Lawloan Mortgages Pty Ltd v Lawloan Mortgages Pty Ltd

[2002] QSC 302

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Corporations
2. › Managed investment schemes
3. › Definition of 'managed investment scheme'
4. › Whether contributory mortgage lending arrangements constitute one scheme or multiple schemes
5. › Whether pooling requirement in s 9(ii) requires benefits to flow to all members
6. › Corporations Act 2001 (Cth), s 9
1. Corporations
2. › Managed investment schemes
3. › Unregistered schemes
4. › Operation of scheme in contravention of s 601ED(5)
5. › Meaning of 'taking steps to wind up' in s 601ED(6)(b)
6. › Whether winding up must be pursuant to court order under s 601EE
7. › Corporations Act 2001 (Cth), ss 601ED(5), 601ED(6)(b), 601EE(1)
1. Corporations
2. › Managed investment schemes
3. › Winding up of unregistered schemes
4. › Who should conduct winding up
5. › Whether scheme operator or independent liquidator should be appointed
6. › Relevance of conflict of interest, investor preferences, cost, and competence
7. › Corporations Act 2001 (Cth), s 601EE
1. Equity
2. › Fiduciary obligations
3. › Disclosure of fees and commissions
4. › Contributory mortgage lending
5. › Whether solicitor and corporate vehicle owed fiduciary duties to investors
6. › Whether undisclosed fees to associated entities constituted breach of fiduciary duty

Quick Take

In contributory mortgage lending schemes where individual loans involve distinct pools of contributors, each loan arrangement is a separate 'managed investment scheme' under s 9 of the Corporations Act, not the lending business as a whole. The expression 'taking steps to wind up' in s 601ED(6)(b) refers to steps taken in the course of a court-ordered winding up under s 601EE, not to any activities that might be characterised as winding up activities. A scheme operator may be appointed to conduct the winding up under supervision of registered liquidators where this is more cost-effective and supported by the majority of investors, notwithstanding concerns about past conduct and potential conflicts of interest.