WRIGHT -v- LEMON [2026] WASC 218

[2026] WASC 218 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : WRIGHT -v- LEMON [No 5] [2026] WASC 218 CORAM : WHITBY J HEARD : 14 - 15, 17 APRIL 2026 DELIVERED : 5 JUNE 2026 FILE NO/S : CIV 1319 of 2017 BETWEEN : JULIAN DAVID MAYNARD WRIGHT Plaintiff AND DAVID JOHN NEALE LEMON as executor of the estate of MICHAEL JOHN MAYNARD WRIGHT First Defendant ANGELA MARY MAYNARD WRIGHT BENNETT Second Defendant LEONIE BALDOCK Third Defendant ALEXANDRA BURT Fourth Defendant VOC GROUP LTD (ARBN 159 630 761) Fifth Defendant AMB HOLDINGS PTY LTD (ACN 084 557 737) Sixth Defendant WRIGHT PROSPECTING PTY LTD (ACN 008 677 021) Seventh Defendant -- 1 of 65 -- [2026] WASC 218 Page 2 TERALANI PTY LTD (ACN 619 746 100) Eighth Defendant LAREMONT PTY LTD (ACN 627 070 848) Ninth Defendant IAN McGREGOR THOM Non-Party Thom BARBIROLLI INVESTMENTS PTY LTD Non-Party Barbirolli DAVID JOHN PURCELL Non-Party Purcell LITIGATION FUNDING SOLUTIONS (AUSTRALIA) PTY LTD Non-Party LFSA BERNARD JOHN ORENSTEIN Non-Party Orenstein JOHN STEPHEN TRUDGIAN Non-Party Trudgian Catchwords: Costs - Non-party costs order - Discretion to make a non-party costs order - When non-party costs order is appropriate - Application for costs order against third party litigation funder - Legal principles applicable to an application for costs orders against non-parties - Where funded applicants brought unsuccessful proceedings - Where litigation funder and non-parties stood to receive financial benefit from the successful outcome of proceedings - Commercial interest in outcome of proceedings - Where successful party did not apply for security for costs in primary proceedings - Extent of involvement of non-parties in proceedings - Third-party control over proceedings - Sufficient connection to the proceedings to warrant a non-party costs order - Whether apportionment or -- 2 of 65 -- [2026] WASC 218 Page 3 allocation of costs between non-parties is required - Cost orders made against non-parties Legislation: Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA) Result: Order that non-parties are jointly and severally liable for the defendants' costs Category: B Representation: Counsel: Plaintiff : In person First Defendant : L Coleman Second Defendant : L Coleman Third Defendant : L Coleman Fourth Defendant : L Coleman Fifth Defendant : L Coleman Sixth Defendant : L Coleman Seventh Defendant : L Coleman Eighth Defendant : L Coleman Ninth Defendant : L Coleman Non-Party Thom : L N Firios & A S Ikin Non-Party Barbirolli : L N Firios & A S Ikin Non-Party Purcell : In person Non-Party LFSA : In person Non-Party Orenstein : P D C Robinson Non-Party Trudgian : No appearance Solicitors: Plaintiff : No appearance First Defendant : Clayton Utz Second Defendant : Clayton Utz Third Defendant : Clayton Utz Fourth Defendant : Clayton Utz -- 3 of 65 -- [2026] WASC 218 Page 4 Fifth Defendant : Clayton Utz Sixth Defendant : Clayton Utz Seventh Defendant : Clayton Utz Eighth Defendant : Clayton Utz Ninth Defendant : Clayton Utz Non-Party Thom : Hotchkin Hanly Non-Party Barbirolli : Hotchkin Hanly Non-Party Purcell : In person Non-Party LFSA : In person Non-Party Orenstein : Williams + Hughes Non-Party Trudgian : No appearance Case(s) referred to in decision(s): AIG Insurance Australia Ltd v McMurray [2023] WASCA 148 Armada Balnaves Pte Ltd v Woodside Energy Julimar Proprietary Limited [2022] WASCA 69 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liquidation) [2014] VSCA 223 Bischof v Adams [1992] 2 VR 198 Court House Capital Pty Ltd v RP Data Pty Ltd [2023] FCAFC 192 CPC Patent Technologies Pty Ltd v Apple Pty Ltd (No 2) [2025] FCA 1671 Dymocks Franchise Systems (NSW) Pty v Todd [2004] 1 WLR 2807 Franklins Pty Ltd v Metcash Trading Ltd; Metcash Trading Ltd v Franklins Pty Ltd (2009) 76 NSWLR 603 Frigger v Lean [2012] WASCA 66 Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 Hardingham v RP Data Proprietary Limited [2023] FCA 480 Ipex ITG Pty Ltd (in liq) (receivers appointed) v Victoria [2014] VSCA 315 Kaur v Sikh Gurdwara Perth (Inc) [No 2] [2018] WASC 99 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Maylord Equity Management Pty Ltd v Nauer (No 2) [2017] NSWSC 1467 Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633 Sprintex Limited [No 3] [2025] WASC 59 Wright v Lemon [2024] WASCA 19 Wright v Lemon [No 2] [2021] WASC 159 Wright v Lemon [No 2] [2021] WASC 159 (S) -- 4 of 65 -- [2026] WASC 218 WHITBY J Page 5 Table of Contents Introduction and overview ..................................................................................................... 7 Materials filed and relied upon in support of the application ................................................ 9 Additional material tendered at the hearing ........................................................................ 10 Supplementary submissions ................................................................................................ 11 Chronology of relevant events............................................................................................. 12 Mr Thom and Julian meet................................................................................................ 12 Barbirolli and Julian enter into the Barbirolli Deed ........................................................ 14 The Thom Parties secure $55,000 funding from Filmstar for Julian .............................. 14 Mr Healy provides Julian with legal opinions ................................................................. 14 Mr Thom secures an additional $70,000 funding from three parties for Julian .............. 15 Mr Andrew Bell SC provides Julian with a legal opinion............................................... 15 Mr Stephen Davies SC provides Julian with a legal opinion .......................................... 15 Mr Thom meets Mr Butcher ............................................................................................ 15 Mr Thom enters into an Employment Agreement with BPC .......................................... 16 Meeting between Julian, Mr Thom, Mr Jenkins, Michael Ashforth and Mr Butcher ..... 16 Mr Alan Camp provides advice to Julian ........................................................................ 16 Julian commences proceedings against the defendants ................................................... 16 Filmstar provides additional funding to Julian ................................................................ 16 Mr Thom introduces Julian to Mr Purcell ....................................................................... 17 Julian obtains funding secured by LFSA ......................................................................... 17 Trial of proceedings is heard ........................................................................................... 17 Mr Purcell secures funding for Julian ............................................................................. 18 Primary Decision delivered and appeals dismissed ......................................................... 19 LFS and M&R mortgages discharged ............................................................................. 19 Observations of credibility of the witnesses ........................................................................ 20 Mr Gareth Jenkins ........................................................................................................... 20 Ms Yvette Louise Fenton ................................................................................................ 20 Mr Ian McGregor Thom .................................................................................................. 20 Legal principles applicable to an application for costs orders against non-parties ............. 24 General principles ............................................................................................................ 24 Who has the onus of proof on an application for the non-party costs order? .................. 26 Is a causal connection between the non-party and the incurrence of costs a necessary precondition to the exercise of the discretion? ................................................................ 27 What factors may assist the court in exercising the discretion in relation to non-party costs orders? .................................................................................................................... 30 -- 5 of 65 -- [2026] WASC 218 WHITBY J Page 6 Are the defendants required to apportion the costs they seek from each of the non-parties? ..................................................................................................................... 31 The Thom Parties ................................................................................................................ 33 Funding or financial assistance provided by the Thom Parties ....................................... 33 Commercial interest in the outcome of the proceedings ................................................. 37 Impecuniosity of Mr Thom ............................................................................................. 46 The defendants' ability to recover costs from Julian ....................................................... 47 Failure to seek security for costs against Julian .............................................................. 48 Failure to warn the Thom Parties they may be subject to an application for a non-party costs order ........................................................................................................................ 49 Determination of the Application against the Thom Parties ........................................... 50 The Purcell Parties ............................................................................................................... 51 Funding or financial assistance provided by Mr Purcell ................................................. 51 Commercial interest in the outcome of the proceedings ................................................. 52 LFS Funding Agreement and JW Litigation Trust ...................................................... 52 2020 M&R Funding Agreement and JW Appeal Trust ............................................... 53 2021 M&R Funding Agreement and J4J Litigation Trust ........................................... 54 Corporate vehicles used to fund litigation ....................................................................... 56 Timing of the funding ...................................................................................................... 56 Control over the proceedings........................................................................................... 58 Failure to pursue costs from Julian .................................................................................. 59 Financial position of Mr Purcell ...................................................................................... 59 Julian provided security for the funding .......................................................................... 59 Julian's asset out of reach of the defendants .................................................................... 60 Re-registration of LFS and M&R .................................................................................... 60 Success of defendants ...................................................................................................... 60 Determination of application against the Purcell Parties ................................................ 61 Mr Trudgian......................................................................................................................... 61 Funding or financial assistance provided ........................................................................ 61 Commercial interest in the outcome of the proceedings ................................................. 62 Determination of application against Mr Trudgian ......................................................... 64 Summary and final orders ................................................................................................... 64 -- 6 of 65 -- [2026] WASC 218 WHITBY J Page 7 WHITBY J: Introduction and overview 1 Ernest Archibald Maynard Wright, known as Peter, carried on a mineral exploration business through Wright Prospecting Pty Ltd (WPPL). He died in September 1985, leaving his shares in WPPL to his three children, Michael John Maynard Wright, Angela Mary Maynard Wright Bennett and Julian David Maynard Wright. Given several individuals share the same last name, I will refer to them by their first names with no disrespect intended. 2 In 1987, Julian, the plaintiff in these proceedings, sold his one-third shareholding in WPPL to his brother, Michael, and sister, Angela, the first and second defendants in these proceedings respectively. 3 In 2001, Julian's children, Natalie and Timothy, commenced proceedings against Michael and Angela in relation to the sale of their father's shares in WPPL (Natalie and Timothy Proceedings). Michael and Angela filed a cross-claim against Julian as a third party. In April 2008, Michael, Angela, Julian, Natalie and Timothy resolved the Natalie and Timothy Proceedings by a Deed of Settlement (2008 Settlement Deed). Julian was a party to the 2008 Settlement Deed and the 2008 Settlement Deed contained a covenant not to sue. 4 On 24 February 2017, Julian commenced these proceedings claiming that he sold his WPPL shares to Michael and Angela in circumstances where: (1) the assets in Peter's estate had not been fully and accurately disclosed to him; (2) matters material to WPPL's mining interests and royalties had not been fully and accurately disclosed to him; and (3) he did not receive full and fair value for the interests which he relinquished. 5 Julian sought orders setting aside the agreement to sell his WPPL shares and to be reinstated as a one-third shareholder in WPPL and as a residuary beneficiary of Peter's estate. In the alternative, Julian sought equitable compensation and damages. -- 7 of 65 -- [2026] WASC 218 WHITBY J Page 8 6 Michael and Angela denied that Julian was entitled to any relief. They contended that Julian released the claims he was making in these proceedings pursuant to the 2008 Settlement Deed. Michael and Angela also filed a counterclaim alleging that Julian breached the covenant not to sue contained in the 2008 Settlement Deed by commencing these proceedings and sought damages for breach of the 2008 Settlement Deed.1 7 Judgment in these proceedings (other than in respect of the defendants' counterclaim) was delivered in favour of the defendants on 2 July 2021 in Wright v Lemon [No 2] (Primary Decision).2 Le Miere J found that Julian's claims against Michael and Angela were barred by the 2008 Settlement Deed and that Julian breached the 2008 Settlement Deed by instituting these proceedings.3 8 Le Miere J made orders as to costs in favour of the defendants on 8 February 2022 in Wright v Lemon [No 2] (Costs Orders).4 Julian appealed. The appeal was dismissed by the Court of Appeal on 1 March 2024.5 Julian's application for special leave to appeal to the High Court was refused on 8 August 2024. 9 By chamber summons dated 17 December 2025 (Application), the defendants sought an order that the following individuals and entities are jointly and severally liable together with Julian for the payment of the defendants' costs of the trial: (1) Ian McGregor Thom; (2) Barbirolli Investments Pty Ltd (Barbirolli); (3) David John Purcell; (4) Litigation Funding Solutions (Australia) Pty Ltd (LFSA); (5) John Stephen Trudgian; and (6) Bernard John Orenstein. 10 I note that the Application relates only to the costs of the proceedings at first instance and not to the costs of the appeal. 1 Defence and Counterclaim dated 16 January 2020 (Defence) [24] - [26]. 2 Wright v Lemon [No 2] [2021] WASC 159. 3 Wright v Lemon [No 2] [16]. 4 Wright v Lemon [No 2] [2021] WASC 159 (S). 5 Wright v Lemon [2024] WASCA 19. -- 8 of 65 -- [2026] WASC 218 WHITBY J Page 9 11 The chamber summons was heard over three days on 14, 15 and 17 April 2026. Mr Thom and Barbirolli were represented by counsel at the hearing of the chamber summons. Mr Purcell appeared on behalf of himself and LFSA. Mr Trudgian was served by email with the chamber summons and supporting material but did not enter an appearance. On 14 April 2026, I made orders by consent of Mr Orenstein and the defendants that the chamber summons be discontinued against Mr Orenstein and that there be no order as to costs between the defendants and Mr Orenstein. As a result, the determination of the chamber summons requires consideration of three non-party groups. One is Mr Thom and Barbirolli (collectively the Thom Parties). Two is Mr Purcell and LFSA (collectively the Purcell Parties). Three is Mr Trudgian. When I refer to the 'non-parties', it is to those three non-party groups I refer. 12 Mr Thom, Mr Robert Butcher, Mr Gareth Jenkins and Ms Yvette Fenton gave evidence at the hearing of the Application. Each of their evidence related to the defendants' application against the Thom Parties. 