Australian Off-the-Plan Measurement Dispute: When a Floor Plan Says “Approx. 76 Squares”, Can a Purchaser Unwind a AUD $5,000,000 Contract or Keep the Deposit?

Based on the authentic Australian judicial case Hopkins v Daou & Ors [2025] VCC 964, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: County Court of Victoria, Commercial Division, General List :contentReference[oaicite:1]{index=1}

Presiding Judge: Her Honour Judge Brimer :contentReference[oaicite:2]{index=2}

Cause of Action: Innocent misrepresentation, negligent misstatement, misleading or deceptive conduct under the Australian Consumer Law, and breach of contract with counterclaim for deposit and damages :contentReference[oaicite:3]{index=3}

Judgment Date: 11 July 2025 :contentReference[oaicite:4]{index=4}

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Real estate advertising and floor plan disclaimers :contentReference[oaicite:5]{index=5}

Keyword 3: Misleading or deceptive conduct and causation under s 18 and s 236 :contentReference[oaicite:6]{index=6}

Keyword 4: Reliance and inducement in misrepresentation claims :contentReference[oaicite:7]{index=7}

Keyword 5: Ostensible authority of real estate agents :contentReference[oaicite:8]{index=8}

Keyword 6: Affirmation, termination, deposit forfeiture, and contractual damages :contentReference[oaicite:9]{index=9}

Background

A purchaser signed a contract to buy a residential property for AUD $5,000,000 and paid a substantial deposit. The purchaser later refused to settle and sued, alleging they were misled by marketing material and text messages about two matters: a supposed external heated spa, and the internal size of the dwelling said to be “approx. 76 squares”. The seller and the agent parties denied liability, argued the purchaser did not rely on the alleged representations, and counterclaimed for the deposit and damages for breach. :contentReference[oaicite:10]{index=10}

Core Disputes and Claims

The Court was required to determine, in substance:

1. What representations were actually made in the online advertisement, floor plan notation, and text messages, and by whom. :contentReference[oaicite:11]{index=11}
2. Whether any representation about internal size was made within the scope of the agent parties’ authority, including ostensible authority. :contentReference[oaicite:12]{index=12}
3. Whether any representation was misleading or deceptive, and if so, whether it caused loss within the meaning of s 236. :contentReference[oaicite:13]{index=13}
4. Whether the purchaser relied on the representations to enter the contract, and whether the purchaser later affirmed the contract. :contentReference[oaicite:14]{index=14}
5. Whether the vendor validly terminated after default, entitling the vendor to keep the deposit and recover damages. :contentReference[oaicite:15]{index=15}

Relief sought by the Plaintiff: return of deposit and related relief, including ACL remedies and restitution-style claims. :contentReference[oaicite:16]{index=16}

Relief sought by the First Defendant by counterclaim: entitlement to the deposit and compensation for reasonably foreseeable loss resulting from breach, with damages to be quantified. :contentReference[oaicite:17]{index=17}

Chapter 2: Origin of the Case

The story begins with a property sale that was not a routine upsizing transaction. The vendor’s sale occurred against the background of a relationship breakdown and a decision to sell a family home. A real estate agent was appointed to market the property and, as is common, sought key selling details early: bedrooms and “internal size etc”. :contentReference[oaicite:18]{index=18}

That seemingly simple request became the seed of years of litigation.

The vendor, not purporting to measure anything, asked another person for the squareage. The reply used the language of builders and construction costing: “approx. 76 squares with the garage”. The vendor then relayed that message in similar terms: “approximately 76 Sqrs including the garage.” :contentReference[oaicite:19]{index=19}

What happened next was critical. A floor plan was prepared and approved, but later a notation was added to the floor plan used in online advertising: “INTERNAL SIZE: APPROX. 76 SQUARES”. :contentReference[oaicite:20]{index=20}

