Australian Consumer Law Misrepresentation in Property “Investment” Schemes: When an “Introducer” Becomes Legally Responsible for Investor Loss

Based on the authentic Australian judicial case D’Cruz v Coutinho [2025] NSWSC 150, 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.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales (Equity Division)
Presiding Judge: Hammerschlag CJ in Eq
Cause of Action: Damages for misleading or deceptive conduct (Australian Consumer Law, s 18) and liability of persons “involved” (Australian Consumer Law, s 236; definition of involvement in s 2)
Judgment Date: 6 March 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Australian Consumer Law s 18
Keyword 3: Misleading or deceptive conduct in trade or commerce
Keyword 4: Representations about future matters (Australian Consumer Law s 4)
Keyword 5: Persons “involved” and introducer liability
Keyword 6: Disclaimers and reliance

Background

Two elderly Plaintiffs were presented with what sounded like a rare opportunity: pay a relatively modest amount upfront, “secure” a parcel of land in a future subdivision, and enjoy a dramatic uplift in value once approvals and development were completed. The opportunity was promoted using professional-looking documents, upbeat verbal assurances, and the credibility of a trusted intermediary who appeared to have “skin in the game”. The Plaintiffs transferred substantial sums over a period of time in the expectation that their money would be applied to imminent settlement and that their position in the project was protected. The legal dispute ultimately turned on whether those assurances and materials amounted to misleading or deceptive conduct in trade or commerce, whether the alleged “introducer” could avoid responsibility by characterising himself as a mere messenger, and whether disclaimers could break the chain of causation.

Core Disputes and Claims

The Court was required to determine, in substance:

1. Whether the Second and Fourth Defendants (the corporate promoters) engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, contrary to s 18(1) of the Australian Consumer Law, by representing that:
   • the promoters (or associated entities) had the ability and right to acquire the relevant properties and proceed with development;
   • investors would “secure” particular lots by paying specified sums;
   • settlement was imminent and funds would be used to complete purchase; and
   • the promised lots would reach very high post-subdivision values, with stated returns.
2. Whether the First Defendant (the controlling mind of the corporate promoters) was a person “involved” in the contraventions, and thus personally liable under s 236.

3. Whether the Sixth Defendant (the intermediary) himself engaged in misleading conduct and/or was “involved” in the corporate contraventions, despite claiming to be a mere conduit or introducer.

4. Whether any disclaimers, asserted by the Sixth Defendant, negated reliance or causal connection.

Relief sought: The Plaintiffs sought damages reflecting the money paid away and lost, together with applicable interest and costs against relevant Defendants.

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Chapter 2: Origin of the Case

The origin of this dispute is best understood as a chain of everyday trust decisions that, in hindsight, became legally decisive.

The Plaintiffs had previously dealt with the Sixth Defendant in a personal finance context. That existing relationship mattered. It created a practical reality that many people recognise: when a person has helped you with significant financial steps in the past, you naturally assume they will not put you in harm’s way when they bring a new opportunity to your attention.

Against that backdrop, the Plaintiffs were told about property projects requiring investors to contribute funds so the promoter could settle on purchases and then subdivide. The proposition was presented as time-sensitive and “closing soon”. The intermediary represented that he understood the projects “inside and out”, that he was helping to arrange finance, and—most persuasively—that he was investing as well. This was not simply an introduction between strangers. It was a guided pathway into an investment decision.

The conflict gradually emerged through a familiar pattern:

• First, optimism: the projects were described as structured, imminent, and profitable.
• Next, incremental commitment: professional documents arrived; meetings occurred; bank details were provided; payments were requested in stages.
• Then, ambiguity: the mechanics of payment beyond the initial investor amounts relied on an opaque concept (described in the materials as “trade dollars”), which the Plaintiffs did not fully understand but were encouraged to treat as normal within the scheme.
• Finally, deterioration: promised timelines slipped; the Plaintiffs struggled to obtain clear updates; the reality of ownership and capacity to deliver the land became increasingly questionable; and the projects ultimately did not proceed, with the money not returned.

