Hunt Leather Pty Ltd v Transport for NSW (No 4) [2024] NSWSC 140

Hunt Leather Pty Ltd v Transport for NSW (No 4) [2024] NSWSC 140

The plaintiffs were not entitled to recover the funder's commission as damages. Even if the commission could be characterised as a loss, it arose from the plaintiffs' independent decision to enter into a commercial litigation funding agreement after the nuisance, in order to pursue the litigation without bearing costs and adverse costs risks. That intervening act broke the causal chain between the defendant's nuisance and the claimed commission; the commission was also too remote or outside the appropriate scope of the defendant's liability because it was not expenditure in mitigation of the nuisance losses but the consequence of the plaintiffs' bargain with a third party to share...

Jurisdiction
Australia
Judgment Date
22 February 2024
Procedural Posture
Representative Proceedings Concerning Nuisance Claims for Damages Arising From Interference With Businesses During Construction of the Sydney Light Rail / Determination of Deferred Common Questions 10 and 11 After Liability Issues and Damages Issues Had Otherwise Been Determined
Outcome
The answer to common question 10 was no; the plaintiffs are not entitled to recover the funder's commission as damages. Common question 11 did not arise.
Legal Topics
['litigation Funding Agreement' "funder's Commission" 'recoverability of Damages' 'nuisance' 'causation' 'remoteness' 'costs']
['civil Procedure' 'representative Proceedings' 'tort' 'damages'] ['litigation Funding Agreement' "funder's Commission" 'recoverability of Damages' 'nuisance' 'causation' 'remoteness' 'costs']

Case Brief

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Procedural Posture

Representative Proceedings Concerning Nuisance Claims for Damages Arising From Interference With Businesses During Construction of the Sydney Light Rail / Determination of Deferred Common Questions 10 and 11 After Liability Issues and Damages Issues Had Otherwise Been Determined

Legal Issues

  1. 1 ["Whether group members who suffered loss or damage from nuisance and entered into litigation funding agreements may claim the litigation funder's commission as a head of damages." 'Whether such group members must show impecuniosity caused by the nuisance, that they would have pursued claims without litigation funding if they had the means, or that they negotiated the funding agreement terms.' 'If the commission were recoverable, what reasonable rate of litigation funding costs would be recoverable.']

Ratio Decidendi

The plaintiffs were not entitled to recover the funder's commission as damages. Even if the commission could be characterised as a loss, it arose from the plaintiffs' independent decision to enter into a commercial litigation funding agreement after the nuisance, in order to pursue the litigation without bearing costs and adverse costs risks. That intervening act broke the causal chain between the defendant's nuisance and the claimed commission; the commission was also too remote or outside the appropriate scope of the defendant's liability because it was not expenditure in mitigation of the nuisance losses but the consequence of the plaintiffs' bargain with a third party to share...

Court Disposition

The answer to common question 10 was no; the plaintiffs are not entitled to recover the funder's commission as damages. Common question 11 did not arise.

Orders

  • ["The answer to question 10 is no – the plaintiffs are not entitled to recover the funder's commission as damages." 'Question 11 does not arise.' 'The matter is listed for further directions on 13 March 2024.']