Months later, the Plaintiff enquired about the property and inspected it multiple times. Offers and counter-offers were made with significant commercial detail and an experienced purchaser’s style: clear price ceilings, settlement flexibility, and long lists of desired inclusions and alterations. :contentReference[oaicite:21]{index=21}

As negotiations approached agreement, the Plaintiff asked directly by text: “What’s the internal and external size of the home mate?” The agent replied: “Internal is approx. 76 squares including garage. External 986 sqm approx.” The Plaintiff immediately asked for an area schedule to separate internal living areas from other built areas. :contentReference[oaicite:22]{index=22}

The parties executed the contract. The Plaintiff paid the deposit in tranches. After receiving architectural plans later, the Plaintiff complained that the plan area schedule showed a much smaller dwelling: not approximately 76 squares, but approximately 56 squares. :contentReference[oaicite:23]{index=23}

The litigation, however, was not only about square metres and brochures. The Court found that, during the period after the discrepancy emerged, the Plaintiff continued to act as if the contract remained on foot, including paying the second tranche of deposit. :contentReference[oaicite:24]{index=24}

Conflict Foreshadowing: The decisive moments were not merely the discovery of “true” measurements, but the objective timeline of what the Plaintiff did after discovering them. That conduct became the battleground on reliance, inducement, affirmation, and causation.

Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

1. Online advertisement and floor plan notation stating “INTERNAL SIZE: APPROX. 76 SQUARES”, said to have attracted and induced the Plaintiff. :contentReference[oaicite:25]{index=25}
2. Text message from the agent on 19 March 2022 stating internal size was approx. 76 squares including garage, relied upon as a direct representation before signing. :contentReference[oaicite:26]{index=26}
3. Complaint texts and emails after receiving plans, including the assertion that the house was “46 squares as per the plans” and the claim: “I bought the house because of those sizes.” :contentReference[oaicite:27]{index=27}
4. Pleaded claims of rescission and deposit return, and ACL remedies. :contentReference[oaicite:28]{index=28}

Respondent’s Main Evidence and Arguments

1. Denial that any separate heated spa representation was made, pointing to the meaning of “pool/spa” and the obviousness of what was physically present on inspection. :contentReference[oaicite:29]{index=29}
2. For the vendor: denial of authorisation of the internal size notation; and that even if an agent representation occurred, the vendor did not engage in trade or commerce or accessory liability. :contentReference[oaicite:30]{index=30}
3. For the agent parties: a “mere conduit” style defence, asserting they passed on information. :contentReference[oaicite:31]{index=31}
4. Reliance defence: objective chronology shows the Plaintiff’s decision was driven by inspection experience, negotiation strategy, and later financial constraints; the measurement was immaterial and not a real inducement. :contentReference[oaicite:32]{index=32}
5. Counterclaim: breach of contract, valid termination on default, entitlement to deposit and contractual compensation for reasonably foreseeable loss. :contentReference[oaicite:33]{index=33}

Core Dispute Points

1. Whether the “spa” language was a representation of a separate heated spa, or merely a generic description. :contentReference[oaicite:34]{index=34}
2. Whether the “approx. 76 squares” statement was made by the agent parties and whether they were a mere conduit. :contentReference[oaicite:35]{index=35}
3. Whether the internal size statement was misleading or deceptive, including the effect of the floor plan disclaimer. :contentReference[oaicite:36]{index=36}
4. Whether the Plaintiff relied on that representation to enter the contract and whether the representation was intended to induce. :contentReference[oaicite:37]{index=37}
5. Whether the Plaintiff, after discovering the discrepancy, affirmed the contract and thereby lost rescission-type remedies and undermined causation. :contentReference[oaicite:38]{index=38}
6. Whether the vendor’s termination was valid and what damages flowed from the breach. :contentReference[oaicite:39]{index=39}

Chapter 4: Statements in Affidavits

In a case like this, affidavits tend to do two jobs at once: they preserve the story, and they position the witness for cross-examination. The Court’s reasons reveal how affidavit-style assertions can collapse when confronted with a documentary timeline.

