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[2025] NSWSC 1301
Supreme Court of NSW
2025-11-05
McGrath J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 1301
Hearing dates: 31 October 2025
Date of orders: 5 November 2025
Decision date: 05 November 2025
Jurisdiction: Equity - Applications List
Before: McGrath J
Decision: Proceedings summarily dismissed
Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — three sets of proceedings on same subject matter — HELD — proceedings summarily dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Competition and Consumer Act 2010 (Cth) Schedule 2 – Australian Consumer Law, s 18
Contracts Review Act 1980 (NSW), s 4
Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 13.4, 14.28
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27
Clayton v Blunt (202) 272 CLR 1; [2020] HCA 44
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
GR v Secretary, Department of Communities and Justice [2023] NSWCA 239
Henderson v Henderson (1843) 3 Hare 115; 67 ER 319
Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Category: Principal judgment
Parties: Litigation Fund WCX Pty Ltd (Plaintiff)
Rosario Aversa (First Defendant)
Antonia Aversa (Second Defendant)
Representation: Counsel:
R Coshott – Director (Plaintiff)
D Eardley (Defendant)
Solicitors:
Stacks Collins Thompson (Defendant)
File Number(s): 2025/00309731
Publication restriction: Nil
These proceedings are yet another chapter in the ongoing dispute involving the plaintiff, Litigation Fund WCX Pty Ltd, in its pursuit of Rosario and Antonia Aversa (collectively, the Aversas) for the repayment of funds said to have been advanced by Litigation Fund to the Aversas. Those funds are alleged to have been advanced for the purposes of funding class action proceedings brought by the Aversas against Transport for New South Wales (TfNSW) concerning the construction of the WestConnex motorway in Sydney (WestConnex proceedings).
Robert Coshott is the sole director, secretary and shareholder of Litigation Fund. He is also the sole director and secretary of Coshott Family Pty Ltd, a company which also became involved in the pursuit of the Aversas. Mr Coshott holds ten ordinary shares of the 11 ordinary shares comprising the issued capital of Coshott Family. In other words, Mr Coshott has control of both Litigation Fund and Coshott Family.
Mr Coshott is also a former solicitor and has frequently appeared for Litigation Fund or self-representing himself at hearings in multiple proceedings in this court over many years.
The Aversas and Litigation Fund have brought competing interlocutory applications in these proceedings.
First, the Aversas have applied by notice of motion filed 29 September 2025 to summarily dismiss these proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or strike out the statement of claim pursuant to r 14.28 of the UCPR. In the alternative, the Aversas seek an order that Litigation Fund give security for the Aversas’ costs of the proceedings together with ancillary orders that the proceedings be stayed until such security is provided, or dismissed if the security is not provided within 30 days.
Secondly, Litigation Fund filed its own notice of motion on 1 October 2025 seeking summary judgment pursuant to r 13.1 of the UCPR against the Aversas.
For the reasons set out below, I have determined that these proceedings should be summarily dismissed on the basis that they are as an abuse of process and that Litigation Fund should pay the Aversas’ costs of the proceedings. As a result, Litigation Fund’s application for summary judgment should be dismissed and the Aversas’ application for security for their costs does not arise for determination.
On 21 September 2021, Coshott Family filed a further amended statement of claim in the Local Court (Local Court proceedings) in which it joined the Aversas as the third and fourth defendants and Collins & Thompson Pty Ltd as the second defendant to proceedings which Coshott Family had brought against David Thompson in relation to the advance of funds of $50,000 for the purposes of the WestConnex proceedings.
The claims which were brought by Coshott Family against the Aversas in the further amended statement of claim was for moneys had and received and restitution for unjust enrichment.
On 21 October 2022, Magistrate Greenwood of the Local Court dismissed all of the claims made by Coshott Family in the Local Court proceedings on the basis that Coshott Family had failed to prove that it had advanced any money (T8). Magistrate Greenwood also ordered Coshott Family to pay the costs of David Thompson, Collins & Thompson Pty Ltd and the Aversas on an ordinary basis to 22 September 2011 and thereafter on an indemnity basis or as agreed or assessed (T29). In the course of delivering judgment in the Local Court proceedings, Magistrate Greenwood made the following findings about the credibility and reliability of Mr Coshott’s evidence (T3):
Now, during objections prior to Mr Coshott’s evidence it became clear that there were some problems with his affidavit evidence. Material was excluded on objection and in cross-examination Mr Coshott blamed his solicitor for any defects in his evidence. He claimed to have very limited experience in the drafting of affidavits or even statements. Again it is difficult to accept this given his experience as a solicitor and company director. The answers to the questions asked of him and his evidence on this issue, it was troubling. It caused me to question his truthfulness, the truthfulness of his evidence and I would be reluctant to accept it in the absence of corroboration.
