Litigation funder’s case against class action plaintiffs a ‘classic example’ of abuse of process, says Chief Justice

Litigation Fund WCX, directed by former solicitor Robert Coshott, commenced proceedings just three days after a related company, Coshott Family, failed in its similar claims in the Local Court.

Then, in February 2025, just three months after Litigation Fund WCX’s case was dismissed, it commenced further proceedings that alleged the Aversas were “unjustly enriched at its expense” and sought the restitution of money said to have been provided to them.

The fresh pleading alleged the money was provided “under a mistake of law and/or fact” and that three documents allegedly signed by the Aversas in September 2015 amounted to a “binding agreement”.

A May 2025 finding that these documents were not binding was “a total failure of consideration”, Litigation Fund WCX alleged.

The funder also claimed a registrar had dismissed its motion to amend its pleading to allege unjust enrichment, and that the primary judge had dismissed the review. As a result, it claims to be entitled to the restitution of funds as well as damages for the ditched litigation.

The proceedings were summarily dismissed.

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In determining the summons seeking leave to appeal, filed last December, Chief Justice Bell and Justice Leeming said that while the proceedings were dismissed on the basis of “orthodox legal principles governing abuse of process”, the grant of leave could succeed if Litigation Fund WCX could point to a material error.

“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,” the bench said.

Referring to Litigation Fund WCX’s claim that there has never been a determination of its claim of unjust enrichment on the merits – and therefore warranted the fresh proceedings – the bench said it “falls well short of amounting to a proper basis for the grant of leave”.

Chief Justice Bell and Justice Leeming said the timing matters: the Supreme Court proceedings were commenced in October 2022, set down for final hearing in early May 2024, that hearing was vacated, and an amended statement of claim was filed in late May 2024.

“A litigant does not have an unfettered entitlement to delay for years before bringing forward the causes of action on which it relies.

“It was open to the court to refuse to permit the amendment, and indeed no challenge has been made to that decision,” they said.

There was one minor error in the primary judge’s reasons relating to whether there was a review of the registrar’s decision, but Chief Justice Bell and Justice Leeming said this was “immaterial” and did not undermine “the ultimate dispositive conclusion”.

Litigation Fund WCX also said there was no evidence of the primary judge’s remarks that 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”.

Chief Justice Bell and Justice Leeming said this was also immaterial.

In support of ground four, Litigation Fund WCX said the primary judge erred in proceeding on the basis that it bore the onus in showing that there was no abuse of process, but this submission was found to “confuse legal and evidentiary onus”.

“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,” Chief Justice Bell and Justice Leeming said.

Citation: Litigation Fund WCX Pty Ltd v Aversa [2026] NSWCA 80.