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[2026] NSWCA 80
respondent. The notice of appeal filed on 12 November 2025 was dismissed as incompetent. The summons seeking leave to appeal, filed on 8 December 2025, was dismissed. Litigation Fund was ordered to pay the...
Litigation Fund tried to appeal the dismissal of a new claim for repayment of litigation funding. The Court of Appeal said the notice of appeal was not competent without leave because summary dismissal is interlocutory. It then refused leave. In the Court’s view, the new unjust-enrichment claim was closely connected to the earlier claim for the same funds, could have been raised earlier, and followed an unsuccessful attempt to add it to the earlier proceeding. The Court found no broader legal question or reasonably clear injustice, and treated the alleged factual errors as immaterial. Litigation Fund was ordered to pay the Aversas’ costs, subject to the stated exception.
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2,451 words · generated 08/10/2026
Litigation Fund WCX Pty Ltd claimed that it had provided money to Rosario and Antonia Aversa to fund litigation concerning construction of the WestConnex motorway. The dispute had already passed through several proceedings before the Court of Appeal considered the present matter.
2 cited instruments linked from this judgment.
In 2021, a related company, Coshott Family Pty Ltd, sued the Aversas in the Local Court for $50,000 said to have been advanced for the WestConnex litigation. The Local Court dismissed that claim because Coshott Family had not proved that an advance was made. Three days later, Litigation Fund began Supreme Court proceedings, alleging that it, rather than Coshott Family, had provided money for the same purpose, but in larger amounts [4].
The Supreme Court proceeding was ultimately dismissed after a two-day final hearing. No appeal was brought from that dismissal. The judgment records that the Aversas had incurred about $225,000 in costs defending it [4]. Litigation Fund had sought permission to amend its claim to include unjust enrichment as an alternative basis for recovery. The application was refused, and a review was later dismissed [5], [15].
About three months after the earlier Supreme Court proceeding was dismissed, Litigation Fund started another Supreme Court proceeding against the Aversas. It sought restitution of amounts said to have been provided under three documents signed in 2018. Its pleaded case included that the documents were not binding agreements, that there had been a total failure of consideration, and that Litigation Fund was entitled to restitution [5].
The primary judge summarily dismissed this later proceeding as an abuse of process. Litigation Fund then filed a notice of appeal and, after being alerted to the need for leave, filed a summons seeking leave to appeal [1]. The Court of Appeal heard the leave application on the papers, with the parties’ agreement [2]. It dismissed the notice of appeal as incompetent, refused leave, and ordered Litigation Fund to pay the Aversas’ costs of the Court proceedings except for the costs of the security-for-costs motion [24]-[25].
The Court dealt first with the competency of the notice of appeal. It said that orders summarily dismissing a claim are interlocutory for appeal purposes. As a result, leave was required under s 101(2)(e) of the Supreme Court Act 1970 (NSW) [2]. Because Litigation Fund made no submissions supporting the notice of appeal separately from its leave application, the notice was dismissed as incompetent [2].
The central question was whether there was a basis to grant leave. The Court identified the main considerations as whether the proposed appeal raised an issue of principle, a question of general importance, or an injustice that was reasonably clear, going beyond what was merely arguable [3]. It found no question of principle or general importance. The summary dismissal turned on the application of established abuse-of-process principles to the particular dealings and procedural history between these parties [7].
The Court considered that the fresh proceeding was, in substance, an attempt to recover the same funds sought in the earlier proceeding, using unjust enrichment rather than debt as the legal basis [9]. The different label did not remove the close connection between the claims. A central feature of the history was that Litigation Fund had sought to add unjust enrichment to the earlier case, but did so after substantial delay and without an explanation accepted by the primary judge [11]-[12]. Litigation Fund did not challenge the refusal of the amendment itself [12].
The Court then explained why the refusal had consequences for later proceedings. It said Litigation Fund could not bring the unjust-enrichment claim separately, arrange for it to be heard at the same time as the earlier proceeding, or wait until that proceeding had been determined before commencing it [13]. In the Court’s analysis, those alternatives would either require the Aversas to defend separate proceedings about the same funds or allow Litigation Fund to achieve indirectly what it had been prevented from doing directly [13]. This was the Court’s explanation in the context of this litigation, not a finding that every refused amendment forecloses every possible later claim.