13 In these reasons, I set out my observations as to the credibility and reliability of the witnesses, my findings of facts by reference to involvement in the proceedings of each of the non-parties, the legal principles applicable to an application for costs against a non-party, my assessment of the connection (or lack thereof) that each non-party had to the litigation and finally my determination of the chamber summons in relation to each of the non-parties. 14 For the reasons that follow, I find that each of the non-parties had a connection to the litigation sufficient to warrant the exercise of the court's power to make a non-party costs order. Given that connection, it would be unjust for each of the non-parties to escape liability to pay the defendants' costs. It is appropriate orders be made that the non-parties be jointly and severally liable, together with Julian, to pay the defendants' costs of the proceedings. Materials filed and relied upon in support of the application 15 In support of the Application, the defendants rely upon the following materials: (1) the affidavits of Gareth John Jenkins sworn 31 October 2024 (First Jenkins Affidavit), 12 June 2025 (Second Jenkins Affidavit), 20 June 2025 (Third Jenkins Affidavit), -- 9 of 65 -- [2026] WASC 218 WHITBY J Page 10 2 September 2025 (Fourth Jenkins Affidavit), 11 December 2025 (Fifth Jenkins Affidavit) and 28 March 2026 (Sixth Jenkins Affidavit); (2) the affidavits of Yvette Lousie Fenton sworn 20 June 2025 (First Fenton Affidavit) and 19 February 2026 (Second Fenton Affidavit); and (3) the affidavit of Cecilia Louise Cornu affirmed 19 February 2026 (Cornu Affidavit). 16 In opposition to the Application, the Thom Parties rely upon the following materials: (1) the affidavit of Ian McGregor Thom sworn 23 March 2026 (Thom Affidavit); (2) the confidential affidavit of Ian McGregor Thom sworn 23 March 2026 (Confidential Thom Affidavit); and (3) the affidavit of Robert Butcher sworn 23 March 2026 (Butcher Affidavit). Additional material tendered at the hearing 17 At the hearing, the Thom Parties tendered the following documents, which became exhibits: (1) an email from Yvette Fenton to herself, Cecelia Cornu and Riley Gray, dated 12 February 2026 (Exhibit 1); (2) an email from Cecilia Cornu to Stephen Kikiros, Yvette Fenton, Riley Gray and Alexander Godfrey, dated 8 April 2026 (Exhibit 2); (3) file note of Yvette Fenton, dated 28 November 2025 (Exhibit 3); (4) a memorandum of advice prepared by S M Davies SC, dated 5 December 2014 (Exhibit 4); (5) the advice of Alan Camp, dated 16 August 2016 (Exhibit 5); (6) a LinkedIn post of Mr Thom (Exhibit 6); -- 10 of 65 -- [2026] WASC 218 WHITBY J Page 11 (7) the opinion of Andrew Bell SC, dated 4 July 2013 (Exhibit 7); and (8) an email from Riley Gray to David Purcell dated 18 December 2025 (Exhibit 8.1) and an email from David Purcell to Cecilia Cornu dated 10 March 2026 (Exhibit 8.2). 18 At the hearing, the defendants called Mr Jenkins and Ms Fenton to give evidence. The Thom Parties called Mr Thom and Mr Butcher to give evidence. 19 Mr Purcell elected not to adduce any evidence or call any witnesses at the hearing. Supplementary submissions 20 The Thom Parties seek leave to file and rely upon supplementary submissions filed on 26 May 2026. By email to the court of the same date, the solicitors for the Thom Parties advised that the supplementary submissions were made in response to discrete, unpredicted matters arising from the defendants' reply address and attributed the reason for the delay in filing those submissions to not receiving a copy of the transcript of the hearings on 15 and 17 April 2026 until 8 May 2026. 21 The defendants provided submissions in response on 26 May 2026, primarily directed to the reasons why the court should refuse leave for the Thom Parties to rely upon the supplementary submissions. 22 I refused leave for the Thom Parties to rely upon the supplementary submissions. My reasons for doing so are: (1) the supplementary submissions were filed 27 business days after the hearing of the Application and 12 days after the Thom Parties say they received the transcript. This is not an adequate explanation for the delay, in circumstances where it is also not evident why the supplementary submissions depended on the review of the transcript. The delay is unfair to the defendants, particularly given that matters are asserted in the supplementary submissions that were not put to the defendants' witnesses; and (2) in any event, the supplementary submissions are irrelevant to my determination of the Application. The supplementary submissions are directed at two matters. The first is the issue of when the solicitors for the defendants are said to have received copies of the advices of Mr Bell SC, Mr Davies SC and -- 11 of 65 -- [2026] WASC 218 WHITBY J Page 12 Mr Camp, and how this impacts upon a purported acceptance by the defendants that the distinction between the claims pursued in the litigation and those considered in the advices were not in dispute. For reasons I will outline, the Barbirolli Deed does not operate only in respect of certain claims. Further, the subjective belief of the solicitors for the defendants as to whether the claims ultimately pursued in the action were considered in the advices is irrelevant - that question can be answered objectively by reference to the advices themselves. The second matter is as to whether counsel for the Thom Parties made improper allegations of dishonesty against Mr Jenkins and Ms Fenton. For reasons I will outline, I accept the evidence of Mr Jenkins and Ms Fenton. These submissions go nowhere. Chronology of relevant events 23 I will outline the relevant chronology, noting where the facts are in dispute. Mr Thom and Julian meet 24 Julian and Mr Thom met in mid-2012 and became friends. They remain friends. 25 It is a matter of dispute as to how Mr Thom and Julian first came to discuss the possibility of an action by Julian against the defendants. 26 Julian's version is contained in his evidence given at the trial of these proceedings.6 Julian said in early 2013 his lawyer contacted him to let him know he was going to dispose of the documentation from the Natalie and Timothy Proceedings. Julian said he asked Mr Thom to pick up the documents from his lawyer. He said Mr Thom read through the documents and said to him 'you've been had'. 27 According to Julian, Mr Thom then said that he had a barrister friend and that he and the barrister would not mind taking a look at Julian's case. Julian said that he was not prepared to spend any more money. Mr Thom responded by saying that Julian would not have to spend any more money, and Mr Thom and the barrister would just take a look. Julian said they could go through the documentation as long as the arrangement was that he did not have to put his hand in his pocket.7 6 ts 1153 - 1154. 7 ts 1153. -- 12 of 65 -- [2026] WASC 218 WHITBY J Page 13 28 Mr Thom's version is deposed to in the Thom Affidavit.8 Mr Thom says that in late 2012 Julian called him and asked whether he would be willing to look at some documents that his lawyer was about to throw out. Mr Thom says he was aware, through his earlier conversations with Julian, that Julian and his children had previously been engaged in proceedings with Julian's siblings. Julian said to Mr Thom he was not happy with the outcome of those proceedings. Mr Thom said he would not pick up the documents unless James Healy, a barrister Mr Thom knew through other business dealings, was interested in looking at them. Mr Thom says that around this time Julian asked him whether Mr Thom would assist him to find someone to fund an opinion on the prospects of any claim against his siblings.9 Mr Thom accepted it was possible his memory of that conversation with Julian, which occurred over 14 years ago, was imperfect.10 29 Counsel for Mr Thom submitted that I could not accept Julian's evidence as the defendants had contended at trial that Julian was not a credible or reliable witness and that his evidence should not be accepted unless it was confirmed by the contemporaneous record. However, in his reasons for decision, Le Miere J indicated that, while he approached Julian's evidence with caution, he did not approach his evidence on the basis that it must be wholly accepted or wholly rejected. His Honour stated that he would give Julian's evidence weight in accord with his assessment of the reliability of his evidence, having regard to, amongst other things, the known and probable circumstances.11 His Honour ultimately accepted Julian's evidence in relation to how he came to commence these proceedings, including his interactions with Mr Thom.12 30 As to which version is to be accepted for the purposes of the Application, I find Julian's evidence to be inherently more probable than Mr Thom's. Mr Thom and Julian had met no more than six months earlier. In my view, it is more likely than not that Julian would not approach Mr Thom about this matter given their relatively new friendship. 8 Thom Affidavit [15] - [16]. 9 Thom Affidavit [17]. 10 ts 2594. 11 Primary Decision [232]. 12 Primary Decision [193]. -- 13 of 65 -- [2026] WASC 218 WHITBY J Page 14 31 I find that it was Mr Thom who approached Julian about reviewing the files and going through them with a barrister in order to assess whether Julian had a claim against his siblings. Barbirolli and Julian enter into the Barbirolli Deed 32 In return for Mr Thom introducing Julian to Mr Healy, assisting to find funding for a legal opinion as to the prospects of success of any claim against his siblings and helping Julian to review and collate documents relevant to the legal opinion, Julian entered into an agreement to share in the potential proceeds of any litigation (Barbirolli Deed). On 16 May 2013, Julian and Barbirolli entered into the Barbirolli Deed to formalise the arrangement between Julian and Mr Thom.13, 33 Mr Thom is the sole director, and controlling mind, of Barbirolli. Barbirolli did not trade, invest or hold a beneficial interest in any assets at any time. Barbirolli does not produce or maintain financial records. The Thom Parties secure $55,000 funding from Filmstar for Julian 34 In May 2013, Barbirolli, through Mr Thom, secured funding for Julian from Mr Robert Bettini, a friend of Mr Thom's since 1989.14 35 On 16 May 2013, Mr Bettini's company, Filmstar Pty Ltd (Filmstar) and Julian entered into an agreement whereby Filmstar agreed to loan $55,000 to Julian (Filmstar Loan Agreement). Mr Thom drafted the Filmstar Loan Agreement.15 The Filmstar Loan Agreement provided the repayment of the funds would only occur if settlement funds were received from a successful outcome with respect to an outstanding legal dispute between Julian and his siblings. In that event, Filmstar was also entitled to a percentage of the settlement funds received up to a maximum amount of $1,100,000. Mr Healy provides Julian with legal opinions 36 Around the time of the Barbirolli Deed, Mr Healy provided Julian with two legal opinions advising on the prospects of success of a claim by Julian against his siblings.16 13 Thom Affidavit [23]; Annexure 'IMT-1'. 14 Thom Affidavit [27]. 15 Thom Affidavit [29]; Annexure 'IMT-2'. 16 Thom Affidavit [40]. -- 14 of 65 -- [2026] WASC 218 WHITBY J Page 15 37 On 23 September 2014, Mr Healy provided Julian with a third legal opinion, this time in relation to the 2008 Settlement Deed concerning the Natalie Timothy Proceedings. Mr Thom secures an additional $70,000 funding from three parties for Julian 38 In June 2013, Barbirolli, through Mr Thom, secured an additional $70,000 of funding for Julian - $25,000 from Ian Paton, $25,000 from David King (through the D A King Family Trust), and $20,000 from Mossgrove Nominees Pty Ltd (Peter Hood's company). Each of Mr Paton, Mr King, and Mr Hood were friends of Mr Thom's. Mr Thom drafted the documents entitled 'loan agreements' for each of these funders. They were in the substantially the same terms as the Filmstar Loan Agreement, save that the percentage amounts each were entitled to on settlement differed.17 Mr Andrew Bell SC provides Julian with a legal opinion 39 On 4 July 2013, Mr Andrew Bell SC provided Julian with a legal opinion as to Julian's prospects of success of claims against his siblings.18 Mr Stephen Davies SC provides Julian with a legal opinion 40 On 5 December 2014, Mr Davies SC provided Julian with a legal opinion as to Julian's prospects of success of claims against his siblings.19 Mr Thom meets Mr Butcher 41 In around April 2016, Mr Thom and Mr Alan Camp met with Mr Butcher at the offices of Butcher Paull & Calder (BPC). Mr Butcher gave evidence that he understood that Mr Camp was a barrister at the time, had taken a statement from a witness, prepared a statement of claim, and was of the view that Julian had a claim. Mr Butcher understood that Mr Camp was working on those matters with Mr Thom.20 17 Thom Affidavit [31] - [33]; Annexures 'IMT-3', 'IMT-4' and 'IMT-5' respectively. 18 Exhibit 7. 19 Exhibit 4. 20 ts 2658. -- 15 of 65 -- [2026] WASC 218 WHITBY J Page 16 Mr Thom enters into an Employment Agreement with BPC 42 In mid-2016, BPC as employer and Mr Thom as employee entered into an employment agreement (BPC Employment Agreement). Mr Butcher backdated the agreement to 1 April 2016 to align with the time that Mr Thom became involved with BPC.21 43 The BPC Employment Agreement provides, by Item 5, that the services to be provided by Mr Thom were those of a legal assistant in respect only to the claim made by Julian. Meeting between Julian, Mr Thom, Mr Jenkins, Michael Ashforth and Mr Butcher 44 In June 2016, Julian, Mr Thom, Mr Jenkins, Michael Ashforth (then chair of WPPL's Board) and Mr Butcher had a meeting. This was the first time Mr Jenkins met Mr Thom. Mr Jenkins says Mr Thom introduced himself as a consultant to Julian. Mr Jenkins understood that the purpose of this meeting was to try to resolve any dispute before Julian commenced proceedings against the defendants. 45 Following this meeting, Mr Butcher sent an email to Clayton Utz notifying them that the proceedings would be commenced, copying Mr Thom to this email.22 Mr Alan Camp provides advice to Julian 46 In August 2016, Mr Camp provided advice to Julian confirming that in his view, Julian had a claim for fraudulent misrepresentation against his siblings.23 Julian commences proceedings against the defendants 47 On 24 February 2017, Julian commenced these proceedings against the defendants. Filmstar provides additional funding to Julian 48 On 15 June 2019, Julian and Filmstar entered into a funding agreement pursuant to which Filmstar provided $100,000 to Julian. On 26 July 2019, Filmstar Holding Pty Ltd and James Anthony Bennett as trustee for the Homodei Trust entered into a deed of assignment 21 Fifth Jenkins Affidavit [16]; Annexure 'GJJ-92'. 22 Sixth Jenkins Affidavit [8]; Annexure 'GJJ-138'. 23 Exhibit 5. -- 16 of 65 -- [2026] WASC 218 WHITBY J Page 17 pursuant to which Filmstar assigned its interests under the two Filmstar funding agreements.24 Mr Thom introduces Julian to Mr Purcell 49 By no later than 2019, Mr Thom introduced Julian to Mr David Purcell. Mr Purcell was and continues to be the sole director of LFSA. The sole shareholder of LFSA is Rend Corporation Ptd Ltd (Rend) and the sole shareholder of Rend is Mr Purcell. The directors of Rend are Mr Purcell and his partner, Nola Shannon.25 Julian obtains funding secured by LFSA 50 On 3 August 2019, Julian entered into a mandate agreement with LFSA pursuant to which Julian granted LFSA an exclusive period of two months to secure offers from funders to fund the proceedings (Mandate Agreement).26 Recital A of the Mandate Agreement states that LFSA is a broker or originator of litigation funding. Recital B states that Julian has sought relief against the defendants in these proceedings. By cl 5 of the Mandate Agreement, Julian acknowledges that LFSA will be compensated for its services from any funder it introduces to Julian, and that may involve a fee paid to LFSA by the funder and/or a share of any profit the funder may receive if the proceedings are successful. 51 One of the funders that Mr Purcell introduced Julian to was Mr Trudgian. 52 In January 2020, Julian entered into a funding agreement with Mr and Mrs Trudgian as trustees of the J&K Trudgian Super Fund (Trudgian Funding Agreement) for the amount of $150,000 in return for which LFSA received a fee of $15,000 from the Trudgians which was deducted from the $150,000 provided to Julian.27 Trial of proceedings is heard 53 The trial of these proceedings was heard before Le Miere J from 10 February 2020 to 5 March 2020 and from 27 to 31 July 2020. 24 Fifth Jenkins Affidavit [12]; Annexure 'GJJ-85'. 25 Fifth Jenkins Affidavit [21]; Annexures 'GJJ-109' and 'GJJ-110'. 26 Fifth Jenkins Affidavit [18]; Annexure 'GJJ-95'. 