Chameleon Mining NL v International Litigation Partners Pte Limited [2010] NSWSC 972

Chameleon Mining NL v International Litigation Partners Pte Limited [2010] NSWSC 972

The Deed is not a financial product or derivative within the meaning of the Corporations Act 2001 (Cth), and CHM was not entitled to rescind under section 925A; several Events of Default under the Charge were established, justifying the valid appointment of receivers; the Funder’s entitlement upon Change in Control was limited to the Early Termination Fee, not to both the Early Termination Fee and Funding Fee.

Parties
Plaintiff: Chameleon Mining NL; First Defendant: International Litigation Partners Pte Limited; Second Defendant: Andrew Hugh Jenner Wily; Third Defendant: David Anthony Hurst; Fourth Defendant: Cape Lambert Resources Limited
Jurisdiction
Australia
Judgment Date
31 August 2010
Procedural Posture
Principal Judgment / Final Hearing After Interlocutory Injunction
Outcome
Plaintiff's purported rescission ineffective; Event of Default under Charge established; Receivers validly appointed; Funder's entitlement limited to right to immediate payment of Early Termination Fee upon Change in Control.
Legal Topics
Litigation Funding, Rescission, Fixed and Floating Charges, Appointment of Receivers, Financial Services Licensing
Corporations Contract Law Commercial Litigation Litigation Funding Rescission Fixed and Floating Charges Appointment of Receivers Financial Services Licensing

Case Brief

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Parties

Chameleon Mining NL

Plaintiff

International Litigation Partners Pte Limited

First Defendant

Andrew Hugh Jenner Wily

Second Defendant

David Anthony Hurst

Third Defendant

Cape Lambert Resources Limited

Fourth Defendant

Procedural Posture

Principal Judgment / Final Hearing After Interlocutory Injunction

Legal Issues

  1. 1 Whether litigation funding deed constitutes a financial product under the Corporations Act 2001 (Cth)
  2. 2 Whether the plaintiff validly rescinded the deed under s 925A of the Corporations Act
  3. 3 Validity of appointment of receivers under the Charge

Ratio Decidendi

The Deed is not a financial product or derivative within the meaning of the Corporations Act 2001 (Cth), and CHM was not entitled to rescind under section 925A; several Events of Default under the Charge were established, justifying the valid appointment of receivers; the Funder’s entitlement upon Change in Control was limited to the Early Termination Fee, not to both the Early Termination Fee and Funding Fee.

Court Disposition

Plaintiff's purported rescission ineffective; Event of Default under Charge established; Receivers validly appointed; Funder's entitlement limited to right to immediate payment of Early Termination Fee upon Change in Control.

Orders

  • The injunction restraining the receivers is dissolved.
  • Declarations will be made that the Funder's entitlement is limited to the Early Termination Fee upon Change in Control.