The Plaintiff’s affidavit position, in essence, was that the online notation and later text message “mattered”, and that the Plaintiff “bought because of those sizes.” :contentReference[oaicite:40]{index=40}
The Defendants’ approach was to insist that the real story was visible in contemporaneous messages: the Plaintiff negotiated hard on price, repeatedly offered AUD $5,000,000 before the key text message, and only sought the “numbers” late, after reaching broad agreement. :contentReference[oaicite:41]{index=41}

The strategic contest was therefore not merely about whose memory was better, but whose account was consistent with the objective record.

Strategic Intent: The Court’s procedural focus on pleaded issues and the agreed statement of issues shows why affidavits matter in this jurisdiction: the case was determined by defined questions such as who made the representation, whether it was misleading, and whether it was relied upon. :contentReference[oaicite:42]{index=42}
Affidavits that drift into broad grievance without anchoring each element of each cause of action to documents expose the party to a “credibility deficit” once cross-examination begins.

Chapter 5: Court Orders

Prior to final determination, the proceeding required structured management typical of complex commercial disputes:

1. Identification of issues for determination in a formal statement of issues. :contentReference[oaicite:43]{index=43}
2. Directions for evidence, including affidavits and the tender of key documents such as text messages, emails, marketing material, architectural plans, and expert valuation evidence. :contentReference[oaicite:44]{index=44}
3. Management of the counterclaim and funds paid into court, with questions to be resolved about entitlement to the deposit and the “Funds in Court”. :contentReference[oaicite:45]{index=45}

The structure mattered because it forced the trial to be decided as an evidentiary puzzle: each alleged promise or representation had to be located, attributed, and tested for legal consequence.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was the moment where the case stopped being a narrative and became a sequence of verifiable choices.

Process Reconstruction: Live Restoration

The Plaintiff’s case depended heavily on the Plaintiff’s own evidence of reliance. The Court noted that the Plaintiff’s “high level and bald assertions” were contradicted by the documentary chronology. :contentReference[oaicite:46]{index=46}
The cross-examination logic likely focused on “why” questions anchored to the timeline:

• If the floor plan notation was decisive, why ask the agent on 19 March 2022 “What’s the internal and external size” rather than confirming a known number. :contentReference[oaicite:47]{index=47}
• If the number was critical, why immediately demand an area schedule distinguishing internal living from other areas, signalling scepticism about what “76 squares” meant. :contentReference[oaicite:48]{index=48}
• If the Plaintiff felt genuinely misled in May 2022, why continue to act consistently with the contract, including paying further deposit, while making no timely reservation of rights. :contentReference[oaicite:49]{index=49}

Core Evidence Confrontation: The Decisive Documents

The decisive evidence was not a single dramatic admission, but a chain:

1. The early offers at AUD $5,000,000 were made before the key “76 squares” text message. :contentReference[oaicite:50]{index=50}
2. The Plaintiff repeatedly described the purchase as a “luxury, not a necessity”, framed as unemotional and strategic, and gave extensive detail about desired alterations and inclusions, showing a methodical approach driven by inspection and lifestyle utility rather than a numerical measurement. :contentReference[oaicite:51]{index=51}
3. After learning of the discrepancy, the Plaintiff’s conduct continued to be inconsistent with immediate rescission, and the Court accepted that the Plaintiff was more likely attempting to find a way out of the contract due to inability to settle. :contentReference[oaicite:52]{index=52}

Judicial Reasoning: How Facts Drove Outcome

The Court’s reasoning proceeded on orthodox Australian principles: for misrepresentation and ACL claims, the Plaintiff needed to prove that the representation was a real inducement to entry into the contract. The Court applied objective criteria, including the Plaintiff’s commercial experience, inspection history, and contemporaneous communications. :contentReference[oaicite:53]{index=53}

Judicial Original Quotation Principle

In the following quotation, party names have been replaced with procedural titles to preserve anonymity.