The decisive moments that pushed the dispute into litigation were not dramatic courtroom theatrics. They were ordinary communications that, in consumer law terms, became the “representations” the Court later measured against evidence:

• a trusted intermediary telling the Plaintiffs he had invested;
• a Zoom meeting in which settlement timing and outcomes were confidently asserted;
• memoranda stating the Plaintiffs were “secured” upon payment; and
• repeated money requests tied to imminent settlement.

The legal relationship deteriorated not because a single contract term was breached, but because the Plaintiffs’ money left their control on the strength of claims that were not true, not reasonably grounded, or both.

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Chapter 3: Key Evidence and Core Disputes

Plaintiffs’ Main Evidence and Arguments

1. Investment Memoranda for two property opportunities
   • The documents stated that once the investor’s deposit and expression of interest form were received, the “parcel of land will be secured”, and that the investor was “now secured” with further payments required within a short period.
   • They contained representations about expected post-subdivision values and project progression.
2. Email communications and the intermediary’s statements
   • An email from the intermediary to the Plaintiffs enclosing project materials included a strong credibility signal: he claimed he had purchased a particular lot, and also referred to a friend’s involvement.
   • The email provided pricing, availability, and approval timeframes, inviting the Plaintiffs to discuss the project “in detail”.
3. Zoom meeting evidence (reconstructed conversation)
   • The Plaintiffs’ evidence described statements by the promoter-side participants about needing investor funds to settle, settlement occurring soon, and expected high valuations after subdivision.
   • Crucially, assurances were given about return of money with interest if approval did not occur.
4. Payment schedule and banking trail
   • The Plaintiffs made multiple payments over time totalling AUD $854,010, including payments directed to accounts associated with the scheme or nominated solicitors.
   • The pattern of payments supported reliance and causation: money was transferred because the Plaintiffs believed they were securing lots and funding imminent settlement.
5. Subsequent communications showing project collapse and non-repayment
   • The Plaintiffs pursued updates and were told the projects were delayed, then ultimately not proceeding.
   • No funds were returned.

Core argument: the Plaintiffs were induced by misleading conduct in trade or commerce to part with their money, suffering loss because the projects were never capable of delivery as promised.

Defendants’ Main Evidence and Arguments

1. Corporate Defendants and the First Defendant
   • They failed to comply with procedural directions and did not appear at the hearing.
   • No substantive evidence was served to justify representations, demonstrate reasonable grounds, or explain fund movements.
2. Sixth Defendant (self-represented)
   • Asserted he was a mere introducer and conduit, passing on information from the promoter without verifying it.
   • Contended he did not provide financial advice and did not benefit.
   • Claimed his communications included disclaimers advising recipients to obtain independent advice.

Core Dispute Points

1. Whether the Investment Memoranda and verbal assurances amounted to misleading or deceptive conduct, including representations about:
   • being “secured” upon payment;
   • imminent settlement;
   • ownership or ability to acquire the properties;
   • expected value uplift; and
   • returns (including interest-like benefits).
2. Whether the Sixth Defendant’s conduct crossed the line from “introduction” into active promotion and adoption of representations.

3. Whether disclaimers existed in evidence and, if so, whether they neutralised the misleading effect or broke causation.

4. Whether the representations were future matters without reasonable grounds (Australian Consumer Law s 4), making them taken to be misleading.

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Chapter 4: Statements in Affidavits

Affidavits in misleading conduct litigation often do more than list facts. They build a decision story: who said what, when, why it mattered, and how it drove action.

In this case, the Plaintiffs’ evidence functioned as a tightly linked narrative:

• relationship of trust with the intermediary;
• receipt of promotional materials;
• meeting in which settlement and value were represented as near-certain;
• staged payments made on that basis; and
• the eventual collapse, loss, and absence of repayment.

That structure matters because s 236 requires proof that the claimant suffered loss “because of” the contravening conduct. The Plaintiffs’ affidavit-style evidence anchored causation in time and communication detail, making it difficult to characterise payments as independent or speculative decisions unrelated to the representations.

By contrast, the Sixth Defendant attempted to use affidavit material late, after failing to comply with directions. The Court rejected it as evidence due to lateness and prejudice, treating it as submission. This is a practical litigation warning: a party who delays evidence may lose the chance to prove key factual defences.

