Litigation Fund WCX Pty Ltd v Aversa

Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469

Hearing dates: 25-26 November 2024

Date of orders: 15 May 2025

Decision date: 15 May 2025

Jurisdiction: Common Law

Before: McNaughton J

Decision: (1) The Amended Statement of Claim is dismissed.
(2) The Cross-claim is dismissed.
(3) The plaintiff is to pay the costs of the defendants.

Catchwords: CONTRACTS – breach of contract – whether binding agreements existed between the parties – whether agreements were lawfully executed on behalf of the plaintiff – s 127 Corporations Act 2001 (Cth) – where plaintiff did not read own affidavit – amended statement of claim and cross-claim dismissed

Legislation Cited: Competition and Consumer Law Act 2010 (Cth) sch 2, s 243
Contracts Review Act 1980 (NSW), s 7
Corporations Act 2001 (Cth), ss 127, 131
Evidence Act 1995 (NSW), ss 69, 135, 183
Supreme Court Act 1970 (NSW), s 75
Uniform Civil Procedure Rules 2005 (NSW), r 7.1

Cases Cited: Ling v Pang [2023] NSWCA 112
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104

Texts Cited: Nil

Category: Principal judgment

Parties: Litigation Fund WCX Pty Ltd (Plaintiff)
Rosario Aversa (First Defendant)
Antonia Aversa (Second Defendant)

Representation: Counsel:
DC Eardley (Defendant)
Solicitors:
R Coshott (Director of Plaintiff)
Stacks Collins Thompson (Defendant)

File Number(s): 2022/00317496

Publication restriction: Nil

JUDGMENT

1. By Amended Statement of Claim, filed 31 March 2023, Litigation Fund WCX Pty Ltd (“the plaintiff”) brings an action against husband and wife, Mr Rosario and Mrs Antonia Aversa (“the defendants”), in relation to litigation funding agreements. The agreements were purportedly made to fund proceedings undertaken by the defendants concerning the construction of the WestConnex motorway in the inner west of Sydney (“the Aversa proceedings”).

2. Mr Robert Coshott is the sole director and shareholder of the plaintiff, a litigation funder. By leave, Mr Coshott appeared for the plaintiff. Leave was required because Mr Coshott no longer holds a practising certificate as a solicitor (see r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW)). In relation to this question, an affidavit, sworn 22 November 2024, was read, annexing minutes of a company meeting held on 18 November 2024 authorising Mr Coshott to represent the company in the hearing of this matter.

3. There were three purported litigation funding agreements (in relation to three separate properties) signed by the defendants on 18 September 2019 (with two signed by both defendants and one signed only by Mr Aversa (which reflected the ownership of each of the properties)). They were in relevantly identical terms. For convenience, I will sometimes refer to each of these purported litigation funding agreements as “the agreement”.

4. In essence, the plaintiff claims that the defendants breached the agreement in two respects: first, by failing to gain approval from the plaintiff for changing solicitors conducting the Aversa proceedings (from Murphy Lyons Lawyers to Stacks Collins Thompson), and second, by failing to keep the plaintiff informed of the progress and status of the Aversa proceedings.

5. The defendants filed a defence first raising a threshold issue, disputing that they are each legally bound by the agreement. They otherwise deny the plaintiff’s claims of breach of the agreement.

6. The defendants also filed a Cross-claim first seeking declarations that there is no written agreement or any other agreement between the defendants (the first and second cross-claimants) and the plaintiff (the cross-defendant) pursuant to the inherent jurisdiction of the Court and/or s 75 of the Supreme Court Act 1970 (NSW); or second, that the agreement is void ab initio pursuant to the inherent jurisdiction of the Court or s 243 of the Australian Consumer Law due to misleading and deceptive conduct on part of the plaintiff; or third, that the agreement be set aside pursuant to the inherent jurisdiction of the Court or s 7 of the Contracts Review Act 1980 (NSW) on the basis that they are unjust.

7. The defendants submitted at the hearing that the Cross-claim would only require determination if the Court found, in considering the plaintiff’s case, that the agreement was in force.

8. For the reasons set out below, I have found that the plaintiff’s claims fail at the threshold level. Further, although it is not necessary to do so, I have nevertheless considered (on the hypothesis that the agreement is binding) whether the plaintiff has proved the defendants breached the purported agreement. For reasons also set out below, I have found that the plaintiff has failed to establish the claimed breaches.

9. In relation to the Cross-claim, given my threshold finding, and the stated position of the defendants, the relief claimed by the Cross-claim is no longer sought and I have not dealt with those matters further.

10. Because of the unusual way in which this matter was conducted, I have found it necessary to set out the evidence in some granular detail.

The evidence

11. The proceedings were conducted by the plaintiff in an unorthodox fashion. Although Mr Coshott had filed an affidavit, he did not read it at the hearing. Rather, the only evidence relied upon by Mr Coshott, and admitted into evidence, after argument, was an affidavit of Rosario Cappello, sworn on 29 April 2024. This affidavit relevantly read as follows:

“I am an I T Consultant […]

I have managed the plaintiff’s I T since the plaintiff company was registered in September 2019. I also do internet searching for the plaintiff company when required.

[…]

I printed out the documents in annexure B hereto from the plaintiff’s computer records and from the email records for the email addresses victimsofwestconnex@gmail.com and litfundwsx@gmail.com.

I carried out a search on the ASIC website for the plaintiff company. A printout of the result of that search is annexed hereto and marked C.

I printed out copies of the three Aversa funding agreements which are annexed hereto and marked D.

I printed out copies of counsels’ invoices in the Aversa v RMS proceedings which are annexed hereto and marked E.

I printed out copies of the documents evidencing payment of monies pursuant to the Aversa funding agreements which are annexed hereto and marked F.”

(Emphasis in original.)

12. Although Mr Cappello did not include any indication in the affidavit of what instructions he received or whether he was authorised to make the affidavit, I admitted the affidavit with its annexures, over objection. Pursuant to ss 183 and 69 of the Evidence Act 1995 (NSW), I was satisfied that the documents appeared to be business records, and that pursuant to s 135 of the Evidence Act, the probative value was not substantially outweighed by the danger that the evidence might be unfairly prejudicial but there was a live issue as to what I might ultimately make of the plaintiff’s documents.

13. As can be seen, though, from a systematic setting out of the emails from the plaintiff, when compared to the emails produced by the defendants’ witnesses, in my view, it is clear that there has been a selective production of emails on the part of the plaintiff, with many critical emails omitted from the plaintiff’s tender.

The plaintiff’s evidence

Email correspondence

14. I set out in chronological order the email evidence produced by Mr Cappello in the plaintiff’s case. I have assigned pseudonyms to the names of barristers referred to in the emails.

15. Email chains between “Robert Coshott <victimsofwestconnex@gmail.com>" and Rosario Aversa:

| Date | Time | From | Contents | | Wednesday, 11 September 2019 | 3:27 pm | Email from Robert Coshott | Hi Ross, Jim Lyons has forwarded your emails to us to respond. Murphy Lyons are the lawyers nominated by the litigation funders to act for people who are funded by the litigation funders. If you take up the offer of funding, Murphy Lyons will act for you on your compensation/damages claim. If you take up funding, your full costs exposure will be covered by the litigation funders. Simply put, you will be at no risk. I trust this answers your questions […] | | Thursday, 12 September 2019 | 9:16 am | Email from Rosario Aversa | Hi Robert [Queries about terms of contract.] […] As explained in my previous email, I am just making sure I am not liable for any costs during the whole process. I have 4 properties which are included in this arrangement and if there are any extra costs, then I just can’t afford to proceed. […] | | Thursday, 12 September 2019 | 9:40 am | Email from Robert Coshott | Hi Ross, […] In summary, the 50% is the only obligation on your part. The clauses listed above are no [sic] in addition to the 50%. They are included in the 50%. There are no extra costs. […] | | Tuesday, 17 September 2019 | 12:06 pm | Email from Rosario Aversa | Thanks Robert, Am I able to negotiate the 50% compensation cost since I have 4 properties? […] | | Tuesday, 17 September 2019 | 12:24 pm | Email from Robert Coshott | Hi Rosario, […] I will speak to the funder about whether the 50% is negotiable as you have 4 properties. What reduction in the % are you seeking? […] | | Tuesday, 17 September 2019 | 4:00 pm | Email from Rosario Aversa | Hi Robert, What do you think is fair? I happy with a 10 to 15% reduction on all properties […] | | Tuesday, 17 September 2019 | 4:38 pm | Email from Robert Coshott | Hi Rosario, […] The funder will agree to reduction to 40%, provided it is kept confidential. Assuming 40% is agreed, please amend the schedule to each of the agreements and initial the amendments. Then email signed agreements to me or post to [a PO Box] […] | | Thursday, 19 September 2019 | 11:27 am | Email from Rosario Aversa | Hi Robert, [Attaching signed documents.] | | Friday, 20 September 2019 | 2:47 pm | Email from Robert Coshott | Hi Rosario, Documents received. Copy signed by funder will be sent to you next week. […] |

1. Email chains between “Robert Coshott <victimsofwestconnex@gmail.com>” and Rosario Aversa and in most instances also Mark Shumsky (from Stacks Collins Thompson).