27 Second Jenkins Affidavit [26]; Annexure 'GJJ-31'. -- 17 of 65 -- [2026] WASC 218 WHITBY J Page 18 Mr Purcell secures funding for Julian 54 By 28 May 2020, Mr Purcell and Julian had discussed the terms of a proposed funding arrangement for an amount of $1.3 million (with $100,000 out of that amount being LFSA's fee). On 28 May 2020, Mr Purcell sent Julian an email attaching a draft funding agreement. Julian and Mr Purcell exchanged email correspondence in relation to the terms of the proposed funding arrangement.28 55 On 1 July 2020, LFSA and Mr and Mrs Trudgian in their capacity as partners of Williams Inference (referred to in the agreement as JT) entered into an agreement acknowledging the JW Litigation Unit Trust (JW Litigation Trust) had been established on 17 June 2020 (JT Agreement).29 56 On 17 July 2020, Julian executed a funding agreement with LFS Services Pty Ltd (LFS) as trustee for the JW Litigation Trust for the amount of $2 million (LFS Funding Agreement).30 57 On 17 July 2020, Nattim Pty Ltd (Nattim), the company which owned the Marri Wood Park property (Marri Wood Park), and of which Julian was the sole director and shareholder, granted a first registered mortgage to LFS to secure the funding advanced under the LFS Funding Agreement.31 58 On 12 October 2020 (during the period the Primary Decision was reserved), Julian entered into a further funding agreement with Mining & Resources Litigation Fund Pty Ltd (M&R) as trustee for the JW Appeal Costs Unit Trust (JW Appeal Trust) for the amount of $550,000 (2020 M&R Funding Agreement).32 Mr Purcell was the sole director of M&R, and LFSA was the sole shareholder of M&R. 59 On 24 December 2020, Nattim granted a second registered mortgage to M&R to secure the funding advanced under the 2020 M&R Funding Agreement. 60 In December 2020, Mr Trudgian introduced Mr Orenstein to Mr Purcell. 28 Fifth Jenkins Affidavit [19]; Annexures 'GJJ-98' and 'GJJ-99'. 29 Fifth Jenkins Affidavit [8]; Annexure 'GJJ-79D-51'. 30 Second Jenkins Affidavit [23]; Annexure 'GJJ-29'; Fifth Jenkins Affidavit [8]; Annexure 'GJJ-79D-2'. 31 Fifth Jenkins Affidavit [30]; Annexures 'GJJ-126' and 'GJJ-127'. 32 Fifth Jenkins Affidavit [8]; Annexure 'GJJ-79D-173'. -- 18 of 65 -- [2026] WASC 218 WHITBY J Page 19 61 On 29 March 2021 (during the period the Primary Decision was reserved), Julian entered into a further funding agreement with Justice4Julian Pty Ltd (J4J) as trustee for the Justice4Julian Unit Trust (J4J Trust) for an amount of $1.1 million.33 The directors of J4J were Mr Purcell, Mr Trudgian and Mr Orenstein. The two shareholders of J4J were Live Only Once Pty Ltd (the directors and shareholders of which were Mr Orenstein's partner and daughter), and Run IT Pty Ltd (the sole director and shareholder of which was Mr Orenstein).34 62 On 18 May 2021 (during the period the Primary Decision was reserved), Julian entered into a further funding agreement with M&R, this time as trustee for the Justice4Julian Litigation Unit Trust (J4J Litigation Trust) for an amount of $550,000.35 Primary Decision delivered and appeals dismissed 63 Le Miere J delivered his decision on 2 July 2021 dismissing Julian's claim. Julian unsuccessfully appealed to the Court of Appeal.36 On 8 August 2024, Julian's application for special leave to appeal to the High Court was dismissed. LFS and M&R mortgages discharged 64 On 8 and 9 August 2024, Mr Purcell issued Julian with 60-day notices pursuant to the LFS Funding Agreement and the 2020 M&R Funding Agreement to repay the amounts of $2,000,000 and $550,000 secured by the mortgages over Marri Wood Park.37 65 On 9 October 2024, the two mortgages over Marri Wood Park were discharged.38 66 On 18 November 2024, Julian as director of Nattim sold Marri Wood Park to Rogue Harvest Pty Ltd (Rogue Harvest) for $5,450,000. The sole director and shareholder of Rogue Harvest is Timothy, Julian's son.39 33 Second Jenkins Affidavit [16]; Annexure 'GJJ-27'. 34 Fifth Jenkins Affidavit [21]; Annexures 'GJJ-112' to 'GJJ-114'. 35 Fourth Jenkins Affidavit [38]; Annexure 'GJJ-78'. 36 Wright v Lemon [2024] WASCA 19. 37 Fifth Jenkins Affidavit [33] - [34]; Annexures 'GJJ-130' and 'GJJ-131'. 38 Fifth Jenkins Affidavit [36]; Annexures 'GJJ-132' and 'GJJ-133'. 39 Fifth Jenkins Affidavit [29]. -- 19 of 65 -- [2026] WASC 218 WHITBY J Page 20 Observations of credibility of the witnesses Mr Gareth Jenkins 67 Mr Jenkins is currently the general counsel of WPPL. He commenced this role in February 2026. Prior to this role, he was a partner at Clayton Utz and had the day-to-day conduct of these proceedings from the date they were commenced in February 2017. 68 Mr Jenkins has over 33 years' experience in commercial litigation, with approximately 25 of those years as a principal. Mr Jenkins deposed to his interactions with Mr Thom prior to the trial and to observing Mr Thom's conduct during the trial of the proceedings. I accept that Mr Jenkins' experience qualifies him to give this evidence. 69 I found Mr Jenkins to be a direct and honest witness. Although at times he came across as argumentative, he answered questions without embellishment. I prefer Mr Jenkins' evidence to Mr Thom's evidence on matters where there is a dispute of fact. Ms Yvette Louise Fenton 70 Ms Fenton is a partner of Clayton Utz. She has held this role since February 2025. During the trial of these proceedings in 2020, Ms Fenton was a senior associate and has worked on the dispute that is the subject of the proceedings since 2017. During the trial, Ms Fenton worked under the direction of Mr Jenkins.40 71 Ms Fenton attended the trial on 20 of the 23 hearing days. Ms Fenton deposed that Mr Thom attended the trial on most days and usually sat with Julian and Julian's solicitors at the bar table. 72 I found Ms Fenton to be an honest witness who gave a great deal of thought to her answers to questions in cross-examination. I accept her evidence as credible and reliable. Mr Ian McGregor Thom 73 I did not find Mr Thom to be a credible or reliable witness. He was argumentative, refused to answer questions, gave non-responsive answers and gave unsolicited commentary in response to questions asked of him. In my view, Mr Thom was willing to tailor his evidence to paint himself in what he perceived to be a favourable light. 40 First Fenton Affidavit [2]. -- 20 of 65 -- [2026] WASC 218 WHITBY J Page 21 74 On several occasions, Mr Thom gave oral evidence which was inconsistent with his affidavit evidence. He also gave oral evidence on material matters that he had not deposed to in his affidavit. In several instances, Mr Thom's evidence, both oral and in his affidavit, was inconsistent with the documents. Five examples of his inconsistent evidence follow. 75 First, in the Thom Affidavit, Mr Thom deposed that during a conversion with Julian in 2020 Julian said words to him to the effect that Julian was taking all the risk and the deal was over because Mr Thom had done nothing to support Julian's legal case. Mr Thom deposed that from that point on he treated the Barbirolli Deed as terminated.41 76 However, in June 2025, Mr Thom, in his written response to correspondence to the solicitors for the defendants in relation to a foreshadowed application for costs against the Thom Parties, did not assert that the Barbirolli Deed was terminated by Julian or no longer operative for any other reason.42 This was despite Mr Thom accepting that he understood the solicitors for the defendants were thinking about bringing a claim for non-party costs orders against him and/or Barbirolli and the defendants were suggesting he stood to profit from the litigation by reason of the Barbirolli Deed.43 Mr Thom said he did not tell the solicitors for the defendants that Barbirolli had no entitlements under the Barbirolli Deed at that time because he was just answering the letter, he did not have legal advice, and he 'didn't really think too much about it'.44 I do not accept Mr Thom's evidence as to why he did not tell the solicitors for the defendants at that time that he considered the Barbirolli Deed terminated in mid-2020. Mr Thom's letter dated 3 June 2025 goes beyond merely producing documents - it also purports to offer explanations as to why Mr Thom and/or Barbirolli are not responsible for non-party costs orders.45 77 Second, Mr Thom deposed that he never met with Julian's lawyers in relation to these proceedings without Julian being there. He said whenever he did meet with the lawyers and Julian, it was at the invitation of Julian, and Mr Thom was like a support person for Julian.46 This is inconsistent with Mr Thom's oral evidence and 41 Thom Affidavit [48] - [50]. 42 Third Jenkins Affidavit [35] - [36]; Annexures 'GJJ-56' and 'GJJ-57'. 43 ts 2623 - 2624. 44 ts 2627. 45 Third Jenkins Affidavit [36]; Annexure 'GJJ-57'. 46 Thom Affidavit [66]. -- 21 of 65 -- [2026] WASC 218 WHITBY J Page 22 Mr Butcher's oral evidence. Mr Thom gave oral evidence that there were times that he met with members of Julian's legal team without Julian being present.47 Mr Butcher gave oral evidence that he sometimes had conversations with Mr Thom in the absence of Julian.48 Mr Butcher referred to one occasion where he and Mr Thom signed an employment agreement for BPC to employ Mr Thom as a legal assistant on Julian's case.49 78 Third, Mr Thom deposed that he put Julian in contact with Mr Purcell when Julian was looking for a litigation funder in 2019. Mr Thom deposed that, apart from that initial introduction, he was not involved at all in the funding arrangements that Mr Purcell made with Julian.50 In cross-examination, Mr Thom was asked if, after that initial introduction, he liaised with Julian and Mr Purcell about sources of funding. Mr Thom said no.51 Counsel for the defendants then put to Mr Thom an email dated 10 October 2019 from Julian to Mr Purcell, copied to Mr Thom, which said:52 David I agree with Mac. As of Monday let's make other enquiries leaving the door with Therium open if we can, however, first in first served really. Hang in there we will prevail. 79 Mr Thom agreed the reference to 'Mac' was a reference to him.53 Mr Thom then said there was an 'open dialogue' between himself and Mr Purcell in relation to sources of funding, describing it as 'general chitchats'.54 80 Fourth, Mr Thom deposed that:55 I know from reading [James Healy's] advice and from the meetings I attended with Julian and James Healy that the primary cause of action being considered was a misleading and deceptive conduct case. It was a different claim to the fraud case that was eventually brought, when Julian commenced the Supreme Court litigation in 2017. My understanding is that the change of the nature to the case happened in around 2016. 47 ts 2638 - 2640. 48 ts 2659. 49 ts 2659. 50 Thom Affidavit [70]. 51 ts 2644. 52 ts 2644; Third Jenkins Affidavit [38]; Annexure 'GJJ-58'. 53 ts 2644 - 2645. 54 ts 2645. 55 Thom Affidavit [42]. -- 22 of 65 -- [2026] WASC 218 WHITBY J Page 23 81 Yet in cross-examination, when Mr Thom was questioned extensively about the nature of the claims that were ultimately pursued in these proceedings, Mr Thom's answers were evasive and non-responsive.56 Mr Thom did accept he did not 'understand the legalities behind it' and that he 'absolutely [did] not' understand what the court action was.57 82 It was a cornerstone of Mr Thom's opposition to the Application that any role he played or financial assistance he sourced in relation to any claim by Julian against the defendants had come to an end after the advice of James Healy in 2013, Mr Andrew Bell SC in 2013 and Mr Stephen Davies SC in 2014 were all to the effect that there was no legal basis to start an action against the defendants. Mr Thom positively asserted that the nature of the case changed after those advices were received and this meant that the Barbirolli Deed was no longer operative. However, I do not accept Mr Thom's evidence that the nature of the proposed action had changed in 2016 as Mr Thom clearly did not understand the nature of the claims referred to in the advices and those that were ultimately claimed in the proceedings. In order to determine whether, in fact, the claims pursued in the proceedings were different from those considered in the legal advices, it is necessary to consider the underlying advices as compared to the claims in the proceedings. I will undertake this analysis when I consider the relevance of the Barbirolli Deed. 83 Fifth, Mr Thom deposed that Mr Butcher wanted the BPC Employment Agreement in place to protect the integrity of any documents and communications that were received in potential proceedings.58 This explanation given by Mr Thom is inconsistent with the terms of the BPC Employment Agreement and the unchallenged evidence of Mr Butcher that the BPC Employment Agreement was entered into at the request of Mr Thom to give him the official role of a legal assistant to Julian.59 His evidence is also implausible given that an employment agreement is clearly not required to protect the confidentiality of Julian's documents. Mr Thom himself accepted that confidentiality concerns could have been dealt with by a confidentiality agreement.60 56 ts 2609 - 2615. 57 ts 2614. 58 Thom Affidavit [54]. 59 Butcher Affidavit [14] - [15]. 60 ts 2632 - 2633. -- 23 of 65 -- [2026] WASC 218 WHITBY J Page 24 84 It was apparent to me, both in his affidavit and oral evidence, Mr Thom sought to substantially downplay the assistance that he gave to Julian in the proceedings and the role that he played in the litigation. Mr Thom asks the court to find that he gave no assistance, had no role and had no financial interest in the proceedings. Mr Thom's evidence was inconsistent in important respects with the documents, his own evidence, the evidence of Mr Jenkins and the evidence of Mr Butcher. I also found his evidence that he had no role or financial interest in the proceedings to be implausible for reasons I will set out in detail when I make findings in relation to Mr Thom's connection to the proceedings. 85 Counsel for Mr Thom submitted that, while Mr Thom's demeanour was not entirely satisfactory at times, I should have regard to Mr Thom's medical situation as deposed to in the Confidential Affidavit in assessing his evidence. I have reservations as to the relevance of the medical evidence to Mr Thom's evidence given in 2026 as it relates to Mr Thom's medical situation in 2020. In any event, it was the substance of Mr Thom's evidence and the inconsistencies to which I have referred that cause me to have substantial concerns about the credibility and reliability of Mr Thom's evidence. 86 I do not accept Mr Thom's affidavit evidence or his oral evidence except where it amounted to an admission, was inherently probable, or was corroborated by a contemporaneous document or a witness whose evidence I do accept. Legal principles applicable to an application for costs orders against non-parties General principles 87 The Supreme Court has a wide, discretionary jurisdiction as to costs - s 37(1) of the Supreme Court Act 1935 (WA): Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid. 88 The discretion to award costs must be exercised judicially but is otherwise absolute, unconfined and unfettered.61 The overarching 61 Frigger v Lean [2012] WASCA 66 [53] (Murphy JA, Allanson J & Newnes AJA agreeing). -- 24 of 65 -- [2026] WASC 218 WHITBY J Page 25 guiding principle is that the discretion to award costs must be exercised to achieve what is fair and just between the parties according to the circumstances of the case.62 89 It is a well-established principle that the wide discretion to award costs extends to making costs orders against non-parties, including those who fund or otherwise financially assist the litigation.63 90 The circumstances in which a costs order may be made against a non-party litigation funder were considered by Thawley J in Hardingham v RP Data Proprietary Limited:64 Plainly enough, the power to order costs against a third party would only be exercised in circumstances where a non-party has a connection to the litigation which is sufficient to warrant exercise of the power. One example of where a connection is typically insufficient is where family members provide financial support to an applicant in litigation in which the supporting family member has no commercial interest in the outcome; such assistance is founded in family or social ties and directed at facilitating access to justice for the purpose of vindicating rights. (citations omitted) 91 After observing that it has been said in previous cases that an order for costs against a non-party would only be made in exceptional circumstances, his Honour said that was not a helpful observation given the increasing prevalence of litigation funding:65 Certainly, it is not exceptional to order costs against the litigation funder who facilitates litigation for their own commercial gain. Indeed, this has become increasingly common … … There are many cases which recognise the fairness in ordering a party who funds litigation for their own commercial benefit to pay, if they fail, the successful party's costs. 92 The first instance judgment in Hardingham was upheld on appeal by the Full Court in Court House Capital Pty Ltd v RP Data Pty Ltd.66 In dismissing the appeal, the Full Court stated that the primary judge 62 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558. 63 See Seaman P, Civil Procedure Western Australia (1990) [66.1.4] and the cases cited therein. 64 Hardingham v RP Data Proprietary Limited [2023] FCA 480 (Hardingham) [19] - [20]. 65 Hardingham [21] - [22]. 66 Court House Capital Pty Ltd v RP Data Pty Ltd [2023] FCAFC 192 (Court House Capital). -- 25 of 65 -- [2026] WASC 218 WHITBY J Page 26 had made no error in the distillation of the principles which inform the court's discretion to make an order for costs against a non-party.67 93 The primary purpose of the commencement and prosecution of an action is to vindicate legal rights, as opposed to being a commercial profit-making opportunity. Therefore, in principle it would be unfair to allow a non-party to fund or financially assist litigation in the hope of obtaining a benefit without facing the risk of paying the costs of the opposing party if the litigation fails.68 Who has the onus of proof on an application for the non-party costs order? 