On 24 October 2022 (just three days after the judgment dismissing the Local Court proceedings), Litigation Fund brought proceedings against the Aversas in the Common Law Division of this court (Common Law proceedings) by filing the statement of claim. Trevor Hall of Hall Partners was acting for Litigation Fund at the time of the preparation of the statement of claim. Mr Coshott, as the sole director of Litigation Fund, swore an oath verifying the truthfulness of the allegations of fact in the statement of claim on 21 October 2022 and must therefore be taken to have read and understood it.
The statement of claim alleged that Litigation Fund had entered two agreements with the Aversas together and one agreement with Rosario alone (together, the agreements), and Litigation Fund had terminated the agreements after giving notice to the Aversas that they were in breach of each of them. In an unparticularised manner in the statement of claim, Litigation Fund claimed that the Aversas were liable to pay Litigation Fund $350,000 under each of the agreements and a further amount of $150,000 alleged to have been paid under the agreements.
It is necessary for me to set out the procedural history of the Common Law proceedings in some detail in light of the nature of the arguments that have been raised on these applications.
On 29 November 2022, the Aversas filed substantially identical defences to the statement of claim in the Common Law proceedings in which they admitted that they had entered into the three agreements with Litigation Fund but denied that they had breached those agreements and denied that they were liable to pay any amount to Litigation Fund as alleged.
Also on 29 November 2022, the Aversas filed a cross-claim in the Common Law proceedings in which they sought orders that there were no legally enforceable agreements between themselves and Litigation Fund, that the agreements were void ab initio or that the agreements be set aside. The contention that there were no legally enforceable agreements was based on the allegation that Litigation Fund was not incorporated at the time of the agreements. The contention that the agreements were void ab initio was based on alleged misleading and deceptive conduct of Litigation Fund prior to the entry into the agreements contrary to s 18 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth). The contention that the agreements should be set aside was based on the allegation that each of the agreements was unjust within the meaning of s 4 of the Contracts Review Act 1980 (NSW).
On 14 March 2023, Registrar Jones made directions in the Common Law proceedings, including the following:
Litigation Fund to file and serve any amended statement of claim and any defence to the Aversas’ statement of cross-claim by 30 March 2023;
the Aversas to file and serve any defence to any amended statement of claim by 11 April 2023; and
Litigation Fund to file and serve any reply to the Aversas’ defence to the amended statement of claim by 18 April 2023.
On 31 March 2023, Litigation Fund filed the amended statement of claim in the Common Law proceedings. Trevor Withane of Ironbridge Legal was acting for Litigation Fund at the time of the preparation of the amended statement of claim. Mr Coshott, as the sole director of Litigation Fund, swore an oath verifying the truthfulness of the allegations of fact in the amended statement of claim on 30 March 2023 and must therefore be taken to have read and understood it.
At this time, Litigation Fund had known for just over four months that the Aversas alleged that the agreements were not legally enforceable.
The amendments in the amended statement of claim were a wholesale restatement of the claims against the Aversas. In the amended statement of claim, Litigation Fund stated that the purpose of the agreements was to facilitate the provision of funding to the Aversas for the WestConnex proceedings. The essence of the amended claims were that:
Litigation Fund was to obtain 40% of any amounts received by the Aversas from a successful settlement or judgment;
Litigation Fund ratified the agreements on incorporation;
under the agreements the Aversas were required to consult with and obtain the approval of Litigation Fund prior to retaining any law firm to act for them in the WestConnex proceedings, and consult with and keep Litigation Fund informed on the progress of the WestConnex proceedings;
in breach of the agreements the Aversas failed to seek the approval of Litigation Fund prior to terminating one law firm and retaining another law firm to act for them in the WestConnex proceedings and failed to consult with and keep Litigation Fund informed on the progress of the WestConnex proceedings;
the Aversas were required to pay $350,000 to Litigation Fund for breach of each of the agreements (a total of $1,050,000) and repay the $150,000 provided to them under those agreements; and
the Aversas were liable for damages for breach of the agreements.