The Court also examined asserted errors. It accepted that the primary judge had been wrong to say that Litigation Fund had not sought a review of the Registrar’s refusal to allow amendment. In fact, a review had been sought and dismissed. But the Court considered that the error did not matter to the result: the amendment had still been sought late, lacked an explanation, and was refused [15]. Other arguments about Mr Coshott’s experience, the evidence concerning what occurred at a hearing, and whether the Aversas were unjustifiably oppressed also did not establish a material error [16]-[19].
Finally, the Court rejected the argument that the primary judge had wrongly placed an onus on Litigation Fund. It distinguished legal and evidentiary onuses, and held that the circumstances imposed an evidentiary onus on Litigation Fund to explain why it should be permitted to pursue a similar claim separately after the Aversas had obtained judgment in the earlier claim [20]. Because there was no reasonably clear injustice and no question of general principle, leave was refused [23]-[24].
The judgment does not announce a change to the law of appeals or abuse of process. It applies existing principles to a particular litigation history. On appeal competency, it treats as settled that an order summarily dismissing a claim is interlocutory for appeal purposes, meaning that leave is required [2]. It refers to McGinn v Cranbrook School and Ahern v Aon Risk Services Australia Ltd as authorities collecting that position [2].
For leave, the Court refers to Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company for the relevant considerations: whether the proposed appeal raises an issue of principle, a matter of general importance, or reasonably clear injustice beyond the merely arguable [3]. The Court’s conclusion was that this case did not meet those considerations because the appeal concerned the application of orthodox principles to a specific procedural history [7], [23].
On abuse of process, the Court treated the doctrine as broader than, and overlapping with, Anshun estoppel. It cited Tomlinson v Ramsey Food Processing Pty Ltd for that relationship [14]. The primary judge had not needed to decide whether Anshun estoppel applied, because the abuse-of-process analysis was sufficient. The Court of Appeal likewise did not decide the estoppel issue separately [6], [14].
The judgment’s contribution is therefore explanatory and case-specific. It spells out the consequences the Court saw flowing from the refusal of the late amendment in this sequence of proceedings [12]-[13]. It emphasises that a litigant’s ability to start a later proceeding may be affected when the proposed claim was closely related to an earlier claim, was raised late, and was refused permission to be added. The decision does not state that refusal of an amendment invariably bars later proceedings. Its reasoning depends on the relationship between the claims, the history of delay, the lack of explanation, and the risk of repeated litigation over the same funding [9]-[13], [20].
The Court also clarifies the practical distinction between a material error and an error that does not affect the result. The mistaken statement about whether review was sought was acknowledged, but the Court held it did not undermine the primary judge’s conclusion because the review had been dismissed and the amendment remained late and unexplained [15]. That conclusion illustrates the leave analysis in this case; the judgment does not purport to set out a new general test for materiality.
At [2], the Court states that orders for summary dismissal are interlocutory for appeal purposes. In plain English, a party cannot treat the order as one that may be appealed as of right merely because it ends the proceeding. The statutory requirement for leave still applies.
At [3], the Court identifies the leave considerations as an issue of principle, a question of general importance, or an injustice that is reasonably clear and goes beyond what is merely arguable. In plain English, disagreement with the primary judge is not enough. The proposed appeal needs a feature that justifies appellate review under those considerations.
At [9], the Court describes the new proceeding as an attempt to relitigate the funding claim “under the rubric of unjust enrichment rather than debt”. In plain English, the Court looked at the substance of what Litigation Fund was seeking, not just the cause-of-action label in the pleading. It concluded that the same funds were at the centre of both claims.
At [12], the Court says that a litigant does not have an unfettered entitlement to delay for years before bringing forward its causes of action. It identifies elapsed time, the connection between the new cause and the existing pleading, and the explanation for delay as relevant to a later amendment. In plain English, a late attempt to add a closely related claim may be refused where the delay is substantial and unexplained.
At [13], the Court explains three routes that it considered unavailable in this case: starting separate proceedings, arranging for the claims to be heard together, or waiting until the earlier proceeding was resolved and then starting a fresh claim. In plain English, the Court considered that each route would undermine the effect of the refusal to amend or impose further litigation on the Aversas.
At [15], the Court acknowledges the error concerning the review of the Registrar’s decision, but says nothing turned on it. In plain English, the Court accepted the historical correction but concluded that it did not change the important facts: the amendment had been late, the review had failed, and no challenge was made to the refusal itself.
