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

FEDERAL COURT OF AUSTRALIA

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 CORPORATIONS – managed investment scheme (MIS) – whether circumstances of liquidator soliciting funding from contingent creditors constituted unlawful MIS – earlier MIS in which company, TROM, financed investors into that MIS by lending them money – TROM assigned the debts to other companies which, in turn, assigned them to Merilbah, which assigned them to HPM – attempts by HPM to recover the debts from numerous investor-debtors in Supreme Court and District Court – question whether assignments were valid – liquidators of TROM and Merilbah now soliciting funding from the numerous investor-debtors to enable them to challenge validity of assignments with a view to debts remaining the property of TROM or Merilbah – solicitation of funding on basis that any investor-debtor who provided funding would or might obtain a release of his or her debt from the liquidators – present application by HPM for interim injunction under s 1324(4) of Corporations Act 2001 (Cth) restraining TROM, Merilbah and their liquidators from attempting to raise further funds and from expending any of the funds already raised on basis that the obtaining of the funding in all of the circumstances constituted an MIS that was required to be registered but which was unlawful for non-registration. Held: modified form of injunctive relief granted on interim basis. Corporations Act 2001 (Cth) ss 9 (definition of "managed investment scheme"), 1324 Australian Securities and Investments Commission v Mauer-Swisse Securities Ltd (2002) 42 ACSR 605 referred to Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (2009) 260 ALR 643 referred to National Australia Bank Ltd v Norman [2009] FCAFC 152 referred to