Litigation Fund WCX Pty Ltd v Aversa

1. [1]

   THE COURT: Litigation Fund WCX Pty Ltd brought proceedings seeking to recover funds said to have been advanced by it to Mr Rosario Aversa and Ms Antonia Aversa for the purpose of funding litigation involving the construction of the WestConnex motorway. The proceeding was summarily dismissed, by a reserved judgment of 103 paragraphs delivered within a week of the hearing: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 1301. Litigation Fund filed a notice of appeal on 12 November 2025, but after being alerted to the need to seek leave to appeal from an interlocutory decision pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW), it filed a summons seeking leave to appeal on 8 December 2025.

2. [2]

   No submissions have been made by Litigation Fund in support of its notice of appeal, as opposed to its application for leave to appeal. That accords with well-settled and binding authority that orders for summary dismissal are, for the purposes of appeals, interlocutory. The authorities are collected in McGinn v Cranbrook School [2016] NSWCA 226 at [9]-[10] and Ahern v Aon Risk Services Australia Ltd [2023] NSWCA 91 at [49]. Moreover, following a hearing concerning security for costs, Litigation Fund confirmed its preference for its application for leave to be heard and determined on the papers, a course in which the Aversas agreed. The notice of appeal should be dismissed as incompetent, noting that a single Judge of Appeal has power to take that course pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW) (see for example Luo v Health Care Complaints Commission [2026] NSWCA 42 at [12]) and thus this Court constituted by two judges also has that power.

3. [3]

   The parties’ submissions (being an amended summary of argument dated 13 February 2025, the respondents’ summary of argument of 24 March 2026, and submissions in reply filed on 30 March 2026) were, appropriately, directed to whether there should be a grant of leave, and in particular to the three matters which are at the forefront of consideration: whether the proposed appeal raises an issue of principle or a question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see for example Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].

Background

1. [4]

   The background so far as is relevant is very concise. In 2021, a related company, Coshott Family Pty Ltd, brought proceedings in the Local Court seeking to recover $50,000 said to have been advanced to the Aversas for the purposes of the Westconnex proceedings. The claim was dismissed by that Court on the basis that Coshott Family Pty Ltd had not proven any advance was made. Three days later, Litigation Fund commenced proceedings in the Supreme Court, once again claiming that money had been lent to the Aversas for the same purpose, but this time by Litigation Fund, and in much greater amounts. The procedural history of those proceedings was summarised by the primary judge in detail, at [14]-[56]. They culminated in a final hearing occupying two days in November 2024, following which the claim was dismissed by the Court constituted by McNaughton J: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469. Some aspects of that history are contentious and will be addressed below. It is not contentious that no appeal was sought to be brought from the dismissal of that proceeding. Nor is it contentious that the Aversas had incurred some $225,000 in costs defending those proceedings.

2. [5]

   Around three months after its proceedings in the Supreme Court had been dismissed, Litigation Fund commenced further proceedings in the Supreme Court against the Aversas, claiming that the Aversas had been unjustly enriched at its expense and seeking restitution of monies said to have been provided to them. The pleading identifies amounts provided in 2020 pursuant to three documents said to have been signed by the Aversas on 19 September 2018. The pleading alleges that the moneys were “provided under a mistake of law and/or fact, that being that the three documents signed by the defendants on 19 September 2018 were binding agreements”. The pleading refers to the judgment of the Supreme Court (McNaughton J) delivered on 15 May 2025 holding “that the agreements were not binding agreements”, and alleges that there was a total failure of consideration. The pleading also alleges that the Registrar had, on 12 August 2024, dismissed Litigation Fund’s motion to amend its pleading to allege unjust enrichment, and that McNaughton J had dismissed the review. Litigation Fund alleges that it is entitled to restitution of the funds, and that when the Aversas discontinued a claim against Roads and Maritime Services, there was once again a total failure of consideration and it was entitled to restitution, as well as damages constituted by half of the proceeds had the litigation continued to determination.