At [20], the Court says that, in the circumstances, Litigation Fund had an evidentiary onus to explain why it should be allowed to pursue the similar claim separately. In plain English, given the earlier judgment and the close connection between the proceedings, the Court expected an explanation for the new proceeding. This was framed as an assessment of this litigation’s circumstances.
The decision is most directly relevant to a situation involving a repeated claim about the same underlying transaction or funds, particularly where a party has already pursued related proceedings to judgment. Here, the earlier and later claims both concerned money said to have been provided to the Aversas for WestConnex-related litigation [4]-[5], [9].
A second relevant feature is that the later cause of action was closely related to the claim already on foot. The Court considered the unjust-enrichment claim to be an alternative route to recovering the same funding, rather than a claim about a distinct transaction [9], [12]. The case may therefore be pertinent where a party seeks to reframe a claim under a different legal label after pursuing a related claim.
A third feature is timing. Litigation Fund waited until May 2024 to draft the proposed amendment, despite the earlier proceedings having been underway since 2022 and the other side having raised the issue of whether the agreements bound them [11]-[12]. The Court noted that no explanation was provided for the delay, and the refusal of amendment was not challenged [11]-[12].
The repeated proceedings also mattered. The primary judge treated the Local Court proceeding, the first Supreme Court proceeding, and the later Supreme Court proceeding as involving the same subject matter and entities under common control. The Court of Appeal’s own analysis focused on the fresh proceeding’s substance and its connection to the earlier Supreme Court claim [6], [9]. The decision does not mean that any subsequent claim involving related parties or subject matter is automatically abusive. Its stated reasoning depends on the close relationship between the causes, the procedural sequence, the delay, the refused amendment, and the burden of further litigation [9]-[15], [20].
The judgment is dated 13 May 2026 and the material supplied contains no decisions issued after it that discuss how later courts treated it. No conclusion about subsequent treatment can therefore be drawn from this source.
The Court itself refers to earlier authorities. McGinn and Ahern are cited in support of the proposition that summary-dismissal orders are interlocutory for appeal purposes [2]. Cheng is cited for the considerations relevant to leave to appeal [3]. Luo is cited as an example of a single Judge of Appeal exercising power under s 46(1)(b) of the Supreme Court Act 1970 (NSW) to dismiss an incompetent notice of appeal [2]. Tomlinson is cited in relation to the similarity and overlap between abuse of process and Anshun estoppel, with abuse of process described as the broader doctrine [14].
The judgment also refers to the earlier Aversa proceedings, including the first Supreme Court dismissal and the later summary dismissal under appeal [4]-[6]. Those are procedural stages in this dispute, not later treatment of the 2026 Court of Appeal decision. The source does not establish how any other court subsequently applied, followed, distinguished, or questioned the decision.
The judgment does not define a universal boundary for when a refused amendment will prevent a later proceeding. It sets out the consequence in the circumstances before it, involving a closely related claim, substantial and unexplained delay, refusal of leave, and a fresh proceeding seeking recovery of the same funds [12]-[13]. How different facts, such as a distinct transaction or a materially different explanation for delay, would affect the analysis is not decided in this judgment.
The Court did not separately determine Anshun estoppel. It noted that the doctrines overlap and that abuse of process is broader, but upheld the summary dismissal through the abuse-of-process reasoning [14]. The judgment therefore leaves unresolved whether an Anshun estoppel would also have applied on these facts.
The Court also did not decide the merits of Litigation Fund’s unjust-enrichment claim. Its decision concerned whether the claim could be pursued in a fresh proceeding after the earlier procedural history, not whether the substantive elements of unjust enrichment were established [5], [9], [13]. The judgment should not be read as a determination that the underlying claim was factually or legally correct or incorrect.
Finally, the Court’s discussion of the evidentiary onus is expressly tied to “the circumstances of this litigation” [20]. The judgment does not set out a general allocation rule for all cases where a party brings a later proceeding after an earlier judgment. It explains why Litigation Fund was expected to account for pursuing the similar claim separately in this procedural setting.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Litigation Fund WCX Pty Ltd v Aversa [2026] NSWCA 80
Hearing dates: On the papers
Date of orders: 13 May 2026
Decision date: 13 May 2026
Before: Bell CJ; Leeming JA
Decision: 1. Notice of appeal filed 12 November 2025 dismissed.
2. Summons seeking leave to appeal filed on 8 December 2025 dismissed.
3. Litigation Fund WCX Pty Ltd to pay the costs of Rosario Aversa and Antonia Aversa of the proceedings in this Court, excluding the costs of the motion for security for costs.
