Can Plaintiffs Recover Litigation Funding Damages From Defendants In Class Action In Australia?

On 17 December 2025, the High Court of Australia delivered its judgment in a class action brought on behalf of persons allegedly affected by the construction of the Sydney Light Rail: Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53. The plaintiffs were successful in seeking damages for private nuisance at common law from the public authority, Transport for NSW ("TfNSW"), with the High Court overturning (in part) the decision of the NSW Court of Appeal.

Interestingly, in seeking damages, the plaintiffs also claimed that damages include reasonable litigation funding costs. For plaintiffs and group members who entered into a litigation funding agreement in connection with the proceedings, the funder financially supported their claims by paying legal costs and disbursements, providing security for costs and undertaking to meet any adverse costs orders. In exchange, the plaintiffs and group members agreed to reimburse the funder for its costs and to pay