International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45

International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45

The Funding Deed constituted a 'credit facility', providing a form of financial accommodation within the meaning of reg 7.1.06, and was therefore expressly excluded from the operation of Ch 7 of the Corporations Act by s 765A(1)(h)(i). As such, the rescission provision in s 925A did not apply and the appellant was entitled to payment of the Early Termination Fee.

Parties
Appellant: International Litigation Partners Pte Ltd; First Respondent: Chameleon Mining NL (Receivers and Managers Appointed); Second Respondent: Cape Lambert; Third and Fourth Respondents: third and fourth respondents
Jurisdiction
Australia
Judgment Date
05 October 2012
Procedural Posture
Appeal / High Court Appeal From the Court of Appeal of the Supreme Court of New South Wales
Outcome
Appeal allowed
Legal Topics
Credit Facility, Financial Product, Financial Services Licensing, Litigation Funding Agreement
Corporations Law Financial Regulation Credit Facility Financial Product Financial Services Licensing Litigation Funding Agreement

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Parties

International Litigation Partners Pte Ltd

Appellant

Chameleon Mining NL (Receivers and Managers Appointed)

First Respondent

Cape Lambert

Second Respondent

third and fourth respondents

Third and Fourth Respondents

Procedural Posture

Appeal / High Court Appeal From the Court of Appeal of the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a litigation funding agreement is a 'financial product' under the Corporations Act 2001 (Cth)
  2. 2 Whether the agreement is excluded as a 'credit facility' under s 765A and reg 7.1.06 of the Corporations Regulations 2001 (Cth)
  3. 3 Whether the absence of a financial services licence entitled the respondent to rescind the agreement under s 925A

Ratio Decidendi

The Funding Deed constituted a 'credit facility', providing a form of financial accommodation within the meaning of reg 7.1.06, and was therefore expressly excluded from the operation of Ch 7 of the Corporations Act by s 765A(1)(h)(i). As such, the rescission provision in s 925A did not apply and the appellant was entitled to payment of the Early Termination Fee.

Court Disposition

Appeal allowed

Orders

  • Orders 2, 3, 6, 7, 9 and 10 of the Court of Appeal set aside (except costs element of order 9)
  • Judgment for the appellant against the first respondent for $8,381,144.30