Catchwords: APPEALS – competency – appeal from summary dismissal of claim – leave required
APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused
Legislation Cited: Supreme Court Act 1970 (NSW), ss 46(1)(b), 101(2)(e)
Cases Cited: Ahern v Aon Risk Services Australia Ltd [2023] NSWCA 91
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 1301
Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469
Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 1301
Luo v Health Care Complaints Commission [2026] NSWCA 42
McGinn v Cranbrook School [2016] NSWCA 226
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Category: Procedural rulings
Parties: Litigation Fund WCX Pty Ltd (Applicant)
Rosario Aversa (First Respondent)
Antonia Aversa (Second Respondent)
Representation: Counsel:
R Coshott, with leave (Applicant)
D Eardley (Respondents)
Solicitors:
Stacks Collins Thompson (Respondents)
File Number(s): 2025/437341
Publication restriction: N/A
THE COURT: Litigation Fund WCX Pty Ltd brought proceedings seeking to recover funds said to have been advanced by it to Mr Rosario Aversa and Ms Antonia Aversa for the purpose of funding litigation involving the construction of the WestConnex motorway. The proceeding was summarily dismissed, by a reserved judgment of 103 paragraphs delivered within a week of the hearing: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 1301. Litigation Fund filed a notice of appeal on 12 November 2025, but after being alerted to the need to seek leave to appeal from an interlocutory decision pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW), it filed a summons seeking leave to appeal on 8 December 2025.
No submissions have been made by Litigation Fund in support of its notice of appeal, as opposed to its application for leave to appeal. That accords with well-settled and binding authority that orders for summary dismissal are, for the purposes of appeals, interlocutory. The authorities are collected in McGinn v Cranbrook School [2016] NSWCA 226 at [9]-[10] and Ahern v Aon Risk Services Australia Ltd [2023] NSWCA 91 at [49]. Moreover, following a hearing concerning security for costs, Litigation Fund confirmed its preference for its application for leave to be heard and determined on the papers, a course in which the Aversas agreed. The notice of appeal should be dismissed as incompetent, noting that a single Judge of Appeal has power to take that course pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW) (see for example Luo v Health Care Complaints Commission [2026] NSWCA 42 at [12]) and thus this Court constituted by two judges also has that power.
The parties’ submissions (being an amended summary of argument dated 13 February 2025, the respondents’ summary of argument of 24 March 2026, and submissions in reply filed on 30 March 2026) were, appropriately, directed to whether there should be a grant of leave, and in particular to the three matters which are at the forefront of consideration: whether the proposed appeal raises an issue of principle or a question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see for example Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
The background so far as is relevant is very concise. In 2021, a related company, Coshott Family Pty Ltd, brought proceedings in the Local Court seeking to recover $50,000 said to have been advanced to the Aversas for the purposes of the Westconnex proceedings. The claim was dismissed by that Court on the basis that Coshott Family Pty Ltd had not proven any advance was made. Three days later, Litigation Fund commenced proceedings in the Supreme Court, once again claiming that money had been lent to the Aversas for the same purpose, but this time by Litigation Fund, and in much greater amounts. The procedural history of those proceedings was summarised by the primary judge in detail, at [14]-[56]. They culminated in a final hearing occupying two days in November 2024, following which the claim was dismissed by the Court constituted by McNaughton J: Litigation Fund WCX Pty Ltd v Aversa [2025] NSWSC 469. Some aspects of that history are contentious and will be addressed below. It is not contentious that no appeal was sought to be brought from the dismissal of that proceeding. Nor is it contentious that the Aversas had incurred some $225,000 in costs defending those proceedings.
Around three months after its proceedings in the Supreme Court had been dismissed, Litigation Fund commenced further proceedings in the Supreme Court against the Aversas, claiming that the Aversas had been unjustly enriched at its expense and seeking restitution of monies said to have been provided to them. The pleading identifies amounts provided in 2020 pursuant to three documents said to have been signed by the Aversas on 19 September 2018. The pleading alleges that the moneys were “provided under a mistake of law and/or fact, that being that the three documents signed by the defendants on 19 September 2018 were binding agreements”. The pleading refers to the judgment of the Supreme Court (McNaughton J) delivered on 15 May 2025 holding “that the agreements were not binding agreements”, and alleges that there was a total failure of consideration. The pleading also alleges that the Registrar had, on 12 August 2024, dismissed Litigation Fund’s motion to amend its pleading to allege unjust enrichment, and that McNaughton J had dismissed the review. Litigation Fund alleges that it is entitled to restitution of the funds, and that when the Aversas discontinued a claim against Roads and Maritime Services, there was once again a total failure of consideration and it was entitled to restitution, as well as damages constituted by half of the proceeds had the litigation continued to determination.