| Date | Time | To / From | Contents | | Friday, 18 December 2020 | 6:47 pm | Email from Robert Coshott to Rosario Aversa | Hi Ross, I will take you up on your offer to sit in at your meeting with Mark Shumsky. Thank you. Please let me know when and where it is to take place and I shall be there. | | Monday, 21 December 2020 | 9:28 am | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Hi Mark As we discussed on phone on Friday, ok to have a meeting to discuss as requested. Happy to do at my house this week after 3pm any day except Thursday. Please let me know best day suits you and confirm. […] | | Monday, 21 December 2020 | 10:05 am | Email from Mark Shumsky to Robert Coshott and Rosario Aversa | Hi Ross, Free afternoons for me to meet at your place are Monday 28th and Wednesday 30th December. Depending on how things go today and tomorrow, this Wednesday might be fine also. | | Monday, 21 December 2020 | 10:36 am | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Hi Mark Tomorrow or this Wednesday is fine for me. Please confirm when ready. Hi Rob, Please also let me know if your ok for tomorrow or Wednesday. Thanks Ross | | Monday, 21 December 2020 | 5:57 pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Let us do Wednesday. | | Wednesday, 23 December 2020 | 9:35 am | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Sorry guys, Due to xmas commitments can’t do today. Can we please do next Tuesday or Wednesday anytime. Robert, Mark Please confirm best day and times for you. Thanks Ross | | Wednesday, 23 December 2020 | 9:56 am | Email from Mark Shumsky to Rosario Aversa and Robert Coshott | Hi Ross [That’s] fine, thanks. Next Tuesday I’m in the city during the day, but I can come see you around 4-5pm, otherwise next Wednesday. Regards Mark | | Wednesday, 23 December 2020 | 12:26 pm | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Hi Mark OK with next Tuesday at 4pm Robert You ok with that Regards Ross | | Wednesday, 23 December 2020 | 2:16 pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Hi Rosario, Tuesday at 11:00am is good for me. Regards, Robert | | Monday, 18 January 2021 | 8:56 am | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Good morning Gentlemen, I await Mark’s advice as to time and place for the meeting. Regards, Robert | | Monday, 18 January 2021 | 9:21 am | Email from Mark Shumsky to Rosario Aversa and Robert Coshott | Good morning, I was planning on Friday 4pm for this meeting. Please let me know if that suits you. Kind regards Mark Shumsky | | Monday, 18 January 2021 | 9:39 am | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Hi Mark All good for me. Happy to have at my place. Regards Ross | | Monday, 18 January 2021 | 11:05 am | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Hi all, Friday at 4 at Rosario’s place is good for me. Regards Robert | | Friday, 22 January 2021 | 10:02 am | Email from Mark Shumsky to Rosario Aversa and Robert Coshott | Hello Gentlemen, I will need to postpone this afternoon’s meeting. Apologies for that, however we are expecting new important information and our reports should be ready early next week. In addition, we should receive a response from Crown solicitors on a couple of points of law and a report from counsel by Monday or at the latest on Wednesday. This will enable an informed meeting which I propose we have either Thursday or Friday at 4pm at Haberfield. I hope either Thursday 28th or Friday 29th will suit you both. Let me know which you prefer. Robert, I might call you with a few additional questions before the meeting, if that’s OK. Kind regards Mark Shumsky | | Friday, 22 January 2021 | 10:50 am | Email from Rosario Aversa to Robert Coshott and Mark Shumsky | Hi Mark Happy with both Thursday and Friday after 3pm Regards Rosario | | Friday, 22 January 2021 | 11:08 am | Email from Mark Shumsky to Rosario Aversa and Robert Coshott | Hi Ross I would prefer Thursday as I have other meetings in the area that same afternoon. Would 3.30pm be ok? We might need an hour or so. Regards Mark Shumsky | | Friday, 22 January 2021 | 1:08pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Gentlemen I await with interest the important information, response from crown solicitor, and report from counsel. May I suggest that Mark email copies of the important information, crown solicitor’s response and counsel’s report asap before the meeting. 4pm on Friday 29 Jan is good for me.. Regards, Robert | | Wednesday, 27 January 2021 | 1:40 pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Gentlemen, As I have not received any of the important information, the response from the state crown solicitor, or the report form counsel, I assume that it has not been received by Mark. Given that the proceedings are back before the Court on 8 February 2021 to fix the hearing date, I propose that the meeting proceed on Friday as arranged in any event. Regards Robert | | Friday, 29 January 2021 | 9:28 am | Email from Robert Coshott to Rosario Aversa | Hi Ross, Regardless of whether Mark cancels again, we should have a chat at 4. I will be at your place at 4. Regards, Robert | | Saturday, 30 January 2021 | 9:40 am | Email from Robert Coshott to Mark Shumsky Cc: Rosario Aversa | Good morning Mark, Further to the meeting yesterday. I have reported the outcomes of the meeting. In order for the funder to further consider its position, you are asked to advise on Monday by email on Monday which of the two offered methods of remuneration you/your firm prefer. Mark: it is suggested you review the terms of the funding agreement as regards the consequences for the Aversas of the course which you propose. You will see it is not in their interests. It would result in their losing the good prospects of a “bonanza”. As regards the representative (class) action, I have spoken to the proposed lead plaintiffs and they have confirmed that they do not want Mr XX to be involved. Regards, Robert [Emphasis in original.] | | Tuesday, 2 February 2021 | 9:23 am | Email from Robert Coshott to Mark Shumsky Cc: Rosario Aversa | Good morning Mark, What is the position with counsel? Regards, Robert | | Tuesday, 2 February 2021 | 1:33 pm | Email from Mark Shumsky to Robert Coshott Cc: Rosario Aversa | Good day Robert. YY has declared his conflict of interest and declines to act. He is aware of the matter. He provided advice to Crown Solicitors for RMS/TfNSW in respect of WestConnex. So he will not and cannot act. I’ll call you tomorrow. Mark Shumsky | | Wednesday, 3 February 2021 | 9:04 am | Email from Robert Coshott to Mark Shumsky only | Hi Mark, YY was obviously the man for the job. The RMS has a record of briefing the top silks to advise to ensure they cannot act against them. Please email ZZ ([email address]) and AA ([email address]) to see if they are available to act. ZZ has acted in a case against the RMS previously and should have no conflict of interest problem. If available, send them copy of the Amended List Statement to see if they will act and if so provide available dates. Do not mention proceedings are litigation funded as this may cause their fee expectations to increase markedly. Do not mention my involvement as this may cause ZZ to take on the case even if he believes he is not right for it. Regards, Robert | | Thursday, 4 February 2021 | 7:57 pm | Email from Robert Coshott to Mark Shumsky and Rosario Aversa | Good evening Gentlemen, It appears that XX does not want to grace us with his reasons why having a separate hearing of the liability is not the way to go. Not what we want in a senior counsel. It is unfortunate that the RMS has effectively excluded YY from taking our brief. However, we have other good alternatives in ZZ or AA to brief. Given we are back before the court next Wednesday, I suggest that Mark chase up whether our two alternatives are available and what are their available dates in March, April, May for a one day hearing. Mark should chase the Crown Solicitor for consent to hearing the liability separately and ask for their counsel’s available dates in March, April, May for the one day hearing. We will then be able to see which available dates suit both sides and ask the court to fix the hearing of the earliest of those dates suitable to the court Ross – do you agree? Mark – let us talk once you have counsel’s availability. Hopefully this will be tomorrow or Monday. Regards, Robert | | Wednesday, 3 February 2021 | 10:22 am | Email from Mark Shumsky to Robert Coshott | No problem, Robert. Mark Shumsky | | Wednesday, 3 February 2021 | 12:25 pm | Email from Robert Coshott to Mark Shumsky | Thanks | | Friday, 5 February 2021 | 12:35 pm | Email from Mark Shumsky to Robert Coshott | Hi Robert. I have received a response from AA and looks like [his] availability is ok. We went through the basic info AA needs. He is doing a capacity/conflicts check and get back to me today or Monday. He wants to know who we have or who will be junior counsel. I left that question to discuss later subject to his response. | | Friday, 5 February 2021 | 1:44 pm | Email from Mark Shumsky to Robert Coshott | Good afternoon, We will seek clarification on those points re separate hearing. As for reasoning for the quantum report. What was being sought I understood was a misappropriation of our clients proprietary interests. It boils down to principles and maxims of equity. The remedy is not “damages” as most might understand it. It is equitable relief for breach of trust and/or breach of fiduciary duty, that is remedy based on an resulting from the consequences of RMS’s “wrongdoing”. The substrata subdivisions and subsequent acquisitions by RMS were illegal. Account of Profits is a remedy that can be granted in cases where defendants have profited from their wrongs. It is the principal remedy for breach of fiduciary duty and breach of obligations of confidence. I have dug up some of the cases and authorities used by Michael Evans SC in and Hon Michael Kirby et al and in various texts that Account of Profits is underutilised by lawyers in AU and in other countries where common law and law of equity are utilised. We shall discuss after news of counsel’s availability. | | Friday, 5 February 2021 | 4:39 pm | Email from Robert Coshott to Mark Shumsky | Mark, Who are you seeking clarification from? If you do not intend to get a date for a separate liability hearing on 10th, please advise immediately so the funder can take such steps as it considers appropriate. Robert. | | Friday, 5 February 2021 | 7:53 pm | Email from Robert Coshott to Rosario Aversa Cc: Mark Shumsky | Good evening Rosario and Antonia, You will recall that last Friday I made the funder’s position clear. It wished the liability question to be listed for hearing first and separately from the quantum of damages. I note that you wished to have a written advice from XX as to why you should not proceed with the liability question first. As far as I know, XX has not provided the required written advice. Consequent upon the non-advice, we urged Mr Shumsky to explore the availability of other senior counsel to appear on the liability hearing. It appears that AA is available. Unfortunately, an email received from Mr Shumsky today has given the funder great concern that on Wednesday 10 Feb he will not be seeking a hearing date for the hearing of the liability question. It must be assumed that this is on your instructions. He has not responded to our request that he advise what his intention is for the 10th. If, on Wednesday 10th, a hearing date is not fixed for the liability question, the funder will exercise its right to terminate the funding agreement. The consequence of this would be that you either find alternative funding, fund the proceedings yourselves, or seek to reach an agreement with the RMS as discussed last Friday. Any such agreement should make provision for your liability to the funder. If you wish to discuss this with me, I am available between now and Wednesday to do so. You have my number. I personally regret it has come to this. I hope this can be resolved. Best regards, Robert | | Friday, 5 February 2021 | 7:56 pm | Email from Robert Coshott to Mark Shumsky | Mark, The funder has requested that you provide an itemised bill of costs for your work to date. Please note that the lump sum remuneration option is no longer on the table. Robert | | Tuesday, 9 February 2021 | 12:07 pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Gentlemen, It is regrettable that neither of you has responded to my recent emails, nor provided information as to your intentions regarding the progress of this matter. It must be assumed that, unless advised to the contrary, that a date for hearing of the liability question separately from the quantum will not be obtained tomorrow. A review of correspondence and events since October last year when Mark took over conduct of the proceedings confirms that clause 8 of the Funding Agreements has not been complied with on several occasions. This gives rise to the funder being entitled to give notice of breach under clause 9.5 of the Funding Agreement. Such a notice under each relevant Funding Agreement is being prepared will follow later today. Regards, Robert | | Tuesday, 9 February 2021 | 4:16 pm | Email from Robert Coshott to Rosario Aversa. Cc: Mark Shumsky | Hi Ross, Herewith is Notice of Breach as foreshadowed in the email of earlier today. Regards, Robert [] |

15. The Notice of Breach of Funding Agreement dated 9 February 2021, which was annexed, reads as follows:

“NOTICE OF BREACH OF FUNDING AGREEMENT

To: Rosario Aversa and Antonia Aversa

TAKE NOTICE that you are in breach of the Funding Agreements entered into by you on 18 September 2019 in regard to proceedings against the Roads and Maritime Services/Transport for New South Wales, namely clause 8 of those agreements and you are required to rectify those breaches within fourteen (14) days of this notice.

Particulars of Breaches

Failed to keep the Funder advised of the progress and status of the proceedings, namely what occurred and what orders were made at the directions hearing in November 2020; what your intention was regarding the orders to be made at the directions hearing on 10 February 2021; what orders will sought [sic] at the directions hearing on 10 February 2021

Failed to consult and consider the views of the Funder in relation to any material issues arising from the conduct and/or progress of the proceedings, namely regarding the separate hearing of the liability question before the hearing of the quantum of damages

Failed to provide and instruct your solicitors to provide such information from time to time to the Funder as may be reasonably required by the Funder in relation to the proceedings

Failed to instruct your solicitors to make available to the Funder its file for inspection at all times”

16. The notice was signed, apparently by Mr Coshott, with the signature block reading “Director, Litigation Fund WCX Pty Ltd”.

17. The following email correspondence then occurred between Mr Coshott, Mr Shumsky and Mr Morris:

| Date | Time | To / From | Contents | | Tuesday, 9 February 2021 | 5:12 pm | Email from Robert Coshott to Mark Shumsky | Hi Mark, Please eft the $50,000.00 put into trust to be held a show of good faith back to the bank account from where they came as a show of good faith is no longer required in light of recent events and the termination of the Funding Agreements which will likely occur shortly. Regards, Robert Coshott Director, Litigation Fund WCX Pty Ltd. | | Tuesday, 23 February 2021 | 5:02 pm | Email from Christopher Morris (from Stacks Collins Thompson) to Robert Coshott | Dear Sir, Please find our letter of today’s date attached. Kind regards, Christopher Morris Solicitor |

18. The letter addressed to Robert Coshott, WCX Pty Limited, dated 23 February 2021 from Christopher Morris, Solicitor, reads:

“[…]

Dear Sir,

R and A Aversa v Roads and Maritime Services and Registrar General

We refer to the Notice of Breach of Funding Agreement dated 9 February 2021 and served on our office.

We confirm that our client is seeking independent legal advice in relation to the abovementioned Notice of Breach and requires an additional fourteen days to provide a response. We request that you please refrain from taking further action during that period.”

19. The next day, the following email was sent:

| Date | Time | To / From | Contents | | Wednesday, 24 February 2021 | 1:41 pm | Email from Robert Coshott to Rosario Aversa [I note that the email address for Robert Coshott is “Michael Coshott ”] | Termination of Funding Agreement Dear Ross, Attached is Notice of Termination of Funding Agreement. Regrettably, the Funding Agreement is now at an end. If you have any tax invoices for costs upto today from Stack Collins Thompson you may claim these under the agreement by emailing copies thereof to this email under cover of your claim for funding in respect thereof. You will be aware that any further funding provided pursuant to the agreement will be added to the total amount already payable by you under the agreement. Unfortunately, your choice not to respond to recent communications has left no choice but to terminate the agreement. Should you wish to seek fresh funding, we would be happy to consider this in light of the circumstances that exist at that time. The representative action is proceeding without awaiting a result in your case which is unlikely to be any time soon if at all. Best wishes, Robert Coshott, Director [Annexing signed notice of termination.pdf] |

20. Annexed to the above email was a document containing the following:

“NOTICE OF TERMINATION OF FUNDING AGREMEENT

To: Rosario Aversa and Antonia Aversa

TAKE NOTICE that the Funding Agreements entered into by you on 18 September 2019 in regard to proceedings against the Roads and Maritime Services/Transport for New South Wales pursuant to clause 9.5 of the agreement are terminated.”

