The Last Word On Common Fund Orders?

The High Court allowed appeals in BMW Australia Ltd v Brewster and Westpac Banking Corporation v Lenthall [2019] HCA 45 finding that neither s183 of the Civil Procedure Act 2005 (NSW) nor s33ZF of the Federal Court Act 1976 (Cth) empowered the respective Courts to make a "common fund order" (CFO).

Background

CFOs have become a common feature in Australian class actions following the Money Max class action in 2016. A common fund order is made at an early stage in an open class action. It requires that all participating members contribute a percentage of any award of damages to the litigation funder regardless of whether the class member had signed a litigation funding agreement or been joined to the case.