Strategic Intent Behind Procedural Directions

The Court’s procedural directions requiring evidence in chief by specified dates serve a fairness function:

• The Plaintiffs must know the defence case early enough to respond.
• The Court avoids trial by ambush, particularly where credibility and causation are central.
• Timetables ensure that documents said to contain disclaimers, warnings, or qualifying statements are actually produced and tested.

Where a Defendant later claims “every email had a disclaimer”, the Court expects those emails to be produced. Procedure is not a technicality; it is the infrastructure of proof.

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Chapter 5: Court Orders

Prior to the final hearing, the Court (through Registrar directions and the usual hearing orders) required:

• Defendants to serve evidence in chief by a set date;
• timelines for any reply evidence;
• directions for affidavits explaining non-compliance where delay occurred;
• usual hearing preparation steps, including filing and serving court books, outlines of submissions, chronologies, objections to evidence, and lists of authorities.

The corporate Defendants did not comply and did not appear. The Sixth Defendant ultimately appeared but had not served evidence in accordance with orders, leading to the Court’s refusal to admit his late affidavit as evidence.

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

The hearing was shaped by an asymmetry common in consumer law cases involving collapsed schemes: the Plaintiffs came with documents, communications, and payment records; the core promoter-side Defendants did not appear to contest them.

Process Reconstruction: Live Restoration

The Sixth Defendant, appearing remotely and self-represented, briefly cross-examined one Plaintiff. The central line of attack was rhetorical rather than evidentiary:

• “I did not give financial advice.”
• “I merely passed on information from the promoter.”
• “You should have done your own due diligence.”
• “Disclaimers protected me.”

However, the Court’s focus did not depend on whether the intermediary provided regulated financial advice. The legal question was whether he engaged in misleading conduct or was involved in others’ misleading conduct. A person can be liable under s 18 without being a licensed adviser and without receiving funds directly. The evidentiary question was: what did he communicate, and did he adopt, endorse, or amplify the representations?

Core Evidence Confrontation

The decisive confrontation was between:

• the intermediary’s claimed role as a neutral messenger, and
• the documentary and conversational reality that he:
  • presented himself as an investor (a persuasive credibility move);
  • invited detailed discussion with him as a knowledgeable participant;
  • spoke in collective terms (“we”) about settlement timing;
  • forwarded materials and information without qualification in evidence; and
  • did so in a context where the Plaintiffs relied on him as a trusted professional contact.

The Court treated the scheme materials and the intermediary’s communications as part of one continuous persuasive process that induced payment. This “composite picture” approach is consistent with the practical application of s 18: the Court examines the totality of conduct, not isolated sentences.

Judicial Reasoning: Determinative Quotations and Analysis

The Court’s rejection of “mere introducer” framing was pivotal. The reasoning was not based on speculation about motive. It was anchored to what was proved and what was not produced.

“I reject [the Sixth Defendant’s] submissions that he was a mere conduit … and was a mere introducer. He associated himself with and affirmatively accepted the truth of what was said in the Investment Memoranda and made statements in his own right to the same effect …”

This statement was determinative because it identifies the legal threshold: once a person associates themselves with the representations and adopts them as true, they are not a neutral messenger. In Australian Consumer Law terms, the person becomes part of the misleading conduct.

The Court also treated the disclaimer argument as an evidentiary failure, not a theoretical defence:

“As I have said, there is no correspondence in evidence … which includes any relevant disclaimer.”

That observation mattered because disclaimers are not magic words. They are facts that must be proved and then evaluated for effect. Where a Defendant asserts disclaimers existed but cannot produce them, the Court is entitled to reject the contention.

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Chapter 7: Final Judgment of the Court

The Court struck out the defences of the First, Second and Fourth Defendants due to non-compliance and absence, and proceeded to judgment.

Orders included:

1. The defences of the First, Second and Fourth Defendants were struck out.

2. Judgment for the Plaintiffs against each of the First, Second, Fourth and Sixth Defendants for AUD $854,010, together with pre-judgment interest calculated on the amounts paid from the date of each payment to the date of judgment (with a specific approach to interest for a component payment that had been re-allocated within the scheme).

