In the matter of Willmott Forests Limited (In Liquidation) and Willmott Finance Pty Ltd (In Liquidation)

Willmott Forests Limited (in liquidation) and Willmott Finance Pty Ltd (in liquidation) brought an application for summary judgment against a defendant who had invested in an unregistered managed investment scheme. The plaintiffs sought a declaration that a notice given under section 601MB(1) of the Corporations Act 2001 (Cth) was invalid or ineffective. The defendant argued that the notice was invalid because the plaintiffs had not complied with Division 2 of Part 7.9 of the Corporations Act 2001 (Cth) by not providing him with a product disclosure statement when he invested in the scheme. The defendant argued that he was a retail client and that the scheme was only offered to wholesale clients. The court had to decide whether the defendant's defence was tenable in law and if there were any facts in dispute that could prevent summary judgment.

The court held that the defendant's reliance on the statutory presumption that he was a retail client was bad in law because there was no foundation in fact in evidence that he was actually a retail client. The defendant had not pleaded that he was a retail client at the time of investment, and his declaration in the application for investment stated that he was a wholesale client. The court also held that the defence was bound to fail because the plaintiffs had not breached any statutory provision by not providing the defendant with a product disclosure statement. The court found that the defence was untenable in law and that there were no relevant facts in dispute that could prevent summary judgment.

The court granted the plaintiffs' application for summary judgment and dismissed the defendant's defence. The court held that the plaintiffs were entitled to summary judgment because the defendant had not shown that the defence had any real prospect of success. The court held that the defence was bad in law and that there were no facts in dispute that could prevent summary judgment. The court did not consider the other basis upon which the plaintiffs sought to support their claim for declaratory relief because it was unnecessary to do so. The court ordered that the defendant pay the plaintiffs' costs of the application.