(Emphasis in original.)

21. The notice was signed, apparently by Mr Coshott, with the signature block reading “Director, Litigation Fund WCX Pty Ltd”.

22. The final email was sent in reply as follows:

| Date | Time | To / From | Contents | | Wednesday, 24 February 2021 | 1:59 pm | Email from Robert Coshott to Christopher Morris | Re: 200458: R and A Aversa v Roads and Maritime Services and Registrar General: Dear Sir, The Funding Agreement has been terminated. Yours faithfully, Robert Coshott |

Other material relied upon by the plaintiff

23. Also annexed to Mr Capello’s affidavit was what appears to be a bank statement from the Commonwealth Bank for dates between 3 and 22 September 2020 inclusive, albeit with no usual statement details other than the initials “CDIA” and what appears to be a BSB and account number. It shows two entries on 3 September 2020 for payments out of the account of $4,950.00 and $27,270.00 with descriptions “Aversa fees RR” and “Aversa fee XX” respectively.

24. Also produced are tax invoices or receipts from:

25. XX headed “Aversa v RMS” dated: 13 March 2020 for $9,817.50; 1 April 2020 for $13,777.50; 21 August 2020 for $27,270.83; 18 September 2020 for $12,155.00.

26. RR in relation to “Rosario Aversa v Roads and Maritime Services” dated as issued on: 17 March 2020 for $3,458.13; 11 June 2020 for $5,458.76; 24 July 2020 for $13,846.28 and $6,716.88; 28 August 2020 for $4,950.00; 21 September 2020 for $1,540.00.

27. Two more banking related documents the import of which is unclear.

The purported agreements

25. As noted, there were three purported agreements (in relation to three separate properties): two signed by both of the defendants and one signed only by Mr Aversa (which reflected the ownership of each of the properties). As further noted, they were in relevantly identical terms and are sometimes referred to in this judgment, for convenience, as “the agreement”. The agreement included the following relevant provisions.

26. Recitals A and B are in the following terms:

“A. The Clients and the Funder enter into this Agreement under which the Funder will fund Proceedings in relation to damages against Roads and Maritime Services or its successor resulting from the acquisition of substratum and construction of a tollway adversely affecting property owned by the client (‘the Proceedings’).

B. The Clients and the Funder have agreed that this funding transaction referred to in recital A will be governed by the provisions of this Agreement.”

27. Clause 1.1 defines “Firm” to mean:

“[T]he legal practice instructed by the clients as specified in Item 4 of the Schedule.”

28. Clause 1.1 defines “Proceedings” to mean:

“(a) any demand or claim made by the Client; and

(b) any court proceedings commenced by the Client pursuant to such a demand or claim

(c) Any Action to enforce the result of the proceedings including the cost & disbursement relating to the sale of the Property”

29. Under the heading, Warranties and Representations, cl 3(f) reads:

“(f) All statements and information their [sic] instructions to their solicitor are and will be accurate and not misleading to the best of the knowledge and belief of the Clients after making all reasonable enquiries.”

30. Under the heading, Representatives and Conduct of Proceedings:

“8.1 Firm to be instructed

The Clients acknowledge and agree, subject to clause 8.2, that the Firm unless terminated by agreement with the Clients (in which case the termination and any replacement for the Firm must be first approved by the Funder), will continue to be instructed by the Clients in all matters relating to Proceedings, any Appeal therefrom and any Examination the subject of a Funding Transaction and that the Clients have the right to direct, conduct and conclude the Proceedings or any Appeal therefrom by way of settlement. If the clients breach this Clause or discontinue the Proceedings they will forthwith pay to the Funder an amount of $350,000.00 and repay it to all monies advanced by the Lender.

8.2 Client’s undertakings

Notwithstanding the provisions of clause 8.1, the Clients undertake to and will:

(a) keep the Funder advised of the progress and status of any Proceedings, any Appeal therefrom and any Examination which is the subject of the Funding Transaction;

(b) consult with and consider the views of the Funder in relation to any material issues arising from the conduct and/or progress of the Proceedings, any Appeal therefrom n [sic] and in particular, in relation to any offer of settlement;

(d) provide and instruct their solicitors to provide such information from time to time to the Funder as may be reasonably required by the Funder in relation to the Proceedings, any Appeal therefrom which is the subject of a Funding Transaction and will instruct the Firm to make available to the Funder its file for inspection at all times.

8.3 Provision of other information

The Clients agree to disclose to the Funder upon such information coming to his knowledge, all information received from time to time which may have a material impact on the Proceedings, any Appeal therefrom which is the subject of the Funding Transaction, or the continuation of payments under this Agreement.”

31. Item 4 of the Schedule stated “(‘Firm’ Solicitors)” followed by the name of the previous solicitor in the Aversa Proceedings.

32. Under the heading, Termination of Funding Transaction:

“9.1 Termination of Funding Transactions

Each Funding Transaction will continue, subject to clause 9.2, until the Repayment Date therefor.

9.2 Ability to terminate early without cause

Subject to clause 9.3, the Funder may at any time terminate a Funding Transaction on the giving of reasonable notice in writing, such notice to be no less than a reasonable period to enable the Clients to source alternate funding for the Proceedings or any Appeal therefrom (but not exceeding 60 days from the date of the notice terminating the Funding Transaction). The obligations of the Funder under this Agreement in respect of the Funding Transaction will continue until the termination of the Funding Transaction.

9.3 When Funder cannot terminate Funding Transaction

The Funder may not terminate a Funding Transaction pursuant to clause 9.2 if an Appeal in the relevant Proceedings is filed.

9.4 Finalisation of Proceedings

If Proceedings (or any Appeal therefrom) which are the subject of the Funding Transaction which has been terminated pursuant to clause 9.2 or by the Clients pursuant to clause 9.5 are finalized by way of settlement, judgment or otherwise and a Final Amount is received by the Client, the Clients agree to repay to the Funder any amounts paid by the Funder from the Final Amount, provided however, that if the Final Amount is less than the aggregate of Costs & disbarments [sic] paid by the Funder plus any Applicable GST, the Clients will not be required to repay to the Funder any amount in excess of the Final Amount less any Applicable GST.

9.5 Termination for breach

The Clients or the Funder may terminate a Funding Transaction immediately by notice in writing to the other party if the other party is in breach of any term of this Agreement and such breach is not remedied within 14 days of written notice by the party not in breach advising the breach and requiring its rectification. For the purposes of this clause 9.5, a breach of a term of this Agreement by the Funder includes the Funder’s failure to make payment in terms of clause 4.2 or to provide security in terms of clause 7.2. […]”

33. Under the heading, Clients’ Other Obligations:

“The Clients must:

(a) conduct Proceedings which are funded by the Funder in a proper, skilful, diligent and efficient manner;

(b) where appropriate, consult with the Funder as to the identity and use of consultants, advisors and legal representatives proposed to be engaged in Examinations or Proceedings;

(c) not act or omit to act in a manner which results in any of the information or statements made by her [sic] being incorrect without the prior written consent of the Funder; or

(d) not apply any funding paid by the Funder under a Funding Transaction except in payment of Costs.

(e) quantify and collect any party and party costs orders made in the clients’ favour and pay the monies so collected to the Funder within 14 days of receipt thereof.”

34. Under the heading, Dispute Resolution:

“If a dispute arises out of or relates to this Agreement or a Funding Transaction, or the breach, termination, validity or subject matter of a Funding Transaction, or as to any claim in tort, in equity or pursuant to any statute or law concerning this Agreement or a Funding Transaction, the Funder and the Clients agree to settle the dispute by expert determination administered by the Australian Commercial Disputes Centre (ACDC) and in such case the following provisions apply:

(a) A party claiming that a dispute has arisen, must give written notice to the other party (“recipient”) specifying the nature of the dispute.

(b) On receipt by the recipient of the notice specified in paragraph (a), the Funder and the Client must within 7 days of such date of receipt meet to seek to resolve the dispute.

(c) If the dispute is not resolved within such 7 day period or within such further period as the Funder and the Client agree, then the dispute is to be referred to ACDC.

(d) The expert determination shall be conducted in accordance with the rules and guidelines of the ACDC including the procedures to be adopted, the process of selection of the expert and the costs involved.”

35. Under the heading, Notices:

“15.1 Form of Notice

All notices and other communications by a party shall be in writing and signed by the party or a director, secretary or other duly authorised officer or the solicitor of the party giving such notice or communication.”

36. Under the heading, Address for service, it was provided that notices and communications may be delivered by hand or sent by post or email in a manner specified in the agreement.

The defendants’ evidence

37. The defendant relied on the following evidence: an affidavit of Mark Shumsky affirmed 15 March 2024 with annexures; an affidavit of Mrs Antonia Aversa affirmed 14 March 2024, with annexures; an affidavit of Mr Rosario Aversa affirmed 14 March 2024, with annexures; and an affidavit of Christopher John Morris affirmed on 8 February 2023. All but Mr Morris were cross-examined.

Mark Shumsky – Solicitor

Evidence in chief of Mark Shumsky

38. Mark Shumsky was called first. He relied upon his affidavit, affirmed on 15 March 2024, in which the following was set out.

39. Mr Shumsky (“MS”) received a telephone call from Mr Coshott (“RC”) on or about 13 September 2020 and they had a conversation to the following effect:

RC: “I am Robert Coshott and am organising funding for litigation concerning Westconnex against the NSW Government. I would like you to take over carriage of the litigation. Could you please meet with me at Due Mondi Society Café in the city tomorrow? Could you please also contact XX who is Senior Counsel in the matter*.*’

MS: “I will see you tomorrow at the café at Phillip Street”

(Emphasis in original.)

40. The two men met as arranged on 14 September 2020 and there was a “lengthy conference” which included a conversation with the words to the following effect:

MS: “I have been asked to take over carriage of the Aversa matter and the firm that I work for is Stacks Collins Thompson. I understand that there must be a large file in the matter and I will be seeking to take over the file from [the previous solicitors].”

RC: “The litigation funder confirms your firm’s remuneration, the funder will guarantee payment of your invoices as soon as they are issued to the clients. The litigation funder also fully indemnifies the clients in the event of any adverse costs orders.”

(Emphasis in original.)

41. Mr Shumsky then produced a series of emails many of which, notably, had not been tendered in the plaintiff’s case.

42. On 14 September 2020, at 1:16pm, Mr Shumsky received an email request from Mr Coshott requesting that he prepare a retainer agreement for Mr and Mrs Aversa which reads:

“Hi Mark,

The test case plaintiffs are:

Rosario Aversa and Antonia Aversa

The defendants are:

Roads and Maritime Services (now Transport for NSW) and the Registrar General

The case number is 2019/00314755

Please prepare a retainer agreement to commence on 1 October 2020 for signature by the plaintiffs.

An NDA will be provided for signature once we know who is to be entering into it.

Once we know the terms of your remuneration, an agreement will be entered into with the litigation funder.

I await the retainer agreement and advice re: remuneration etc..

Robert”

43. On 15 September 2020 at 9:26am, Mr Shumsky received an email from Mr Coshott at 9:26am which reads:

“Good morning Mark,

The Aversas’ address for the Costs Agreement is […] Street, Haberfield 2045.

Regards,

Robert.”

44. On 16 September 2020 at 4:37pm, Mr Shumsky wrote to Mr Coshott attaching a draft costs agreement, and stating, *“*It will obviously need tweaking and details added as to fee estimates. I will be guided by you in that respect. It should also address barristers fees, is there a set amount, do I need to ask XX about that?”

45. On 17 September 2020 at 8:36am, Mr Shumsky received an email from Mr Coshott thanking him for the draft costs agreement and stating, “As discussed, your commencement date will be first week of October*”.*

46. On 17 September 2020 at 10:49am, Mr Shumsky received an email from Mr Coshott stating:

“We have to bring the change-over forward. We shall do it asap next week.

I am meeting with the Aversas and the many other owners who have signed up on Saturday. The Aversas are happy to change to you. The others will be also.

