Common fund ruling to go all the way to the High Court

The power of courts to make 'common fund' orders will, it seems, remain uncertain for a little while longer, after the High Court, on 15 May 2019, granted special leave to appeal from the judgments of the Full Court of the Federal Court in Westpac Banking Corporation v Lenthall [2019] FCAFC 34 and the New South Wales Court of Appeal in Brewster v BMW Australia Ltd [2019] NSWCA 35.

This development flows from an historic joint sitting of the Federal Court and the New South Wales Supreme Court determining critical class action issues including whether a Court has power to make common fund orders and whether such orders are beyond judicial power or unconstitutional.

As a result of the joint sitting (albeit the decisions were arrived at independently), both Courts reached the same conclusion giving Common Fund Orders the all clear.

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