Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27

Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27

An order for security for costs should be made against the Funder under s 1335 of the Corporations Act, since credible evidence established reason to believe it could not pay the respondents' costs if unsuccessful. It was not necessary to establish special circumstances, as s 1335 applies to the sole corporate applicant. Amount of security fixed at $70,022.50 (incl GST) calculated on a party/party basis. Also, a conditional stay of the 11 December 2024 costs orders pending leave to appeal is appropriate, provided Funder pays $134,607.95 plus GST into court.

Parties
Applicant: Litigation Fund WCX Pty Ltd; First Respondents: Darren and Rosaline Mitchell; Second Respondent: Roads and Maritime Services (now known as Transport for NSW)
Jurisdiction
Australia
Judgment Date
28 February 2025
Procedural Posture
Procedural Ruling (court of Appeal) / Interlocutory Application Security for Costs and Conditional Stay Pending Leave to Appeal
Outcome
Security for costs ordered against corporate applicant; proceedings stayed until security paid; conditional stay of prior costs orders granted.
Legal Topics
Security for Costs, Stay of Proceedings, Application of S 1335 Corporations Act, Class Actions, Trust Money for Costs
Civil Procedure Security for Costs Stay of Proceedings Application of S 1335 Corporations Act Class Actions Trust Money for Costs

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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

Procedural Posture

Procedural Ruling (court of Appeal) / Interlocutory Application Security for Costs and Conditional Stay Pending Leave to Appeal

Legal Issues

  1. 1 Whether security for costs should be ordered against the corporate applicant under s 1335 of the Corporations Act 2001 (Cth) and r 51.50 of the UCPR;
  2. 2 Whether 'special circumstances' must be established for security for costs under s 1335 Corporations Act;
  3. 3 Whether a stay of orders for costs should be granted, and on what conditions, pending leave application;

Ratio Decidendi

An order for security for costs should be made against the Funder under s 1335 of the Corporations Act, since credible evidence established reason to believe it could not pay the respondents' costs if unsuccessful. It was not necessary to establish special circumstances, as s 1335 applies to the sole corporate applicant. Amount of security fixed at $70,022.50 (incl GST) calculated on a party/party basis. Also, a conditional stay of the 11 December 2024 costs orders pending leave to appeal is appropriate, provided Funder pays $134,607.95 plus GST into court.

Court Disposition

Security for costs ordered against corporate applicant; proceedings stayed until security paid; conditional stay of prior costs orders granted.

Orders

  • Grant leave for Mr Coshott to represent the applicant under r 7.1(2)(a) UCPR.
  • Extend time for respondents to file short affidavit and submissions to 4:00pm on 25 February 2025 nunc pro tunc.