3. [6]

   The primary judge addressed the principles governing summary dismissal, Anshun estoppel and abuse of process at [63]-[87]. After summarising the parties’ submissions, his Honour’s reasoning was as follows:

Consideration

1. [7]

   It is clear that there is no question of principle or of general importance which is raised by the proposed appeal. The proceedings were dismissed on the basis of the application of orthodox legal principles governing abuse of process, and the issue turns on the particular dealings between the parties.

2. [8]

   Nonetheless, if Litigation Fund could point to a clear error which was material to the dismissal of its latest proceeding, that might be sufficient to warrant a grant of leave.

3. [9]

   However, the difficulties confronting Litigation Fund are manifest. It is clear enough that as a matter of substance, the proceeding summarily dismissed by the primary judge was an attempt to relitigate, albeit under the rubric of unjust enrichment rather than debt, the claims of Litigation Fund against the Aversas for amounts of money alleged to have been advanced by it to them. This is a classic example of an abuse of process.

4. [10]

   Against that conclusion, Litigation Fund seeks to advance the following submissions. Its first point, amounting to ground 1 of its proposed appeal, is that it sought leave before the Registrar and before McNaughton J to amend so as to include a claim based in unjust enrichment, but leave was opposed by the Aversas and refused. There has never been a determination of that claim on the merits. That is the reason for the fresh proceedings.

5. [11]

   The factual basis of that submission may be accepted so far as it goes, but it falls well short from amounting to a proper basis for the grant of leave. The timing matters. The Supreme Court proceeding was commenced in October 2022. It moved slowly. It was set down for final hearing on 1 May 2024. That hearing was vacated, on Litigation Fund’s application. At around this time, the law firm retained by Litigation Fund ceased to act for it. It was not until 21 May 2024 that a proposed further amended statement of claim was drafted. The primary judge observed at [50] that “There is no other explanation provided by Litigation Fund as to why it had taken until May 2024 for it to form the view that it should seek to plead its alternative claims”. Litigation Fund does not dispute the accuracy of that statement.

6. [12]

   A litigant does not have an unfettered entitlement to delay for years before bringing forward the causes of action on which it relies. If it does so, it is open to a court to refuse to permit an amendment which is necessary to run the additional cause of action. In the exercise of the discretionary power to grant a later amendment, it will be relevant to have regard to the time which has elapsed, how closely related the new cause of action is to the pleaded claims, and what the explanation is for the failure to plead the claim earlier. In the present case, there was substantial delay in amending to allege a closely related cause of action, and no explanation for that delay. It was open to the Court to refuse to permit the amendment, and indeed no challenge has been made to that decision.

7. [13]

   That carries with it important consequences which are best articulated explicitly, in light of Litigation Fund’s insistence that there has not been an adjudication of its claim in unjust enrichment.

   1. (1)

      If Litigation Fund had, following the refusal of leave to amend, commenced fresh proceedings against the Aversas based on unjust enrichment, those proceedings would have been an abuse of process. They could not have been run separately, such that the Aversas would have to defend two separate proceedings brought by the same plaintiff which in substance sought recovery of the same funds.

   2. (2)

      Nor could the fresh proceedings have been consolidated, or managed so that they would be heard and determined simultaneously, with the extant proceedings. If that course were possible, that would be to permit Litigation Fund to do indirectly that which it had been precluded from doing directly.

   3. (3)

      Nor could Litigation Fund wait until the extant proceedings had been heard and determined and then commenced fresh proceedings on the cause of action in respect of which it had been denied leave.

8. [14]

   Litigation Fund adds that the Aversas did not press “abuse of process”, and it was the primary judge who relied upon it. The Aversas had moved summarily to dismiss the proceedings, but did so on the basis of Anshun estoppel rather than abuse of process. But the two doctrines are similar and overlap, with abuse of process being the broader: see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [24]-[26]. It is not suggested that the primary judge did not permit Litigation Fund to be heard in relation to abuse of process. Thus the fact that the primary judge dismissed the proceedings on the basis of abuse of process, and did not need to address Anshun estoppel, does not add to this proposed ground of appeal.