On 4 April 2023, Registrar Jones made directions in the Common Law proceedings extending the time for Litigation Fund to file and serve any defence to the cross-claim to 6 April 2023.
On 6 April 2023, Litigation Fund filed its defence to the cross-claim in the Common Law proceedings. Trevor Withane of Ironbridge Legal was acting for Litigation Fund at the time of the preparation of the defence to the cross-claim. Mr Coshott, as the sole director of Litigation Fund, swore an oath verifying the truthfulness of the allegations of fact in the defence to the cross-claim on 6 April 2023 and must therefore be taken to have read and understood it, as well as the cross-claim to which it responds that had been received just over four months earlier.
In the defence to the cross-claim, Litigation Fund admitted that it was not incorporated at the time of the agreements but stated that the agreements were affirmed following its incorporation and otherwise denied the allegations made in relation to the misleading and deceptive conduct and the unjust agreements.
On 21 April 2023, the Aversas filed their defences to the amended statement of claim in the Common Law proceedings, which were substantially identical. In their defences, the Aversas explicitly denied that the agreements were legally binding and stated that they were “purported agreements”.
On 11 May 2023, Registrar Jones made directions in the Common Law proceedings, including the following:
Litigation Fund to file and serve any reply to the defences to the amended statement of claim by 31 May 2023; and
the Aversas to file and serve any reply to the defence to the cross-claim by 31 May 2023.
Litigation Fund did not file and serve any reply to the defences to the amended statement of claim by 31 May 2023 or at any other time.
On 1 June 2023, Registrar Jones made directions in the Common Law proceedings, including the following:
Litigation Fund to file and serve any evidence by 6 July 2023;
the Aversas to file and serve any evidence by 10 August 2023;
Litigation Fund to file and serve any reply evidence by 24 August 2023.
On 7 July 2023, Registrar Hedge made directions in the Common Law proceedings, including extending the time for Litigation Fund to file and serve its evidence to 13 July 2023 and extending the time for the Aversas to file and serve their evidence to 17 August 2023.
On 26 July 2023, Registrar Jones made directions in the Common Law proceedings, including the following:
extending the time for Litigation Fund to file and serve its evidence to 27 July 2023;
extending the time for the Aversas to file and serve their evidence to 31 August 2023; and
Litigation Fund to file and serve any reply evidence by 14 September 2023.
On 25 August 2023, Litigation Fund filed and served its evidence.
On 3 September 2023, Registrar Hedge made directions in the Common Law proceedings, including extending the time for the Aversas to file and serve their evidence to 29 September 2023 and for Litigation Fund to file and serve any reply evidence by 13 October 2023.
On 17 October 2023, the Aversas sent an email to Litigation Fund stating that they were in the process of drafting an amended statement of cross-claim and intended to provide a copy to Litigation Fund within 14 days.
On 18 October 2023, Registrar Hedge made directions in the Common Law proceedings, including the following:
the Aversas to provide any draft amended pleadings by 30 October 2023;
Litigation Fund to indicate whether it consented to the amended pleading by 6 November 2023;
any amended pleading to be filed and served by 8 November 2023 if by consent; and
if no consent, a notice of motion to be filed and served by 10 November 2023, returnable on 16 November 2023.
On 15 November 2023, the Aversas sent an email to Litigation Fund attaching a proposed amended statement of cross-claim.
On 16 November 2023, Registrar Hedge made directions in the Common Law proceedings, including the following:
Litigation Fund to provide answers as to whether it consents or not to the amended cross-claim by 17 November 2023; and
the Aversas’ evidence on the claim and the cross-claim to be served by the further extended date of 4 December 2023 and if not served the Aversas will need leave of the court to rely on it.
On 16 November 2023, Litigation Fund sent an email to the Aversas advising that it did not consent to the filing of the proposed amended statement of cross-claim.
On 29 November 2023, the Aversas filed a notice of motion seeking leave to file the proposed amended statement of cross-claim and for a further extension of time for filing their evidence.