[…] Best we meet on Monday in CBD if this is convenient to you. I will bring the signed Aversa Costs agreement with me. […]”

47. On 17 September 2020 at 11:53am, Mr Shumsky received a further email from Mr Coshott stating:

“Please contact XX [Senior Counsel] and inform him you are taking over the Aversa/WestConnex proceedings.”

48. On 18 September 2020 at 7:53am (elsewhere recorded as 7:52am), Mr Shumsky sent an email to Mr Coshott confirming the date and time of their next meeting, reporting that the matter had been stood over for two weeks, and that he had spoken with XX the previous afternoon. He also stated:

“I will need to obtain the file from Jim, inform the Registry of the changeover and get me on the record asap in order to start working on the matter with XX and RR [Senior and Junior Counsel].

Shall I contact Jim today, or wait until Monday?

See you Monday morning.”

49. On 18 September 2020 at 8:16am, Mr Coshott sent an email to Mr Shumsky stating:

“I will bring you the full file (electronic) on Monday.

The action needed for the directions can be worked out on Monday. at our meeting.

Attached is a partially completed Notice of Change which you can file and serve electronically on the crown solicitor, the Registrar General, and [the previous solicitor] as soon as you want.

See you Monday.”

50. Attached to the email was a Notice of Change of Solicitor.

51. Mr Shumsky and Mr Coshott met on 21 September 2020 as arranged during which they had a lengthy conversation which included words to the following effect:

MS: “We will need to prepare new orders and a draft calendar for filing and we will need to attend to serving and filing further documents including Notices to Produce. The matter is listed for a Directions Hearing on the 29 September 2020. We will obtain the files from the previous solicitors, inform the Registry of the changeover, and start working on the matter with barristers XX and RR. We must file proposed Orders before 10AM Friday, otherwise we could be facing a guillotine Order.”

RC: “I’m giving you files that I have for the matter. I will email a copy of your clients’ signed agreement with the funder. I suggest that your firm might want to agree to an offer that the funder will pay you $1,000,000 from the proceeds of the proceedings, but even if you are not successful, the funder will pay you for all provision of legal services provided for Mr and Mrs Aversa.”

MS: “We usually do not work on a contingency basis and our firm’s polic**y is to issue invoices for work done which we propose to do on a monthly basis and progress payments are due on that basis.”

(Emphasis in original.)

52. On or about Monday 21 September 2020, Mr Shumsky received a costs agreement signed by Rosario and Antonia Aversa. It was marked as signed on 18 September 2020.

53. On 21 September 2020 at 3:22pm, Mr Shumsky received by email from Mr Coshott a copy of the Aversa signed funding agreement, which was described as the template for all the funding agreements.

54. On 21 September 2020 at 4:53pm, Mr Shumsky sent an email to Mr Coshott, including the following:

“Could you also send me the Aversa’s telephone number and email address, if they have one. I need it for the record to register them in system [sic] as clients.”

55. Mr Coshott provided these details by email on 22 September 2020 at 8:22 am.

56. Mr Shumsky had a telephone conversation with Mr Aversa (“RA”) on or about 22 September 2020 to the following effect:

MS: “Our firm will be taking over the carriage of this matter from your previous solicitors […]. I have received your signed costs agreement and want to confirm you agree.”

RA: “Yes we agree for you to take over from Murphy Lyons thank you. About a year ago, we entered into a Litigation Funding Agreement with Litigation Fund WCX Pty Ltd. Robert Coshott had asked us to sign it and promised that all the funding for the case would be covered by the funder, including any costs in case the matter was not successful.”

57. On 23 September 2020, Mr Shumsky emailed Mr Coshott confirming he had spoken with Mr Aversa, and to the barristers, and that he would call Mr Coshott the following day to discuss the proposed directions, to confirm the e-court filing and also “other related matters in more detail”.

58. Between 18 September 2020 and 5 February 2021, Mr Shumsky corresponded with Mr Coshott via regular emails to provide updates regarding the progress of the Aversa proceedings. In 2020, these included the following:

59. 21 October 2020 at 7:46pm (MS to RC):

“Can we meet tomorrow morning I need your assistance on a few more issues, please. Can we meet at 8:30am at the usual place?

I’d like to secure the funders and ask them to deposit $50k for the Aversas into our trust account. Who should I email with the request? Can you help me also with issues with counsel.

If I ask XX to meet us will you come with me to explain proposed course with him and also to explain the question of engaging experts.

There is no confirmation received that Defendants concur with the motion. […] did not sound positive. In any case as we discussed proposed directions will be filed via e-court tomorrow.

Let me know if 8:30am is OK for tomorrow […].”

2. 21 October 2020 at 8:04am (RC to MS):

“I cannot make it tomorrow in town.

Please let me know what the $50k is for and I will speak to funders.

What did [previous solicitor] want from you?”

3. 28 October 2020 at 1:28pm (RC to MS):

“What’s the news?”

4. 28 October 2020 at 5:05pm (MS to RC):

“We have attended to the Notice.

Matter listed for directions on Tuesday for the purpose of setting down a timetable for hearing.

Last Thursday we requested that $50 thousand be deposited into trust.

We are still waiting for your deposit of funds to our Trust account.

The details of the account for the deposit are:

[…]

Robert, the Aversa [sic] have clearly instructed the funds should be deposited as soon as possible.

We can then further discuss the matter and ongoing requirements.

After the deposit is made we should meet up and discuss.”

59. As set out above at [58(2)], on 21 October 2020, Mr Shumsky emailed Mr Coshott requesting that $50,000 be provided for the Aversa Proceedings, and Mr Coshott replied asking about the purpose for which the funds were required. On 22 October 2020 at 4:28pm, Mr Shumsky replied:

“Robert,

The $50K in trust is to ensure our fees and disbursements for the Aversa matter. It is the usual practice for my firm to have monies in trust for a matter.

In addition it will satisfy concerns of the clients and potentially any 3rd parties in respect of the funder’s capacity to cover future costs or adverse costs orders.

Will appreciate this taken care of quickly so I am free of funder issues dragging me down. The details of the account for the deposit are:

[…]”

60. On 28 October 2020 at 5:25pm, Mr Coshott emailed Mr Shumsky stating, “thanks for the update. will advise when funds transferred*”.*

61. On 4 November 2020 at 12:36pm, Mr Shumsky emailed Mr Coshott stating, “Have funds transfer been arranged yet? Please let me know. I need to let the clients know asap.” Later that day Mr Coshott replied to Mr Shumsky stating that he was awaiting Foreign Investment Review Board approval of a much larger amount “which includes the $50K for [him]” and that it “[s]hould be in bank by early next week*”.*

62. On 9 November 2020 at 9:31 am, Mr Shumsky received an email from Mr Coshott requesting a letter addressed to the Foreign Investment Review Board. This was provided to Mr Coshott later that day.

63. Between 15 December 2020 and 17 December 2020, Mr Shumsky’s firm received amounts in its trust account that totalled an amount of $50,000 in three transfers.

2021 email exchanges

64. Mr Shumsky also set out email exchanges between Mr Shumsky and Mr Coshott (which were also included in the evidence tendered by the plaintiff, set out above) on 2 February 2021 at 9:23am [1] , 2 February 2021 at 1:33pm; 3 February 2021 at 9:05am; 3 February 2021 at 10:22am; 4 February 2021 at 7:58pm; 5 February 2021 at 12:36pm; and 5 February 2021 at 1:44pm.

29 January 2021 meeting

65. Mr Shumsky set out in his affidavit that on 29 January 2021 he attended an in-person meeting with Mr and Mrs Aversa and Mr Coshott at the Aversa’s home in Haberfield. He said the three other attendees were present throughout the entirety of the meeting which began at 4.30pm and concluded at 6.45pm. Mr Shumsky said that he did not recall the precise words spoken at the meeting, but in broad terms the following matters were discussed:

“i) At the commencement of the meeting I outlined the progress of the Aversa proceedings to date and summarised the orders made by the Supreme Court in the Aversa Proceedings over the previous three months.

ii) I confirmed that the next directions listing in the Aversa Proceedings was set for 10 February 2021 and that our way forward should be guided by Counsel.

iii) I identified the main issues to be discussed during the meeting, including the issuing of a Notice to Produce to the other parties, the continued engagement of Counsel and their advice concerning the Aversa Proceedings and the issue of ongoing funding of the Aversa Proceedings.

iv) I discussed issues that were being disputed by the other parties to the Aversa Proceedings, which included the terms of an amended Notice to Produce, the need to obtain expert evidence regarding quantum, the scope of the expert evidence, the extent of discovery to be produced and provided to the expert(s) and the content of my letter to the other parties sent in November 2020.

v) I discussed advice by Counsel to date and confirmed that both XX and RR had strongly recommended that we engage experts to provide an expert report at present. Counsel also indicated they were opposed to seeking separate hearings regarding the question of liability and quantum which was an option open to us.

vi) We discussed the funding of the Aversa Proceedings. We discussed whether the litigation funding agreement signed by Mr and Mrs Aversa and Litigation Fund WCX was still enforceable given that the agreement containing termination dates which had since passed.

vii) We discussed the importance of Mr and Mrs Aversa having security for costs in place in the event an adverse costs order was made against them. I discussed that previously Mr Coshott had suggested a figure of $250,000 if the matter runs to the end of the year.

viii) I indicated that security is normally done by having funds in our solicitors trust account. I further indicated that we were expecting a sum of $250,000 to be deposited after funding of that amount was obtained from overseas sources by the funder.

ix) I noted that the costs agreement estimated costs of $300,000 including disbursements and that didn’t include costs incurred prior to Stacks being engaged.

x) I noted that Counsel has indicated that they were fully paid up to a date last year.

xi) I outlined work that had been performed by Stacks to date. I discussed that we would need to obtain expert evidence regarding matters of valuation and an assessment of profits by Westconnex. I further discussed that an expert analysis would be required to quantify the value of leases granted by the RMS in relation to the project. I also noted that the Notice to Produce sought information relating to the value of the leases.

xii) Regarding engaging an expert, I discussed that their area of expertise would need to be in accountancy, assessment and analysis of profits and in valuation. I indicated that we anticipated the evidence will address issues of quantum of damage flowing from the acquisition of Mr and Mrs Aversa’s substrata lands.

xiii) I discussed that Stacks Collins Thompson was also collaborating with solicitor Christina Joy who was a principle of CJV law firm and was also a convenor of the Leichhardt Against WestConnex action group. I discussed that I had been communicating with her and that Ms Joy had knowledge of the RMS acquisition, M4-M5 and Transurban contract matters and related matters. I indicated my view that my collaboration with Ms Joy had been somewhat useful in assisting my understanding of what documents we might seek.

xiv) Mr Coshott stated he believes the experts put forward by XX were in his opinion not required at this stage. I noted that Mr Coshott had initially suggested the names of the experts as being the best people for the matter. I further noted Mr Coshott had sourced them and corresponded with the experts.

xv) I then went on to discuss Counsel’s advice which acknowledged potential problems with the Notices to Produce. I confirmed that the first defendant had raised concerns in correspondence and filed a Notice of Motion seeking to set aside the Notice to Produce. The Notice of Motion sought to set aside the Notice to Produce on the grounds of confidentiality, irrelevance and public interest immunity.

xvi) I discussed the above Notice of Motion at length, including the relevant Supreme Court practice note and whether it is applicable to the documents sought in the Notice to Produce. I discussed that it may be necessary to seek the Court’s leave to proceed given the restraints imposed on orders for discovery prior to service of lay evidence. I confirmed Counsel had advised that we should seek leave and that it is likely that leave would be granted.

xvii) Mr Coshott stated he has concerns that XX [Senior Counsel] and junior counsel RR have not been competent in the matter given Mr and Mrs Aversa were obliged to file an amended Statement of Claim. Mr Coshott suggested that I should approach alternative Counsel, YY seeking his opinion and advice. I replied that I had made enquiries however he would not be available for some time.

xviii) I confirmed we would have a conference with XX who would be returning from leave in the near future. I stated the view and Mr and Mrs Aversa agreed that we should wait for our existing Counsel to report and advise before we further consider whether to seek alternative counsel. Mr Coshott suggested that if YY is unavailable then ZZ ought to be approached.

xix) I discussed the issue of legal costs incurred to date. I noted that Stacks Collins Thompson had received $50,000 which almost fully covered work performed to date.

