Where a commercial agreement involves an advance of funds in the context of a joint business arrangement with profit-sharing, the characterisation of the advance as a conventional loan or as limited recourse funding is a question of construction of the whole agreement, and a plausible argument that the advance is not a conventional loan repayable on termination is sufficient to establish a genuine dispute under s 459H. Judges determining genuine dispute applications should avoid expressing views on the ultimate question of the existence of the debt.
The full text is available to signed-in members, including the 61 later cases that cite this judgment.
5 of the 61 citing cases carry a classified treatment. How each court treated it is available to signed-in members.