On 5 December 2023, Registrar Hedge fixed the date of 22 February 2024 for the hearing of the Aversas’ notice of motion seeking leave to file the proposed amended cross-claim.
On 22 February 2024, Registrar Jones heard the Aversas’ notice of motion seeking leave to file the proposed amended cross-claim and reserved judgment.
On 1 March 2024, Registrar Jones dismissed the Aversas’ notice of motion seeking leave to file the proposed amended cross-claim.
On 8 March 2024, Registrar Hedge made directions in the Common Law proceedings, including the following:
grant leave to the Aversas to serve evidence by the further extended date of 15 March 2024 and if not served the Aversas may not rely on the evidence;
list the Common Law proceedings for hearing on 1 May 2024 with an estimate of two days; and
the usual orders for hearing.
On 15 March 2024, the Aversas filed and served their evidence.
On 5 April 2024, Litigation Fund filed a notice of motion seeking a review of the orders made by Registrar Hedge on 8 March 2024 and, if that order was not granted, an order that the hearing fixed for 2 May 2024 be vacated. Litigation Fund also sought orders against the Aversas that they pay amounts they had been ordered to pay in respect of costs and provide security for Litigation Fund’s costs of the cross-claim.
On 24 April 2024, Registrar Jones ordered that the notice of motion filed 5 April 2024 be listed for consideration at the hearing fixed to commence on 1 May 2024.
Mr Coshott gave evidence on affidavit before me that in March/April 2024 Litigation Fund had become dissatisfied with the conduct of the proceedings by Ironbridge Legal and, on 26 April 2024, Ironbridge delivered to Litigation Fund the file in the proceedings.
Mr Coshott also gave evidence on affidavit before me, which stated:
Upon receiving the file, I considered the adequacy of the pleadings. I formed the view that the pleadings were inadequate, in that they did not plead monies had and received, total failure of consideration, unjust enrichment, and restitution. In early May 2024, I sought advice from Trevor Hall, principal of Hall Partners. He was of the same view.
On 1 May 2024, in relation to Litigation Fund’s notice of motion filed 5 April 2024, McNaughton J declined to review the orders of Registrar Hedge made on 8 March 2024 and vacated the hearing fixed for 2 May 2025. Her Honour dismissed the application by Litigation Fund seeking an order that the Aversas pay costs to Litigation Fund and noted that Litigation Fund did not press its application for security for costs of the cross-claim.
Also on 1 May 2024, McNaughton J made further directions in the Common Law proceedings, including the following:
list the Common Law proceedings for hearing before McNaughton J for three days on 25–27 November 2024;
Litigation Fund to file and serve lay evidence in reply by 3 June 2024;
Litigation Fund to file and serve expert evidence by 28 June 2024;
the Aversas to file and serve expert evidence in reply by 31 July 2024;
usual orders for hearing.
Mr Coshott gave evidence on affidavit before me that:
By 21 May 2024, I had prepared a proposed Further Amended Statement of Claim.
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.
On 21 May 2024, Litigation Fund filed a notice of motion in the Common Law proceedings (Common Law motion) seeking leave to file a further amended statement of claim in which it was sought to assert alternative claims against the Aversas to the effect that:
if the agreements were found to be invalid, the Aversas were liable for monies had and received;
there had been a total failure of consideration; and
that the Aversas were required to provide restitution of the funds from which they had been unjustly enriched at the expense of Litigation Fund.
On 1 July 2024, Registrar Hedge listed the Common Law motion for hearing on 1 August 2024 and made directions for the filing and service of submissions.
On 1 August 2024, Registrar Jones heard the Common Law motion and reserved judgment.
On 12 August 2024, Registrar Jones dismissed the Common Law motion on the basis that the proposed amendments were embarrassing and not in the interests of justice, and that the Aversas would suffer prejudice if Litigation Fund was allowed to file the proposed further amended statement of claim as it might jeopardise the upcoming hearing. Registrar Jones concluded that it would be inconsistent with the dictates of justice in s 58 of the Civil Procedure Act 2005 (NSW) (CPA) to allow the amendments.
Litigation Fund did not seek to review the decision of Registrar Jones not to allow the amendments in the draft further amended statement of claim.