“I am not satisfied that the Plaintiff relied on the measurement representation in entering into the Contract. I find that the measurement representation was not a real inducement, or one of the real inducements to the Plaintiff’s decision to enter into the Contract. I consider it was immaterial to the Plaintiff’s decision to purchase the Property.” :contentReference[oaicite:54]{index=54}

This was determinative because, without reliance and inducement, the Plaintiff’s claims for rescission-style relief and ACL loss unravel. Even where the Court found a misleading act in the marketing material, the Plaintiff still had to prove causation of loss “because of” that contravention. :contentReference[oaicite:55]{index=55}

Chapter 7: Final Judgment of the Court

The Court entered judgment for the Defendants on the Plaintiff’s claims and judgment for the First Defendant on the counterclaim. :contentReference[oaicite:56]{index=56}

Key procedural directions included:

• Damages on the counterclaim were not fully quantified on the day; further submissions and updated interest calculations were invited, and draft orders were to follow after resolution of outstanding issues. :contentReference[oaicite:57]{index=57}
• The Plaintiff was foreshadowed to pay costs on the standard basis, subject to submissions. :contentReference[oaicite:58]{index=58}

Substantively:

• The vendor was entitled to the deposit because the vendor validly terminated the contract after the notice of default period expired. :contentReference[oaicite:59]{index=59}
• The vendor was entitled to damages for reasonably foreseeable loss resulting from breach, with identified heads including resale shortfall, re-advertising, commission, conveyancing, and maintenance costs over the post-termination period. :contentReference[oaicite:60]{index=60}

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is jurisprudentially valuable because it illustrates a counter-intuitive but crucial proposition for modern property litigation:

A plaintiff can establish that marketing was misleading and still lose everything if they cannot prove reliance and causation of loss.

The Court found the internal size notation was false and untrue, and that the agent parties’ conduct in making that representation by the notation on the floor plan was misleading or deceptive. :contentReference[oaicite:61]{index=61}
Yet the Plaintiff failed on loss and reliance: the Court was not satisfied that the Plaintiff’s claimed loss was “because of” the contravention, and held the contravention was not a material contribution to the claimed loss. :contentReference[oaicite:62]{index=62}

For practitioners, the message is sharp: liability and remedy are separate steps. For the public, the takeaway is even simpler: being shown incorrect information does not automatically give you a refund; you must prove it actually changed what you did.

Judgment Points

1. The Court rejected that the “pool/spa” wording amounted to an external heated spa representation, treating the language as ambiguous and objectively verifiable upon inspection. :contentReference[oaicite:63]{index=63}
2. The agent parties were not treated as a mere conduit in relation to the floor plan notation because the vendor had not supplied that information for publication in that form and the notation was added without vendor approval. :contentReference[oaicite:64]{index=64}
3. The measurement representation was within ostensible authority because statements about size relate to value and are part of property description in ordinary agency business. :contentReference[oaicite:65]{index=65}
4. Reliance failed because the objective record showed the Plaintiff’s decision was driven by inspections, negotiation strategy, and a demand for an area schedule suggesting scepticism about the number. :contentReference[oaicite:66]{index=66}
5. Even where misleading conduct was established, ACL compensation failed because the Plaintiff could not prove the contravention materially contributed to the loss. :contentReference[oaicite:67]{index=67}
6. Contractual consequences prevailed: after default, termination was valid and the vendor was entitled to deposit and damages. :contentReference[oaicite:68]{index=68}

Legal Basis

Statutory provisions and legal standards that drove the result included:

• Australian Consumer Law, s 18(1): misleading or deceptive conduct. :contentReference[oaicite:69]{index=69}
• Australian Consumer Law, s 236(1): compensation for loss or damage “because of” contravention, requiring a sufficient causal connection. :contentReference[oaicite:70]{index=70}
• Property Law Act 1958 (Vic), s 49: relief against forfeiture, requiring exceptional circumstances and a showing that the deposit is excessive or unconscionable in amount. :contentReference[oaicite:71]{index=71}