The primary judge addressed the principles governing summary dismissal, Anshun estoppel and abuse of process at [63]-[87]. After summarising the parties’ submissions, his Honour’s reasoning was as follows:
95 In my view, for the reasons set out below, these proceedings are an abuse of process of this court and must be summarily dismissed.
96 The Aversas have now been vexed with three sets of proceedings over four years involving the very same subject matter, being the agreements alleged to have been entered into pursuant to which funding was provided for the Aversas in relation to the WestConnex proceedings. The first proceedings were the Local Court proceedings brought by Coshott Family against the Aversas in September 2021. The second proceedings were the Common Law proceedings brought by Litigation Fund against the Aversas in October 2022. The third proceedings are these proceedings brought by Litigation Fund against the Aversas in August 2025. Those three proceedings have all been brought by two entities controlled by the same person – Mr Coshott. Applying UBS, Mr Coshott is the single directing mind and will of both Coshott Family and Litigation Fund, which are both under his common control for the purposes of all three proceedings.
97 It is true that Litigation Fund sought to make allegations in the alternative in the Common Law proceedings, which are essentially the same allegations it now makes in these proceedings, but was prevented from doing so by the order of Registrar Jones made on 12 August 2024. But no review of that decision was sought by Litigation Fund.
98 In the sense described in Tomlinson and UBS, it would be both unjustifiably oppressive to the Aversas and would bring the administration of justice into disrepute to allow Litigation Fund to bring claims now that it has already been prevented from bringing in the Common Law proceedings. This court has already concluded that it would be contrary to the dictates of justice in s 58 of the CPA for Litigation Fund to be allowed to bring the same claims in the Common Law proceedings. To allow Litigation Fund to have another attempt to bring the same claims in these proceedings would be even more inconsistent to the overriding purpose in s 56 of the CPA. Twice before the Aversas have had to defend proceedings involving the same subject matter and incur significant costs in doing so. This court has already devoted considerable resources over the past three years to determining the controversy between Litigation Fund and the Aversas over the same subject matter. That was especially the case in relation to the Common Law proceedings, which were subject to close case management, numerous directions hearings and many interlocutory applications before they were finally determined by McNaughton J. There was also no appeal from the decision of McNaughton J.
99 As emphasised in UBS by Gageler J at [70], the question of whether the same claims sought to be brought in these proceedings “should” have been brought in the Common Law proceedings cannot be determined solely by reference to interests of Litigation Fund and the Aversas as parties to the proceedings. I must also consider the public interest in the timely and efficient administration of justice. It would be neither timely nor efficient administration of justice to allow Litigation Fund to repeatedly reframe its case against the Aversas, especially in circumstances where this court has already determined that Litigation Fund was not permitted to bring the same claims in the Common Law proceedings.
100 Mr Coshott has also failed to provide an adequate explanation as to why it took him so long to seek to file the further amended statement of claim making the alternative claims in the Common Law proceedings. It is not sufficient for him to say that it was the fault of his solicitors, particularly given his own experience as a solicitor, including appearing for Litigation Fund as its director at multiple hearings in proceedings in this court. This is particularly so in light of the following matters:
(1) On 29 November 2022, the Aversas filed a cross-claim, which made it abundantly clear that they were seeking orders that they were not bound by the agreements. Having been on notice of that defence for four months, Litigation Fund filed the amended statement of claim in the Common Law proceedings (verified by Mr Coshott) on 31 March 2023 substantially restating its case but failed to plead any claims in the alternative.
(2) On 6 April 2023, Mr Coshott verified a defence to the cross-claim brought by the Aversas but failed to raise any of the alternative claims.
(3) During the hearing on 1 May 2024 (when preparatory orders were being made to fix the hearing of the Common Law proceedings for 25–27 November 2024), Mr Coshott said nothing to McNaughton J to indicate that Litigation Fund was considering whether to amend its claims.
