Re Lawloan Mortgages Pty Ltd - [2002] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

Lawloan Mortgages Pty Ltd v Lawloan Mortgages Pty Ltd [2002] QSC 302

PARTIES:

LAWLOAN MORTGAGES PTY LTD
ACN 066 587 068
(applicant)
LAWLOAN MORTGAGES PTY LTD
ACN 066 587 068
(respondent)

FILE NO/S:

S 2972 of 2002

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

2 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2002

JUDGE:

Holmes J

ORDERS:

1. The winding up of the schemes be undertaken
    by the applicant with the supervision of Messrs.
    McIntosh and Park
2. Orders as per the draft provided by the applicant
3. Parties to be heard as to costs

CATCHWORDS:

CORPORATIONS – MANAGEMENT AND ADMINISTRATION – WINDING-UP – WINDING-UP BY COURT
Where the applicant seeks declarations in relation to nine loan arrangements conducted via its contributory mortgage lending business – where the applicant seeks that should a winding-up order be made in respect of the loans, it be appointed for that purpose – where ASIC intervenes in the application to seek that the winding-up be carried out by an independent liquidator – whether the remaining loans constitute one “managed investment” scheme as defined by s9 of the Corporations Act or nine such schemes – whether the applicant has ‘operated’ the investment scheme or schemes or whether it has ‘taken steps to wind up’ the scheme or schemes pursuant to s 601ED(6) of the Corporations Act – whether the winding-up should be conducted by the applicant itself under the supervision of registered liquidators.

Corporations Act 2001 (Cth)
Queensland Law Society Rules 1987

Australian Securities & Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778, distinguished
Australian Securities & Investment Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339, distinguished
Australian Securities and Investments Commission v Koala [2002] NSWSC 451, considered
Australian Securities & Investment Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561, considered
Australian Securities & Investment Commission v Takaran [2002] NSWSC 834, considered
Australian Softwoods Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121, considered
Beckwith v R (1976) 135 CLR 569, considered
Interstate Mortgages and Investments Pty Ltd v Australian Securities & Investment Commission, unreported NSWSC 22 July 2002, distinguished
Re Crust ‘n’ Crumbs Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76, considered
Re Southern Cross Airlines Holdings Limited (in liq) [2000] 1 Qd R 84, followed

COUNSEL:

Mr O’Donnell QC with Mr Perkins for the applicant
Mr Douglas QC with Mr Roney for ASIC
Mr Bain QC for the contributors

SOLICITORS:

Dibbs Baker Gosling for the applicant
Gadens Lawyers for ASIC
Murrell Stephenson for the contributors

Background

Lawloan Mortgages Pty Ltd, as its name suggests, is a corporate vehicle through which a firm of solicitors (Elliott & Harvey) has conducted a contributory mortgage lending business. Of some 754 loans it has managed, only nine remain on foot. It seeks certain declarations in relation to the nine remaining loan arrangements, or, should a winding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QSC 302
Decision Date: 2 October 2002

CaseChat Overview and Summary

The case of Re Lawloan Mortgages Pty Ltd was brought before the Federal Court of Australia. The applicant, Lawloan Mortgages, sought declarations regarding nine loan arrangements conducted through its contributory mortgage lending business. The primary request was for the applicant to be appointed for the winding-up process should an order for winding-up be made concerning the loans. The Australian Securities and Investments Commission (ASIC) intervened, arguing that the winding-up should be executed by an independent liquidator instead of the applicant.

The central legal issues before the court were whether the remaining loans constituted one managed investment scheme under section 9 of the Corporations Act 2001 (Cth) or nine individual schemes. Additionally, the court had to determine whether the applicant had operated the investment scheme or schemes or had taken steps to wind up the scheme or schemes in accordance with section 601ED(6) of the Corporations Act. The court also needed to decide if the winding-up should be conducted by the applicant itself, under the supervision of registered liquidators.

The court held that the loans constituted one managed investment scheme, as defined by the Corporations Act. It was found that the applicant had indeed operated the scheme and had taken steps to wind it up. Consequently, the court ruled that the winding-up should be undertaken by the applicant, with the supervision of Messrs. McIntosh and Park, who were registered liquidators. The court also ordered that the parties be heard as to costs.

Orders

Orders of the court

1. The winding up of the schemes be undertaken

by the applicant with the supervision of Messrs.

McIntosh and Park

2. Orders as per the draft provided by the applicant

3. Parties to be heard as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lawloan Mortgages Pty Ltd v Lawloan Mortgages Pty Ltd [2002] QSC 302
PARTIES:	LAWLOAN MORTGAGES PTY LTD ACN 066 587 068 (applicant) LAWLOAN MORTGAGES PTY LTD ACN 066 587 068 (respondent)
FILE NO/S:	S 2972 of 2002
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	2 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2002
JUDGE:	Holmes J
ORDERS:	1. The winding up of the schemes be undertaken by the applicant with the supervision of Messrs. McIntosh and Park 2. Orders as per the draft provided by the applicant 3. Parties to be heard as to costs
CATCHWORDS:	CORPORATIONS – MANAGEMENT AND ADMINISTRATION – WINDING-UP – WINDING-UP BY COURT Where the applicant seeks declarations in relation to nine loan arrangements conducted via its contributory mortgage lending business – where the applicant seeks that should a winding-up order be made in respect of the loans, it be appointed for that purpose – where ASIC intervenes in the application to seek that the winding-up be carried out by an independent liquidator – whether the remaining loans constitute one “managed investment” scheme as defined by s9 of the Corporations Act or nine such schemes – whether the applicant has ‘operated’ the investment scheme or schemes or whether it has ‘taken steps to wind up’ the scheme or schemes pursuant to s 601ED(6) of the Corporations Act – whether the winding-up should be conducted by the applicant itself under the supervision of registered liquidators. Corporations Act 2001 (Cth) Queensland Law Society Rules 1987 Australian Securities & Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778, distinguished Australian Securities & Investment Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339, distinguished Australian Securities and Investments Commission v Koala [2002] NSWSC 451, considered Australian Securities & Investment Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561, considered Australian Securities & Investment Commission v Takaran [2002] NSWSC 834, considered Australian Softwoods Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121, considered Beckwith v R (1976) 135 CLR 569, considered Interstate Mortgages and Investments Pty Ltd v Australian Securities & Investment Commission, unreported NSWSC 22 July 2002, distinguished Re Crust ‘n’ Crumbs Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76, considered Re Southern Cross Airlines Holdings Limited (in liq) [2000] 1 Qd R 84, followed
COUNSEL:	Mr O’Donnell QC with Mr Perkins for the applicant Mr Douglas QC with Mr Roney for ASIC Mr Bain QC for the contributors
SOLICITORS:	Dibbs Baker Gosling for the applicant Gadens Lawyers for ASIC Murrell Stephenson for the contributors