94 The Thom Parties submit that the applicant for a non-party costs order bears the legal onus of establishing that the order is just relying on the decision of Le Miere J in Kaur v Sikh Gurdwara Perth (Inc) [No 2].69 95 The defendants submit that there is no onus of proof in an application for the exercise of discretion in relation to non-party costs. The defendants rely upon the following finding of the Victorian Supreme Court of Appeal in Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liquidation):70 [T]he applicants contended that the trial judge reversed the onus of proof in finding that the applicant had had ample opportunity to put on evidence that they would not have continued with the proceeding if they had been warned that an application for non-party costs would have been made or if there had been an application for security. This matter can be dealt with briefly. There is no onus of proof in an application for the exercise of a discretion such as that in the present case. (emphasis added) 96 The finding in Ballantyne that there is no onus of proof on such an application has been cited with approval in Ipex ITG Pty Ltd (in liq) (receivers appointed) v Victoria71 and Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs.72 67 Court House Capital [12] - [13]. 68 Hardingham [23]. 69 Kaur v Sikh Gurdwara Perth (Inc) [No 2] [2018] WASC 99 (Kaur) [16]. 70 Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liquidation) [2014] VSCA 223 (Ballantyne) (Ashley, Priest & Santamaria JJA) [45]. 71 Ipex ITG Pty Ltd (in liq) (receivers appointed) v Victoria [2014] VSCA 315 (Ipex) (Neave, Santamaria & Kyrou JJA) [45]. 72 Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633 [24] (Hammerschlag J). -- 26 of 65 -- [2026] WASC 218 WHITBY J Page 27 97 In Kaur, Le Miere J was not directed to the decisions of the Victorian Court of Appeal in Ballantyne and Ipex. The question of whether there was any onus of proof in an application for costs against a non-party was not a live one in Kaur. I have not been directed to any other case in which a court has held that the applicant bears the onus of proof in such an application. For these reasons, I prefer the decision in Ballantyne to the effect that there is no onus of proof. In any event, it is my view that the determination of the Application in respect of each of the non-parties does not turn on whether there is no onus of proof. Is a causal connection between the non-party and the incurrence of costs a necessary precondition to the exercise of the discretion? 98 The Thom Parties and the Purcell Parties each rely upon the decision of Kaur as authority for the principle that, in this jurisdiction, the applicant must demonstrate a 'causal connection' between the non-party and the incurrence of costs in the litigation. Counsel for the Thom Parties referred to the following passage of Le Miere J's decision in Kaur:73 As to the connection between the non-party and the incurrence of costs, the authorities establish that there must be a causal link: if the costs would have been incurred even without the non-party's involvement the non-party should not ordinarily be made liable for them: Dymocks [20] (Lord Brown). This causal link must be real and direct: Bischof (205) (Gobbo J). 99 The cases cited by his Honour were Dymocks Franchise Systems (NSW) Pty v Todd74 and Bischof v Adams.75 100 In Bischof, Gobbo J relevantly said:76 The most convenient course is, in my view, to look at both factors in considering the connection between the proceedings and the non party, namely, the connection between the non party and the proceedings and secondly, the causal connection between the non party and the costs. I have concluded that, without limiting myself to these two matters, I should take both factors into account in any exercise of discretion. The connection must be real and direct and it must be material to the issue of costs. The mere fact that a person may benefit from the litigation will not, without more, suffice. 73 Kaur [13]. 74 Dymocks Franchise Systems (NSW) Pty v Todd [2004] 1 WLR 2807 (Dymocks). 75 Bischof v Adams [1992] 2 VR 198 (Bischof). 76 Bischof (205). -- 27 of 65 -- [2026] WASC 218 WHITBY J Page 28 There are other matters that need to be taken into account. Thus, it would invariably be unjust to make an order against a non party without affording that person a proper hearing. That should include an opportunity to resist evidence already received in the proceedings. 101 Since Kaur, in this court Lundberg J has observed that the factors identified by Gobbo J have been applied on numerous occasions since the decision in Bischof, one of those being in Kaur.77 102 However, there are several reasons why I do not accept that the decisions in Kaur, Sprintex and Bischof stand as authority for the principle that there must be a causal connection between the non-party and the incurrence of costs in order to make a non-party costs order. Adopting this principle is tantamount to imposing a precondition to the exercise of the discretion - that is, it must be necessary for the court to find that 'but for' the provision of funding, the proceedings would not have continued, and costs would not have been incurred. 103 The first reason is that, in the unanimous Full Court decision in 2023 in Court House Capital such a proposition was unanimously rejected, the Full Court stating:78 Court House submitted that the primary judge had erred in law in determining that for Court House to 'facilitate' the proceedings, all that needed to be satisfied was that it 'enabled' or made it 'easier' when what was required, at law, was a finding that 'but for' the funding, the proceedings would not have continued. Court House cited no authority supportive of this proposition and we reject that this reflects existing jurisprudence with respect to commercial litigation funding or is otherwise sound. 104 The second reason is that the 'but for' test would require the court to speculate about what might have happened in the proceedings if the funding or financial assistance had not been provided. In Gore v Justice Corporation Pty Ltd,79 again a unanimous Full Court, upholding an appeal against the primary judges' decision to refuse to make a non-party costs order, found this was not an exercise the court should engage in:80 We do not consider that it was an appropriate exercise for his Honour to hold that it may have been possible for the [the plaintiff] to continue with its case unaided by Justice Corporation. By approaching his task in 77 Sprintex Limited [No 3] [2025] WASC 59 (Sprintex) [49]. 78 Court House Capital [34]. 79 Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 (Gore) (O'Loughlin, Whitlam & Marshall JJ). 80 Gore [61]. -- 28 of 65 -- [2026] WASC 218 WHITBY J Page 29 that fashion, his Honour concluded that he could not be positively satisfied that, absent support from Justice Corporation, that the litigation would come to a halt. The correct approach, in our opinion, is to examine what did happen, putting to one side issues of speculation. By adopting that attitude, there is a clear answer: Justice Corporation funded the litigation and gave financial support to [the plaintiff] in the terms that were represented by the contents of the Litigation Agreement. Those were the relevant facts upon which a judicial determination was to be made and the judicial discretion was to be exercised. 105 The third reason is the changing landscape of litigation funding, as recognised by Thawley J in Hardingham, decided since Bischof and Dymocks.81 Litigation funding as a commercial profit-making enterprise has become increasingly common and applications for non-party costs orders against such funders must be determined in this context. 106 The fourth reason is the decisions in this court in Kaur and Sprintex are not, in my view, inconsistent with the decision in Court House Capital. Neither Kaur nor Sprintex was a case in which a litigation funder who had a commercial interest in the proceedings was the subject of the application for a non-party costs order. In each case the determination of the application for a non-party costs order involved a fact specific enquiry. 107 Kaur concerned funding provided to the plaintiff by parties who were not commercial litigation funders and had no financial interest in the outcome of the proceedings. The persons against whom the defendants sought the costs order were two friends of the plaintiff and had issued notice pursuant to O 9A of the Rules of the Supreme Court 1971 (WA) (RSC). Le Miere J declined to make a costs order against the non-parties, observing the defendant had not advanced any reason why the non-parties should pay its costs beyond the facts established by the O 9A notice, such as the non-parties provided funding or other financial assistance to the plaintiffs for the conduct of the case or exercised direct or indirect control or influence over the way in which the plaintiffs conducted the case.82 108 In Sprintex, the plaintiff company sought non-party costs orders against its office holders for the costs of proceedings in which the company had sought, and was granted, curative orders for failures by 81 Hardingham [21]. 82 Kaur [17]. -- 29 of 65 -- [2026] WASC 218 WHITBY J Page 30 the company to comply with requirements of the Corporations Act 2001 (Cth). In making the costs orders sought against the non-parties, Lundberg J had regard to several factors, one of which was the causal connection between the conduct of the non-parties and the costs incurred by the plaintiff.83 However, his Honour observed that the circumstances in Sprintex stood apart from decided cases in which non-party costs orders had been previously been made.84 109 Neither Kaur nor Sprintex was decided solely by reference to whether there was a causal connection between the non-party and the incurrence of costs in the proceedings. In each case, this was but one factor which weighed either in favour of or against the making of a non-party costs order. 110 The fifth and final reason is the imposition of such a precondition to the exercise of the discretion is inconsistent with the wide and unfettered nature of that discretion. There is no sound basis for finding the discretion to be fettered or confined by a precondition that there must be a causal connection between the non-party and the incurrence of costs in the litigation. What factors may assist the court in exercising the discretion in relation to non-party costs orders? 111 It is important to preface any discussion about the factors that may assist the court in exercising the discretion in relation to non-party costs orders with this observation: factors or guidelines are not a substitute for, and are not a fetter upon, the wide discretion that the court has to order costs. Neither are the factors that may assist closed. Whether the discretion is ultimately exercised in favour of a non-party costs order always depends on the facts of the case, having regard to what is fair and just between the parties. 112 As I have outlined, if a court determines that there is a sufficient connection between the non-party and the proceedings and considers that a non-party costs order is fair and just between the parties, the court will exercise its discretion to make such an order. 113 In determining whether there is a sufficient connection and whether a non-party costs order is fair and just, relevant considerations may include: 83 Sprintex [59]. 84 Sprintex [52]. -- 30 of 65 -- [2026] WASC 218 WHITBY J Page 31 (1) whether the non-party has a commercial interest in the subject matter of the litigation, and whether that interest goes beyond the mere recovery of funds provided;85 (2) whether the non-party had any right to be involved in the decision making in the litigation and/or was entitled to protections with respect to any settlement of the proceedings;86 (3) the financial state of the unsuccessful party, in this case Julian, particularly whether Julian is able to meet any costs orders against him;87 (4) the failure to seek a security for costs order against the unsuccessful party and/or the failure to provide notice to non-parties that a costs order will be sought against them in the event the plaintiff is unsuccessful;88 and (5) whether the proceedings involved matters of public interest or matters which extend beyond the interests of the parties to the proceedings.89 114 This is neither a checklist nor an exhaustive list - there may be other considerations that weigh for or against the making of a non-party costs order depending upon the facts of the case. Are the defendants required to apportion the costs they seek from each of the non-parties? 115 The Thom Parties submit that the Application must fail at this first hurdle - the defendants have selectively pursued non-parties and have made no attempt to apportion the costs it seeks between the non-parties. For this reason alone, the Thom Parties say the non-party costs orders sought are not just. The Thom Parties submit that a proper application is one which seeks to recover a fraction of costs from each non-party to reflect that non-party's connection to the proceedings. The Thom Parties rely upon the case of Sprintex as authority for this proposition. 116 Mr Purcell also referred to the fact that the defendants applied for costs against only a select group of non-parties. Mr Purcell submits that 85 Carter v Caason Investments Pty Ltd [2016] VSCA 236 (Carter) [19] (Weinberg, Ferguson & Kaye JJA). 86 Court House Capital [38]. 87 Carter [49]. 88 Carter [50]. 89 Carter [49]. -- 31 of 65 -- [2026] WASC 218 WHITBY J Page 32 the persons who actually provided the funds to Julian are the parties that ought to have been joined to this Application. 117 The Application seeks orders that each of the non-parties be jointly and severally liable with Julian for the payment of the defendants' costs in the trial in these proceedings. The costs of the trial are estimated at $5.76 million. If orders are made in the terms sought by the defendants, it would be for each of the non-parties to seek a contribution from one another or from other non-parties that may reflect their individual contributions to the proceedings. 118 The application against Mr Orenstein was discontinued by consent on the basis that the defendants and Mr Orenstein had resolved the issues between them. Understandably there is no evidence before the court of the amount, if any, the defendants may recover from Mr Orenstein. 119 The first issue is whether it is unjust for the defendants to selectively pursue some non-parties and not others who funded the litigation. In my view, this submission is without merit. It is a matter for the defendants to determine which non-parties it seeks to pursue for costs. On the defendants' estimate, there were 52 individual funders to these proceedings. It is unreasonable and impractical to require the defendants to make an application for non-party costs orders against each of those non-parties. If any of the non-parties to this Application seek to recover costs from any other non-party, they are entitled to do so. 120 In any event, the amounts advanced to Julian by way of funding for these proceedings which have a connection to each of the non-parties the subject of the Application equate to approximately $4.4 million out of the total of $4.75 million in litigation funding advanced to Julian.90 121 The second issue is whether the defendant is required to apportion the costs it seeks between the non-parties to allow the court to determine if the costs order is fair and just. If I accept the defendants must do so, it would amount to a finding that an apportionment of costs between non-parties is a requirement of the Application. 122 I do not accept that there is such a requirement. In Court House Capital, a submission by the non-party that the costs order had to 90 Defendants' Submissions, Annexure 'A' - Chronology. -- 32 of 65 -- [2026] WASC 218 WHITBY J Page 33 correspond with the degree of funding it provided was rejected by the Full Court. The Full Court said the 'existence of such a mandate would offend the broad and discretionary nature of the power given to the Court' to award costs.91 123 In CPC Patent Technologies Pty Ltd v Apple Pty Limited (No 2),92 Burley J found that four separate non-parties were jointly and severally liable for costs despite each non-party having provided funding in different circumstances. 124 Ultimately, the proper enquiry is whether a non-party has a sufficient connection to the proceedings and whether it is fair and just to make a costs order against the non-party. That enquiry is conducted by the court having regard to the involvement of an individual non-party. Neither the defendants nor I are required to apportion the costs to be awarded against a non-party of this Application. 