Contractual basis:

• General Condition 32 of the contract: compensation for reasonably foreseeable loss resulting from breach and any interest due. :contentReference[oaicite:72]{index=72}

Common law damages principle:

• The Robinson v Harman principle: damages aim to place the innocent party, so far as money can do so, in the position they would have been in had the contract been performed. :contentReference[oaicite:73]{index=73}

Evidence Chain

Victory Point 1: Proving what was and was not represented

The spa allegation failed at the first gate: representation. The Court assessed the whole advertisement context, including photographs and floor plan, and treated “pool/spa” as consistent with “pool or spa” rather than “pool and separate spa”. The Court also emphasised the ease of verification by inspection, undermining both representation and materiality. :contentReference[oaicite:74]{index=74}

Practical consequence: If a claimed feature is visually obvious, courts are slow to accept that a sophisticated buyer was misled, particularly after multiple inspections.

Victory Point 2: Defeating the “mere conduit” shield with process evidence

The agent parties tried to characterise themselves as pass-through messengers. The Court rejected that for the notation on the floor plan because the evidence showed:

• The floor plan was approved without the notation.
• The notation was added later by or at the agent’s direction.
• The amended floor plan with the notation was not sent to the vendor for approval.
• The agent accepted it was a mistake not to obtain sign-off.

This combination stripped away the “postman” analogy: the agent was not merely carrying the vendor’s statement, but authoring and publishing a new statement. :contentReference[oaicite:75]{index=75}

Victory Point 3: Drawing a tight line between ostensible authority and vendor liability

Even though the vendor did not authorise the internal measurement claim, the Court held the agent parties made it within ostensible authority because size is a value-related descriptor in ordinary real estate practice. :contentReference[oaicite:76]{index=76}
That reasoning is jurisprudentially significant: ostensible authority can exist even where the principal did not actually approve the specific statement, but the statement falls within the public “shape” of what agents ordinarily do.

At the same time, the Court was not satisfied that the vendor engaged in misleading or deceptive conduct in trade or commerce, and was not satisfied the vendor was involved in the agent parties’ contravention as an accessory. :contentReference[oaicite:77]{index=77}

Victory Point 4: Using the Plaintiff’s own texts to dismantle reliance

The Court treated the 19 March 2022 text exchange as a window into the Plaintiff’s state of mind. The Plaintiff asked for the internal and external size, received the “approx. 76 squares including garage” statement, and immediately asked for an area schedule to separate internal living from external living areas. :contentReference[oaicite:78]{index=78}
That behaviour is inconsistent with “I relied on the number”: it reads like “I do not accept the number unless you can break it down.”

The Court further reasoned that if the Plaintiff genuinely understood the house was 76 squares internal living, that mismatch would likely have been obvious upon inspection given comparisons with other inspected properties and the Plaintiff’s experience. :contentReference[oaicite:79]{index=79}

Victory Point 5: Treating sophistication as evidence

The Court placed weight on the Plaintiff’s experience as a property investor and former licensed estate agent, and on the methodical nature of offers and inspections. :contentReference[oaicite:80]{index=80}
This is not a moral judgment; it is a forensic tool. Sophistication makes it easier for a court to infer that a buyer’s true decision driver was observable amenity and negotiated price, not a marketing number stated in “approximate” language.

Victory Point 6: Causation under the ACL is not assumed

Even after identifying misleading conduct by the notation, the Court refused compensation because the claimed loss was not proven to be “because of” the contravention and was not a material contribution to the loss. :contentReference[oaicite:81]{index=81}
In practical terms: the ACL does not pay damages for incorrect statements in the abstract. It compensates proven causal loss.

