Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82

Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82

On the limited findings of fact, the schemes for sale of interests in racehorses by Spicer Thoroughbreds did not satisfy the 'common enterprise' element required for a managed investment scheme under s 9 of the Corporations Act 2001 (Cth); contributions were not used in a common enterprise. As such, the schemes found by the primary judge were not managed investment schemes. Even if they were, Spicer Thoroughbreds failed to establish the requirements for the small scale offering exemption under s 1012E. Accordingly, the appeal was allowed, the declarations at first instance set aside, and Mr Stewart's proceedings dismissed.

Parties
First Appellant/first Applicant: Spicer Thoroughbreds Pty Ltd; Second Appellant/second Applicant: Brad John Spicer; Respondent: John Stewart
Jurisdiction
Australia
Judgment Date
02 May 2023
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in 2022/304343; notice of appeal dismissed as incompetent in 2022/167408
Legal Topics
Managed Investment Schemes, Corporations Act 2001 (cth) S 9, Corporations Act 2001 (cth) S 601 ED, Corporations Act 2001 (cth) S 1012 E, Thoroughbred Horse Syndication, Product Disclosure Statement Exemptions
Corporations Law Managed Investment Schemes Corporations Act 2001 (cth) S 9 Corporations Act 2001 (cth) S 601 ED Corporations Act 2001 (cth) S 1012 E Thoroughbred Horse Syndication Product Disclosure Statement Exemptions

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 4 Authorities cited 15 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Spicer Thoroughbreds Pty Ltd

First Appellant/first Applicant

Brad John Spicer

Second Appellant/second Applicant

John Stewart

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the thoroughbred horse investment schemes operated by Spicer Thoroughbreds Pty Ltd constituted managed investment schemes for the purposes of s 9 of the Corporations Act 2001 (Cth)
  2. 2 Whether Spicer Thoroughbreds contravened s 601ED(5) by operating unregistered managed investment schemes
  3. 3 Whether exemptions under s 1012E (small scale offerings) applied

Ratio Decidendi

On the limited findings of fact, the schemes for sale of interests in racehorses by Spicer Thoroughbreds did not satisfy the 'common enterprise' element required for a managed investment scheme under s 9 of the Corporations Act 2001 (Cth); contributions were not used in a common enterprise. As such, the schemes found by the primary judge were not managed investment schemes. Even if they were, Spicer Thoroughbreds failed to establish the requirements for the small scale offering exemption under s 1012E. Accordingly, the appeal was allowed, the declarations at first instance set aside, and Mr Stewart's proceedings dismissed.

Court Disposition

Appeal allowed in 2022/304343; notice of appeal dismissed as incompetent in 2022/167408

Orders

  • 2022/167408: Dismiss the notice of appeal as incompetent.
  • 2022/167408: No order as to the costs of the appeal, the parties to bear their own costs in the Court of Appeal.