International Litigation Partners Pte Ltd v Chameleon Mining NL [2011] NSWCA 50

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: International Litigation Partners Pte Ltd v Chameleon Mining NL [2011] NSWCA 50 Hearing dates: 12 October 2010 Decision date: 15 March 2011 Before: Giles JA at [1]; Hodgson JA at [108]; Young JA at [139] Decision: Appeal dismissed with costs. Cross appeal allowed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACTS- Construction of commercial contracts- Construction of the Early Termination clause of a "Litigation Funding" Agreement- Entitlements of Funder do not continue once obligations have ceased- Construe "immediate payment of the Early Termination Fee" as payment of that fee only and not supplementary fees.

CORPORATIONS- Financial products- Whether a "Litigation Funding" Agreement constitutes a financial product, derivative, credit facility- Corporations Act 2001 (Cth), sections 761D, 762B, 763A, 763E, 765A- Financial services and markets- Financial services providers- Licensing and regulation- rescission of agreement due to lack of licence under Corporations Act 2001 (Cth)- Whether licence required- What constitutes a financial product, derivative, credit facility- When is a financial product only incidental. Legislation Cited: Corporations Act 2001 (Cth), ss 760A, 761A, 761B, 761D, 761E, 762A, 762B, 762C, 763A, 763B, 763C, 763E, 764A, 765A, 766A, 766C, 911A, 924A, 925A, 925D, 925E Corporations Regulations 2001 (Cth) Reg 7.1.06 Financial Services Reform Act 2001 (Cth) Cases Cited: Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49; 148 CLR 121 Bethlehem Steel Co v Turner Construction Co 141 NE (2d) 590, 593 (CA of NY) (1957) Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; 180 FCR 11 Fischer v Finanzamt Burgdorf [2002] QB 704 Keynes v Rural Directions Pty Ltd [2010] FCAFC 100; 186 FCR 281 Poer v Curry 8 So (2d) (Ala) (1942) 418 Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd [1995] FCA 1106; 128 ALR 417 Category: Principal judgment Parties: International Litigation Partners Pte Ltd (Appellant) Chameleon Mining NL (First Respondent) Cape Lambert Resources Limited (Second Respondent) Representation: Counsel: B Walker SC and R C Higgins (Appellant) T Bathurst QC and M A Jones (First Respondent) C R C Newlinds SC and J C Giles (Second Respondent) Solicitors: Blake Dawson (Appellant) Swaab Attorneys (First Respondent) Lavan Legal (Second Respondent) File Number(s): CA 2010/267410 Decision under appeal Citation: Chameleon Mining NL v International Litigation Partners Pte Limited [2010] NSWSC 972 Date of Decision: 2010-08-31 00:00:00 Before: Hammerschlag J File Number(s): 2010/267410