xx) I discussed future costs and the need for monies to be deposited into trust. I confirmed that we had recently written a letter addressed to the Foreign Investment Review Board confirming that funds to be obtained from overseas sources by the litigation funder were to be used for these proceedings. I described the content of that letter.

xxi) I discussed that we were expecting to receive $250,000 into our trust account in relation to these proceedings, not just the $50,000 we had received. Mr Aversa stated he would expect that more funds would be required given there will be future counsel fees, expert fees and potentially the other side’s legal costs if we lost the case. I agreed that was an important issue and that the funder would need to disclose its ability to fund these proceedings and any adverse costs order.

xxii) Mr Coshott confirmed the funder was aware that the costs of both parties could exceed $500,000.

xxiii) We discussed the prospects of the proceedings. Mr Coshott stated he had a letter from XX stating not only were the prospects of success reasonable, they were very strong. Mr Coshott stated it was rare for a Queens Counsel to express such a strong view.

xxiv) Both Mr Aversa and I stated words to the effect that if the potential adverse costs order is $500,000 plus, we need to ensure that Mr and Mrs Aversa are protected and that we need to be confident the funder is willing and able to cover those costs in the event of an adverse costs order. Mr Coshott stated that can be achieved by way of cash at bank.

xxv) Mr Coshott stated the funding agreement doesn’t impose an obligation on the funder to provide costs up front. There is also no obligation to disclose its financial status or to provide security. Mr Coshott further stated that pre-payments were a matter of discretion for the funder and that the funds obtained from overseas are held in an Australian bank account.

xxvi) Mr Aversa asked Mr Coshott for evidence of available funds and assets. Mr Coshott stated he would ask the funder about further funding.

xxvii) Mr Coshott said the funders were very unhappy that approximately $150,000 had already been paid to XX and RR. He stated it is time to change counsel. I said that would be very difficult if not impossible without alternative counsel having first been engaged. Mr and Mrs Aversa agreed with my statements. Mr Coshott agreed new counsel would first need to be acquired however asked that I make follow up phone calls to YY.

xxviii) Mr Coshott asked with words to the effect ‘how much does your firm want and need to continue?’. I said I will talk with our firm’s director and that we might need to issue an updated costs agreement. Mr Coshott said the estimate should be detailed and set out the basis for a further request for funding.

xxix) Mr Coshott stated ‘the Funders’ will insist that the issue of liability and quantum be separated and dealt with a[t] separate hearings. He stated the liability question should be dealt with first. He stated his view that if the liability question went against the Aversa[s] there would be no need to incur expenses proving quantum. He stated determining liability first would facilitate the ‘just, quick and cheap resolution of the real issues’. He stated his view that would save considerable court time and costs, particularly with reference to expert evidence. He stated that if liability was determined in our favour, that would remove a major obstacle to settling the proceedings.

xxx) Mr Coshott went on to say words to the effect that as a ‘test case’, a declaration of liability would be important to the around 3000 other property owners affected by the compulsory acquisition of the substrata of their properties. I acknowledged that considering separating the question of liability and quantum should be seriously considered, however, that Counsel had advised that seeking to do so would not be a good idea

xxxi) Mr Coshott said words to the effect ‘the separation of liability issue is necessary and those are the directions for orders that the Funders will require Mr Shumsky to obtain from the Court at the next hearing’.

xxxii) Mr and Mrs Aversa asked me to get back to them after discussions with Counsel take place next week.

xxxiii) Mr Aversa said even though he and Mrs Aversa had previously heard assurances from Mr Coshott that they would be fully financially covered in all circumstances, they now feel there is uncertainty as to what could happen if the Funders decide to terminate or if the Funders have the discretion to turn around and say they are not happy with progress or with the course of legal representation.

xxxiv) Mr Coshott replied that if Mr and Mrs Aversa had any concerns it was open to them to terminate the agreement although they should keep in mind they might lose the chance at a “bonanza”. He further stated they would be liabile to return the funds that had been provided to them so far in the amount of around $200,000.

xxxv) Mr and Mrs Aversa instructed me to attempt to enter into a more secure agreement with Mr Coshott or Litigation Fund WCX Pty Ltd if required and try to […] ensure there would be no risk to them as plaintiffs.

xxxvi) Mr Aversa said ‘I am hopeful a settlement can be reached with the RMS that avoids incurring a lot of extra costs’.”

66. Mr Shumsky went on to say that the meeting concluded at 6:45pm. He created a file note of the meeting recording what was discussed. Mr Shumsky produced that typed file note.

67. He said it was his usual practice to contemporaneously record all his activities relating to a given matter on practice management software maintained by his employer and that “time record” is automatically added to invoices issued to the clients for a particular matter. He recorded his work in relation to the Aversa proceedings in accordance with his usual practice.

68. The relevant invoice records that he spent 22 units (one unit equalling six minutes) which indicates he spent 2 hours and 12 minutes attending the meeting.

Following the 29 January 2021 meeting

69. On Saturday 30 January 2021, Mr Shumsky received an email from Mr Coshott, copied to Mr Aversa. It stated:

“[…] Further to the meeting yesterday.

I have reported the outcomes of the meeting.

In order for the funder to further consider its position, you are asked to advise on Monday by email on Monday which of the two offered methods of remuneration you/your firm prefer.

Mark: it is suggested you review the terms of the funding agreement as regards the consequences for the Aversas of the course which you propose. You will see it is not in their interests. It would result in their losing the good prospects of a ‘bonanza’.

As regards the representative (class) action, I have spoken to the proposed lead plaintiffs and they have confirmed that they do not want XX to be involved.”

70. I note in passing that the references by Mr Coshott to “the funder” in the third person, and that he has purportedly “reported” the outcomes of the meeting to the funder is a most curious use of language given that Mr Coshott is the sole director and shareholder of the funder (the plaintiff in this case). The above example is not the only example of this curious language.

71. On 2 February 2021 at 9:23 am, Mr Coshott emailed Mr Shumsky asking, “What is the position with Counsel?”. That day, Mr Shumsky replied as set out above in the emails produced by the plaintiff that YY had a conflict of interest. Further emails about counsel (concerning their advice and seeking alternative counsel) were exchanged on 3, 4 and 5 February 2021, again as set out above in the emails produced by the plaintiff.

72. Mr Shumsky set out the emails exchanged between him and Mr Coshott on 5 February 2021 at 4.40pm, 7:54pm and 7:56pm; and 9 February 2021 at 12:08pm and 4:16pm as set out by the plaintiff in his evidence above.

73. Mr Shumsky then set out and/or attached additional emails, not referred to by Mr Coshott.

74. On 14 February 2021 at 12:34, Mr Coshott sent an email to Mr Shumsky and another solicitor from Mr Shumsky’s firm, Mr David Thompson, stating:

“Gentlemen,

As Mark knows, I am the director of Coshott Family Pty Ltd, a trustee company.

In December 2020, a total of $50,000 was EFT’d into your firm’s trust account to be held in trust.

On 9 February 2021, instructions were given to return those monies via EFT to the company’s bank account, being the bank account from which those funds were received.

Unfortunately, these monies have not been received back into the company’s bank account, nor has there been any communication from your firm in regard to the return of the monies.

So there is no doubt, I confirm that Coshott Family Pty Ltd instructs that these monies be returned to its bank account forthwith.

Yours faithfully,

COSHOTT FAMILY PTY LTD

per Robert Coshott

Director”

75. On 15 February 2021 at 7:29pm, Mr Coshott sent Mr Thompson the following email:

“Dear Mr Thompson, Unfortunately, unless this matter is satisfactorily resolved by noon tomorrow, it will be necessary to refer it to the Legal Services Commission.

[…]”

76. On 16 February 2021 at 5:23pm, David Thompson sent the following email to Mr Coshott (copying in Mr Shumsky and Mr Christopher Morris (a colleague of Mr Shumsky at his firm)):

“Mr Coshott

Our position is that you and or your company paid the funds to our Trust account at the direction of Mr Aversa for the purposes of settling payment of our invoices for Legal Services provided to Mr Aversa.

We understand you hold an executed agreement with Mr Aversa that you and your company were the Litigation funder for his case.

The funds were never to be held in trust but to be applied to invoices rendered and to be rendered.

We note that Mr Aversa is now seeking independent Legal Advice regarding the ‘funding agreement’.”

77. On 23 February 2021 at 5:02pm, Mr Morris sent an email to Mr Coshott that attached a letter. The letter was in the following terms:

“Dear Sir,

R and A Aversa v Maritime Services and Registrar General

We refer to the Notice of Breach of Funding Agreement dated 9 February 2021 and served on our office.

We confirm that our client is seeking independent legal advice in relation to the abovementioned Notice of Breach and requires an additional fourteen days to provide a response. We request that you please refrain from taking further action during that period.

Yours faithfully

[Signature]

Christopher Morris

Solicitor”

(Emphasis in original.)

78. Mr Coshott responded to Mr Morris at about 2:00pm on 24 February 2021 (as set out in the plaintiff’s evidence above at [22] [recorded as having been sent at 1:59pm]) that the Funding Agreement had been terminated.

Cross-examination of Mark Shumsky

79. Mr Coshott cross-examined Mr Shumsky. In my assessment, Mr Shumsky was an entirely credible witness who did his best to answer the questions put to him honestly and accurately, and his evidence in chief remained unshaken.

80. As to the meeting on 29 January 2021, he confirmed the accuracy of his file note of that meeting. He said after the meeting he would have gone to his office, taken his computer and typed up the file note. He would have probably typed it up at home. He disagreed that the meeting ran for 30 to 40 minutes, but rather that the length of the meeting was as recorded in the file note, i.e., 2 hours and 15 minutes.

81. Mr Shumsky said he was not aware of a copy of the file note being provided in response to the Notice of Breach in order to show that there had been no failure to disclose information. Mr Shumsky believed, rather, that instructions were being sought and advice was being sought.

82. Much of the cross-examination was misconceived. It is inutile to summarise much of the cross-examination, but some modest examples will suffice. For example, some of the questions put to Mr Shumsky were based on a misunderstanding of the billing system of Mr Shumsky’s firm, and who was responsible for various entries. Other questions were directed to alleged breaches which were not included in the pleadings.

Antonia Aversa

83. The next witness called was the second defendant, Mrs Antonia Aversa. She confirmed the accuracy of her affidavit, affirmed on 14 March 2024.

84. Mrs Aversa stated that on or about 18 September 2019, she had a conversation with Mr Aversa where he stated words to the following effect:

“There might be a class action involving Westconnex and if we join we might get compensation.”

85. She signed a document styled “Master Funding Agreement” on 18 September 2019 and saw Mr Aversa sign the same document. They signed the document in order to enter into a litigation funding agreement with Litigation Fund WCX Pty Ltd (“the Litigation Funding Agreement”). She signed two more agreements, as did Mr Aversa. She exhibited a copy of each of the three agreements.

86. I note that Mrs Aversa was mistaken about signing three agreements, and in fact only signed two (as she only co-owned two of the properties), but I do not find this inaccuracy undermined the cogency of her account.

87. Mrs Aversa stated:

“I understood that in signing the Litigation Funding Agreements that Litigation Fund WCX Pty Ltd would pay for a class action against Roads and Maritime Services/WestConnex (Supreme Court proceedings number 2019/00314755) (“Aversa Proceedings”). I also understood from the text of the Litigation Funding Agreements that we were going to be covered, safe from any costs orders and that there would be no risk to us.”

88. Mrs Aversa stated she did not have any legal, financial or accounting advice prior to signing the litigation funding agreements. She said she did not have any further involvement in the Aversa Proceedings and let Mr Aversa handle everything related to it.

89. Mrs Aversa stated that she now knows that Jim Lyons acted as her solicitor in the Aversa proceedings. She has never spoken with him and nor did she receive a costs agreement from him. She had no involvement in the selection of the previous solicitor in the Aversa Proceedings.

90. Mrs Aversa first saw the summons in the Aversa Proceedings on 20 February 2024 when she received it from her solicitors. She does not recall having seen any other documents filed in the Aversa Proceedings.

91. Mrs Aversa stated that she signed a costs agreement on or about 18 September 2020, appointing Stacks Collins Thompson (“Stacks”) as her solicitors in the Aversa Proceedings. She stated:

“I had no involvement in the termination of Mr Lyons or the appointment of Stacks as my replacement solicitors.”

