Mutual Home Loans Fund Of Australia Ltd v Attorney-General (NSW) [1973] HCA 61

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Mutual Home Loans Fund Of Australia Ltd v Attorney-General (NSW) [1973] HCA 61

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

Section 40 (1) of the Companies Act 1961-1965 NSW (the Act), so far as presently material, provides:

Every advertisement offering or calling attention to an offer or intended offer of shares in or debentures of a corporation or proposed corporation to the public for subscription or purchase shall be deemed to be a prospectus if it contains any information or matter other than the following, and there follows a list of matters, and concludes: and unless it states that applications for shares or debentures will proceed only on one of the forms of application referred to in and attached to a printed copy of the prospectus.

Sub-section (3) applies the abovementioned provisions to advertisements published or disseminated in the State by newspaper, broadcasting, television, cinematograph or any other means whatsoever.

Sub-section (4) makes the person who published or disseminated an advertisement which is deemed to be a prospectus and which does not comply with the Act's requirement as to prospectuses, guilty of an offence against the Act.

The first-named appellant (Mutual Home Loans Fund of Australia Ltd.) advertised in each of two newspapers published in Sydney a scheme whereby home owners or intending home owners could obtain mortgage finance on favourable terms. The scheme has features akin to the arrangements of a Starr-Bowkett Society. However, instead of being carried out by an unincorporated group, it is implemented by means of two companies registered under the Act, one company (Mortgage and Discounting) being a management company and the other, the first appellant (Mutual Home Loans), providing the capital to provide the necessary loan money.