The Supreme Court of Western Australia held that non-party costs orders should be made jointly and severally against a litigation facilitator (and his corporate vehicle) who sourced initial funding and had a substantial commercial interest under a deed entitling him to up to 50% of any recovery, a litigation funding broker who structured trust and corporate vehicles to source $4.2 million in funding and stood to gain up to $47.7 million through B Class unit entitlements, and an investor-introducer who personally contributed approximately $425,000-$475,000 and introduced further investors. The Court rejected the proposition that a 'but for' causal connection between the non-party's involvement and the incurrence of costs is a necessary precondition, holding instead that the relevant inquiry is whether the non-party has a sufficient connection to the litigation to warrant the order, assessed by reference to what is fair and just. The Court also held that there is no onus of proof on such an application, no requirement to apportion costs between non-parties, and that neither the impecuniosity of the non-party nor the failure to seek security for costs against the unsuccessful plaintiff precluded the making of the order.
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