92. Mrs Aversa said that “[o]n or about January 2021” a meeting took place at her house. Mr Aversa, Mr Coshott and Mr Shumsky attended.

93. She said that she was not present for much of the meeting because she frequently left the room to take care of her children. She does not recall anything that was spoken at the meeting. She stated she remembered that “the meeting lasted roughly half an hour to 40 minutes”.

94. Mrs Aversa was very briefly cross-examined by Mr Coshott and only in relation to her efforts and her opportunity to obtain advice.

95. I accept Mrs Aversa as an honest witness who did her best to tell the truth to the best of her recollection.

Rosario Aversa

96. In his affidavit, after annexing a number of documents including an ASIC search relating to the plaintiff, Mr Aversa set out (relevantly) the following account:

“Prior to Execution of Agreement

[5] On or about August or September 2019 a lady walked up to my driveway gate where I was standing at […] Haberfield and we had a conversation with words to the following effect:

Lady: ‘I am collecting names of people to be a part of a Westconnex class action. We’re fighting against WestConnex and there’s a chance you might be entitled to compensation due to the tunnel that’s being built under your house. Would you like to put you [sic] name down? The more names we get, the easier it might be to fight Westconnex’.

The lady handed a form to me and I could see a lot of other names on the form. I wrote down my name and contact details.

[6] On or about September 2019 I received in the mail documents styled ‘Master Funding Agreement’. I don’t remember the sender’s details.

[7] On 11 September 2019 I sent two emails to Mr James “Jim” Lyons asking questions about proposed litigation funding agreements that had been provided to me.

[The emails were annexed. The email at 10:13am stated:

‘Hi […]

I received in the mail a contract and is quite difficult to understand.

What I really need to know is the following;

From the beginning to the very end of this whole process including anything extra that needs to be done, what will be the cost from my pocket?

I need to know my risk.

I need to know worst case scenario and what the costs will be out of my pocket.’ (Emphasis added.)]

[8] I don’t remember how I got Jim Lyon’s email address although at that time I understood he was a lawyer. I believe his email address must have been included with the ‘Master Funding Agreement’ I received in the mail.

[9] On 11 September 2019 at 3.27pm I received an email from Robert Coshott stating:

‘Jim Lyons has forwarded your emails to us to respond.

Murphy Lyons are the lawyers nominated by the litigation funders to act for people who are funded by the litigation funders. If you take up the offer of funding, Murphy Lyons will act for you on your compensation/damages claim.

If you take up funding, your full costs exposure will be covered by the litigation funders. Simply put, you will be at no risk.’

[A copy of this email was annexed.]

[10] From the email referred to above I understood that there would be no risk to me from being involved in the litigation. I understood I would not have to pay any costs of any kind.

[11] I did not receive a response from Jim Lyons to my emails to him referred to in paragraph 7 above.

[12] Around September 2019 I met with Mr Coshott on the front porch of my house and we had a conversation to the following effect:

Robert Coshott: ‘There was an error in the previous version of the agreements provided to you. These are updated agreements.’

He then handed me the Litigation Funding Agreements referred to at paragraphs 14 to 16 below.

Signed Agreements

[13] On or about 18 September 2019 I handed the Litigation Funding Agreements referred to at paragraphs 14 to 16 below to Antonia and had a conversation with her. I don’t recall the precise words spoken however the substance of the conversation follows:

I explained to Antonia the contracts are about Westconnex tunnel under our properties and they are about a class action against Westconnex. We can sign these so we can be part of the class action. We may be entitled to compensation. It’s good to go in it. There’s no risk. We’ll go in it like everyone else, hopefully we’ll get compensation. Even if we have to give the funder 40% we’ll still get something.

Antonia said: ‘as long as there’s no risk, I’m content’.

[14] On 18 September 2019 I signed a document styled ‘Master Funding Agreement’ and I saw Antonia also sign the document. We signed the document in order to enter into a litigation funding agreement with Litigation Fund WCX Pty Ltd.

[A copy of this agreement was annexed.]

[15] On 18 September 2019 I signed a second document styled ‘Master Funding Agreement’ and I saw Antonia also sign the document.

[A copy of this agreement was annexed.]

[16] On 18 September 2019 I signed a third document styled ‘Master Funding Agreement’ and I saw Antonia also sign the document.

[A copy of this agreement was annexed.]

(collectively ‘The Litigation Funding Agreements’)

[17] I understood that the funder was Litigation Fund WCX Pty Ltd (Funder) based on its name appearing in the Litigation Funding Agreements.

[18] Based on the conversation I had with the lady at paragraph 5 above, the text of the Litigation Funding Agreements and the email from Mr Coshott dated 11 September 2019, I understood that the Litigation Funding Agreements meant that the Funder would cover all the costs of a class action against Roads and Maritime Services/WestConnex (which was later commenced as Supreme Court proceedings number 2019/00314755) (“Aversa Proceedings”). I understood that Antonia and I would be fully protected from any legal costs risks and that Antonia and I wouldn’t be liable to the funder, Robert Coshott or anyone else. I understood that I was joining a class action. I also understood that the funder would receive 40% of anything won in that proceeding.

[…]

[22] I did not receive legal advice before entering into Litigation Funding Agreements, despite sending the email to Mr Lyons referred to at paragraph 7 above. I didn’t seek other legal advice given I understood I was joining a class action.

[23] I didn’t have any legal, financial or accounting advice prior to signing the litigation funding agreements.

[…]

Post Agreement

[25] After signing the Litigation Funding Agreements to the best of my recollection I didn’t receive any further communication about the Aversa Proceedings until 10 September 2020 when I received the email referred to at paragraph 31 of this affidavit.

[26] I have never spoken with Mr Lyons.

[27] I have never received a costs agreement from Mr Lyons .

[28] I had no involvement in the selection of Mr Lyons as my solicitor in the Aversa Proceedings.

[29] On 19 October 2019 a Summons was filed initiating the Aversa Proceedings (‘Summons’). Myself and Antonia are the only plaintiffs recorded in the Summons.

I don’t recall ever having seen the Summons. I never provided instructions to Mr Lyons or anyone else to file that document.

[A copy of the Summons was annexed.]

[30] 1 March 2024 was the first time I saw the Summons.

Change of Solicitor

[31] On 10 September 2020 I received an email from Robert Coshott providing a brief update regarding the Aversa Proceedings.

[This email was annexed and reads:]

‘Hi Rosario,

Still waiting for the senior barrister to provide conference dates.

In the meantime, please email copies of the Proposed Acquisition Notices given to you by RMS in respect of all your properties.

Regards,

Robert’ (Emphasis added.)

[32] On 16 September 2020 I received an email from Mr Lyons requesting to meet with me.

[This email was annexed and reads:]

‘Ross and Antonia,

• I would like to have a conference with you at my Office to go through your case.

• I enclose a copy of the advice of XX who suggests you have good prospects of success.

• Would you kindly telephone on my mobile […] to arrange a convenient time and date please?’ (Emphasis added.)

[33] On 18 September 2020 at 9:50am I received an email from Mr Coshott stating:

‘To expedite the claim on RMS, Mr Lyons has been replaced by Mark Shumsky of Collins & Thompson.

The funding agreement remains the same save for the substitution of Collins & Thompson for Murphy Lyons.’

[The email was annexed, and it continues:]

‘The test case is back before the court in two weeks. At which time, a timetable for expert evidence and subpoenas will be set and this will bring the proceedings to a hearing.

We shall keep you informed of important events over the coming weeks.

Best regards,

Robert’

[It can be noted that this was a joint email sent to ten recipients, including Mr Aversa.]

[34] On 18 September 2020 at 10:08am I sent an email to Mr Coshott asking whether I should proceed with the meeting Mr Lyons requested.

[The email was annexed, and reads:]

‘Hi Robert

I received the below from James Lyons [referring to the email at paragraph [32] of this affidavit (above)]. Do I proceed or wait for new lawyer you just sent email on?

Regards

Ross’

[35] On 18 September 2020 at 10:38am Mr Coshott sent an email to Mr Lyons stating:

‘Mr Aversa has forwarded your email to me. Mr Aversa has signed up with the new solicitors and will not be meeting with you. I expect the Notice of Change of Solicitor will be served on you today. Counsel were informed yesterday.’

The source of my knowledge is the email I subsequently received referred to in paragraph 36 below.

[36] On 18 September 2020 at 12:15pm I received an email from Mr Lyons. The email from Mr Lyons stated the reasons he wished to meet with Antonia and I. It also forwarded the email from Mr Coshott to Mr Lyons referred to in paragraph 35 above.

[The email was annexed.]

[37] On 18 September 2020 at 2:18pm I sent an email to Robert Coshott asking that a costs agreement with new solicitors be entered into on similar terms as the existing costs agreement.

[This email was annexed and includes the following:]

‘Hi Robert

Can you please make sure that the same agreement holds with new solicitors. My cost agreement was the % of total compensation if any and that’s it.’ (Emphasis added.)

[Questions raised in relation to the risks to the Aversas from the litigation by the previous solicitor in his email were then set out.]

[38] On 18 September 2020 after 2:18pm I had a telephone conversation with Robert Coshott with words to the following effect:

Rosario Aversa (“RA”): *‘*What is this all about?’

Robert Coshott: *‘*Don’t worry about it. Lyons is retiring so we need a new solicitor. Lyons only sent that email to you because we are changing solicitors. Jim Lyons isn’t happy about being removed.’

RA: *‘*Oh ok.’

[39] On 18 September 2020 at 4:09pm I received an email from Mr Coshott regarding the change of legal representation.

[The email was annexed and reads:]

‘Hi Ross,

Further to our telephone conversation a few minutes ago.

To answer your questions:

It is the same litigation funder;

It is the same arrangement. Under the funding agreement you are indemnified for all costs, your solicitors and barristers, and, in the unlikely event that the claim is not successful, against the defendant’s costs. To date, the funder has paid out in barrister’s fees and other costs several hundred thousand dollars;

Unfortunately, it appears Mr Lyons is not happy about being removed from the case.

Nothing has changed except Mr Lyons has been removed and Collins & Thompson (Mark Shumsky) put in his place.

Best regards,

Robert’

[40] I had no involvement in the termination of Mr Lyons as my solicitor.

[41] I had no involvement in the selection of Mark Shumsky of Stacks Collins Thompson as my new solicitor in the Aversa Proceedings.

[42] On or about 18 September 2020 I received a phone call from Mark Shumsky with words spoken to the following effect:

Mark Shumsky: ‘My name is Mark Shumsky, I have been asked to take over your proceedings against the RMS.’

[43] On 18 September 2020 I signed a costs agreement with Stacks Collins Thompson.

[This was annexed.]

January 2021 Meeting

[44] On or about January 2021 I had a meeting at my house with Robert Coshott and Mark Shumsky. Antonia was present for some but not all of the meeting. Antonia had to leave during the meeting to take care of our kids.

At the meeting a conversation took place in which Mark Shumsky gave an update on the Aversa Proceedings. I don’t recall the precise words spoken. The substance of what was spoken to the best of my recollection follows.

i) Mr Shumsky provided an update on the proceedings and where the case was at. Mr Shumsky gave the times and dates the matter would be listed in Court.

ii) Mr Shumsky gave an update regarding the options the barristers wanted to push through with. I can’t remember what the options were. Mr Shumsky relayed that the barristers thought pursuing their option would give us a much higher probability of winning the case. Mr Shumsky said we needed an expert to give a damages amount. Mr Coshott said he didn’t want that. Mr Coshott said he wanted to push ahead without the expert.

iii) Mr Coshott was pushing for his preferred option. Mr Coshott was pushing for the barristers in the RMS proceedings to be removed and replaced. Mr Coshott said forcefully that he wanted to remove the barrister. Mr Coshott said he wanted a report from the barrister. Mr Coshott said if we proceeded with the option the barristers recommended the funder won’t be happy.

iv) I said I would just go ahead and follow the barrister recommendations that he made.

v) I spoke about risk to me regarding costs being incurred in the proceedings. I wanted to know whether the funder would be paying all the costs. Mr Shumsky discussed that issue although I don’t recall the substance of his response. I don’t remember what Mr Coshott said in reply.

vi) There was more spoken however I don’t recall the specifics.

[45] To the best of my recollection the meeting lasted about 30 to 40 minutes.

