By Kylie Tate
Litigation funding is a fact of life in large, complex
litigation. Not too long ago, litigation funding was seen as
against public policy. The law is still developing in this area and
disputes still abound with the litigation funding, how to
characterise it and issues associated with it.
The agreements contain various provisions covering the rights of
the parties, how to conduct the litigation, what licensing
requirements operate and what happens if there is a change in
control of corporations involved in proceedings. Each issue has,
somewhat ironically, lead to complex litigation itself.
In October 2012 the High Court unanimously determined that a
litigation funder was entitled to an "early termination
fee" pursuant to a funding deed despite the funder not having
an Australian Financial Services Licence pursuant to Part 7.6 of
the Corporations Act 2001 (Cth) (the
Act).
