Common fund orders bound by Brewster?

The NSW Court of Appeal has declined to answer a separate question on the Court's power to make a common fund order at a proceeding's settlement or judgment stage. However, it gave a clear indication that such power exists in the right circumstances.

In the Corrs Insight Top ten class action predictions for 2020, we noted that since the High Court's decision in late 2019 (Brewster v BMW Australia Ltd  [2019] HCA 45) there is residual uncertainty as to whether courts can make a 'common fund order' (CFO). CFOs are an order obliging all group members to pay a proportion of any moneys ultimately recovered in the proceedings to a litigation funder, whether or not they've signed a funding agreement, at the settlement or judgment stage of a proceeding.