Tigershead Pty Ltd v Property Advantage Pty Ltd - [2025] NSWDC 142

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Tigershead Pty Ltd v Property Advantage Pty Ltd [2025] NSWDC 142
Hearing dates: 15-16 April 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
(1) Judgment for the Plaintiff against each of the Defendants jointly and severally in the sum of $123,860.14, inclusive of interest up to 24 April 2025.
(2) Each of the Defendants are to pay the Plaintiff’s costs of the proceedings.

Catchwords:
CORPORATIONS – Capital raising – Information memorandum and other documents issued to plaintiff – Relied upon by plaintiff to purchase shares – Alleged misleading or deceptive conduct s 12DA ASIC Act / s 1041H Corporations Act – Found to be misleading or deceptive conduct engaged in by the corporation and its directors – What is level of conduct by directors or officers to justify finding of engagement by officer of corporation so as to find primary liability for contravention of the misleading or deceptive conduct provisions

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth) s 12DA
Corporations Act 2001 (Cth) s 729, s 1041H

Cases Cited:
Anchorage Capital Master Offshore Ltd v Sparkes
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Australian Securities and Investments Commission v GetSwift Ltd [2021] FCA 1384
Australian Securities and Investments Commission v Narain (2008) 169 FCR 211
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35
Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435
STPG Constructions Pty Ltd v Multibuild Constructions Pty Ltd [2024] NSWDC 220

Category: Principal judgment
Parties:
Tigershead Pty Ltd (Plaintiff)
Property Advantage Pty Ltd (First Defendant)
Edward Rober Myers (Second Defendant)
Darren Hutchins (Third Defendant)
Representation:
Counsel:
J Wheeldon (Plaintiff)
J Parrish (First, Second, and Third Defendants)
Solicitors:
Telemon Lawyers (Plaintiff)
Ampt Law (First, Second, and Third Defendants)

File Number(s): 2024/76914
Publication restriction: Nil

JUDGMENT

Introduction

The Plaintiff is a company, the shareholders of which are Christiaan Straatemeier and his wife Annette Straatemeier. It is a trustee of what I infer is a family trust. For relevant purposes, it is controlled by Mr Straatemeier.
The First Defendant is a company and, during the period relevant to these proceedings until 30 August 2021, the Second Defendant was its sole director. From 30 August 2021 until 6 March 2023, the Second Defendant and the Third Defendant were directors of the First Defendant.
In October 2021, the First Defendant was seeking to raise capital for the purpose of developing a business venture involving the lending of money to either real estate agents or vendors of real property so as to allow them “access” to money held on deposit for uncompleted real estate transactions at attractive, competitive interest rates.
On 19 October 2021, there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWDC 142
Decision Date: 24 April 2025

CaseChat Overview and Summary

Tigershead Pty Ltd brought an action against Property Advantage Pty Ltd, along with several individual defendants, seeking relief for alleged misleading or deceptive conduct under sections 12DA of the ASIC Act and 1041H of the Corporations Act. The plaintiff relied on an information memorandum and other documents issued by the defendants when purchasing shares, which it was alleged were misleading or deceptive. The court was tasked with determining whether the conduct of the corporation and its directors amounted to misleading or deceptive conduct, and if so, what level of conduct by directors or officers would justify a finding of engagement by the officer of the corporation, thereby establishing primary liability for the contravention of the misleading or deceptive conduct provisions.

The court found that the information memorandum and other documents issued to the plaintiff contained misleading statements and omissions, which amounted to misleading or deceptive conduct under the legislation. The court held that the defendants engaged in the misleading or deceptive conduct through their directors, who were responsible for the preparation and dissemination of the documents. The court considered the extent to which the directors were involved in the misleading conduct, and found that their level of involvement was sufficient to justify a finding of primary liability under the provisions. The court also noted that the defendants had failed to take reasonable steps to prevent the misleading or deceptive conduct from occurring.

The court ordered that judgment be entered in favour of the plaintiff against each of the defendants jointly and severally, in the sum of $123,860.14, inclusive of interest up to 24 April 2025. The court also ordered that each of the defendants pay the plaintiff's costs of the proceedings. The court held that the defendants' conduct was egregious, and that the level of involvement by the directors was sufficient to justify a finding of primary liability. The court's decision serves as a reminder to directors and officers of the importance of ensuring that all documents issued by their companies are accurate and do not contain any misleading or deceptive statements.

Orders

Orders of the court

(1) Judgment for the Plaintiff against each of the Defendants jointly and severally in the sum of $123,860.14, inclusive of interest up to 24 April 2025.

(2) Each of the Defendants are to pay the Plaintiff’s costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Tigershead Pty Ltd v Property Advantage Pty Ltd [2025] NSWDC 142
Hearing dates:	15-16 April 2025
Date of orders:	24 April 2025
Decision date:	24 April 2025
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	(1) Judgment for the Plaintiff against each of the Defendants jointly and severally in the sum of $123,860.14, inclusive of interest up to 24 April 2025. (2) Each of the Defendants are to pay the Plaintiff’s costs of the proceedings.
Catchwords:	CORPORATIONS – Capital raising – Information memorandum and other documents issued to plaintiff – Relied upon by plaintiff to purchase shares – Alleged misleading or deceptive conduct s 12DA ASIC Act / s 1041H Corporations Act – Found to be misleading or deceptive conduct engaged in by the corporation and its directors – What is level of conduct by directors or officers to justify finding of engagement by officer of corporation so as to find primary liability for contravention of the misleading or deceptive conduct provisions
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) s 12DA Corporations Act 2001 (Cth) s 729, s 1041H
Cases Cited:	Anchorage Capital Master Offshore Ltd v Sparkes Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Securities and Investments Commission v GetSwift Ltd [2021] FCA 1384 Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 STPG Constructions Pty Ltd v Multibuild Constructions Pty Ltd [2024] NSWDC 220
Category:	Principal judgment
Parties:	Tigershead Pty Ltd (Plaintiff) Property Advantage Pty Ltd (First Defendant) Edward Rober Myers (Second Defendant) Darren Hutchins (Third Defendant)
Representation:	Counsel: J Wheeldon (Plaintiff) J Parrish (First, Second, and Third Defendants) Solicitors: Telemon Lawyers (Plaintiff) Ampt Law (First, Second, and Third Defendants)
File Number(s):	2024/76914
Publication restriction:	Nil