Brookfield Multiplex Limited (ACN 008 687 063) v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCAFC 182

Brookfield Multiplex Limited (ACN 008 687 063) v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCAFC 182

By majority, the Full Court held that the arrangements pleaded in the further amended statement of claim between the first, second and third respondents and the fourth and fifth respondents and Group Members constituted a managed investment scheme within paragraph (a) of the definition in s 9 of the Corporations Act 2001 (Cth), except to the extent excluded by the ASIC Revocation, Declaration and Exemptions dated 18 November 2009. Declaratory relief was necessary to quell the dispute, but declarations of contravention and injunctive relief were refused because the responsible operators had not been sufficiently identified and ASIC's intervention meant there was no present prospect of...

Jurisdiction
Australia
Judgment Date
22 December 2009
Procedural Posture
Full Court Appeal From the Federal Court of Australia Concerning Litigation Funding Arrangements in Consolidated Representative Proceedings / Final Orders on Relief After Reasons Published on 20 October 2009
Outcome
Appeal allowed by majority; orders made by Finkelstein J on 6 May 2009 set aside; declaration made; limited leave granted to read and file further evidence; respondents ordered to pay costs.
Legal Topics
['managed Investment Scheme' 'registration Under Ch 5 C of the Corporations Act 2001 (cth)' 'asic Exemptions and Modifications' 'declaratory Relief' 'injunctive Relief' 'costs of Appeal' 'further Evidence on Appeal']
['corporations Law' 'civil Procedure' 'representative Proceedings' 'litigation Funding'] ['managed Investment Scheme' 'registration Under Ch 5 C of the Corporations Act 2001 (cth)' 'asic Exemptions and Modifications' 'declaratory Relief' 'injunctive Relief' 'costs of Appeal' 'further Evidence on Appeal']

Case Brief

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Procedural Posture

Full Court Appeal From the Federal Court of Australia Concerning Litigation Funding Arrangements in Consolidated Representative Proceedings / Final Orders on Relief After Reasons Published on 20 October 2009

Legal Issues

  1. 1 ['Whether the funding arrangements entered into for the Dawson proceedings and Hart proceedings constituted a managed investment scheme within the meaning of s 9 of the Corporations Act 2001 (Cth).' 'Whether declaratory relief should be granted in light of the ASIC instrument dated 18 November 2009.' 'Whether the Court should declare that the first, second and third respondents contravened s 601ED(5) of the Corporations Act 2001 (Cth).' 'Whether injunctive relief should be granted restraining further steps in furtherance of the scheme or enforcement of rights and obligations under it.' 'Whether respondents should have leave to read and file further evidence from the affidavit of Andrew John Watson sworn on 18 November 2009.' 'Whether the appellants should be relieved from contractual undertakings and whether notices should be ordered to Group Members.' 'What costs orders should be made.']

Ratio Decidendi

By majority, the Full Court held that the arrangements pleaded in the further amended statement of claim between the first, second and third respondents and the fourth and fifth respondents and Group Members constituted a managed investment scheme within paragraph (a) of the definition in s 9 of the Corporations Act 2001 (Cth), except to the extent excluded by the ASIC Revocation, Declaration and Exemptions dated 18 November 2009. Declaratory relief was necessary to quell the dispute, but declarations of contravention and injunctive relief were refused because the responsible operators had not been sufficiently identified and ASIC's intervention meant there was no present prospect of...

Court Disposition

Appeal allowed by majority; orders made by Finkelstein J on 6 May 2009 set aside; declaration made; limited leave granted to read and file further evidence; respondents ordered to pay costs.

Orders

  • ['The arrangements between the first, second and third respondents on the one hand, and the fourth and fifth respondents and Group Members on the other hand, as pleaded in paragraphs 13-15, 20 and 35 of the further amended statement of claim, constitute a managed investment scheme as defined in paragraph (a) of the...