Spicer Thoroughbreds Pty Ltd v Stewart

396 ALR 193; [2023] NSWCA 82

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Managed investment schemes
3. › Definition of managed investment scheme
4. › Whether contributions used in common enterprise
5. › Sale of fractional interests in racehorses to co-owners
6. › Whether purchase price constituted contribution used in common enterprise to produce financial benefits
7. › Corporations Act 2001 (Cth), s 9
1. Corporations
2. › Managed investment schemes
3. › Definition of managed investment scheme
4. › Day-to-day control
5. › Whether co-owners had day-to-day control over operation of scheme
6. › Corporations Act 2001 (Cth), s 9(a)(iii)
1. Corporations
2. › Managed investment schemes
3. › Registration requirement
4. › Small scale offerings exemption
5. › Whether promoter established that issues of financial products did not exceed 20 purchasers or $2 million ceiling
6. › Onus of proof
7. › Corporations Act 2001 (Cth), ss 601ED(2), 1012E(6), 1012E(7)
1. Appeal
2. › Competency of appeal
3. › Whether appeal as of right or requiring leave
4. › Declaratory relief
5. › Supreme Court Act 1970 (NSW), s 101

Quick Take

The mere sale of fractional interests in racehorses to co-owners, without ongoing management involvement by the promoter, may not constitute a managed investment scheme — the critical question is whether the purchase price contributions are used in a common enterprise, not merely whether co-owners intend to race the horse.