125 Having outlined the legal principles applicable to an application for a non-party costs order, I now turn to consider the connection that each non-party had to the litigation and whether, in those circumstances, it would be fair and just between each of the non-parties and the defendants to make a non-party costs order. The Thom Parties 126 I outline below the factors which are relevant to whether a non-party costs order should be made against the Thom Parties. Funding or financial assistance provided by the Thom Parties 127 Although the Thom Parties did not provide any of their own funds to Julian, the Thom Parties procured $125,000 of funds in 2013 for Julian to obtain legal advice on the prospects of claims against his siblings.93 Counsel for the Thom Parties submitted that these funds procured by the Thom Parties were loans rather than funding agreements. Each of the agreements is titled 'Loan Agreement'. It is not clear what the Thom Parties say would flow from the funding being characterised as loans. In this case, the funds advanced under each of the initial agreements were repayable only if Julian succeeded in his claims against the defendants and if he did, each of the parties advancing the funds was also entitled to a share of the proceeds of the 91 Court House Capital [39]. 92 CPC Patent Technologies Pty Ltd v Apple Pty Ltd (No 2) [2025] FCA 1671 (CPC Patent Technologies). 93 Fifth Jenkins Affidavit [11]; Annexures 'GJJ-81' to 'GJJ-84'. -- 33 of 65 -- [2026] WASC 218 WHITBY J Page 34 outcome of the proceedings. These agreements bear all the characteristics of funding agreements. 128 Mr Thom introduced Julian to Mr Healy who provided a number of advices to Julian in relation to the prospects of claims against Julian's siblings. Mr Thom assisted with the review and collation of documents provided to Mr Healy and attended meetings with Mr Healy.94 129 Counsel for the Thom Parties also submitted that the funding agreements secured by the Thom Parties each provided that Julian was entitled to use the funding for other purposes and therefore the funds were not solely attributable to a potential claim by Julian against the defendants. There is no evidence before the court as to how much of the $125,000 was applied to the obtaining of legal advice, although Mr Thom deposes that: (1) some or all of the $55,000 from Filmstar was applied towards Mr Healy's fees;95 and (2) Julian told Mr Thom that he used some of those funds for the farm and his personal use.96 130 The Thom Parties were not funders in that they did not contribute their own funds to this enterprise. This is one factor to consider but it does not preclude a finding that the Thom Parties provided financial assistance to Julian. Mr Thom procured funding from other non-parties. Costs orders may be made against a non-party where the role of that non-party is to source funds for the litigation from others.97 The relevant enquiry remains whether a non-party has a connection to the litigation which is sufficient to warrant the exercise of the court's discretionary power to make a non-party costs order, having regard to what is fair and just between the parties. 131 Despite his assertions to the contrary, Mr Thom continued to play a role in securing funding for Julian and assisting Julian in pursuing claims against the defendants after procuring the initial funds in 2013. Mr Thom's active role in the conduct of these proceedings did not come to an end in 2013 or 2014 after the initial advices. 94 ts 2595 - 2596. 95 Thom Affidavit [40]. 96 Thom Affidavit [37]. 97 Maylord Equity Management Pty Ltd v Nauer (No 2) [2017] NSWSC 1467 (Maylord Equity) [52] (Slattery J). -- 34 of 65 -- [2026] WASC 218 WHITBY J Page 35 132 Mr Thom introduced Julian to Mr Camp. Mr Thom had known Mr Camp since the 1990s.98 In Mr Camp's 2016 advice to Julian, Mr Camp states 'Mr McGregor Thom, in about 2014, had first been alerted to the possible issue of wrongdoing against you upon reading the reported settlement reached in 2012 in Perron v Wright Prospecting Pty Ltd'.99 133 From 1 April 2016, Mr Thom was employed by BPC to provide legal assistance to Julian in relation to claims against his siblings. The BPC Employment Agreement, by cl 3, provided that BPC was not required to pay Mr Thom 'except on the successful conclusion of a claim by Julian Wright in respect of the sale of his shares in WPPL, in which case the payment will come directly from Julian Wright'. Clause 5.7 provided that Mr Thom was not, without the written authority of BPC, to be actively engaged or interested in the conduct of any other business activity. 134 Mr Butcher gave evidence that the purpose of the BPC Employment Agreement was to give Mr Thom an official role and allow him to engage in activities to assist Julian in his claims against the defendants. Mr Butcher agreed that Mr Thom did the work of a legal assistant in relation to Julian's matter.100 Mr Butcher deposed that Mr Thom worked under his supervision to collate documents for discovery because Mr Thom knew the documents intimately.101 Mr Butcher confirmed that the BPC Employment Agreement remained on foot at the date of the hearing of the Application.102 135 During a meeting with Mr Jenkins in November 2025, Julian's account of Mr Thom's continued involvement in pursuing a claim against the defendants, as reflected in the contemporaneous file note of that meeting, was:103 [I]nitial funding did not result in any cause of action … Thom didn't stop there, I can't remember the exact sequence, but at some point … that initial litigation it was thought, was dead, but then he got some information that allowed him to think that there had been non-disclosure of documentation pertaining to the share sale. And so he continued to search and ultimately, bearing in mind that I am down south working on the farm, he began to engage with Robert Butcher and 98 ts 2640 - 2641. 99 Exhibit 5 [33]. 100 ts 2663. 101 Butcher Affidavit [18]. 102 Butcher Affidavit [22]. 103 Exhibit 3. -- 35 of 65 -- [2026] WASC 218 WHITBY J Page 36 Alan Camp, and if I remember correctly, Alan camp (sic) had some corro between Michael and lang (sic) and that alerted Thom to the fact that that correspondence or meetings had not been disclosed to me. 136 Julian's account is consistent with the evidence of Mr Butcher that he was introduced to Mr Thom by Mr Camp. 137 Mr Thom attended a meeting with several people in June 2016, including Mr Jenkins, Julian and Mr Butcher to discuss claims by Julian against his siblings.104 Mr Thom also attended meetings with Julian's lawyers without Julian present.105 138 Mr Thom introduced Mr Purcell to Julian by no later than 2019.106 In cross-examination, Mr Thom denied that he was assisting Julian to secure further funding for the litigation by introducing him to Mr Purcell.107 I do not accept Mr Thom's evidence. In October 2019, Julian sent an email to Mr Purcell stating 'David I agree with Mac. As of Monday let's make other enquiries leaving the door with Therium open if we can …'108 It is not in dispute that Therium is a litigation funder. Mr Thom's role in assisting to source funds for Julian through Mr Purcell is consistent with his role as an employee of BPC and his attendance at the trial - which I will now detail. 139 The trial of these proceedings took place in two tranches - from 10 February 2020 to 5 March 2020 and from 27 to 31 July 2020. 140 Mr Thom did not challenge the evidence of Mr Jenkins that Mr Thom attended the trial and sat in the position usually occupied by an instructing solicitor, that Mr Butcher did not attend the trial, and Julian's instructing solicitors at trial comprised of two junior solicitors. 141 What is in dispute is the purpose for which Mr Thom attended the trial. Mr Jenkins gave evidence that he observed Mr Thom closely because he was curious as to what his role was. His observations were that Mr Thom engaged in regular discussions with Julian's legal team, passed messages to counsel and conferred with Julian throughout the course of the trial.109 104 ts 2771. 105 Sixth Jenkins Affidavit [5]. 106 ts 2644. 107 ts 2644. 108 Third Jenkins Affidavit [38]; Annexure 'GJJ-58'. 109 Sixth Jenkins Affidavit [15] - [16]. -- 36 of 65 -- [2026] WASC 218 WHITBY J Page 37 142 Mr Thom gave evidence that due to his health condition he was simply not able to meaningfully engage in the proceedings and he attended each day of trial to 'get myself out of bed'.110 143 I do not accept Mr Thom's evidence that he was merely observing the proceedings. This is implausible given he attended the trial each day, sat where he did and engaged in conversations with Julian's legal team. I accept Mr Jenkins' evidence and Ms Fenton's evidence as to their observations of Mr Thom's conduct at the trial. Their evidence is consistent with Mr Thom's obligations under the BPC Employment Agreement. 144 I find the purpose of Mr Thom's attendance at the trial was to provide assistance to Julian in accordance with his obligations under the BPC Employment Agreement. For reasons I will outline, I find he did so because he, through Barbirolli, had a substantial interest in the outcome of the proceedings pursuant to the Barbirolli Deed. The value of the assistance Mr Thom provided to Julian is reflected in Barbirolli's substantial entitlements under the Barbirolli Deed. 145 I reject the submission made by the Thom Parties that Mr Thom's involvement in pursuing a claim by Julian against the defendants came to an end after the advice of Mr Healy, Mr Bell SC and Mr Davies SC. 146 Having regard to each of these matters I have outlined, it is clear Mr Thom provided substantial and sustained financial assistance to Julian for the purpose of pursuing a claim against the defendants, both by sourcing funding for Julian for that purpose, and by providing his services to Julian on a speculative basis. These are factors which weigh heavily in favour of making a non-party costs order against the Thom Parties. Commercial interest in the outcome of the proceedings 147 The Barbirolli Deed provided that Barbirolli was entitled to 50% of any settlement monies (for any settlement up to and including $400 million), and 30% of any settlement monies in excess of $400 million, together with 15% of any entitlement Julian had to future dividends or royalties. Barbirolli was the alter ego of Mr Thom. Barbirolli did not trade and did not have any accounts, produce any tax returns or maintain any financial records. Mr Thom met all of Barbirolli's expenses out of his own personal funds.111 Therefore, 110 ts 2647. 111 Fifth Jenkins Affidavit [17]; Annexure 'GJJ-94'. -- 37 of 65 -- [2026] WASC 218 WHITBY J Page 38 Mr Thom stood to gain from Barbirolli's entitlement under the Barbirolli Deed. 148 Mr Thom also was entitled, pursuant to the BPC Employment Agreement, to remuneration for his services as a legal assistant to Julian from 1 April 2016. That renumeration was payable out the proceeds of Julian's claim. 149 There could be no suggestion, nor did the Thom Parties make one, that this was not an extremely lucrative entitlement for Barbirolli and Mr Thom. 150 However, the Thom Parties submit that Barbirolli had no entitlements under the Barbirolli Deed after 2014, or at the very latest after 2020 when Julian told Mr Thom the 'deal was over'. This submission is made for one of the following reasons: (1) the Barbirolli Deed, by cl a)(i)(A), was conditional upon Julian obtaining an opinion from James Healy, verified by opinion of senior counsel, indicating a probability of success in an action against his siblings. Given the opinions of counsel and senior counsel were to the effect that Julian did not have a claim against his siblings, this condition 'failed' and the Barbirolli Deed came to an end before the proceedings were commenced; or (2) Julian terminated, or repudiated, the Barbirolli Deed in 2020, the Thom Parties accepted that repudiation and both parties treated the Barbirolli Deed as terminated. 151 The overarching theme of these submissions is that there was no connection between the initial funding provided by the Thom Parties for the advice of Mr Healy on the one hand and the commencement of these proceedings on the other hand. The Thom Parties' position is the enterprise contemplated by, and funded pursuant to, the Barbirolli Deed had run its course, and the Barbirolli Deed was at an end after the initial advice. The Thom Parties say that, at the very latest, the Barbirolli Deed was at an end in 2020. 152 I do not accept either of the submissions made by the Thom Parties. 153 Turning first to the submission that the cl a)(i)(A) of the Barbirolli Deed was not satisfied, bringing the Barbirolli Deed to an end. -- 38 of 65 -- [2026] WASC 218 WHITBY J Page 39 154 The Barbirolli Deed provides:112 If there is a settlement from either a mediation, a successful court action (as finally determined), or, there is another beneficial legal outcome with respect to the above, then, the Parties hereby agree to the following: a) Recovery action (i) The Parties acknowledge that this Deed is entered into in contemplation of [Julian and Nattim] commencing mediation, court action or other legal right or action as described above (each an Action). The Parties agree that the commencement of such Action shall only occur at the absolute discretion of [Julian and Nattim] and is further contingent upon either: (A) [Julian and Nattim] obtaining legal advice, which may or may not come from Senior Counsel, indicating a probability of success in such Action which is acceptable to [Julian and Nattim]; (B) Barbirolli providing initial funding to cover certain costs associated with the preparation of a legal opinion, being prepared by Mr James Healy, and such funding is to be made on terms acceptable to [Julian and Nattim], for example such funding must be provided on a limited recourse basis such that [Julian and Nattim's] liability to repay the funding (and any accrued interest and other amounts payable thereunder) is to be satisfied only from the proceeds obtained by [Julian and Nattim] pursuant to the settlement or final determination of such Action; and (C) [Julian and Nattim] entering into a litigation funding agreement with a third party pursuant to which the third party agrees to fund all costs associated with the commencement, continuation and final determination of the Action on terms acceptable to [Julian and Nattim], including that such funding must be provided on a limited recourse basis such that [Julian and Nattim's] liability to repay the funding (and any accrued interest and other amounts payable thereunder) is to be satisfied 112 Fifth Jenkins Affidavit [10]; Annexure 'GJJ-80'. -- 39 of 65 -- [2026] WASC 218 WHITBY J Page 40 only from proceeds obtained by [Julian and Nattim] pursuant to the settlement or final determination of such Action. 155 The Thom Parties say that cl a)(i)(A) of the Barbirolli Deed was not satisfied because Julian received legal advice from Mr Healy, the substance of which was confirmed by Mr Bell SC and Mr Davies SC, to the effect that his claims against the defendants had no probability of success. The Thom Parties say that upon receipt of this advice the Barbirolli Deed had run its course. The Thom Parties submit the claims ultimately prosecuted in the proceedings were different to those investigated by counsel and senior counsel in 2013 and 2014. 156 The defendants contend that the claims prosecuted in these proceedings were investigated in the legal opinions provided to Julian in 2013 and 2014. The defendants prepared a comprehensive aide memoire which compared the claims being investigated in 2013 and 2014 with those pursued in these proceedings (by reference to Julian's closing submissions and the Primary Decision).113 The purpose of the aide memoire was to demonstrate there was substantial overlap between the claims being investigated in 2013 and 2014 and those prosecuted in these proceedings. 157 I am satisfied several of the causes of action ultimately pursued in the trial were investigated in the 2013 and 2014 advices. Claims in equitable fraud,114 deceit/common law fraud,115 fraudulent misrepresentation of the assets of Peter Wright,116 fraudulent misrepresentation of the value of shares in WPPL,117 and in relation to the effect of the 2008 Settlement Deed118 were considered both in Mr Davies SC's advice in 2014 and later pursued by Julian in these proceedings. 158 In any event, cl a)(i)(A) of the Barbirolli Deed, properly construed, does not provide that the legal advice must be in relation to a particular cause of action or obtained by a particular date. The only condition was that the legal advice must be acceptable to Julian. 159 The Barbirolli Deed commences with five paragraphs prefaced 'A to E' that, although not titled as such, are consistent with being 113 MFI 2.1 and 2.2. 114 Exhibit 4 [36] - [37]; MFI 2.2 [954]; Primary Decision [632] - [633]. 115 Exhibit 4 [40] - [41]; MFI 2.2 [1475]; Primary Decision [632] - [633], [637]. 116 Exhibit 4 [44] - [45]; MFI 2.2 [994], [997]; Primary Decision [644]. 117 Exhibit 4 [21]; MFI 2.2 [12], [244], [1154.2], [1470], [1471], [1474], [1475]. 118 Exhibit 4 [38] - [39]; MFI 2.2 [1587], [1590]; Primary Decision [815]. -- 40 of 65 -- [2026] WASC 218 WHITBY J Page 41 recitals. I note, contrary to the submissions made by counsel for the Thom Parties, the paragraph following the recitals commencing with the words '[i]f there is a settlement …' is not a recital - it is the chapeau to the operative clauses of the Barbirolli Deed that follow. 