Outcome
Security for costs ordered; conditional stay of proceedings; costs order to defendant; further directions listed.
Legal Topics
['security for Costs' 'representative Proceedings' 'litigation Funding']
['civil Procedure' 'equity'] ['security for Costs' 'representative Proceedings' 'litigation Funding']

Case Brief

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Procedural Posture

Representative Proceeding / Interlocutory Application – Security for Costs

Legal Issues

  1. 1 ['Whether an order for security for costs should be made in representative proceedings involving a litigation funder' 'Appropriate quantum of security for costs']

Ratio Decidendi

In representative proceedings brought for the benefit of a litigation funder whose identity is not disclosed, and where the enforceability of an indemnity for costs is uncertain, it is appropriate for the Court to exercise its discretion to order security for costs relying on s 67 of the Civil Procedure Act 2005 (NSW) and the Court's inherent power.

Court Disposition

Security for costs ordered; conditional stay of proceedings; costs order to defendant; further directions listed.

Orders

  • ["The plaintiffs give security for the first defendant's costs in the amount of $415,000, such security to be provided in a form agreed between the parties or, in the absence of agreement, by payment into Court." 'If the security is not provided within 28 days of the date of the judgment, the proceedings be stayed...