On 25 and 26 November 2024, the Common Law proceedings were heard by McNaughton J and judgment was reserved.
On 15 May 2025, McNaughton J delivered judgment in the Common Law proceedings dismissing the amended statement of claim and ordering that Litigation Fund pay the costs of the Aversas: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469. In summary, McNaughton J held that Litigation Fund had failed to prove that there was any binding agreement between Litigation Fund and the Aversas (at [117]–[119]) and, even if there was any binding agreement, Litigation Fund had failed to prove that there had been any breaches of them (at [133]–[134] and [151]–[153]).
Litigation Fund did not appeal the decision of McNaughton J.
There was affidavit evidence from the solicitor for the Aversas (Christopher Morris) that the Aversas incurred $225,874.56 in costs in the Common Law proceedings. Those costs are yet to be assessed.
On 13 August 2025, Litigation Fund commenced these proceedings by filing the statement of claim. Litigation Fund claims that the Aversas have been unjustly enriched at its expense and seeks restitution of the monies alleged to have been provided to the Aversas plus interest, damages and costs.
On 25 September 2025, each of the Aversas filed a defence in substantially identical form. In summary, the Aversas put in issue the alleged unjust enrichment and raised substantive defences to the claims, including that Litigation Fund is estopped from bringing these proceedings based on issue estoppel and/or Anshun estoppel and these proceedings are an abuse of process.
There was affidavit evidence from the solicitor for the Aversas (Christopher Morris) that the Aversas are likely to incur $71,830.00 in costs in these proceedings.
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. …The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].
In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:
The question is ... whether the claims in question are so obviously untenable or groundless that there is “a high degree of certainty” that they will fail if allowed to go to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.
This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].
The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:
… A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.
In exercising my discretion under r 13.4 of the UCPR, I must also have regard to the requirements of ss 56 and 57 of the CPA.
The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.
In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.
The decision of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 established what has become known as an Anshun estoppel (or the extended principle in Henderson v Henderson (1843) 3 Hare 115; 67 ER 319) and how it differs from res judicata and issue estoppel.
In Anshun, Gibbs CJ, Mason and Aickin JJ at 602–603 stated the estoppel principles in the application to the facts of that case involving a failure by a defendant to raise a defence, in the following terms:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. …
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
…
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By “conflicting” judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
The modern expression of an Anshun estoppel is contained in a series of decisions of the High Court.
In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, French CJ, Bell, Gageler and Keane JJ at [22] described an Anshun estoppel as follows (footnotes omitted):
… Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
… An estoppel of this kind, an “Anshun estoppel”, will preclude the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it.
In Timbercorp, the plurality at [56] said that an Anshun estoppel is not based upon degrees of similarity and it had been made clear in Anshun that there could be no estoppel “unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”.
It was also observed in Timbercorp by the plurality at [60] that in Anshun it was generally accepted that a party will be estopped from bringing an action where, if it succeeds, it would result in a judgment which conflicts with an earlier judgment and in such a circumstance the litigation should be regarded as concluded by the earlier proceedings.
A party seeking to rely on an Anshun estoppel bears the onus of establishing the factual foundation for it: Clayton v Blunt (202) 272 CLR 1; [2020] HCA 44, Kiefel CJ, Bell and Gageler JJ at [28]–[31].
The circumstances in which an Anshun estoppel is in issue may often involve the consideration of whether the subsequent proceedings are an abuse of process. But there is not complete overlap between them. The decisions in Tomlinson and Timbercorp have also described the manner in which an abuse of process might arise.
An abuse of process and its relationship to estoppel was described in Tomlinso**n by French CJ, Bell, Gageler and Keane JJ at [24]–[26] as follows (footnotes omitted):
[24] To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
[25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
The High Court endorsed this expression of an abuse of process in Timbercorp at [69].
The High Court also dealt with abuse of process in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45. In UBS, Kiefel CJ, Bell and Keane JJ stated at [1] that the varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement but that either of two conditions enlivens the power:
where the use of the court’s procedures occasions unjustifiable oppression to a party; or
where the use serves to bring the administration of justice into disrepute.