3. Costs: the Court provisionally ordered that the Defendants pay the Plaintiffs’ costs, subject to a short period for any party to seek a different costs order with reasons.

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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 squarely addresses a practical modern phenomenon: property “investment” promotion that blends informal trust, promotional documents, and intermediary credibility. The Court’s approach shows that liability under s 18 and s 236 can extend beyond the corporate promoter to individuals who:

• personally endorse the opportunity,
• represent participation to enhance credibility,
• speak as part of the promoting “team”, and
• cannot prove they took adequate steps to avoid adoption of misleading content.

The case also reinforces that disclaimers must be proved and must actually neutralise misleading effect; they are not assumed.

Comparable authority lines sit behind this reasoning:

• Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 confirms that the identification of who “made” representations can be determined from context and how information is conveyed and adopted, and that disclaimers do not automatically erase misleading impact.
• Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 provides foundational principles for liability of persons involved in contraventions, including knowing participation and adoption of misleading statements.
• Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41 are important on causation and reliance in misleading conduct claims.

Judgment Points

1. The Court treated the conduct as a single persuasive process, not isolated communications.
   The Investment Memoranda, emails, meetings, and money requests formed one continuous inducement pathway. This matters because many schemes attempt to fragment responsibility: “the documents said one thing”, “the intermediary only introduced”, “the investor chose to proceed”. The Court looked at the full chain.

2. Future-matter representations were taken to be misleading when no reasonable grounds were shown.
   Claims about imminent settlement, securing lots, and post-subdivision outcomes were future matters. Under Australian Consumer Law s 4, once the representation concerns a future matter and no reasonable grounds are established, the law treats it as misleading. The promoter-side Defendants led no evidence to establish reasonable grounds.

3. Non-appearance and non-compliance had real evidentiary consequences.
   The corporate Defendants did not contest the Plaintiffs’ narrative. The Court was entitled to accept the Plaintiffs’ evidence where it was credible and supported by documents and payments.

4. “Introducer” defences fail when the intermediary adopts and endorses the representations.
   The Court did not require proof that the intermediary drafted the memoranda. It was enough that he associated himself with their truth and made aligned statements in his own right.

5. Disclaimers must be proved and must actually neutralise misleading effect.
   The Sixth Defendant’s claimed disclaimer did not appear in evidence. Even if disclaimers exist elsewhere, the Court highlighted that disclaimers do not automatically erase causal connection, consistent with authority.

Legal Basis

The key statutory provisions and concepts applied included:

• Australian Consumer Law s 18(1): prohibition on misleading or deceptive conduct in trade or commerce.
• Australian Consumer Law s 236(1): damages for loss or damage suffered because of contravening conduct, including recovery against persons involved in the contravention.
• Australian Consumer Law s 4: representations about future matters are taken to be misleading if there were no reasonable grounds, unless evidence is adduced to the contrary.
• Definition of “involved” (Australian Consumer Law s 2): includes being knowingly concerned in or a party to the contravention.
• Civil Procedure Act 2005 (NSW) s 61: Court power to give directions; consequences of non-compliance including striking out defences.
• Civil Procedure Act 2005 (NSW) s 100 and relevant practice materials: basis for pre-judgment interest in the orders made.

Evidence Chain

Conclusion = Evidence + Statutory Provisions

Below are 8 “victory points” showing how the Plaintiffs’ case succeeded as an evidence-driven application of statutory tests.

1. Victory Point 1: The “secured lot” promise was documentary and unambiguous.
   Evidence: statements in the memoranda indicating that once deposit and expression of interest were received, the parcel would be secured and the investor would be “now secured”.
   Law: Australian Consumer Law s 18; damages under s 236.
   Reasoning: The Court treated these as representations about what the Plaintiffs received in exchange for payment. The later inability of the scheme to deliver lots made the representation materially misleading.

2. Victory Point 2: Imminent settlement claims were future matters without demonstrated reasonable grounds.
   Evidence: meeting statements and follow-up communications asserting settlement timelines and urgency for final payments.
   Law: Australian Consumer Law s 4 (future matters) operating within s 18 analysis.
   Reasoning: With no defence evidence establishing reasonable grounds, the future representations were taken to be misleading.