160 Clause a)(i) of the Barbirolli Deed provides that 'Action' means '[Julian and Nattim] commencing mediation, court action or other legal right or action as described above' (emphasis added). The reference to 'as described above' is a reference to what I have referred to as the recitals. The recitals provide: A. This Deed sets out the terms upon which [Julian] and Nattim Pty Ltd as Trustee of the Nattim Trust (together Wright) … and [Barbirolli] … (the Parties) shall divide any settlement monies and or future royalties with respect to: a. Wright's impending claim against (i) the estate of his brother, the late Mr Michael Wright (MW); and (ii) his sister Mrs Angela Bennett (AB); and b. any other claim, legal right or action that Wright may have with respect to ownership of shares or other assets in [WPPL] or any other entity associated with WPPL either within Australia or offshore. B. The claim that Wright wishes to bring is in part in relation to an agreement for the sale of shares in WPPL from Wright to MW and AB that has caused Wright substantial loss of income that Wright would have otherwise received from dividends with respect to income from Iron Ore deposits, or other minerals, located in Western Australia that are either wholly or partly owned by WPPL, which MW and AB are shareholders of. C. Other legal rights or claims for ownership of shares in WPPL may also exist for Wright, for example a claim may be made against Wright's Mother's estate, and thus they are also subject to the terms set out below in this Deed. D. It is the intention of Wright that all steps will be taken by Wright to give effect to the entitlements of Barbirolli to the payment of monies contemplated by this Deed, including making provision in [Julian's] deceased estate. E. Wright has agreed with Barbirolli that due to its (sic) assistance in this matter a division of any settlement, including past dividends or future royalties should they be paid direct to Wright from a successful mediation, court action (as finally determined) or other legal right or action with respect to the ownership of shares in WPPL that has resulted from, but is not -- 41 of 65 -- [2026] WASC 218 WHITBY J Page 42 limited to, an action or claim against either or both MW and AB or other legal right or action with respect to ownership of shares in WPPL will occur as detailed below. 161 Counsel for the Thom Parties submitted that the recitals were not operative clauses and to the extent there was an inconsistency between the recitals and the operative clauses of the Barbirolli Deed, the operative clauses prevail. 162 While there is a distinction to be drawn between recitals and operative clauses in a deed, the recitals are part of the deed and can be used as an aid to construe an operative clause.119 The Barbirolli Deed must be construed as a whole and a construction that makes various parts of the deed harmonious is to be preferred.120 163 In the case of the Barbirolli Deed, the term 'Action', when referred to in the operative clauses, is defined by reference to the recitals. The recitals are incorporated by reference into the definition of 'Action'. 164 Counsel for the Thom Parties submitted the action commenced by Julian was required to be an action that was in the reasonable contemplation of the parties at the time they executed the Barbirolli Deed. The Thom Parties say that the action commenced by Julian was different from that contemplated at the time of execution and in respect of which advice was received from Mr Healy, Mr Bell SC and Mr Davies SC. 165 In Grant v John Grant & Sons Ltd,121 the majority of the High Court held that a general release clause was to be construed as limited to those matters within the contemplation of the parties, as determined by the recitals, at the time when the release was given. 166 Consistent with that principle, the recitals of the Barbirolli Deed provide that the parties contemplated that an 'Action' was 'any other claim, legal right or action that [Julian and Nattim] may have with respect to ownership of shares or other assets in [WPPL] and any other entity associated with WPPL … [and] any other legal rights or claims for ownership of shares in WPPL …' To construe the Barbirolli Deed as being limited to a claim considered in Mr Healy's, Mr Bell SC's and/or 119 Franklins Pty Ltd v Metcash Trading Ltd; Metcash Trading Ltd v Franklins Pty Ltd (2009) 76 NSWLR 603 [380] (Campbell JA) and the authorities cited therein. 120 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109; AIG Insurance Australia Ltd v McMurray [2023] WASCA 148 (Buss P, Mitchell & Vaughan JA) [136]. 121 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112, 131 (Dixon CJ, Fullagar, Kitto & Taylor JJ). -- 42 of 65 -- [2026] WASC 218 WHITBY J Page 43 Mr Davies SC's advice and/or limited to an action brought within a particular time is inconsistent with the express terms of the Barbirolli Deed. I find that it was within the reasonable contemplation of the parties that the Barbirolli Deed would apply to any action commenced at any time for any claim by Julian against the defendants in respect of ownership of shares or other assets of WPPL. 167 In any event, as I have outlined, the claims the subject of Mr Healy's, Mr Bell SC's and Mr Davies SC's advices included claims that were ultimately pursued by Julian in these proceedings. 168 Clause a)(i)(A) of the Barbirolli Deed was satisfied when Julian received Mr Camp's legal advice in August 2016 to the effect that Julian had a good claim against the defendants. 169 Further, the submission that the Barbirolli Deed had a time limit for completion which meant that Mr Camp's advice in August 2016 was too late to satisfy cl a)(i)(A) is irreconcilable with recital D which requires Julian to make provision in his deceased estate for Barbirolli's entitlements under the Barbirolli Deed. The parties clearly contemplated that the entitlements under the Barbirolli Deed may outlive Julian. 170 The submission made by the Thom Parties that the Barbirolli Deed had run its course after Julian received advice in 2013 and 2014 to the effect that his claims had no prospects of success is without merit. 171 The next submission of the Thom Parties is that Julian repudiated the Barbirolli Deed in 2020 and Mr Thom accepted that repudiation. 172 Mr Thom's evidence is that when Julian mortgaged his property to Mr Purcell in 2020 as security for funding that Mr Purcell provided, Julian said words to him to the effect that the 'deal was over' because Mr Thom had done nothing for Julian's legal case. Mr Thom's evidence was that, from that day on, he and Julian treated the Barbirolli Deed as terminated.122 173 In closing submissions, counsel for the Thom Parties submitted that, by his conduct, Julian evinced an intention to no longer be bound by the Barbirolli Deed and Mr Thom accepted that repudiation. Counsel 122 Thom Affidavit [48] - [49]. -- 43 of 65 -- [2026] WASC 218 WHITBY J Page 44 for the Thom Parties did not maintain a submission that the Barbirolli Deed had been terminated by agreement.123 174 The repudiation the Thom Parties rely upon is a repudiation in the sense of a renunciation of the Barbirolli Deed as opposed to a breach of an essential term of the Barbirolli Deed. The Thom Parties rely upon conduct of Julian which evinced, they say, an intention to no longer be bound by the Barbirolli Deed. When repudiation is used in this sense, the test is whether the conduct of Julian was such as to convey to a reasonable person, in the situation of Mr Thom, renunciation of the Barbirolli Deed as a whole, or of a fundamental obligation under it.124 175 Repudiation is a serious matter and is not to be lightly found or inferred - it must be clear and unambiguous and the onus is on the party alleging repudiation to prove it.125 176 The only evidence of Julian's repudiation of the Barbirolli Deed is Mr Thom's evidence. There are no contemporaneous documents, or indeed there are no documents at all, that corroborate Mr Thom's evidence in respect of the alleged repudiation. 177 I do not accept Mr Thom's evidence that Julian repudiated the Barbirolli Deed in 2020, or at all, for the following reasons: (1) the first time Mr Thom asserted that Julian told him that 'the deal was over' was in the Thom Affidavit in March 2026. Mr Thom, when responding in June 2025 to a request from the defendants' solicitors for information in the context of a foreshadowed application for non-party costs orders, did not alert them to the facts surrounding the alleged repudiation or termination of the Barbirolli Deed by Julian in 2020;126 (2) Mr Thom discovered the Barbirolli Deed in 2025 in the pre-action discovery application, but did not inform the defendants' solicitors that it had been repudiated or terminated by Julian in 2020; (3) Julian made redactions to the Barbirolli Deed in April 2022 by redacting the amounts and percentages to which Barbirolli was 123 ts 2769. 124 Armada Balnaves Pte Ltd v Woodside Energy Julimar Proprietary Limited [2022] WASCA 69 (Armada) [509] (Buss P & Murphy JA). 125 Armada [515]. 126 Third Jenkins Affidavit [35] - [36]; Annexures 'GJJ-56' and 'GJJ-57'. -- 44 of 65 -- [2026] WASC 218 WHITBY J Page 45 entitled - this was confirmed by BPC's letter dated 23 May 2025 to the solicitors for the defendants attaching the redacted Barbirolli Deed.127 Julian's redaction of parts of the Barbirolli Deed in April 2022 is not consistent with him having evinced an intention in 2020 to no longer be bound by the deed. Further, BPC did not inform the solicitors for the defendants that the Barbirolli Deed was terminated in 2020; (4) Mr Thom remained closely involved in the proceedings, attending trial and providing assistance during the course of the trial. His conduct is inconsistent with his evidence that he believed the Barbirolli Deed was at an end by no later than 2020; (5) Mr Thom retained a copy of the Barbirolli Deed after he says it was terminated. While it might not be unusual for someone to keep a document that is no longer enforceable, in Mr Thom's case I consider it is a matter which causes me to doubt his evidence as to Julian's alleged repudiation in 2020. Mr Thom routinely deleted his emails since 2000, he had no cloud based back up documents, his laptop was stolen and he replaced his mobile phone.128 As a result, Mr Thom discovered only five documents in response to my orders of 3 September 2025, one of which was the Barbirolli Deed. The fact that Mr Thom retained a copy of the Barbirolli Deed in these circumstances supports a finding that Mr Thom still considered it to be operative; and (6) it is implausible that the Thom Parties would have given up their entitlements under the Barbirolli Deed based on an alleged oral statement made by Julian in 2020 that 'the deal was over', given Barbirolli's substantial entitlements under the Barbirolli Deed. 178 Barbirolli fulfilled its obligations under the Barbirolli Deed by procuring initial funding for Julian in accordance with cl a)(i)(B) - in the event that Julian commenced an Action (as defined in the Barbirolli Deed), Barbirolli, and through it Mr Thom, was entitled to a substantial share in the outcome of that action. 127 Second Jenkins Affidavit [15]; Annexure 'GJJ-22'. 128 Fifth Jenkins Affidavit [8] and [17]; Annexures 'GJJ-79A', 'GJJ-79B' and 'GJJ-94'; ts 2631. -- 45 of 65 -- [2026] WASC 218 WHITBY J Page 46 179 I find that Barbirolli, and Mr Thom as Barbirolli's sole shareholder and director,129 had a substantial commercial interest in the outcome of proceedings pursuant to the Barbirolli Deed. Mr Thom was also entitled to remuneration from 1 April 2016 out of the proceeds of the proceedings pursuant to the BPC Employment Agreement. These are factors which weigh heavily in favour of making a non-party costs order against the Thom Parties. Impecuniosity of Mr Thom 180 Having considered the factors that weigh in favour of making a non-party costs order against the Thom Parties, there are factors that the Thom Parties say weigh against the making of a non-party costs order. 181 The first is the impecuniosity of Mr Thom. The submission is made on the basis that it is not fair and just to make a costs order against Mr Thom because his only asset is a half share of a property in Cottesloe, the property in which he lives and co-owns with his parents. Mr Thom says that in order to satisfy a non-party costs order he would have to sell his primary residence. 182 In Northern Territory v Sangare, the High Court held that the impecuniosity of an unsuccessful party is not a relevant consideration in the proper exercise of the court's discretion as to costs, stating:130 Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. That said, any such qualification was not invoked in the present case. (footnotes omitted) 183 Although the High Court was not considering the impecuniosity of the party in the context of a non-party costs order, it is apposite to such an application. If the impecuniosity of a non-party was a matter the court was required to take into account on such an application, it would serve to encourage a non-party to take steps to structure their affairs to avoid being subject to a non-party costs order. The result may be that a 129 Third Jenkins Affidavit [28]; Annexure 'GJJ-48'. 130 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, 175 (Kiefel CJ, Bell, Gageler, Keane & Nettle JJ). -- 46 of 65 -- [2026] WASC 218 WHITBY J Page 47 non-party litigation funder is in a better position than the unsuccessful litigant that would be unfair and unjust. 184 I am of the view that the financial position of Mr Thom is not a factor that weighs against the making of a non-party costs order against Mr Thom. The defendants' ability to recover costs from Julian 185 The defendants say that it is a relevant factor that Julian does not have the means to pay the costs order and it would be manifestly unjust for the defendants to not recover their costs. 186 The Thom Parties say that it is not possible, on the basis of the evidence before the court, to conclude that Julian is unable to meet the costs order against him. 187 The defendants rely on the evidence of Ms Fenton and Mr Jenkins. Ms Fenton deposes that she had a telephone conversation with Julian on 12 February 2026 and advised him that the draft bill of costs was for about $5.76 million. Ms Fenton deposes that Julian told her he did not have sufficient funds to pay the costs, he did not have any means to pay the costs, his liabilities exceed money in his bank and that he never owned Marri Wood Park. Julian said that Marri Wood Park was owned by a family trust and had to be sold to pay off the mortgages to each of LFS and M&R.131 188 Mr Jenkins deposes that he has had a number of conferences with Julian and his lawyers and a constant theme to them is that Julian has no money and cannot pay the defendants' costs.132 At the request of Mr Jenkins, property searches were conducted on Julian, Nattim and all companies of which Julian is an office holder and those searches show that none of them hold any real property in Australia.133 I accept Mr Jenkins' evidence that no arrangements have been made between Julian and the defendants to the effect that the defendants will not pursue Julian for costs.134 189 It is not clear to me what further steps the Thom Parties say the defendants ought to have undertaken in order to pursue Julian for costs. The defendants do not yet have an enforceable debt against Julian, the 131 Second Fenton Affidavit [4] - [8]. 132 Sixth Jenkins Affidavit [17]. 133 Sixth Jenkins Affidavit [19]; Annexures 'GJJ-139' - 'GJJ-142'. 134 Sixth Jenkins Affidavit [22]; ts 2565. -- 47 of 65 -- [2026] WASC 218 WHITBY J Page 48 costs of the proceedings not having been agreed or certified by taxation. The course taken by the defendants in making the Application before pursuing a taxation of costs is entirely appropriate and reasonable. If non-party costs orders are made, those non-parties should have the right to be heard in relation to the quantum of costs awarded. 190 The sale proceeds of Marri Wood Park in the amount of $5,450,000 exceed the $2,500,000 repayable under the mortgages. Julian contends the excess proceeds are trust property. Mr Jenkins accepts this may warrant further investigation after obtaining enforceable judgment in relation to costs. The making of a costs order against a non-party does not relieve Julian of his obligation to meet the costs order against him. 191 It is not the case that Julian's inability to meet a costs order is a precondition to the exercise of my discretion to make a non-party costs order.135 192 However, I am satisfied that, on the basis of the evidence adduced at the hearing, there is a real likelihood that Julian will be unable to pay the defendants' costs or at the least a substantial portion of those costs. This is a factor which weighs in favour of, rather than against, making a non-party costs order. Failure to seek security for costs against Julian 193 The Thom Parties submit that the defendants' failure to seek security for costs against Julian is a factor which weighs against making a non-party costs order. 