Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as "STC Sports Trading Club" (No 7) [2019] NSWSC 103

Supreme Court New South Wales

Medium Neutral Citation: Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as "STC Sports Trading Club" (No 7) [2019] NSWSC 103 Hearing dates: 5 - 9 February, 14 March, 13 - 15 June, 12 - 13 and 26 - 27 July and 10 September 2018 Decision date: 18 February 2019 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Proceedings may not continue against second defendant. Misleading or deceptive conduct established in relation to fifth and twelfth defendants. Catchwords: CONSUMER LAW – misleading or deceptive conduct – whether fifth and twelfth defendants made representations about scheme which were misleading or deceptive – whether those defendants liable to investors on that or other bases

BANKRUPTCY – jurisdiction and powers of court – no leave obtained under s 58(3)(b) of Bankruptcy Act 1966 – whether claims made in proceedings are for a provable debt

BANKRUPTCY – procedure – whether continued prosecution of proceedings involves taking a fresh step in the proceedings

PARTNERSHIP – generally – what constitutes partnership – whether partnership is limited when partnership agreement not registered

PARTNERSHIP – actions by and against partners – actions and proceedings against firms and individual partners – partnership conducting sports trading business – scheme said to be fraudulent, masterminded by twelfth defendant – second and fifth defendants named as partners – investment of group members lost Legislation Cited: Australian Consumer Law Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Partnership Act 1892 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2003] FCA 180; (2003) 127 FCR 418 Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liq) [2005] FCA 1212 Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112; (2013) 223 FCR 426 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 3) [2012] FCA 939 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v The Bio Enviro Plan Pty Ltd [2004] FCA 415 Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234; [2005] HCA 67 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Foster v Australian Competition and Consumer Commission [2006] FCAFC 21; (2006) 149 FCR 135 Foster v Australian Competition and Consumer Commission [2012] FCA 953 Gertig v Davies (2003) 85 SASR 226; [2003] SASC 86 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Jack v Kipping (1882) 9 QBD 113 Kimberley NZI Finance Limited v Torero Pty Ltd (1989) ATPR (Digest) 46-054 Mackinnon as plaintiff representative of 153 plaintiff group members v The partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as "STC Sports Trading Club" (No 3) [2018] NSWSC 86 Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as "STC Sports Trading Club" (No 4) [2018] NSWSC 147 R v Foster [2008] QCA 90; (2008) 183 A Crim R 437 Rafferty v Madgwicks (2012) 203 FCR 1; [2012] FCAFC 37 Rose v Federal Commissioner of Taxation (1951) 84 CLR 118; [1951] HCA 68 Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288 Warner v Elders Rural Finance Ltd (1993) 41 FCR 399 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 Category: Principal judgment Parties: Ian Henry Mackinnon as plaintiff representative of 153 plaintiff group members (Plaintiff) The partnership of Anne Patricia Larter, Alan Jones, Miraleste Pty Ltd trading as USG Partner and Leigh Johnson, trading as "STC Sports Trading Club" (First Defendant) Anne Patricia Larter (Second Defendant) Alan Jones (Third Defendant) Miraleste Pty Ltd trading as USG Partner (Fourth Defendant) Leigh Johnson (Fifth Defendant) Sports Trading Club Limited (a company incorporated in Hong Kong) (Sixth Defendant) Bella Development Limited (a company incorporated in Hong Kong) (Seventh Defendant) East Ocean Capital Limited (a company incorporated in Hong Kong) (Eighth Defendant) Arabella Racing Pty Ltd (Ninth Defendant) Banksia Holdings (Tenth Defendant) Arabella Louise Foster (Eleventh Defendant) Peter Foster (Twelfth Defendant) Representation: Counsel: T J Dixon (Plaintiff)