LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103

Federal Court of Australia

LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 Appeal from: Stanwell Corporation Limited v LCM Funding Pty Ltd [2021] FCA 1430; (2021) 157 ACSR 401

File number: QUD 432 of 2021

Judgment of: MIDDLETON, LEE AND ANDERSON JJ

Date of judgment: 16 June 2022

Catchwords: CORPORATIONS – appeal from the decision of the primary judge in Stanwell Corporation Limited v LCM Funding Pty Ltd [2021] FCA 1430 – whether the primary judge ought to have found that the litigation funding scheme does not have the features of the definition of a managed investment scheme (MIS) as set out in ss 9(a)(i) and 9(a)(ii) of the Corporations Act 2001 (Cth) (Act) – whether the primary judge erred in refusing to make the first declaration sought by the appellant in its notice of cross-claim in the proceeding below – whether the primary judge erred in refusing to make the second declaration sought by LCM Funding in the cross-claim on the basis that there was not sufficient utility in doing so – whether the litigation funding scheme was a MIS and LCM Funding was operating a MIS – whether the majority of the Full Court of the Federal Court of Australia was correct to find in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (2009) 180 FCR 11 (Brookfield FC) that a litigation funding scheme (with relevantly the same features as the present scheme) was a MIS within the meaning of s 9 of the Act – where a contradictor appointed by the Full Court to assist the Full Court in answer to this question – where the primary judge's analysis of the reasoning of the majority in Brookfield FC is correct – where the reasoning of the majority in Brookfield FC was plainly wrong – appeal allowed