(4) Mr Coshott did nothing until 21 May 2024 to seek to plead the alternative claims, despite having been on notice for 18 months that the Aversas were contending that they were not bound by the agreements.
(5) As a former practising solicitor and a litigant in person well versed in the procedures of this court, Mr Coshott could not have been unaware of the need to raise the alternative claims at the earliest stage.
101 In these circumstances I have a high degree of certainty that it is an abuse of process for Litigation Fund to now seek to run claims in these proceedings which should have been brought in the Common Law proceedings in sufficient time that would not have caused them to have been rejected. The court should not spend any further public resources on Litigations Fund’s various permutations of its claims in an unnecessarily protracted dispute and the Aversas should not be further troubled with yet more time and expense in defending them. The timely and efficient administration of justice by this court demands that these proceedings be dismissed, as does the unjustifiable oppression caused to the Aversas by them.
102 It is not necessary for me to consider whether an Anshun estoppel also arose in the present circumstances. The application of the inherently more broad and flexible principles in relation to abuse of process demand that I summarily dismiss these proceedings.
It is clear that there is no question of principle or of general importance which is raised by the proposed appeal. The proceedings were dismissed on the basis of the application of orthodox legal principles governing abuse of process, and the issue turns on the particular dealings between the parties.
Nonetheless, if Litigation Fund could point to a clear error which was material to the dismissal of its latest proceeding, that might be sufficient to warrant a grant of leave.
However, the difficulties confronting Litigation Fund are manifest. It is clear enough that as a matter of substance, the proceeding summarily dismissed by the primary judge was an attempt to relitigate, albeit under the rubric of unjust enrichment rather than debt, the claims of Litigation Fund against the Aversas for amounts of money alleged to have been advanced by it to them. This is a classic example of an abuse of process.
Against that conclusion, Litigation Fund seeks to advance the following submissions. Its first point, amounting to ground 1 of its proposed appeal, is that it sought leave before the Registrar and before McNaughton J to amend so as to include a claim based in unjust enrichment, but leave was opposed by the Aversas and refused. There has never been a determination of that claim on the merits. That is the reason for the fresh proceedings.
The factual basis of that submission may be accepted so far as it goes, but it falls well short from amounting to a proper basis for the grant of leave. The timing matters. The Supreme Court proceeding was commenced in October 2022. It moved slowly. It was set down for final hearing on 1 May 2024. That hearing was vacated, on Litigation Fund’s application. At around this time, the law firm retained by Litigation Fund ceased to act for it. It was not until 21 May 2024 that a proposed further amended statement of claim was drafted. The primary judge observed at [50] that “There is no other explanation provided by Litigation Fund as to why it had taken until May 2024 for it to form the view that it should seek to plead its alternative claims”. Litigation Fund does not dispute the accuracy of that statement.
A litigant does not have an unfettered entitlement to delay for years before bringing forward the causes of action on which it relies. If it does so, it is open to a court to refuse to permit an amendment which is necessary to run the additional cause of action. In the exercise of the discretionary power to grant a later amendment, it will be relevant to have regard to the time which has elapsed, how closely related the new cause of action is to the pleaded claims, and what the explanation is for the failure to plead the claim earlier. In the present case, there was substantial delay in amending to allege a closely related cause of action, and no explanation for that delay. It was open to the Court to refuse to permit the amendment, and indeed no challenge has been made to that decision.
**********
Litigation Fund WCX Pty Ltd
Aversa
(2022) 108 NSWLR 342
(2015) 256 CLR 507
The notice of appeal filed on 12 November 2025 was dismissed as incompetent. The summons seeking leave to appeal, filed on 8 December 2025, was dismissed. Litigation Fund was ordered to pay the Aversas’ costs of the proceedings in the Court, excluding the costs of the motion for security for costs: [25].
That carries with it important consequences which are best articulated explicitly, in light of Litigation Fund’s insistence that there has not been an adjudication of its claim in unjust enrichment.
If Litigation Fund had, following the refusal of leave to amend, commenced fresh proceedings against the Aversas based on unjust enrichment, those proceedings would have been an abuse of process. They could not have been run separately, such that the Aversas would have to defend two separate proceedings brought by the same plaintiff which in substance sought recovery of the same funds.
Nor could the fresh proceedings have been consolidated, or managed so that they would be heard and determined simultaneously, with the extant proceedings. If that course were possible, that would be to permit Litigation Fund to do indirectly that which it had been precluded from doing directly.