Victory Point 7: Timing and conduct can destroy rescission narratives

The Court considered it more likely the Plaintiff sought to rely on the representations to back out of the contract because the Plaintiff was unable to settle, including in the context of external financial constraints and a court order affecting dealings. :contentReference[oaicite:82]{index=82}
The legal significance is that delayed assertion of rights, continued performance, and payment of further deposit can amount to affirmation and can also rebut an inference of inducement.

Victory Point 8: Contract law’s hard edge: deposit and foreseeable loss

Once the vendor validly terminated after default, the vendor was entitled to the deposit and to contractual compensation for reasonably foreseeable losses. :contentReference[oaicite:83]{index=83}
The Court identified concrete heads of loss: resale shortfall, re-advertising, commission, conveyancing, and maintenance costs during the resale period. :contentReference[oaicite:84]{index=84}
This demonstrates why “getting out” of a property contract late is not only difficult but potentially expensive: you may pay both the deposit and the seller’s downstream costs.

Judicial Original Quotation

In the following quotation, party names have been replaced with procedural titles to preserve anonymity.

“No. For the reasons set out above, I am not satisfied that the claimed loss or damage was by reason of the contravention. The claimed loss was not caused because of the conduct in breach of the Australian Consumer Law; that is, the contravention was not a material contribution to the loss or damage suffered by the Plaintiff.” :contentReference[oaicite:85]{index=85}

This statement matters because it captures the point at which many litigants lose ACL cases: proving that conduct was misleading is not enough. The plaintiff must also prove, with evidence, that the misleading conduct caused a real, compensable loss.

Analysis of the Losing Party’s Failure

The Plaintiff’s failure was structural, not cosmetic.

1. Element failure: Reliance and inducement were not proven on the balance of probabilities. The Court found the measurement representation was immaterial to the Plaintiff’s decision and not a real inducement. :contentReference[oaicite:86]{index=86}
2. Chronology failure: The documentary record showed repeated offers at the same price before the key text message, and conduct after discovery consistent with continuing the deal. :contentReference[oaicite:87]{index=87}
3. Causation failure: Without reliance, ACL compensation under s 236 failed because loss was not shown to be “because of” the contravention. :contentReference[oaicite:88]{index=88}
4. Remedy failure: Equitable relief against forfeiture required exceptional circumstances and evidence of excessiveness or unconscionability; the Court found none. :contentReference[oaicite:89]{index=89}
5. Contract reality: Once termination was valid, the vendor’s counterclaim succeeded, and the vendor’s damages claim proceeded on orthodox compensation principles. :contentReference[oaicite:90]{index=90}

Implications

1. Numbers in marketing are not self-executing rights. If the figure did not actually change your decision, it may not change the Court’s decision.

2. Inspection behaviour tells a story. Multiple inspections, methodical negotiation, and late requests for measurements can be powerful evidence that you bought what you saw, not what you read.

3. Disclaimers do not grant immunity, but they can shape what reliance looks like. If you demand an area schedule, you are signalling that you are not relying on the broad “approximate” figure.

4. Timing is a legal weapon. If you discover a discrepancy, keep paying, keep planning, and only later litigate, the Court may treat the story as buyer’s remorse rather than inducement.

5. Contract exit costs can be real and heavy. Deposit forfeiture and seller’s resale and holding costs can compound quickly, especially in high-value transactions.

Q&A Session

1. If a floor plan says “approx. 76 squares” and it is wrong, does that automatically mean the buyer gets the deposit back?
   No. The buyer must prove the wrong statement was a real inducement to enter the contract and, for ACL compensation, that loss was suffered because of the contravention. :contentReference[oaicite:91]{index=91} :contentReference[oaicite:92]{index=92}

2. Can a seller be liable for an agent’s incorrect marketing statement that the seller did not approve?
   Sometimes. The question turns on authority and involvement. Here, the Court treated the statement as within the agent’s ostensible authority, yet was not satisfied the vendor engaged in misleading or deceptive conduct in trade or commerce, and was not satisfied the vendor was involved as an accessory. :contentReference[oaicite:93]{index=93} :contentReference[oaicite:94]{index=94}