3. Victory Point 3: The intermediary’s “I invested too” claim acted as a credibility lever and a reliance anchor.
   Evidence: communication where the intermediary stated he had purchased a lot, alongside “I know the ins and outs” style statements.
   Law: s 18; involvement and causation under s 236.
   Reasoning: This was not neutral referral. It was active persuasion. The Court treated it as materially contributing to the Plaintiffs’ decision-making, especially given the relationship of trust.

4. Victory Point 4: Reliance was proved through timing, messaging, and payment pattern.
   Evidence: sequential payments following key communications, plus the Plaintiffs’ contemporaneous responses referencing the promoter-side “team”.
   Law: s 236 requires loss “because of” the conduct; causation principles supported by Henville v Walker and I & L Securities.
   Reasoning: The Court accepted that the Plaintiffs paid because they were led to believe the scheme could deliver what was promised.

5. Victory Point 5: The Defendants’ non-compliance prevented rebuttal and strengthened inferential findings.
   Evidence: absence of defence evidence explaining ownership rights, settlement capability, or where the money went.
   Law: civil proof and inference drawing where facts are peculiarly within a party’s knowledge.
   Reasoning: Where the promoter-side Defendants did not appear and did not prove reasonable grounds, the Plaintiffs’ evidence carried decisive weight.

6. Victory Point 6: The Court treated the intermediary as more than a messenger due to adoption and affirmative conduct.
   Evidence: language used by the intermediary, absence of qualifying warnings in the key communications in evidence, and participation in the meeting.
   Law: s 18 and s 236; involvement definition in s 2; authority including Yorke v Lucas and Butcher v Lachlan Elder Realty.
   Reasoning: The intermediary’s conduct placed him within the contravening conduct, either as a direct actor or as a person involved.

7. Victory Point 7: Disclaimer arguments failed because the claimed disclaimers were not proved and could not be evaluated.
   Evidence: the Court was not taken to any correspondence containing the asserted disclaimer.
   Law: effectiveness of disclaimers, and the principle that they do not necessarily erase causation; ACCC v Glaxo-SmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676; (2019) 371 ALR 396.
   Reasoning: The Court could not accept a defence theory unsupported by documentary proof. Even where disclaimers exist elsewhere, they must be shown to have reached the Plaintiffs and neutralised the misleading impression.

8. Victory Point 8: Personal liability followed control and knowing participation.
   Evidence: the First Defendant’s role as director and controlling mind of relevant corporations and the context of the scheme promotion.
   Law: s 236 and involvement under s 2; Yorke v Lucas on knowing concern.
   Reasoning: The Court concluded that the controlling individual was directly knowingly concerned in the corporate contraventions.

Judicial Original Quotation

“I find … the statements … were statements as to future matters, which by the operation of s 4 are misleading because [the relevant parties] had no reasonable basis for making them and led no evidence to the contrary.”

This quote is determinative because it converts a common scheme tactic—confident predictions about future settlement and value—into a strict legal vulnerability. Once a representation is a future matter, the absence of reasonable grounds becomes fatal.

“The presence … of disclaimers did not affect the causal relationship between the conduct complained of and the damage suffered …”

This quote matters because it rejects a widespread misunderstanding: that attaching a disclaimer automatically immunises a promoter or intermediary. The Court emphasised that causation depends on the real-world persuasive effect of conduct, not the mere existence of a boilerplate warning.

Analysis of the Losing Party’s Failure

The losing Defendants failed for a mixture of substantive and procedural reasons:

1. No proof of reasonable grounds for future claims about settlement, securing lots, and value outcomes, which brought s 4 into operation.

2. No production of key documents allegedly supporting defences (including the asserted email disclaimers), leaving the Court with no evidentiary basis to accept those contentions.

3. Non-appearance and non-compliance by key promoter-side Defendants, which removed the opportunity to challenge the Plaintiffs’ evidence, explain ownership capacity, or account for fund movements.

4. A legally misplaced focus on “financial advice” rather than the broader prohibition on misleading conduct. Even if no regulated financial advice was given, s 18 can still be breached by promotional conduct.

