National Australia Bank Ltd v Norman

In National Australia Bank Ltd v Norman, the Court addressed the appeal by National Australia Bank (NAB) against the winding up order made by Mansfield J (the primary judge) on 28 November 2008. The primary judge had declared that a managed investment scheme operated by the deceased Allan McFarlane was unregistered and ordered its winding up. Mr Norman, the applicant, sought the appointment of liquidators for the scheme, and the primary judge granted his application. NAB was not a party to the original application but was later joined as a party to the appeal after demonstrating sufficient interest. The primary judge's orders were predicated on the assumption that McFarlane operated an unregistered managed investment scheme. However, the court found that the evidence did not substantiate the existence of such a scheme, as the investments were made individually rather than pooled together.

The court's reasoning hinged on the interpretation of the evidence presented. Mr Norman's affidavit and the accompanying documents did not provide clear evidence of a managed investment scheme as defined by the Corporations Act. The bank accounts in question were simply accounts where funds were deposited by individual clients, and there was no evidence of a pooling of funds or the creation of a single investment entity. The court concluded that the primary judge's finding was not supported by the evidence, and thus the orders made on 28 November 2008 should be set aside. The appeal was allowed, and the orders were dismissed. Additionally, the court ordered Mr Norman to pay NAB's costs of the appeal and the application for leave to appeal.