3. Why did the vendor still recover damages after the buyer complained about the wrong measurement?
   Because the vendor validly terminated after default, was entitled to the deposit, and contractual compensation for reasonably foreseeable losses resulting from breach. The Court identified multiple heads of recoverable loss including resale shortfall and transaction costs. :contentReference[oaicite:95]{index=95} :contentReference[oaicite:96]{index=96}

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Residential contract for sale dispute involving pre-contractual representations, Australian Consumer Law claims, and vendor counterclaim for deposit and contractual compensation :contentReference[oaicite:97]{index=97}

Judgment Nature Definition: Final judgment on liability with further submissions required on quantification of counterclaim damages and interest calculations :contentReference[oaicite:98]{index=98}

2. Self-examination of Core Statutory Elements

This case belongs to category ⑨ Civil Litigation and Dispute Resolution.

Core Test: Has the Limitation Period expired? Does the Court have Jurisdiction over the matter? Has the duty of Discovery or Disclosure of evidence been satisfied?

Step 1: Limitation Period
In contract and statutory misleading conduct disputes, limitation analysis typically requires identifying the cause of action date and any statutory limitation period. In many disputes, the limitation clock may run from breach, from loss, or from discoverability depending on the claim type. A litigant should confirm the limitation framework early because a meritorious claim tends to fail if commenced outside time. In this case, the proceeding was commenced after the contract and failure to settle, and limitation was not the determinative issue in the Court’s reasoning. :contentReference[oaicite:99]{index=99}

Step 2: Jurisdiction and Correct Forum
Jurisdiction analysis asks whether the chosen court has authority to hear the dispute, including monetary thresholds, subject matter allocation, and procedural pathways for counterclaims and funds paid into court. Here, the County Court of Victoria, Commercial Division, heard the matter, including the counterclaim issues about deposit, damages, and entitlement to funds in court. :contentReference[oaicite:100]{index=100} :contentReference[oaicite:101]{index=101}

Step 3: Pleadings Discipline and Issue Definition
Civil litigation outcomes often turn on whether each pleaded cause of action is mapped to each legal element. This matter proceeded on an agreed statement of issues that forced a clean element-by-element approach: who made the representation, whether it was misleading, whether there was reliance, whether there was loss, and whether termination was valid. :contentReference[oaicite:102]{index=102}

Step 4: Discovery and Documentary Proof
In modern commercial litigation, courts place significant weight on contemporaneous communications. Discovery or production of text messages, emails, marketing drafts, approvals, and plans can be decisive because they lock parties into a timeline. In this case, the Court’s reasoning repeatedly relied on the objective chronology of offers, texts, inspections, and deposit payments. :contentReference[oaicite:103]{index=103}

Step 5: Causation and Remedy Sequencing
Even if a statutory breach is shown, a plaintiff typically must prove causal loss. Courts may accept misleading conduct yet refuse compensation where the contravention did not materially contribute to the loss. :contentReference[oaicite:104]{index=104}

3. Equitable Remedies and Alternative Claims

If statutory avenues weaken, equity and common law doctrines may still offer alternative paths, depending on facts.

Promissory or Proprietary Estoppel
Did the other party make a clear and unequivocal promise or representation?
In property sale disputes, a representation about size, features, or inclusions can sometimes be framed as a promise, but estoppel tends to require clarity and reliance leading to detriment, and the remedy is shaped by unconscionability. Where the representation is “approximate” and the purchaser demanded further verification, the reliance foundation may be relatively weak. :contentReference[oaicite:105]{index=105}
Did you act in detrimental reliance?
For purchasers, detriment may include opportunity costs, transaction expenses, and foregone alternatives. However, detriment must be causally linked to the promise.
Would it be unconscionable for the other party to resile?
If the purchaser had ample opportunity to verify and is commercially experienced, a court may be less inclined to find unconscionability.