5. A credibility gap created by the intermediary’s self-positioning as an investor and knowledgeable participant, which was inconsistent with a “mere conduit” narrative.

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Implications

1. Trust is not a legal shield; it is often the mechanism of harm.
   If you rely on someone because they previously helped you, that reliance can be legally recognised. But it also means you must treat any “special opportunity” pitched through trust as a higher-risk scenario requiring careful verification.

2. Urgency is a warning sign, not a virtue.
   When a promoter says settlement is imminent and asks for rapid transfers, treat that as a signal to slow down. Legitimate transactions can withstand scrutiny and time.

3. If the deal is hard to explain, it is often hard to enforce.
   Schemes that rely on opaque concepts to make the numbers work tend to be fragile. Complexity can be used to prevent you from seeing the absence of real underlying value.

4. Disclaimers do not automatically protect the promoter or the intermediary.
   Even where disclaimers exist, the key question is whether the overall conduct still misleads and whether you acted because of it.

5. In litigation, evidence is oxygen.
   If you must bring a claim, keep emails, messages, bank records, and meeting details. In many cases, the paper trail is stronger than memory and becomes the backbone of causation.

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Q&A Session

Q1: If an intermediary says “I’m not giving advice”, can they still be liable?

Yes. Liability under Australian Consumer Law s 18 does not depend on whether the person provided regulated financial advice. The issue is whether, in trade or commerce, they engaged in misleading conduct or were involved in someone else’s misleading conduct, and whether that conduct caused loss.

Q2: Do disclaimers in emails automatically defeat a misleading conduct claim?

No. Disclaimers must be proved, shown to have reached you, and shown to neutralise the misleading impression created by the overall conduct. Even then, courts often assess whether the disclaimer truly erased the persuasive effect. A boilerplate warning does not necessarily break causation.

Q3: What evidence matters most if you think you were misled into investing?

The most persuasive evidence usually includes: the promotional documents; the exact words used in emails and messages; any meeting notes or recordings; bank transfer records with dates; and any communications linking payments to promised outcomes such as “securement”, settlement timing, or returns.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

Chapter A1: Practical Positioning of This Case

1. Practical Positioning of This Case

Case Subtype: Property Investment Promotion Scheme – Australian Consumer Law Misrepresentation and Accessorial Liability
Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

This case belongs to category ④ Commercial Law and Corporate Law.

Core Test 1: Section 18 of the Australian Consumer Law (Misleading or Deceptive Conduct)
Step 1: Identify the relevant conduct
– Determine the specific words, documents, and actions relied upon, including promotional memoranda, emails, meetings, and payment requests.

Step 2: Confirm the conduct occurred “in trade or commerce”
– Examine whether the conduct formed part of raising funds or promoting a commercial enterprise, not a purely private or domestic arrangement.

Step 3: Determine whether the conduct was misleading or deceptive, or likely to mislead or deceive
– The inquiry focuses on the impression created in the ordinary audience in the factual context, including vulnerable features such as trust relationships and sophistication differences.

Step 4: If representations are about future matters, apply s 4
– If the representation concerns a future matter, assess whether there were reasonable grounds at the time it was made.
– If the maker cannot establish reasonable grounds, the representation is taken to be misleading, subject to evidence to the contrary.

Step 5: Establish causation under s 236
– Prove that the claimant suffered loss or damage “because of” the conduct.
– The claimant typically establishes reliance through timing, communications, and payment behaviour, as well as the plausibility that the conduct was materially persuasive.

Step 6: Quantify recoverable loss
– Identify amounts paid, any refunds or reallocations, and determine net loss attributable to the conduct.
– Interest may be awarded depending on jurisdictional and procedural provisions.

Core Test 2: Contract Formation (Offer, Acceptance, Consideration, Intention)
This case demonstrates that even where parties speak in contractual language, there may be no enforceable contract. A claimant should test:
– Offer: Was there a definite promise capable of acceptance, or only promotional aspiration?
– Acceptance: Was there a clear acceptance communicated and matched to a defined offer?
– Consideration: Was payment made in exchange for a defined contractual promise, or as an “investment contribution” without contractual certainty?
– Intention: Did the communications objectively show intention to create legal relations, or did the arrangement remain too uncertain?