The plurality in UBS at [43] also endorsed Tomlinson at [26] in the description of an abuse of process. The importance of the overriding purpose of “just, quick and cheap”, reflected in the federal equivalent of s 56 of the CPA, in the determination of an abuse of process was also emphasised in UBS by Kiefel CJ, Bell and Keane JJ at [45]–[46] in the following way:
[45] The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation. To insist, for example, on “inexcusable delay” as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
[46] Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.
For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation … is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. …
The Aversas submit that the three agreements that are the subject matter of these proceedings were the subject matter of the Common Law proceedings, which have been finally determined and no appeal was brought seeking to overturn that judgment. The Aversas say that Litigation Fund seeks to advance a fresh cause of action in connection with the agreements or, in the alternative, seeks to re-agitate an issue which has already been determined.
The Aversas submit that the principles of an Anshun estoppel operate to restrain parties from raising an issue in fresh proceedings where that issue was so closely connected with the subject matter of an earlier proceeding that it should have reasonably been raised at that time. The Aversas argue that because the new cause of action in these proceedings of alleged unjust enrichment is directly connected to the subject matter of the Common Law proceedings, Litigation Fund is estopped from bringing these proceedings.
The Aversas also say that the court is empowered to prevent the misuse of its processes that, if allowed, would result in unfairness, harassment or damage to the integrity of the justice system. They say that this is the third set of proceedings that Mr Coshott as the sole director of Litigation Fund has caused to be commenced against the Aversas in connection with the agreements. They say that all previous proceedings have been unsuccessful and that the respective decisions have not been appealed. The Aversas submit that these proceedings are an abuse of process and that the court should not permit Litigation Fund to prosecute them.
Litigation Fund says that in asserting an Anshun estoppel, the Aversas bare the onus of proof, and the Aversas have not satisfied that onus.
Litigation Fund submits that the circumstances in this case are that Litigation Fund sought to amend the pleadings in the Common Law proceedings by raising these claims/issues in May 2024, some six months before the hearing on 25 November 2024, but Litigation Fund was not allowed by the court to raise these claims/issues. Litigation Fund submits that this is a clear circumstance in which it was reasonable for Litigation Fund not to raise the claim/issues in the Common Law proceedings.
Litigation Fund says that the Aversas opposed leave being granted to Litigation Fund to rely on the proposed further amended statement of claim in the Common Law proceedings and that they now complain that these claims were not raised in the Common Law proceedings.
Litigation Fund also submit that if the assertion that it cannot recover monies paid under the mistake that the agreements were binding/valid because the claim of Anshun estoppel is upheld, the Aversas will be unjustly enriched at the expense of Litigation Fund. In support of this submission, Litigation Fund relies on the following:
The Aversas continued to prosecute the WestConnex proceedings against TfNSW for two years after Litigation Fund ceased providing funds.
On 27 October 2023, the Aversas consented to orders that there be judgment in favour of TfNSW and no order as to costs.
The Aversas did not stop the WestConnex proceedings when Litigation Fund ceased providing funds and continued prosecuting with the benefit of the work paid for by Litigation Fund.
Just before the hearing of the WestConnex proceedings, the Aversas reached a settlement with TfNSW which, on the face of the consent orders, enriched them by not having to pay the costs of TfNSW of the WestConnex proceedings.
The Aversas have failed to provide evidence of what other benefits they may have received as part of the settlement entered into with TfNSW.
In my view, for the reasons set out below, these proceedings are an abuse of process of this court and must be summarily dismissed.
The Aversas have now been vexed with three sets of proceedings over four years involving the very same subject matter, being the agreements alleged to have been entered into pursuant to which funding was provided for the Aversas in relation to the WestConnex proceedings. The first proceedings were the Local Court proceedings brought by Coshott Family against the Aversas in September 2021. The second proceedings were the Common Law proceedings brought by Litigation Fund against the Aversas in October 2022. The third proceedings are these proceedings brought by Litigation Fund against the Aversas in August 2025. Those three proceedings have all been brought by two entities controlled by the same person – Mr Coshott. Applying UBS, Mr Coshott is the single directing mind and will of both Coshott Family and Litigation Fund, which are both under his common control for the purposes of all three proceedings.
It is true that Litigation Fund sought to make allegations in the alternative in the Common Law proceedings, which are essentially the same allegations it now makes in these proceedings, but was prevented from doing so by the order of Registrar Jones made on 12 August 2024. But no review of that decision was sought by Litigation Fund.