Unjust Enrichment or Constructive Trust
Has the other party received a benefit at your expense?
Deposit disputes sometimes invite unjust enrichment arguments, but contracts allocate risk and typically govern deposit outcomes. In this case, relief against forfeiture was rejected because there was no evidence the deposit was excessive or unconscionable in amount and no exceptional circumstances were shown. :contentReference[oaicite:106]{index=106}

Procedural Fairness
This doctrine is central in administrative decisions, not private sale contracts, so it is usually inapplicable to a straightforward vendor-purchaser dispute in a commercial court.

Abuse of Process and Evidence Exclusion
Typically relevant in criminal proceedings, not this civil dispute.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Limitation Thresholds
For many civil claims, limitation periods create a hard bar. Even where the facts feel morally compelling, a late filing tends to be determined as out of time.

Contract Default Thresholds
In contract of sale disputes, notice of default and time to remedy operate as hard procedural thresholds. If the purchaser fails to comply, termination may follow and deposit consequences tend to crystallise. Here, the vendor validly terminated when the time for compliance with the notice expired. :contentReference[oaicite:107]{index=107}

Deposit Forfeiture Thresholds
Deposits are generally enforceable as part of the bargain. Relief against forfeiture tends to require exceptional circumstances or a deposit that is excessive or unconscionable in amount. The Court found neither. :contentReference[oaicite:108]{index=108}

Exceptional Channels

Relief against Forfeiture in Equity and under Property Law Act 1958 (Vic) s 49
Exceptional circumstances may exist where the deposit is out of proportion, where the vendor’s conduct is unconscionable, or where the purchaser demonstrates an exceptional hardship coupled with relevant equitable considerations. Even then, relief is discretionary and fact-sensitive, and tends to be determined cautiously. :contentReference[oaicite:109]{index=109}

Suggestion
Do not abandon a potential claim simply because you do not meet standard thresholds. Carefully compare your circumstances against recognised exceptions, but treat equitable relief as relatively high-risk where the objective record shows continued performance after knowledge of the alleged misrepresentation. :contentReference[oaicite:110]{index=110}

5. Guidelines for Judicial and Legal Citation

Citation Angle
It is recommended to cite this case in legal submissions involving:

• Reliance and inducement where the plaintiff is commercially sophisticated and the documentary timeline undermines asserted reliance. :contentReference[oaicite:111]{index=111}
• ACL causation under s 236 and the requirement that contravention materially contribute to loss. :contentReference[oaicite:112]{index=112}
• Deposit forfeiture and the high bar for relief under Property Law Act 1958 (Vic) s 49. :contentReference[oaicite:113]{index=113}
• Contractual damages for reasonably foreseeable loss under standard sale contract conditions and the Robinson v Harman measure. :contentReference[oaicite:114]{index=114}

Citation Method

As Positive Support
When your matter involves a dispute over inaccurate marketing measurements and the plaintiff’s claimed reliance is contradicted by contemporaneous texts, this authority can strengthen the argument that reliance and causation must be proven by objective criteria, not assertions. :contentReference[oaicite:115]{index=115}

As a Distinguishing Reference
If the opposing party cites this case, emphasise any uniqueness in your matter such as: immediate and unequivocal rescission conduct, clear documentary proof that the incorrect figure was negotiated as a price determinant, or a purchaser who was not experienced and could not reasonably verify. Distinguishing is often decisive because this judgment is heavily fact-driven on reliance.

Anonymisation Rule
Do not use the real names of the parties; strictly use professional procedural titles such as Plaintiff and Defendants.

####### Conclusion

This judgment distils a disciplined litigation lesson: a case about misleading marketing can turn into a case about human decision-making proved by documents. If you cannot show that the misstatement truly moved you to sign, courts tend to treat the misstatement as a wrong without a remedy, and the contract’s consequences will usually govern.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the County Court of Victoria (Hopkins v Daou & Ors [2025] VCC 964), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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