3.4 Relevant case law

carrying on a business

“Carrying on a business”, according to the case law, means a “series of repetitious acts” [see Smith v Anderson], and “features of continuity and system” [Hyde v Sullivan].

In Hungier v Grace, Barwick J said:

[15] The decision whether a person is one “whose business (whether or not he carries on any other business) is that of money-lending” can only be reached after a close examination of the facts in each particular case. It is not enough merely to show that a person has lent money to another. As McCardie J said in Edgelow v MacElwee (1918) 1 KB 205, at p 206:

“There must be more than occasional and disconnected loans. There must be a business of money-lending, and the word “business” imports the notion of system, repetition and continuity … The line of demarcation cannot be defined with closeness or indicated in any specific formula. Each case must depend on its own peculiar feature. It is ever a case of degree”.

In Ballantyne v Raphael the Victorian Supreme Court held that a scheme involved a single transaction of purchasing a block of land, subdividing it and selling the subdivided lots did not amount to carrying on a business. The operation of a single scheme of limited scope will generally not amount to carrying on a business. But in United Dominions Corp Ltd v Brian Pty Ltd where a single joint venture was held to be carrying on a business. The size and scope of the scheme was held to be relevant.

In ASIC v McNamara, a limited partnership was formed to provide finance to a joint venture entity. Two individuals, acting on behalf of the general partner, sought and received subscriptions from 55 mostly retail investors for units in the limited partnership. The conduct in question spanned the transition date for the FSR reforms. The limited partnership was not registered as a managed investment scheme and neither the general partner nor the individuals acting on its behalf held a dealers’ licence under the old law or an AFS Licence under the new law. The Federal Court held that the offering of units to 55 investors was sufficiently systematic, repetitious and continuous that the general partner and the individuals concerned were all carrying on a securities business under the old law and a financial services business under the new law and had contravened the Corporations Act by not having the requisite licence.


In Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex Rel. Corporate Affairs Commission, Mason J said:

[30] “… It is clear that the word is sufficiently large in content to embrace the process by which the grower secures a binding contract. And I see no difficulty in saying that interests are issued to the public if, as will be seen to be the case, there are many instances in which an interest is allotted to an individual, the individual being selected or identified as the recipient of the interest by reference to his being a member of the public”.


In ASIC v Young & Ors, it was held that:

[53] “Whatever the full scope of the meaning of “promoted” in the subject context, it plainly extends to activities in which a person formulates a scheme …. advertises it, solicits others to participate in it and embarks upon its implementation”.

Applying the principles established by the case law

Under the principles established by the case law, any person who, with system, repetition and continuity, deals in interests in horse racing schemes will, prima facie, qualify as a promoter under section 601ED(1)(b).