In the sense described in Tomlinson and UBS, it would be both unjustifiably oppressive to the Aversas and would bring the administration of justice into disrepute to allow Litigation Fund to bring claims now that it has already been prevented from bringing in the Common Law proceedings. This court has already concluded that it would be contrary to the dictates of justice in s 58 of the CPA for Litigation Fund to be allowed to bring the same claims in the Common Law proceedings. To allow Litigation Fund to have another attempt to bring the same claims in these proceedings would be even more inconsistent to the overriding purpose in s 56 of the CPA. Twice before the Aversas have had to defend proceedings involving the same subject matter and incur significant costs in doing so. This court has already devoted considerable resources over the past three years to determining the controversy between Litigation Fund and the Aversas over the same subject matter. That was especially the case in relation to the Common Law proceedings, which were subject to close case management, numerous directions hearings and many interlocutory applications before they were finally determined by McNaughton J. There was also no appeal from the decision of McNaughton J.
As emphasised in UBS by Gageler J at [70], the question of whether the same claims sought to be brought in these proceedings “should” have been brought in the Common Law proceedings cannot be determined solely by reference to interests of Litigation Fund and the Aversas as parties to the proceedings. I must also consider the public interest in the timely and efficient administration of justice. It would be neither timely nor efficient administration of justice to allow Litigation Fund to repeatedly reframe its case against the Aversas, especially in circumstances where this court has already determined that Litigation Fund was not permitted to bring the same claims in the Common Law proceedings.
Mr Coshott has also failed to provide an adequate explanation as to why it took him so long to seek to file the further amended statement of claim making the alternative claims in the Common Law proceedings. It is not sufficient for him to say that it was the fault of his solicitors, particularly given his own experience as a solicitor, including appearing for Litigation Fund as its director at multiple hearings in proceedings in this court. This is particularly so in light of the following matters:
On 29 November 2022, the Aversas filed a cross-claim, which made it abundantly clear that they were seeking orders that they were not bound by the agreements. Having been on notice of that defence for four months, Litigation Fund filed the amended statement of claim in the Common Law proceedings (verified by Mr Coshott) on 31 March 2023 substantially restating its case but failed to plead any claims in the alternative.
On 6 April 2023, Mr Coshott verified a defence to the cross-claim brought by the Aversas but failed to raise any of the alternative claims.
During the hearing on 1 May 2024 (when preparatory orders were being made to fix the hearing of the Common Law proceedings for 25–27 November 2024), Mr Coshott said nothing to McNaughton J to indicate that Litigation Fund was considering whether to amend its claims.
Mr Coshott did nothing until 21 May 2024 to seek to plead the alternative claims, despite having been on notice for 18 months that the Aversas were contending that they were not bound by the agreements.
As a former practising solicitor and a litigant in person well versed in the procedures of this court, Mr Coshott could not have been unaware of the need to raise the alternative claims at the earliest stage.
In these circumstances I have a high degree of certainty that it is an abuse of process for Litigation Fund to now seek to run claims in these proceedings which should have been brought in the Common Law proceedings in sufficient time that would not have caused them to have been rejected. The court should not spend any further public resources on Litigations Fund’s various permutations of its claims in an unnecessarily protracted dispute and the Aversas should not be further troubled with yet more time and expense in defending them. The timely and efficient administration of justice by this court demands that these proceedings be dismissed, as does the unjustifiable oppression caused to the Aversas by them.
It is not necessary for me to consider whether an Anshun estoppel also arose in the present circumstances. The application of the inherently more broad and flexible principles in relation to abuse of process demand that I summarily dismiss these proceedings.
For the reasons stated above, I propose to make the following orders:
The proceedings are summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
The notice of motion filed 1 October 2025 by the plaintiff is dismissed.
The plaintiff is to pay the defendants’ costs of the proceedings.
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Litigation Fund WCX Pty Ltd
Aversa [2025] NSWSC 1301
(2000) 201 CLR 552
(2006) 226 CLR 256
(1964) 112 CLR 125
(1981) 147 CLR 589
(2012) 219 IR 87
(2010) 241 CLR 118
(2016) 259 CLR 212
(2015) 256 CLR 507
(2018) 265 CLR 77
(1992) 30 NSWLR 1