194 Mr Jenkins deposes that the defendants did not apply for security for costs because, in his experience, the courts do not make security for costs orders against individuals on the basis of impecuniosity, absent any exceptional circumstances. This was not challenged, nor could it be as that is the position at law.136 195 In Hardingham, Burley J said in response to the funder's criticism of a successful party's failure to apply for security for costs:137 RP Data cannot be criticised for not bringing an application for security for costs at or around commencement of proceedings in circumstances where: (a) the participation of a litigation funder was not known; 135 Carter [49]. 136 RSC O 25 r 1. 137 Hardingham [28]. -- 48 of 65 -- [2026] WASC 218 WHITBY J Page 49 (b) there was no grounds for suspecting an inability to meet an adverse costs order; [and] (c) one of the applicants was an individual against whom an order for security for costs was unlikely to be successful even if he was impecunious … 196 On appeal from Hardingham, the Full Court unanimously held that there was no error by the primary judge in determining that the absence of an application for security for costs did not preclude the making of the costs order.138 197 Julian was an individual resident within the jurisdiction and making serious allegations against the defendants. The defendants were well advised not to make an application for security for costs against Julian. 198 The absence of an application for security for costs is not a factor which has any bearing upon the exercise of the discretion to make a non-party costs order. Failure to warn the Thom Parties they may be subject to an application for a non-party costs order 199 Counsel for the Thom Parties submits that a factor which weighs against making a non-party costs order is the failure of the defendants to warn Mr Thom of an application for a non-party costs order being made against him. Counsel submitted this failure must be viewed in the context of Mr Jenkins' evidence that he observed Mr Thom because he had an 'abiding curiosity' about Mr Thom's role.139 200 However, what this submission fails to recognise is that the defendants did not know the Thom Parties had a financial interest in the outcome of proceedings. On 30 March 2017, Mr Jenkins wrote to Mr Butcher and requested he provide notification of the identity of any person who was an interested non-party in accordance with O 9A r 2(1) of the RSC.140 On 6 April 2017, Mr Butcher responded there was no interested non-party who had an interest in the case.141 On 22 February 2018, Mr Jenkins again wrote to Mr Butcher and requested he confirm, pursuant to O 9A r 2, whether Julian was receiving financial support for the litigation, and if so, the identity of that person.142 On 22 February 2018, Mr Butcher responded that there was no person providing Julian 138 Court House Capital [18]. 139 Sixth Jenkins Affidavit [14]. 140 First Jenkins Affidavit [6]; Annexure 'GJJ-1'. 141 First Jenkins Affidavit [7]; Annexure 'GJJ-2'. 142 First Jenkins Affidavit [3]; Annexure 'GJJ-3'. -- 49 of 65 -- [2026] WASC 218 WHITBY J Page 50 with funding or financial assistance for his litigation and, should the position change, notification would be given under O 9A r 1.143 201 Mr Jenkins deposes that the reason he engaged in this correspondence was so he could engage with any interested non-parties and discuss with them matters such as future liability for costs and security for costs.144 202 Counsel for the Thom Parties says these requests from Mr Jenkins were not an adequate request to Mr Butcher as Mr Jenkins only sought identification of an interested non-party pursuant to O 9A r 1. Mr Jenkins accepted in cross-examination that he was aware, in 2017, the definition of a non-party in O 9A included a requirement the interested non-party exercise indirect or direct control over the proceedings.145 These requests from Mr Jenkins were not sufficient, says counsel for the Thom Parties, to identify non-parties who did not meet that definition but may still be subject to non-party costs orders. 203 While I accept the Thom Parties did not fall within the definition of an interested non-party for the purposes of O 9A r 1, the defendants nonetheless still did not know that the Thom Parties, or any other non-party, had a commercial interest in the outcome of the proceedings. 204 In my view, it would be unfair and unjust to consider the failure to warn non-parties about a possible costs order as a factor weighing against the making of a non-party costs order, given the defendants were not advised and did not know of either the non-party's existence, or, in the case of the Thom Parties, of the non-party's financial interest in the outcome of the proceedings. Determination of the Application against the Thom Parties 205 I find that Mr Thom and Barbirolli had a connection to the litigation which is sufficient to warrant the exercise of the power to make a non-party costs order. The evidence supports a finding that Mr Thom was an integral part of the litigation - he facilitated funding of the litigation and he was closely involved in the litigation as an employee of BPC from 1 April 2016. 206 This is a case where it is fair and just to make such an order, given the substantial assistance Mr Thom provided to Julian in connection 143 First Jenkins Affidavit [4]; Annexure 'GJJ-4'. 144 Sixth Jenkins Affidavit [33]. 145 ts 2553. -- 50 of 65 -- [2026] WASC 218 WHITBY J Page 51 with the litigation and the significant commercial interest that Mr Thom, through Barbirolli, had in the outcome of the litigation. In fact, the party with the most to gain from a successful outcome in the litigation was Barbirolli (and through it Mr Thom). It ultimately stood to gain more than even Julian himself. In my view, it would be unjust to allow the Thom Parties to escape the liability to pay the defendants' costs in the event Julian was unsuccessful. The Purcell Parties 207 Mr Purcell did not adduce any evidence and elected not to give evidence in the Application. LFSA did not enter an appearance to the Application and has confirmed that it will abide by the court's orders. 208 I outline below the factors that are relevant to the determination of whether a non-party costs order ought to be made against the Purcell Parties. Funding or financial assistance provided by Mr Purcell 209 The defendants say that Mr Purcell secured four tranches of funding for Julian for his costs of the proceedings and the appeal. Those four tranches were provided for in the LFS Funding Agreement, the 2020 M&R Funding Agreement, the J4J Litigation Trust and the 2021 M&R Funding Agreement. 210 Mr Purcell says that neither he, nor LFSA, provided any funding or financial assistance to Julian pursuant to any of these funding agreements. This mirrored the submission made by the Thom Parties. I reiterate that costs orders may be made against a non-party where the role of that non-party is to source funds for the litigation from others.146 The relevant enquiry remains whether a non-party has a connection to the litigation which is sufficient to warrant exercise of the court's discretionary power to make a non-party costs order, having regard to what is fair and just between the parties. 211 Mr Purcell says that LFSA was engaged by the funders not by Julian. He referred to cl 3 of the Mandate Agreement:147 3. No Liability In the circumstances that LFS[A] will at all times represent the interests of funders that LFS[A] may introduce to [Julian], it is understood that 146 Maylord Equity [52]. 147 Fifth Jenkins Affidavit [18]; Annexure 'GJJ-95'. -- 51 of 65 -- [2026] WASC 218 WHITBY J Page 52 LFS[A] owes no duty to [Julian] and that [Julian] will not make any claim against LFS[A] should LFS[A] be unable for any reason to secure funding offers with respect to the Proceedings, or funding offers acceptable to [Julian]. 212 Mr Purcell says that LFSA only acted as a broker and was rewarded for its services by receiving firstly, a fee from the funder and, if there was a recovery from the litigation, secondly, a percentage of what the funder would receive. What Mr Purcell neglected to mention however, is that the fee was paid from the amount of funding provided to Julian, and LFSA, as a B Class Unitholder, stood to gain a significant commercial benefit connected with the proceeds of the litigation. 213 Mr Purcell does not dispute the four funding agreements resulted in $4.2 million in funding for Julian in relation these proceedings and any appeal. Nor does he contend that the funding was anything other than a purely commercial enterprise. Mr Purcell and LFSA played a critical role in the sourcing of funding and in setting up the corporate structures and trust arrangements to facilitate the funding. This is a factor which weighs heavily in favour of making a non-party costs order against the Purcell Parties. Commercial interest in the outcome of the proceedings 214 Mr Purcell submits that although LFSA and M&R were funding vehicles, they were acting as trustee companies, representing three unit trusts. Mr Purcell submits that, as trustees, his two corporate vehicles (LFSA and M&R) did not stand to receive any benefit if Julian was successful in the proceedings. Mr Purcell says it was the unitholders that provided the funding and stood to benefit from any outcome of the proceedings. 215 It is necessary to consider the structure of the funding arrangements to ascertain what, if any, commercial interest Mr Purcell and/or LFSA had in the outcome of the proceedings. The result of that analysis is that Mr Purcell, through LFSA, had a substantial commercial interest in the outcome of the proceedings pursuant to three of the four funding agreements, as outlined below. LFS Funding Agreement and JW Litigation Trust 216 The LFS Funding Agreement provided: (1) LFS as trustee for the JW Litigation Trust agreed to provide Julian with funding of $2 million for the costs of the -- 52 of 65 -- [2026] WASC 218 WHITBY J Page 53 proceedings, in exchange for an entitlement to 10% of his recovery (capped at $1.2 billion) in addition to repayment of the funds advanced (Schedule 1, Item E, and cl 8.1); (2) Rend was entitled to a fee of $150,000 plus GST which was payable from the funding advanced (cl 3.2); (3) in recognition of LFS's interest in the success of the proceedings, Julian agreed to consult with LFS on all matters to do with settlement of the proceedings (cl 6.2); and (4) the funding was secured by a first registered mortgage over Marri Wood Park owned by Nattim. 217 The JW Litigation Trust was divided into A Class and B Class units. The A Class Unitholders were 17 investors who together provided $2 million in funding. The B Class Unitholders were LFSA (who held 750 B Class units) and the Trudgians (who held 250 B Class units). 218 If Julian succeeded in his claims against the defendants, pursuant to the JW Litigation Trust: (1) A Class Unitholders were entitled to repayment of their $2 million (cl 14.1(c)(i)); (2) the net income was then to be distributed as to: (a) 80% to A Class Unitholders; and (b) 20% to B Class Unitholders (cl 14.1(c)(ii)). 219 Mr Purcell, through LFSA, was a B Class Unitholder in the JW Litigation Trust and stood to gain up to $18 million.148 2020 M&R Funding Agreement and JW Appeal Trust 220 The 2020 M&R Funding Agreement adopted a similar structure to the LFS Funding Agreement. Pursuant to the 2020 M&R Funding Agreement: (1) M&R as trustee for the JW Appeal Trust agreed to provide Julian with funding of $550,000 for the costs of the proceedings 148 Defendants' submissions dated 20 February 2026, Annexure 'C' [1(a)]. -- 53 of 65 -- [2026] WASC 218 WHITBY J Page 54 and any appeal, in exchange for an entitlement to 5.5% of his recovery, in addition to repayment of the funds advanced (cl 8); (2) Rend was entitled to a fee of $50,000 (inc GST) fee which was payable from the funds advanced (cl 3); (3) in recognition of M&R's interest in the success of the proceedings, Julian agreed to consult with M&R on all matters to do with settlement of the proceedings (cl 6.2); and (4) the funding was secured by a second registered mortgage over Marri Wood Park owned by Nattim. 221 The JW Appeal Trust was divided into A Class and B Class units. The A Class Unitholders were 11 investors who contributed $550,000. LFSA was the sole B Class Unitholder and as the 'arranger of the investment opportunity' was entitled to 20% of any profits made by the JW Appeal Trust. 222 If Julian succeeded in his claims, pursuant to the JW Appeal Trust: (1) A Class Unitholders were entitled to repayment of their $550,000 (cl 14.1(c)(i)); (2) the net income was then to be distributed as to: (a) 80% to A Class Unitholders; and (b) 20% to B Class Unitholders (cl 14.1(c)(ii)). 223 Mr Purcell, through LFSA, was a B Class Unitholder in the JW Appeal Trust and stood to gain up to $13.2 million from the proceeds of the litigation.149 2021 M&R Funding Agreement and J4J Litigation Trust 224 On 18 May 2021, Julian entered into a second funding agreement for $550,000 with M&R as trustee for the J4J Litigation Trust (2021 M&R Funding Agreement).150 Pursuant to the 2021 M&R Funding Agreement: (1) M&R as trustee of the J4J Litigation Trust agreed to provide Julian with funding of $550,000. Of this amount, $50,000 was 149 Defendants' submissions Annexure C [1(b)] page 38. 150 Fourth Jenkins Affidavit [38]; Annexure 'GJJ-78'. -- 54 of 65 -- [2026] WASC 218 WHITBY J Page 55 directly reimbursable to Julian for payments he made previously towards the costs of the proceedings and the balance was for the costs of any appeal. In exchange, M&R was entitled to 6.875% of Julian's recovery (up to a cap of $1.2 billion), in addition to repayment of the funds advanced (cl 2 and cl 5.1); (2) M&R's entitlement to 6.875% of the recovery accrued irrespective of whether the defendants pursued an appeal (cl 4.2); (3) Rend was entitled to a fee of $55,000 plus GST which was payable from the funds advanced (cl 2.1); and (4) M&R was entitled to be consulted on all matters to do with the settlement of the proceedings in recognition of its interest in the success of the proceedings (cl 4.2). 225 The J4J Litgation Trust was divided into A Class and B Class units. The A Class Unitholders were 20 investors who contributed a total of $550,000. LFSA was the sole B Class Unitholder. 226 If Julian succeeded in his claims, pursuant to the J4J Litigation Trust: (1) A Class Unitholders were entitled to repayment of their $550,000 (cl 14.1(c)(i)); and (2) the net income was then to be distributed as to: (a) 80% to A Class Unitholders; and (b) 20% to B Class Unitholders (cl 14.1(c)(ii)). 227 Mr Purcell, through LFSA, was the only B Class Unitholder in the J4J Litigation Trust and stood to gain up to $16.5 million.151 228 The total commercial interest that Mr Purcell, through LFSA, had in the outcome of the proceedings was up to $47.7 million. Mr Purcell, through Rend and LFSA, also received significant fees as a result of sourcing the funding for Julian. These are compelling factors in favour of making a non-party costs orders against the Purcell Parties. 151 Defendants' submissions dated 20 February 2026, Annexure 'C' [1(c)]. -- 55 of 65 -- [2026] WASC 218 WHITBY J Page 56 Corporate vehicles used to fund litigation 229 I also make this observation: it is commonplace for commercial litigation funders to conduct their activities through corporate vehicles and trusts arrangements. In Carter, the Court of Appeal held that the primary judge was not in error in making a non-party costs order against the sole director of the plaintiff's litigation funder on the basis that 'it would not be in the interests of justice if corporate funders were able to be established with limited paid up capital and virtually no assets, so that those truly standing behind the litigation would not be exposed to any adverse costs order'.152 230 In this case it was Mr Purcell, through his corporate vehicles LFS and M&R, that sourced the funding for Julian in relation to these proceedings. Mr Purcell was in substance the person who sourced the funding for the litigation. It would be unfair and unjust to allow Mr Purcell to escape a non-party costs order by hiding behind the corporate structures and trust arrangements he set up. Timing of the funding 231 Mr Purcell submits that, by the time of the LFS Funding Agreement, Julian had already incurred a significant proportion of the costs of the litigation. Although there is no evidence as to what proportion of the costs had been incurred prior to the LFS Funding Agreement, for the purposes of dealing with this submission I will assume that Mr Purcell is correct. 232 Mr Purcell's submission relies upon there being a requirement for a causal connection between the provision of the funds and the incurring of costs. I have outlined in detail my reasons for finding the discretion to make a non-party costs order is not fettered or confined by a precondition that there must be a causal connection between the non-party and the incurrence of costs in the litigation. 233 What is relevant in Mr Purcell's case is that, regardless of the timing of the funding, the unitholders of each of the trusts (including Mr Purcell, through LFSA) were entitled to a percentage of the proceeds of any outcome of the proceedings, even if Julian was successful at first instance and an appeal was not pursued by the defendants. 