HP Mercantile Pty Limited; in the matter of Tumut River Orchard Management Ltd (In Liquidation); in the matter of Merilbah Investments Pty Limited (In Liquidation) v Tumut River Orchard Management Ltd (In Liquidation), [2009] FCA 1456

HP Mercantile Pty Limited; in the matter of Tumut River Orchard Management Ltd (In Liquidation); in the matter of Merilbah Investments Pty Limited (In Liquidation) v Tumut River Orchard Management Ltd (In Liquidation), [2009] FCA 1456

The arrangement established by the defendants arguably constitutes an unregistered managed investment scheme and an interim injunction is appropriate to restrain further solicitation and use of funds except as permitted for public examinations, pending final hearing.

Jurisdiction
Australia
Judgment Date
04 December 2009
Procedural Posture
Corporations/interlocutory Application / Interim Injunction (interlocutory)
Outcome
Modified interim injunction granted pending final hearing.
Legal Topics
['managed Investment Schemes' 'liquidator Funding' 'assignment of Debts' 'interim Injunctions']
['corporations Law'] ['managed Investment Schemes' 'liquidator Funding' 'assignment of Debts' 'interim Injunctions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Corporations/interlocutory Application / Interim Injunction (interlocutory)

Legal Issues

  1. 1 ['Whether solicitation and pooling of funds by liquidators from contingent creditors constitutes an unlawful managed investment scheme (MIS)' 'Whether such scheme requires registration under the Corporations Act 2001 (Cth)' 'Lawfulness of using funds for public examinations and litigation']

Ratio Decidendi

The arrangement established by the defendants arguably constitutes an unregistered managed investment scheme and an interim injunction is appropriate to restrain further solicitation and use of funds except as permitted for public examinations, pending final hearing.

Court Disposition

Modified interim injunction granted pending final hearing.

Orders

  • ["Defendants restrained from soliciting funds from investor-debtors for the purpose of creating or increasing a fund to challenge validity of assignments or defeat plaintiff's proceedings, until further order." 'Defendants restrained from expending funds already paid by investor-debtors except for conducting public...