The absence of a contract does not preclude statutory relief under s 18 and s 236.

3. Equitable Remedies and Alternative Claims

Even when statutory consumer law is the main avenue, equity and common law can sometimes provide alternative or supplementary pathways, depending on facts and available defendants.

Promissory / Proprietary Estoppel
Step 1: Clear and unequivocal representation
– Identify whether a promoter or intermediary made a representation sufficiently definite to ground reliance, such as “your lot is secured” or “you will receive your money back with interest if approval fails”.

Step 2: Detrimental reliance
– Show that the claimant acted to their detriment, commonly by transferring money, selling assets, or foregoing other opportunities.

Step 3: Unconscionability
– Assess whether it would be against conscience to allow the representor to resile, especially where the claimant was induced to act quickly and without equal access to information.

Practical note: Estoppel claims can be complex and fact-sensitive, and relief may be discretionary. They tend to be more viable where the defendant’s promise is clear and the claimant’s reliance is substantial and foreseeable.

Unjust Enrichment / Constructive Trust
Step 1: Benefit received at the claimant’s expense
– Identify the flow of funds: who received the money, directly or indirectly.

Step 2: Unjust factor
– Consider factors such as misrepresentation, failure of basis, or unconscionability.

Step 3: Appropriateness of restitutionary relief
– In some cases, the Court may be asked to order restitution or trace funds where identifiable.
– Practical limitation: tracing and constructive trust remedies can be difficult where funds are dissipated or mingled, and may depend on the availability of bank records and identifiable assets.

Procedural Fairness as an Ancillary Concept
While procedural fairness is primarily a public law concept, its practical analogue in civil litigation is ensuring fair trial processes. Parties who do not comply with directions risk evidence exclusion or adverse procedural outcomes, which can materially affect substantive rights.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds (Hard Indicators)
– Limitation periods: A claimant must consider whether the limitation period has expired for statutory and common law claims. The applicable limitation period depends on claim type and jurisdiction, and can be a high-risk issue requiring prompt attention.
– Jurisdiction: Ensure the Court and division have jurisdiction over the claim and defendants.
– Evidence disclosure and preservation: Practical success often depends on keeping the full communication and banking trail.

Exceptional Channels (Crucial)
– Extensions and postponement: Depending on claim type, certain limitation defences may be contested where facts were discovered later, or where concealment is alleged. Outcomes tend to be fact-specific and should be assessed cautiously.
– Accessorial liability: Even if the primary corporate promoter becomes insolvent, claims against individuals “involved” may remain viable where evidence supports knowing participation.

Suggestion: Do not abandon a potential claim simply because a promoter threatens insolvency. Carefully examine whether individuals or related entities were involved and whether a statutory pathway permits recovery against them.

5. Guidelines for Judicial and Legal Citation

Citation Angle:
It is recommended to cite this case in submissions involving:
– the operation of Australian Consumer Law s 4 (future matters) where reasonable grounds are not proved;
– the legal boundary between a “mere conduit” and a person who adopts and endorses representations;
– the limited protective effect of disclaimers on causation in misleading conduct cases; and
– accessorial liability under s 236 against persons involved in a contravention.

Citation Method:
As Positive Support:
– Where a defendant claims to be an introducer only, cite this authority to emphasise that endorsement, adoption, and participation can amount to misleading conduct or involvement.
As a Distinguishing Reference:
– If an opposing party relies on this case, emphasise factual differences such as clear, prominent disclaimers in evidence, genuine due diligence warnings contemporaneously given, or absence of any credibility leverage like “I invested too”.

Anonymisation Rule:
When presenting practical guidance, use procedural titles such as Plaintiffs and Defendants, consistent with professional publication practice.

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Conclusion

This case demonstrates a practical legal reality: under the Australian Consumer Law, liability is not confined to the corporate promoter who prints the brochure. It can extend to the individual who lends credibility, speaks as part of the promoting “team”, and helps convert trust into money transfers.

Golden Sentence: 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.

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Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (D’Cruz v Coutinho [2025] NSWSC 150), 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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