Maximising Recovery in Construction Disputes Through Litigation Funding

Sharing the risk of litigation funding allows parties to receive funding for their disputes by way of a non-recourse capital investment from a third party, typically in return for a share of any successful award of damages.

While the legality of this practice has largely been established, domestic courts and international arbitral tribunals are being called upon to decide whether there is a principled basis to hold a respondent liable for a full award of damages plus the amount owed by a funded claimant to a third-party funder. This paper by LK’s Patrick Leader-Elliott and Liam McInerney considers the impact of the NSW Court of Appeal’s decision in Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 (currently on appeal before the High Court) and recent changes to the rules of arbitral institutions in the Asia-Pacific region.

The paper was first published at the 2025 SoCLA Conference.