9. [15]

   Secondly, Litigation Fund pointed to certain errors of fact in the reasons of the primary judge. One has already been flagged. Contrary to what was said in [55] and [97], a review was sought of the Registrar’s decision not to permit an amendment. The Aversas acknowledged the error, but said that nothing turned on it. We agree. For the purposes of determining whether there was an abuse of process, the error was immaterial. The primary judge pointed to a late unexplained amendment refused by the Registrar. In fact, there was a late unexplained amendment refused by the Registrar which Litigation Fund sought to review, which review was dismissed a few months later. The error does not materially undermine the ultimate dispositive conclusion that commencing fresh proceedings on the cause of action, which was the subject of the failed application to amend, was an abuse of process.

10. [16]

    Litigation Fund also said that there was no evidence of the matters mentioned by the primary judge at [5] (“Mr Coshott is a former solicitor and has frequently appeared for Litigation Fund or self-representing himself in multiple proceedings in this Court over many years”). This is immaterial.

11. [17]

    Proposed grounds 3 and 4 are related to the above. Mr Coshott’s experience was relied on by the primary judge in [100(5)], and once again it is said that there was no evidence of his experience. But even if that passage in the reasons is, strictly speaking, incorrect, we do not consider that it is material.

12. [18]

    It is also said that there was no evidence of anything that was said or not said to McNaughton J on 1 May 2024 concerning any amendment. But on 31 October 2025, Litigation Fund was faced with a motion seeking to dismiss its proceedings on the basis that it had acted unreasonably in not advancing those claims earlier. If there had been anything in the lengthy procedural history of the litigation that explained the reasonableness of its delay, it was open to it to adduce evidence of that.

13. [19]

    Litigation Fund also says that there was no evidence that the Aversas were unjustifiably oppressed. That is a legal conclusion which does not require evidence.

14. [20]

    Related to this, and in support of proposed ground 4, it is said that the primary judge erred in proceeding on the basis that it bore the onus in showing that there was no abuse of process. The submission confuses legal and evidentiary onus. On its face, Litigation Fund was advancing a very similar claim to one which had been determined on a final basis between the same parties, and indeed had been the subject of an unsuccessful application for leave to amend. Prima facie it was both an abuse of process and a claim which should reasonably have been advanced in the earlier proceedings. In the circumstances of this litigation, there was an evidentiary onus upon Litigation Fund to explain why it should be permitted to advance the claim in separate proceedings against the defendants who had already obtained judgment against it on the earlier claim after a final hearing.

15. [21]

    No separate submissions were made in support of proposed ground 5.

16. [22]

    Proposed ground 6 concerns a reference in paragraph [11] in the factual background of the reasons of the primary judge to an aspect of the reasons of the Local Court in 2022. It is sufficient to say that if there was any error, it was immaterial.

17. [23]

    For completeness, we note that some of Litigation Fund’s submissions in reply assert questions of general principle in relation to proposed grounds 2, 3, 4 and 6. The submission is formulaic and conclusionary (“This is a question of general principle and a reasonably clear injustice going beyond something that is reasonably arguable”). We do not agree. There is no question of general principle (that is to say, applicable to disputes other than that between the parties to this litigation) which would arise in the proposed appeal. It will be clear from what has been said that there is also no reasonably clear injustice.

18. [24]

    No basis for a grant of leave has been made out. The result is that the summons seeking leave to appeal should be dismissed. There being no reason to displace the usual rule, Litigation Fund must pay the respondent’s costs, save in relation to their costs of a motion for security for costs, which was the subject of a separate exercise of discretion as to costs.

19. [25]

    The Court’s orders are:

    1. (1)

       Notice of appeal filed 12 November 2025 dismissed.

    2. (2)

       Summons seeking leave to appeal filed on 8 December 2025 dismissed.

    3. (3)

       Litigation Fund Pty to pay the costs of Rosario Aversa and Antonia Aversa of the proceedings in this Court, excluding the costs of the motion for security for costs.