152 Carter [55]. -- 56 of 65 -- [2026] WASC 218 WHITBY J Page 57 234 CPC Patent Technologies is an example of a non-party costs order having been made against a litigation funder, notwithstanding that the funding had only been provided after judgment had been reserved in the proceedings. The funder had submitted that, as its contribution was made at the time the judgment was reserved, its payments did not facilitate the litigation or put the defendant to the cost of defending it. The court held that the following two points served to dilute that submission:153 The first is that the purpose of the Lyndcote Holdings agreement is undoubtedly to ensure that the proceedings were able to, and did, continue. Mr Murray clearly perceived that without adequate representation, CPC's interests would be adversely affected, notwithstanding that the bulk of the proceeding had been completed. … The second, related point is that the effect of the Lyndcote Holdings agreement is plainly to ensure that Lyndcote Holdings achieved a commercial benefit from the outcome of the litigation. Whilst I accept that ILP-10 and ILP-12 were funding the litigation earlier than Lyndcote Holdings, the terms of the Lyndcote Holdings agreement demonstrate that it had, from the time of the agreement, a direct and substantial financial interest in the outcome of the case. Although it would not appear that it would receive as much as 30% of the Net Resolution Sum, the Percentage Payment that it would receive clearly marks that it would receive a percentage of the outcome, even though Lyndcote Holdings provided the funding at the later stage in the litigation. 235 The evidence simply does not support a finding that it was likely Julian would have continued to pursue the litigation without the funding sourced through Mr Purcell. Julian mortgaged Marri Wood Park to obtain the funding and agreed that a substantial share of any recovery would be distributed to the funders if he was successful. The only reasonable inference open on the evidence is that Julian required the funding to continue to pursue the litigation. 236 Further, and most importantly, the commercial benefit that accrued to Mr Purcell and LFSA under these funding arrangements looms large as a significant consideration in favour of making a non-party costs order and diminishes the weight, if any, attributable to the funding being provided at a late stage of the proceedings. 153 CPC Patent Technologies [108] - [109]. -- 57 of 65 -- [2026] WASC 218 WHITBY J Page 58 Control over the proceedings 237 Mr Purcell, in resisting a non-party costs order, relies upon the fact that neither he, nor any of the funders he sourced, had any direct or indirect control over the proceedings. 238 The terms of each of the funding agreements in this regard are to the same effect. As an example, the 2020 M&R Funding Agreement provides:154 6.1 [Julian] and the Funder agree that the Funder will not directly or indirectly control [Julian's] conduct of the Proceedings, nor any appeal of the Proceedings. 6.2 In recognition that the Funder has an interest in the success of the Proceedings, [Julian] has agreed to consult with the Funder on all matters to do with the settlement of the Proceedings. 6.3 [Julian] has agreed that if in the course of the Proceedings or any appeal of the Proceedings a written settlement offer is made or received by [Julian] then [Julian] will seek opinion and guidance from Senior Counsel as to whether the settlement terms offered or received are reasonable and advisable in all the circumstances relevant to Senior Counsel's opinion at the relevant time. 6.4 [Julian] is not obliged to agree to any opinion on settlement provided by Senior Counsel. 6.5 The Funder agrees that [Julian] has the exclusive right to settle, or not to settle the Proceedings, or any appeal of the Proceedings. 239 In Court House Capital, the Full Court stated:155 The authorities have made clear that where a litigation funder has a commercial interest in proceedings, even if it has no control over the proceedings, the requisite connection may nonetheless be established and an adverse costs order made against the funder. 240 The absence of an ability to directly or indirectly control the proceedings does not preclude the making of a non-party costs order against the Purcell Parties. 154 Second Jenkins Affidavit [16]; Annexure 'GJJ-25'. 155 Court House Capital [35] citing Gore at [64]. -- 58 of 65 -- [2026] WASC 218 WHITBY J Page 59 Failure to pursue costs from Julian 241 Mr Purcell submitted that it was unjust to make a non-party costs order against him and LFSA given the defendants already had the benefit of a costs order against Julian and could pursue him to recover those costs. 242 I have already outlined, when considering a similar submission made by the Thom Parties, why I do not consider this to be a relevant factor. 243 To the contrary, I am satisfied, on the basis of the evidence adduced at the hearing, there is a real likelihood that Julian will be unable to pay the defendants' costs. This is a factor which weighs in favour of making a non-party costs order against the Purcell Parties. Financial position of Mr Purcell 244 Mr Purcell submitted that a non-party costs order against him would result in his bankruptcy. Mr Purcell says his bankruptcy would prevent him from practicing as a lawyer. Mr Purcell says he is 67 years old and a non-party costs order against him would be unfair and unjust. 245 Mr Purcell did not adduce any evidence of his financial position. Without an evidentiary foundation, this submission cannot be sustained. Julian provided security for the funding 246 As I have outlined in the chronology, the funding sourced by Mr Purcell, through LFSA, pursuant to the LFS Funding Agreement and the 2020 M&R Funding Agreement, was secured by a first registered mortgage and a second registered mortgage over Marri Wood Park. Funding of $2.55 million was provided pursuant to these two agreements. 247 The mortgages secured the funds advanced. $2.55 million would be repaid to LFSA and M&R irrespective of the outcome in the proceedings. This meant the funding sourced by Mr Purcell, through LFSA, pursuant to these two agreements was entirely risk free. In the absence of a non-party costs order, LFSA and M&R would experience only upside associated with the funding of this litigation. That would, in my view, be unfair and unjust as it would encourage litigation funders to pursue profit with no consideration for the vindication of legal rights. -- 59 of 65 -- [2026] WASC 218 WHITBY J Page 60 Julian's asset out of reach of the defendants 248 What ultimately occurred is the mortgages were called on after the application for special leave to appeal to the High Court was refused. Julian was required to sell Marri Wood Park to repay his debt of $2.55 million to LFSA and M&R. 249 This removed Marri Wood Park from the defendants' reach in seeking to recover their costs from Julian. This is also a factor in favour of making a non-party costs order against the Purcell Parties. Re-registration of LFS and M&R 250 Mr Purcell submitted that LFS and M&R, as the companies that provided the funding to Julian, are the proper parties against which any non-party costs order should be made. Mr Purcell submits each of those companies has assets, being the amount of funding repaid pursuant to the mortgages. 251 However, upon the applications of Mr Purcell made on 6 November 2024, LFS and M&R were both deregistered on 22 January 2025. Mr Purcell says that both could be re-registered and pursued for a non-party costs order. 252 It is fatal to this submission that Mr Purcell declared in his applications for deregistration to ASIC that LFS and M&R each had assets worth less than $1,000.156 In any event, the terms of each of the JW Litigation Trust and the JW Appeal Trust provided that the funds were to be repaid to the unitholders, not to the trustee companies. 253 There is no merit to Mr Purcell's submission. Success of defendants 254 In his outline of written submissions, Mr Purcell asserted that the defendants were not wholly successful in the proceeding and, therefore, a costs order for all of the defendants' costs should not be visited upon Mr Purcell or LFSA. 255 This submission has no merit. Le Miere J dismissed Julian's claim against the defendant in its entirety and made a special costs order against him. The costs were not apportioned to reflect any suggestion that the defendants were not wholly successful. 156 Second Jenkins Affidavit [28]; Annexures 'GJJ-33' and 'GJJ-34'. -- 60 of 65 -- [2026] WASC 218 WHITBY J Page 61 Determination of application against the Purcell Parties 256 I find that Mr Purcell was instrumental in sourcing litigation funding for Julian. He did so purely for commercial profit with a substantial upside in the event there was a recovery of funds from the litigation. None of the reasons advanced by Mr Purcell as to why he and LFSA should not be visited with a non-party costs order have merit. 257 Mr Purcell and LFSA's connection to the proceedings is sufficient to warrant the exercise of the power to make a non-party costs order. In my view, it would be unfair and unjust to allow them to avoid the liability to pay the defendants' costs in the event Julian was unsuccessful. Mr Trudgian 258 Mr Trudgian did not appear at any of the directions hearings, nor did he appear at the hearing of the Application itself. Ms Cornu deposed to the extensive and thorough efforts of the defendants to bring the Application to the attention of Mr Trudgian. I am satisfied that the Application and the orders of the court in relation to the hearing of the Application have come to the attention of Mr Trudgian. Accordingly, the court may proceed to determine the Application in Mr Trudgian's absence. 259 Given Mr Trudgian did not adduce any evidence or make any submissions in opposition to the Application, I proceed to determine the application for non-party costs orders against him having regard to the evidence adduced by the defendants going to Mr Trudgian's connection to the litigation. Funding or financial assistance provided 260 Mr Trudgian provided his own personal funds to Julian for the purpose of funding the proceedings. He also introduced several investors to Mr Purcell, investors who contributed to the funding of the proceedings. 261 Mr Trudgian advanced approximately $425,000 to $475,000 for funding of the proceedings, comprising the following amounts: (1) $150,000 as trustee for the J&K Trudgian Super Fund pursuant to the Trudgian Funding Agreement; -- 61 of 65 -- [2026] WASC 218 WHITBY J Page 62 (2) $100,000 as trustee for the J&K Trudgian Super Fund pursuant to the LFS Funding Agreement; (3) $50,000 to $100,000 as trustee for the Wilfred Stewart Trudgian Family Trust pursuant to the LFS Funding Agreement; (4) $100,000 as trustee for the J&K Trudgian Super Fund pursuant to the 2020 M&R Funding Agreement; and (5) $25,000 as trustee for the Wilfred Stewart Trudgian Family Trust pursuant to the J4J Litigation Trust. 262 Wilfred Stewart Trudgian was Mr Trudgian's late father.157 I infer, on the basis of the evidence before the court, that Mr Trudgian and/or members of his family are beneficiaries of the Wilfred Stewart Trudgian Family Trust. 263 Mr Trudgian was also a director of J4J, which acted as trustee for the J4J Trust under the J4J Litigation Trust. 264 Mr Trudgian provided significant litigation funding to Julian and he introduced other investors who also provided litigation funding to Julian. Mr Trudgian's role in providing and sourcing funds for Julian for the litigation is a factor which weighs heavily in favour of making a non-party costs order against him. Commercial interest in the outcome of the proceedings 265 Mr Trudgian was entitled to share in the proceeds of the litigation pursuant to the JT Agreement, the Trudgian Funding Agreement, the LFS Funding Agreement, the 2020 M&R Funding Agreement and the J4J Litigation Trust. 266 Recital E of the JT Agreement records that Mr Trudgian, by his superfund, was an early investor in relation to funding costs and expenses of the proceedings pursuant to an agreement between the J&K Trudgian Super Fund and Rend dated 1 February 2020.158 Recitals F and G of the JT Agreement record that LFSA and Mr Trudgian have agreed Mr Trudgian can invest in the JW Litigation Trust and can introduce potential investors to invest in the JW Litigation Trust and that LFSA would reward and incentivise Mr Trudgian for investing in 157 Cornu Affidavit [9]. 158 A copy of this agreement was not discovered by Mr Trudgian or Mr Purcell. -- 62 of 65 -- [2026] WASC 218 WHITBY J Page 63 the JW Litigation Trust and/or introducing his clients or contacts to invest in the JW Litigation Trust. 267 The terms of the reward and incentive for the Mr Trudgian are set out in cl 2 of the JT Agreement. In summary, it was agreed that for every investor that Mr Trudgian introduced, LFSA and Mr Trudgian would split a B Class unit in the JW Litigation Trust. The Schedule to the JT Agreement indicates that Mr Trudgian had already introduced eight investors. 268 Pursuant to the Trudgian Funding Agreement, Mr and Mrs Trudgian provided Julian with funding of $150,000 in exchange for an entitlement to either:159 (1) 1.5% of the amount recovered (up to a recovery amount of $500 million); or (2) 20 times the funding provided, that is $3 million, provided that amount does not exceed 5% of the recovery amount (cl 6.1). 269 In the event of any recovery by Julian, the Trudgians were also entitled to repayment of funding amount of $150,000 (cl 6.1). Mr and Mrs Trudgian stood to gain up to $7.5 million. 270 Pursuant to the LFS Funding Agreement, LFS as trustee of the JW Litigation Trust was entitled to receive 10% of proceeds (capped at $1.2 billion) plus repayment of the total $2 million advance (up to a recovery amount of $122 million). Mr Trudgian, as trustee for the J&K Trudgian Super Fund and the Wilfred Stewart Trudgian Family Trust, was an A Class Unitholder of the JW Litigation Trust. Mr and Mrs Trudgian, as partners of Williams Inference, were B Class Unitholders of the JW Litigation Trust. Mr Trudgian, himself or through his family, stood to gain between $13.2 million and $15.6 million.160 271 Pursuant to the 2020 M&R Funding Agreement, M&R as trustee for the JW Appeal Trust was entitled to receive 5.5% of proceeds (capped at $1.2 billion) plus repayment of the $550,000 advance (up to a recovery amount of $66.55 million). Mr Trudgian, as trustee for the J&K Trudgian Super Fund, was an A Class Unitholder of the 159 Second Jenkins Affidavit [26]; Annexure 'GJJ-31'. 160 Defendants' submissions dated 20 February 2026, Annexure 'C' [2(a)]. -- 63 of 65 -- [2026] WASC 218 WHITBY J Page 64 JW Appeal Trust. Mr Trudgian, himself or through his family, stood to gain up to $9.6 million.161 272 Pursuant to the J4J Litigation Trust, J4J as trustee for the J4J Trust was entitled to receive 16.5% of proceeds (capped at $1.2 billion) plus repayment of the $1.1 million advance (up to a recovery amount of $199.1 million). Mr Trudgian, as trustee for the Wilfred Stewart Trudgian Family Trust, was an A Class Unitholder of the J4J Trust. Mr Trudgian, himself or through his family, stood to gain up to $4.5 million.162 273 The total commercial interest that Mr Trudgian, himself or through his family, had in the outcome of the proceedings was up to $37.2 million. This is a compelling factor in favour of making a non-party costs order against Mr Trudgian. Determination of application against Mr Trudgian 274 Mr Trudgian contributed between $425,000 and $450,000 towards the funding of the litigation. He, or members of his family, stood to gain up to $37.2 million if Julian was successful. Mr Trudgian funded the litigation purely with a view to making a commercial profit. 275 I find that Mr Trudgian's connection to the proceedings is sufficient to warrant the exercise of the power to make a non-party costs order. In my view, for him not to be liable to pay the defendants' costs in the event Julian was unsuccessful would be unfair and unjust. Summary and final orders 276 I find that of the Thom Parties, the Purcell Parties and Mr Trudgian each had a sufficient connection to the proceedings to warrant the exercise of the court's power to make a non-party costs order. 277 Pursuant to s 37 of the Supreme Court Act 1935 (WA), I order that the following individual and entities are jointly and severally liable with the plaintiff for the payment of the defendants' costs of the trial in this proceeding, pursuant to the order of Le Miere J made on 8 February 2022: (1) Ian McGregor Thom; 161 Defendants' submissions dated 20 February 2026, Annexure 'C' [2(b)]. 162 Defendants' submissions dated 20 February 2026, Annexure 'C' [2(c)]. -- 64 of 65 -- [2026] WASC 218 WHITBY J Page 65 (2) Barbirolli Investments Pty Ltd; (3) David John Purcell; (4) Litigation Funding Solutions (Australia) Pty Ltd; and (5) John Stephen Trudgian. 278 The non-parties, having unsuccessfully opposed the application for non-party costs orders, ought to pay the costs of the application. I will, however, hear from the parties as to final orders and costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 5 JUNE 2026 -- 65 of 65 --