[…]

Post M****eeting

[47] On 5 February 2021 at 7:54pm I received an email from Mr Coshott stating ‘If, on Wednesday 10th, a hearing date is not fixed for the liability question, the funder will exercise its right to terminate the funding agreement’.

[This email was annexed and is also produced in evidence by the plaintiff above with the time showing as 7:53pm.]

97. Mr Aversa then set out details of other proceedings involving Mr Coshott not presently relevant.

98. Mr Aversa was cross-examined by Mr Coshott. Mr Aversa agreed that he could have received the Jim Lyons’ email address from Jim Lyons; he chose not to seek legal advice; and that he negotiated a reduction in the percentage amount requested from 50% to 40%.

99. Mr Aversa was taken to [25] of his affidavit, and an email was shown to him from Mr Coshott dated 15 March 2020 at 9:38am annexing a letter from Jim Lyons to Mr and Mrs Aversa dated 14 March 2020. This letter reported on the progress of the proceedings, including that the RMS motion for summary dismissal was dismissed. Mr Aversa said that he could not remember receiving the documents but that he could have received them.

100. Mr Aversa was then shown a number of different emails (marked Exhibit D) between himself and Mr Coshott dated 14 April 2020, 25–26 June 2020, 30 June 2020, 10 September 2020 (also annexed to Mr Aversa’s affidavit), 4 September 2020, 11 September 2020, 15 September 2020 and 16 September 2020. In part, they concerned settlement discussions and property values. Mr Aversa did not remember some but remembered others. In relation to the emails he did not remember, he did not dispute that they were sent.

101. The email exchange on 4 September 2020 involved Mr Coshott asking for Mr Aversa’s phone number so he could call him (at 10:49am), and Mr Aversa replying (at 3:25pm) with his mobile phone number.

102. The email dated Tuesday, 15 September 2020 from Mr Coshott to Mr Aversa stated:

“Hi Ross,

Unfortunately, the conference with senior counsel promised by [the previous solicitor] did not take place. We do not know why.

The proceedings are before the Court on Thursday morning for the purpose of fixing a hearing date. If a hearing date is not fixed, the litigation funder believes steps should be taken to have a hearing date fixed as soon as possible.

We shall contact you on Thursday.

Regards,

Robert”

103. Mr Aversa stated that he signed the retainer agreement from Stacks after he spoke to Mr Coshott. He also confirmed that the meeting on 29 January 2021 was roughly 30 to 40 minutes.

104. In re-examination, Mr Aversa stated that his wife was not involved in the negotiation of the reduction of the percentage from 50% to 40%.

105. I accept Mr Aversa as an honest witness. He made concessions as appropriate and did his best to tell the truth to the best of his recollection.

Christopher Morris – Solicitor

106. Mr Morris set out in his affidavit that he was an employed solicitor for Mr and Mrs Aversa and had day to day carriage of this matter.

107. He set out and annexed the results of property and company searches he had performed in relation to the plaintiff on 16 January 2023 which indicated that the plaintiff owned no real property in Australia and that the plaintiff has issued shares in the total amount of $1.00. He also annexed a letter written to the plaintiff’s then solicitors on 1 February 2023 stating his clients’ concerns about the plaintiff’s ability to meet any adverse costs orders and requesting certain financial information. He also annexed a further copy of the agreement.

108. Mr Morris also annexed some emails from his firm as examples of communication between Mr Shumsky and Mr Coshott, as follows.

109. On 24 September 2020 at 12:36pm, Mr Coshott emailed Mr Shumsky:

“Mark,

As per our telcon:

RMS (now Transport for NSW) compulsorily acquired the substrata of 3,600 properties including the 3 Aversa Properties. […]”

110. On 24 September 2020 at 5:40pm, Mr Shumsky emailed Mr Coshott:

“Dear Robert,

As discussed, I confirm that proposed orders for adjournment to 22 October 2020 were emailed to […] of Crown Solicitor Office and […] of the Office of the Registrar General for their consideration earlier this afternoon.

The proposed orders will be lodged online in time before the court’s deadline tomorrow morning.

[…]”

111. On 24 September 2020 at 6:12pm, Mr Coshott replied to Mr Shumsky:

“Hi Mark,

Thank you. Well done. We will speak tomorrow.

Robert

[…]”

112. He also annexed emails from between Mr Coshott and Mr Shumsky on 4 February at 7:58pm and 5 February 2021 at 1:44pm, which were also produced as evidence by the plaintiff.

113. Finally, he produced an estimate of costs as at the date of his affidavit.

Consideration

The threshold issue

114. In oral submissions, Mr Coshott contended that the defendants had admitted that the agreements had been entered into. That submission, however, does not withstand scrutiny. The defendants made no such admissions.

115. In the Defence filed on behalf of each of the defendants (which are relevantly identical, except in one respect which is not immediately relevant), the defendants clearly did not admit that Michael Coshott entered into the agreements for and on behalf of the company, on or around 22 September 2019, which was to be incorporated as Litigation Fund WCX Pty Ltd ([3] and [5] of the Amended Statement of Claim). The defendants thus deny the purported agreements are binding on either of the defendants.

116. The company search produced in evidence shows Litigation Fund WCX Pty Ltd was registered on 19 September 2019. The copies of each of the three agreements produced in evidence by Mr Cappello show a signature above the signature line “Director / secretary” purportedly executing the agreements on behalf of Litigation Fund WCX Pty Limited “in accordance with s 127 of the Corporations Act 2001 (Cth).

117. The problem for the plaintiff is that there is no evidence that it was Mr Coshott, as sole director and secretary, who executed each of the agreements, nor when that signature was placed on the document. Further, there is no evidence of the company ratifying the agreement. Thus, there is there is no proven compliance with s 127 of the Corporations Act, nor, if required (which is not known on the evidence) whether there was any compliance with s 131 of the Corporations Act.

118. Even if the signature on the agreements (which are all slightly different) are compared to the signature on the Notice of Breach of Funding Agreement, which was attached to an email from Mr Coshott and the surname “Coshott” is discernible in the signature, I was unable to draw the inference (pursuant to s 183 of the Evidence Act) that the agreements were signed by the same person who signed the Notice of Breach of Funding Agreement. I am thus unable to find that Mr Coshott was the signatory. However, even if I could, there is no evidence as to the date of the signing, and no evidence of ratification of the agreement.

119. Accordingly, I cannot be satisfied on the balance of probabilities that the agreements were lawfully executed on behalf of the plaintiff. As such, the plaintiff’s case fails at this threshold stage as the plaintiff has failed to prove there is a binding agreement between the plaintiff and each of the defendants.

120. As noted above, although it is not necessary to do so, I will nevertheless consider (on the hypothesis that the agreements are binding) whether the plaintiff has proved the defendants breached the purported agreements.

121. As noted above, there were two breaches of contract pleaded by the plaintiff. I will deal with each one in turn. Before doing that, it is convenient to set out the relevant legal principles.

Principles of construction

122. The principles underpinning the interpretation and construction of an agreement reduced to writing are clear. The principles were conveniently summarised in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37 at [46]–[51]:

“The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption ‘that the parties ... intended to produce a commercial result’. Put another way, a commercial contract should be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.”

First Alleged breach of contract – firm to be instructed

123. The pleadings read relevantly:

“[12] Under the terms of the Joint Agreements [the two agreements signed by both Mr and Mrs Aversa] and the Ross Agreement [the third agreement only signed by Mr Aversa], the Defendants were required to continue instructing the law firm “Murphy Lyons” in respect of the Aversa Proceedings.

[13] The Defendants were not permitted to terminate their retainer with Murphy Lyons unless the termination was first approved by the Plaintiff.

[14] The Defendants were not permitted to find a replacement in place of Murphy Lyons unless the replacement was first approved by the Plaintiff.

[15] Furthermore, under the terms of the Joint Agreement and the Ross Agreements, the Defendants were required to consult with the Plaintiff as to the identify and use of legal representatives proposed to be engaged in.

Particulars

i. Item 4 of the “Schedule” to the Joint Agreements and the Ross Agreement.

ii. Clause 8.1 of the Joint Agreements and the Ross Agreement.

iii. Clause 11(b) of the Joint Agreements and the Ross Agreement.

[16] On 16 September 2020, the Defendants signed a costs agreement with the law firm ‘Collins & Thompson Pty Ltd trading as Stacks Collins Thompson’ (Stacks). The costs agreement pleaded in this paragraph is hereby referred to as the Stacks Retainer.

[17] The terms of the costs agreement indicate that the Defendants instructed Stacks to act on behalf of the Defendants in the Aversa Proceedings.

Particulars

i. Document entitled ‘Standard Costs Agreement – General/Commercial Litigation’ dated 16 September 2020 entered into by Collins & Thompson Pty Ltd trading as Stacks Collins Thompson and Rosario Aversa and Antonia Aversa.

[18] At the time the Defendants instructed Stacks and signed the Stacks Retainer, the approval of the Plaintiff had not been sought in relation to:

a. the termination of the Defendants’ the [sic] engagement of Murphy Lyons in respect of the Aversa Proceedings; and

b. the replacement of Murphy Lyons with Stacks in respect of the Aversa Proceedings.

[19] As a result of the Defendants’ failure to seek the approval of the Plaintiff prior to terminating the engagement with Murphy Lyons and prior to signing the Stacks Retainer, the Defendants were in breach of clause 8.1 of the Joint Agreements and the Ross Agreement.

[20] A breach under clause 8.1 of the Joint Agreements and the Ross Agreement obligated the Defendants to pay to the Plaintiff, three amounts of $350,000 and repay to the Plaintiff, all amounts advanced to the Defendants by the Plaintiff.

[21] Pursuant to the Joint Agreements and the Ross Agreement, the Defendants are liable to pay the Plaintiff an amount of $1,050,000 (being the sum of the three amounts of $350,000).

[22] During the course of the Joint Agreements and the Ross Agreement, the Plaintiff has provided funding to the Defendants in the amount of $150,000.

Particulars

i. Particulars as to the amounts advanced to the Defendants is to be provided in evidence.”

124. The Plaintiff in essence claims that the solicitors were changed from Murphy Lyons to Stacks Collins Thompson without his approval.

125. The defendants point to the evidence adduced by them (including a number of emails which, it was contended, had deliberately not been adduced by the plaintiff) which clearly show that the plaintiff not only provided prior approval, but indeed, through Mr Coshott, facilitated the change of solicitors.

126. In my view, for the reasons which follow, the evidence before the Court is squarely at odds with the plaintiff’s claim. The combined effect of the evidence of Mr Shumsky and the Aversas, including emails produced by them, makes it abundantly clear that Mr Coshott engineered the change of solicitors from Murphy Lyons to Stacks Collins Thompson, and I so find. To claim that his permission was not sought is plainly unsustainable.

127. It can again be noted that the emails adduced by Mr Coshott via Mr Capello omitted many of the emails produced by Mr Aversa and Mr Shumsky (the provenance of which was not contested) and which show indisputably that Mr Shumsky’s account should be accepted. That is, that Mr Coshott contacted Mr Shumsky and asked him to take over carriage of the litigation, and that the defendants were informed about the change of solicitor by Mr Coshott.

128. The emails set out above from [42] to [50] show, without any doubt, that it was Mr Coshott who initiated the change of solicitor including Mr Coshott telling Mr Shumsky:

(a) to prepare a costs agreement and providing the details of the Aversas to him; (b) telling him the date the new relationship would commence; (c) telling him to inform counsel; (d) telling him he would provide the file to him; and (e) providing a partially completed Notice of Change of Solicitor for filing with the Court.

129. The evidence, including emails, produced by Mr Aversa which have been set out in detail at [96] (especially the contents of [33]–[43] of his affidavit) entirely support Mr Shumsky’s account at [39] that Mr Coshott approached Mr Shumsky. There is no evidence to the contrary.

130. Mr Coshott pointed to an apparent difference in the evidence as between Mr Shumsky and Mr Aversa in relation to the retainer agreement from Stacks Collins Thompson. However, when the each of the men’s answers are examined, they are not in conflict – rather, Mr Shumsky’s answers go to his understanding of how Mr Aversa received the draft agreement, and Mr Aversa’s answers went to the circumstances of Mr Aversa signing it.

