Spicer Thoroughbreds Pty Ltd v Stewart

Spicer Thoroughbreds Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by the primary judge concerning thoroughbred horse investment schemes. The dispute centred on whether these schemes constituted managed investment schemes for the purposes of section 9 of the *Corporations Act 2001* (Cth), and consequently, whether Spicer Thoroughbreds had contravened section 601ED by operating an unregistered scheme. The primary judge had made qualified factual findings regarding Spicer Thoroughbreds' involvement, limiting it to the sale of interests in horses for the purpose of competitive racing.

The Court of Appeal was required to determine whether the schemes, as found by the primary judge, qualified as managed investment schemes under the *Corporations Act*. This involved considering whether the exemptions provided by section 1012E were established. The appellant also sought to challenge other findings made by the primary judge.

The Court of Appeal, in one of the appeals, found that the scheme, as characterised by the primary judge, was not a managed investment scheme. The other challenges raised by the appellant were dismissed. In the other appeal, the Court granted leave to appeal and dispensed with the requirement to file and serve a notice of appeal.

Consequently, in appeal number 2022/167408, the notice of appeal was dismissed as incompetent, with the parties to bear their own costs. In appeal number 2022/304343, the appeal was allowed, the previous orders were set aside, and the Amended Summons was dismissed with costs. The parties were to bear their own costs of the proceedings in the Court of Appeal.