Nor could Litigation Fund wait until the extant proceedings had been heard and determined and then commenced fresh proceedings on the cause of action in respect of which it had been denied leave.
Litigation Fund adds that the Aversas did not press “abuse of process”, and it was the primary judge who relied upon it. The Aversas had moved summarily to dismiss the proceedings, but did so on the basis of Anshun estoppel rather than abuse of process. But the two doctrines are similar and overlap, with abuse of process being the broader: see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [24]-[26]. It is not suggested that the primary judge did not permit Litigation Fund to be heard in relation to abuse of process. Thus the fact that the primary judge dismissed the proceedings on the basis of abuse of process, and did not need to address Anshun estoppel, does not add to this proposed ground of appeal.
Secondly, Litigation Fund pointed to certain errors of fact in the reasons of the primary judge. One has already been flagged. Contrary to what was said in [55] and [97], a review was sought of the Registrar’s decision not to permit an amendment. The Aversas acknowledged the error, but said that nothing turned on it. We agree. For the purposes of determining whether there was an abuse of process, the error was immaterial. The primary judge pointed to a late unexplained amendment refused by the Registrar. In fact, there was a late unexplained amendment refused by the Registrar which Litigation Fund sought to review, which review was dismissed a few months later. The error does not materially undermine the ultimate dispositive conclusion that commencing fresh proceedings on the cause of action, which was the subject of the failed application to amend, was an abuse of process.
Litigation Fund also said that there was no evidence of the matters mentioned by the primary judge at [5] (“Mr Coshott is a former solicitor and has frequently appeared for Litigation Fund or self-representing himself in multiple proceedings in this Court over many years”). This is immaterial.
Proposed grounds 3 and 4 are related to the above. Mr Coshott’s experience was relied on by the primary judge in [100(5)], and once again it is said that there was no evidence of his experience. But even if that passage in the reasons is, strictly speaking, incorrect, we do not consider that it is material.
It is also said that there was no evidence of anything that was said or not said to McNaughton J on 1 May 2024 concerning any amendment. But on 31 October 2025, Litigation Fund was faced with a motion seeking to dismiss its proceedings on the basis that it had acted unreasonably in not advancing those claims earlier. If there had been anything in the lengthy procedural history of the litigation that explained the reasonableness of its delay, it was open to it to adduce evidence of that.
Litigation Fund also says that there was no evidence that the Aversas were unjustifiably oppressed. That is a legal conclusion which does not require evidence.
Related to this, and in support of proposed ground 4, it is said that the primary judge erred in proceeding on the basis that it bore the onus in showing that there was no abuse of process. The submission confuses legal and evidentiary onus. On its face, Litigation Fund was advancing a very similar claim to one which had been determined on a final basis between the same parties, and indeed had been the subject of an unsuccessful application for leave to amend. Prima facie it was both an abuse of process and a claim which should reasonably have been advanced in the earlier proceedings. In the circumstances of this litigation, there was an evidentiary onus upon Litigation Fund to explain why it should be permitted to advance the claim in separate proceedings against the defendants who had already obtained judgment against it on the earlier claim after a final hearing.
No separate submissions were made in support of proposed ground 5.
Proposed ground 6 concerns a reference in paragraph [11] in the factual background of the reasons of the primary judge to an aspect of the reasons of the Local Court in 2022. It is sufficient to say that if there was any error, it was immaterial.
For completeness, we note that some of Litigation Fund’s submissions in reply assert questions of general principle in relation to proposed grounds 2, 3, 4 and 6. The submission is formulaic and conclusionary (“This is a question of general principle and a reasonably clear injustice going beyond something that is reasonably arguable”). We do not agree. There is no question of general principle (that is to say, applicable to disputes other than that between the parties to this litigation) which would arise in the proposed appeal. It will be clear from what has been said that there is also no reasonably clear injustice.
No basis for a grant of leave has been made out. The result is that the summons seeking leave to appeal should be dismissed. There being no reason to displace the usual rule, Litigation Fund must pay the respondent’s costs, save in relation to their costs of a motion for security for costs, which was the subject of a separate exercise of discretion as to costs.
The Court’s orders are:
Notice of appeal filed 12 November 2025 dismissed.
Summons seeking leave to appeal filed on 8 December 2025 dismissed.
Litigation Fund Pty to pay the costs of Rosario Aversa and Antonia Aversa of the proceedings in this Court, excluding the costs of the motion for security for costs.