Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82 Hearing dates: 11 April 2023 Date of orders: 02 May 2023 Decision date: 02 May 2023 Before: Leeming JA at [1]; Mitchelmore JA at [92]; Griffiths AJA at [93] Decision: In 2022/167408: 1. Dismiss the notice of appeal as incompetent. 2. No order as to the costs of the appeal, with the intent that the parties bear their own costs of the proceedings in the Court of Appeal. In 2022/304343: 1. Grant leave to appeal. 2. Dispense with the requirement to file and serve a notice of appeal. 3. Appeal allowed. 4. Set aside the orders made on 20 May 2022, and in lieu thereof, dismiss the Amended Summons filed on 15 April 2022 with costs. 5. No order as to the costs of the appeal, with the intent that the parties bear their own costs of the proceedings in the Court of Appeal. Catchwords: CORPORATIONS - managed investment scheme - thoroughbred horse investment schemes - whether schemes were managed investment schemes for purposes of s 9 of Corporations Act 2001 (Cth) - whether contravention of s 601ED by operating unregistered scheme - whether exemptions under s 1012E established - where primary judge made qualified factual findings as to extent of appellant's involvement, limited to sale of interests in horses for purpose of racing competitively - where no notice of contention - scheme as found by primary judge not a managed investment scheme - other challenges dismissed Legislation Cited: ASIC Corporations (Horse Schemes) Instrument 2016/790 Corporations Act 2001 (Cth) ss 9, 601EB, 601ED, 601FC, 601MD, 601QA, 1012E Financial Services Reform Act 2001 (Cth) Supreme Court Act 1970 (NSW) s 101 Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Australian Softwood Forests Pty Ltd v A-G (NSW) (Ex rel Corporate Affairs Commission) (1981) 148 CLR 121; [1981] HCA 49 Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (2009) 180 FCR 11; [2009] FCAFC 147 Chief Commissioner of State Revenue v Hayson Group of Companies Pty Ltd (2006) 68 NSWLR 254; [2006] NSWCA 233 Dennis v Dennis (1971) 124 CLR 317; [1971] HCA 50 French v Styring (1857) 2 CB (NS) 357; 140 ER 455 LCM Funding Pty Ltd v Stanwell Corporation Ltd (2022) 292 FCR 169; [2022] FCAFC 103 Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; 396 ALR 193 Mier v FN Management Pty Ltd [2006] 1 Qd R 339; [2005] QCA 408 Stewart v Spicer Thoroughbreds Pty Ltd [2022] NSWSC 558 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 [2008] FCAFC 91 Category: Principal judgment Parties: Spicer Thoroughbreds Pty Ltd (First Appellant/First Applicant) Brad John Spicer (Second Appellant/Second Applicant) John Stewart (Respondent) Representation: Counsel: M A Izzo SC, D Levi (Appellants/Applicants) Dr C S Ward SC, L Menzies (Respondent)