131. As to the failure of Mr Coshott to rely on his own affidavit I note the following passage in the judgment of Kirk JA in Ling v Pang [2023] NSWCA 112 (Leeming and Mitchelmore JJA agreeing) at [21], [23]–[24]:

“In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, Heydon, Crennan and Bell JJ distinguished two types of inferences that can be drawn where Jones v Dunkel applies (citations omitted):

[63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.

[…]

The drawing of a Jones v Dunkel inference requires the court to be satisfied that, first, it is expected or natural for the party in question to have called the person; second, the person’s evidence would have elucidated a particular matter; third, the absence of the person is unexplained: Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA. In this case it is the first matter which is in issue. It is obvious that Mr Zhuang’s evidence could have elucidated how Ms Wang’s purported signatures came to be on the Loan Agreements. And senior counsel for the respondent accepted that there was no evidence of attempts having been made on Mr Pang’s behalf to track down Mr Zhuang, and that despite the “absconding” remark it did seem that he was potentially available.

The Jones v Dunkel ‘rule’ is a principle of judicial reasoning which addresses the drawing of inferences of fact. It only applies ‘once all the evidence in the case is in*’**:* Manly Council v Byrne [2004] NSWCA 123 at [54] per Campbell J. Whether some inference should be drawn, what inference, and with what significance, are all matters that depend upon the particular case. So much is reflected in the reference to Kuhl at [63] to drawing an inference ‘in appropriate circumstances’. It is not a rule that can be applied formulaically.”

132. In this case, I am satisfied that given Mr Coshott was such a critical party in the interactions in question, it was expected and natural for him to rely upon his own affidavit. His evidence would clearly have elucidated his case and the fact that he was present in court and chose not to rely on his affidavit is plainly “unexplained”, other than for his submission that he was not obliged to rely upon it. I infer that his evidence would not have assisted his case.

133. In any event, in this case, the accounts provided by Mr Shumsky and Mr Aversa, together with the clear terms of the email evidence, are entirely in favour of the defendants. The email evidence and the accounts provided by Mr Shumsky and Mr Aversa are consistent and compelling. To the extent that it was suggested to Mr Shumsky in cross-examination that the wording of his account in his affidavit set out at [40] above indicated that Mr Shumsky was somehow informing Mr Coshott that he had been asked by others to take over the matter, that suggestion is rejected. Not only do I accept as entirely reasonable Mr Shumsky’s explanation that he was confirming what he was told by Mr Coshott, Mr Shumsky’s account accords with all the objective documentary evidence, as well as the evidence of the Aversas. And as I already observed, there is no evidence to the contrary.

134. I find that the plaintiff has failed to establish the first alleged breach of contract.

Second alleged breach of contract – failure to keep plaintiff informed

135. The pleadings read, relevantly:

“[23] Under the terms of the Joint Agreement and the Ross Agreements, the Defendants provided the following undertakings to the Plaintiff:

a. The Defendants would keep the Plaintiff advised of the progress and status of the Aversa Proceedings.

b. The Defendants would consult with and consider the views of the Plaintiff in relation to any material issues in the Aversa Proceedings.

c. The Defendants would instruct [the previous solicitors] to provide information to the Plaintiff in relation to the Aversa Proceedings.

Particulars

i. Clause 8.2 of the Joint Agreements and the Ross Agreement.

[24] In breach of the Joint Agreements and the Ross Agreement, the Defendants and their lawyers, Stacks, failed to:

a. advise the Plaintiff of the progress and status of the conduct of the Aversa proceedings;

b. consult with, or consider the view of, the Plaintiff in relation to conduct of the Aversa Proceedings; and

c. provide information to the Plaintiff in relation to conduct of the Aversa Proceedings.

Particulars

i. Email dated 20 October 2020 timed at 9:23am (Coshott/Shumsky).

ii. Email dated 28 October 2020 timed at 1:27pm (Coshott/Shumsky).

iii. Email dated 15 December 2020 timed at 7:14am (Coshott/Shumsky).

iv. Email dated 17 December 2020 timed at 6:49pm (Coshott/Shumsky).

v. Email dated 5 February 2021 timed at 4:39pm (Coshott/Shumsky).

vi. Email dated 9 February 2021 timed at 12:07pm (Coshott/Aversa and Shumsky).

[25] On 9 February 2021, the Plaintiff gave written notice to the Defendants that they were in breach of the Joint Agreements and the Ross Agreement and required the Defendants to rectify those breaches within fourteen (14) days of the date of the written notice (Notice of Breach).

Particulars

i. Document entitled ‘Notice of Breach of Funding Agreement’ dated 9 February 2021 and signed by Robert Coshott, director of the Plaintiff.

[26] The Defendants did not rectify the breaches stated in the Notice of Breach within 14 days or otherwise.

[27] [Deleted]

[28] As a result of the Defendants failure to rectify the breaches stated in the Notice of Breach by 23 February 2021, the Plaintiff terminated the Joint Agreements and the Ross Agreement pursuant to clause 9.5 of the Joint Agreements and the Ross Agreement.

Particulars

i. Document entitled ‘Notice of Termination of Funding Agreement’ dated 24 February 2021 and signed by Robert Coshott, director of the Plaintiff.

[29] By reason of the matters pleaded in paragraphs 12 to 28, the Defendants are in breach of the Joint Agreements and the Ross Agreement and the Plaintiff claims all amounts paid to the Defendant under the Joint Agreements and the Ross Agreement.

[30] By reason of the matters pleaded in paragraphs 12 to 28, the Defendants are liable to pay the Plaintiff $350,000.00 under each of the Joint Agreements and the Ross Agreement.

[31] The Plaintiff claims the sum of $800,000.00 from the Defendants jointly and severally, and $400,000.00 from the First Defendant solely (being the total of all amounts paid to the Defendants and the amounts owing to the Plaintiff if the relief claimed in paragraph 30 above was granted.

[32] By reason of the matters pleaded in paragraphs 12 to 28, the Plaintiff claims in accordance with its rights under the Joint Agreements and the Ross Agreement, the Percentage of the Net Final Amount if the Defendants receive any amounts from a judgment, settlement, orders or the sale of property in the Aversa Proceedings (subject to any reduction required to prevent double recovery in respect of the relief

[…]”

(Emphasis omitted.)

136. First, it can be observed that the documents referred to in particulars (i), (iii) and (iv) under [24] of the Amended Statement of Claim are not in evidence. That means that the only evidence particularised by the Plaintiff to prove the contended breaches are three emails (set out again here for convenience):

137. Email dated 28 October 2020 timed at 1:27pm [or 1:28pm] (Coshott/Shumsky)

| Date | Time | To / From | Contents | | Wednesday, 28 October 2020 | 1:27pm [or 1:28pm] | Email from Robert Coshott to Mark Shumsky | What’s the news? |

1. Email dated 5 February 2021 timed at 4:39pm (Coshott/Shumsky):

| Date | Time | To / From | Contents | | Friday, 5 February 2021 | 4:39 pm | Email from Robert Coshott to Mark Shumsky | Mark, Who are you seeking clarification from? If you do not intend to get a date for a separate liability hearing on 10th, please advise immediately so the funder can take such steps as it considers appropriate. Robert. |

1. Email dated 9 February 2021 timed at 12:07pm (Coshott/Shumsky):

| Date | Time | To / From | Contents | | Tuesday, 9 February 2021 | 12:07pm | Email from Robert Coshott to Rosario Aversa and Mark Shumsky | Gentlemen, It is regrettable that neither of you has responded to my recent emails, nor provided information as to your intentions regarding the progress of this matter. It must be assumed that, unless advised to the contrary, that a date for hearing of the liability question separately from the quantum will not be obtained tomorrow. A review of correspondence and events since October last year when Mark took over conduct of the proceedings confirms that clause 8 of the Funding Agreements has not been complied with on several occasions. This gives rise to the funder being entitled to give notice of breach under clause 9.5 of the Funding Agreement. Such a notice under each relevant Funding Agreement is being prepared will follow later today. Regards, Robert |

137. The plaintiff’s contention is thus a failure by the defendants to:

(a) advise the plaintiff of the “progress and status” of the proceedings; (b) “consult with, or consider the views” of the plaintiff in relation to the conduct of the proceedings; and (c) “provide information” in relation to conduct of the proceedings.

138. The clause of the contract relied upon by the plaintiff to ground the breach is cl 8.2 of the agreement which I also set out again for convenience. It reads:

“8.2 Client’s undertakings

Notwithstanding the provisions of clause 8.1, the Clients undertake to and will:

(a) keep the Funder advised of the progress and status of any Proceedings, any Appeal therefrom and any Examination which is the subject of the Funding Transaction;

(b) consult with and consider the views of the Funder in relation to any material issues arising from the conduct and/or progress of the Proceedings, any Appeal therefrom n [sic] and in particular, in relation to any offer of settlement;

(d) provide and instruct their solicitors to provide such information from time to time to the Funder as may be reasonably required by the Funder in relation to the Proceedings, any Appeal therefrom which is the subject of a Funding Transaction and will instruct the Firm to make available to the Funder its file for inspection at all times.”

139. The plaintiff submits that the failure of either Mr Shumsky or Mr Aversa to provide answers to the three emails proves the breach.

140. The defendants submit that if the whole of the evidence is taken into account, it can be seen that the defendants did consult with and consider the views of the plaintiff and provided regular updates to Mr Coshott which amply satisfied the terms of the agreement.

141. Whether or not any breach of cl 8.2 has been made out must be viewed in light of the whole agreement, the purpose of the transaction, and the objects which it was intended to secure. The meaning of the terms in cl 8.2 must be understood in terms of what a reasonable businessperson would have understood those terms to mean in that context.

142. The purpose of the agreement as a whole was for the plaintiff to provide funding to the defendants for their proceedings. The proceedings were those of the defendants. It was for the defendants to instruct the solicitors, and to direct, conduct and conclude the proceedings, or any appeal, by way of settlement. Whilst the defendants were obliged to keep the plaintiff advised of the progress and status of the proceedings, as well as consult with and consider the views of the plaintiff, the agreement did not contemplate the plaintiff directing, conducting or concluding the proceedings.

143. Further, whilst the agreement obliged the defendants (and for them to instruct their solicitors) to provide information to the plaintiff, that was stipulated as “from time to time” and “as may be reasonably required”. This requirement imports an objective component. In my view, it is reasonable, in the context of the agreement as a whole, to read this obligation as meaning that the defendants were to provide sufficient information at sufficiently regular intervals for the plaintiff to be able to provide its views in a meaningful way in relation to the proceedings.

144. On the evidence set out above, when looked at as a whole, the defendants, together with their solicitor, provided information in relation to the proceedings on a very regular basis. It is clear that the information provided to the plaintiff meant that it was well aware of the course the proceedings were taking. It is also clear that the information provided to the plaintiff meant that it had sufficient opportunity to provide its views as to the course of the proceedings.

145. Not only were there email exchanges at regular intervals, there was a lengthy meeting on 29 January 2021 at the defendants’ home attended by Mr Coshott.

146. In relation to that meeting, I accept the evidence of Mr Shumsky that he typed a file note as to the discussion at the meeting within a short time after the meeting, and that it provided a substantively accurate account of what was said. That Mr and Mrs Aversa were of the view that the meeting went for a shorter time than that recorded by Mr Shumsky does not indicate to me that the essential accuracy of Mr Shumsky’s file note is not to be accepted. Mr Shumsky is a solicitor whose practice it is to type up file notes of meetings. Mr and Mrs Aversa made no file note and had no reason to recall the length of that meeting until well after it occurred. I accept that impressions of length of time can be inaccurate, especially in these types of circumstances.

Conclusion

154. I have concluded that the plaintiff has failed to make good its claims and that the Amended Statement of Claim should be dismissed with costs.

155. Given my primary finding that the plaintiff has failed to prove that any agreements were in existence and the indication by the defendants at the hearing, the relief claimed by the Cross-claim is no longer sought and the Cross-claim is dismissed.

Orders

156. I make the following orders:

157. The Amended Statement of Claim is dismissed.

158. The Cross-claim is dismissed.

159. The plaintiff is to pay the costs of the defendants.

**********

Endnote

It can be noted that sometimes the emails produced have a one minute discrepancy which I infer is due to the time settings of the machines from which the emails were printed.