Brewster v BMW Australia Ltd

In *Brewster v BMW Australia Ltd*, the Court of Appeal of New South Wales considered a separate question posed in representative proceedings concerning the power of the Supreme Court of New South Wales to order unfunded group members to pay remuneration to a litigation funder from settlement proceeds. The question arose in the context of proceedings brought by Mr Brewster against BMW Australia Ltd.

The central legal issue before the Court was whether it possessed the power, under section 173 of the *Civil Procedure Act 2005* (NSW), to make an order requiring group members who had not entered into a litigation funding agreement to pay a portion of any settlement to the funder as a return on expenditure, commission, or similar remuneration. A further issue was whether it was appropriate to determine this question at that stage of the proceedings, given the absence of any settlement and knowledge of its terms or proposed orders.

The Court noted that the question had been considered by the High Court of Australia in a decision with the same parties, but observed that the factual context of that decision differed. The majority judgments in the High Court did not, in the Court of Appeal's view, obviously answer the specific separate question posed. Consequently, the Court of Appeal declined to answer the separate question at that stage of the proceedings.

The Court ordered that BMW Australia Ltd pay Mr Brewster’s costs of the hearing in the Court of Appeal.