Tigershead Pty Ltd v Property Advantage Pty Ltd [2025] NSWDC 142 | Case summary | Zoe

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Tigershead Pty Ltd v Property Advantage Pty Ltd [2025] NSWDC 142 | Case summary | Zoe

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 existed four documents, being an information memorandum (“IM”), a “cheat sheet," which was a summary of the IM, a document entitled “proposed press release – Friday, 15 October 2021,” and a blank share application form to various people, including Mr Straatemeier.
Of those four documents, all but the draft press release were created and issued by the First Defendant. The press release was created by Mr Oxlade of Spice Capital Partners, who had been retained by the First Defendant for the purpose of marketing what was described as a “series A" capital raising, wherein the First Defendant was seeking to raise $1 million by issuing 750,000 new shares at $1.33 per share. The Second Defendant gave evidence, which I accept, to the effect that the press release was never seen, let alone approved, by any of the Defendants. It is the creation of Mr Oxlade. Nonetheless, My Oxlade’s company was the agent of the First Defendant and so, in that sense, the First Defendant issued that document. In any event, on 15 October, Mr Oxlade disseminated the four documents to a number of people, who he thought might be interested in investing.
Mr Straatemeier was identified by Mr Oxlade as one of those potential investors. Mr Straatemeier was sent the four documents.
Prior to that, in August 2021, Mr Oxlade and Mr Straatemeier had, at a reasonably vague level, discussed a potential opportunity to invest in the First Defendant. Mr Straatemeier was shown a draft of the IM. Those discussions concluded when, on 13 August 2021, Mr Straatemeier wrote to Mr Oxlade in the following terms:

Before dealing with the actual words used, it is important to recognise that part of the relevant context is that, on 13 August 2021, Mr Straatemeier said to Mr Oxlade, when explaining why he did not want to proceed with the investment, that he “preferred to be investing directly and following in behind a few other commitments, rather than being a front runner.”
On behalf of the Defendants, it is submitted that all that was conveyed in the material is that the First Defendant had received strong positive indications or non-binding commitments from potential investors and that there is nothing to suggest that such representation was not accurate at the time.
That is not how Mr Straatemeier understood the material. As I have said, he is an extremely sophisticated and experienced investor. He was cross-examined to the effect that the words might have meant nothing more than what had been “secured" was indicative commitments. He emphatically rejected that proposition and explained, in a way that I felt was entirely plausible, that he considered it to be a significant difference between the proposition that capital had been “secured," as opposed to non-binding commitments to inject capital having been “secured.”
Leaving to one side how Mr Straatemeier subjectively read the document, to my mind, the clear, objective message from all of the documents, and in particular the passages set out above, is that at the time the IM was provided to Mr Straatemeier, the First Defendant had already received legally binding applications for issue of shares, together with the purchase price of those shares, that is what is meant by the phrase “Secured AU$500,000 of the AU$1M (Series A) pre–Information Memorandum release.” It is also what is meant by “$1M Capital Raising Near 100% closed." It is also what is meant by “which was 50% subscribed within days. We expect full subscription over coming days and even an oversubscription situation, which is nice to have."
I am satisfied that, when one reads the entire suite of documents in context, that the clear message conveyed was that $500,000 worth of valid applications, together with the money in support of the applications, had been received at least by 19 October 2021. That message is clear even without the press release.
The “funding secured representation” was simply not true. So much is admitted on the pleadings. Apart from the Plaintiff investment of $100,000, there was only ever one other investment of $50,000. The “funding secured representation” amounts to misleading and deceptive conduct by the First Defendant and is thus a contravention of either the ASIC Act or Corporations Act.
I am also satisfied that, in a material way, Mr Straatemeier relied upon that message when making the decision for the Plaintiff to itself subscribe for $100,000 of shares. He would not have caused the Plaintiff to invest if not for the “funding secured representation.”
Notwithstanding the caution that must be applied to evidence of this character (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640), I accept Mr Straatemeier's evidence, as I consider it, not just plausible, but almost inevitable that, in light of the fact that the one of the express reasons he gave for pulling out of the transaction in August was his desire to see other investors committed, that he would not have caused the Plaintiff to enter into the transaction if not for the misleading and deceptive conduct that I have found.
That is the end of the case on liability against the First Defendant, but in case I am wrong, I will deal shortly with the other two representations.

The first question here is whether the conduct of the First Defendant conveys to a reasonable reader of the IM and the other documents that the unique and valuable business model that had been created was a method of accessing, prior to settlement, funds that had been paid by real property purchases into real estate agent’s trust accounts pending settlement of transactions.
The Plaintiff’s simple proposition is that, as a matter of law, it is self-evident that such a business model could not possibly work without the express consent and presumably the variation of a sales contract between particular vendors and purchasers. It would be the antithesis to any notion that the monies were in fact trust monies for the beneficiaries, being one or other of the vendors or purchaser, depending on whether the sales contract was completed.
So much may be accepted, but that is not the battleground between the parties.
The Defendants contend that a sensible commercial reading of the suite of documents does not convey the pleaded representations. Rather, all that is being said is that a method had been struck upon so as to allow monies to be borrowed and, in some way “secured" over the deposit monies held in trust, the real value and the competitive advantage being a lower interest rate than would otherwise be available from commercial lenders lending on expected future cash flow. I accept that submission.
It is true that there is some ambiguity between the various statements contained in the various documents. The IM contains statements to the effect that “they can access 100% of the value of their commission" at a number of points, whereas elsewhere, if read in isolation, does speak in terms of “accessing the deposits."
On balance, and applying a sensible and commercial meaning in circumstances where the target audience of the documents were sophisticated investors, I do not think the meaning conveyed included that the monies otherwise held on trust were actually being accessed in the sense of being released from the trust account, but rather some sort of method had been identified to allow those monies, when in the future released to one or other of the parties to the transaction, to be used as security allowing money to be lent to either the vendor or the agents themselves at a significantly reduced interest rate than might otherwise be available for lending on future cash flow.
The Plaintiff submits that, even without that component, also contained in the business model representation is the notion that what had been developed was a unique, valuable, and effective business model. The submission is that proposition on its own is misleading or deceptive.
On behalf of the Defendants, Mr Parrish of counsel, opposes the dilution of this pleaded representation so as to effectively delete the reliance on the “accessing, prior to settlement, of the trust funds” aspect of the representation, but maintaining the balance of the pleaded representation, the submission for the Plaintiff being to the effect that, even without that part of the representation, the proposition that the First Defendant had developed a “unique, valuable, and effective business model…” was itself misleading or deceptive.
Mr Parrish tells me that forensic decisions had been made based on the entirety of the representation and, if it was understood that limited portions of the representation were also relied upon as stand-alone misleading and deceptive conduct, the case may have been defended differently than it was and, in particular, different evidence deployed in answer to that claim. I accept what he says, not just because he tells me so, but also because I consider it not just plausible, but probable.
On the evidence that is before me, it does seem tolerably clear, as Mr Wheeldon for the Plaintiff has submitted, that there really was no finalised business model in place at all at the time of the IM. More to the point, it is difficult to see how it could possibly have worked effectively. However, that may not be a complete view of all the potential, relevant evidence that may have been available. There are some legal opinions in the material but there may well have been others.
I consider, as a matter of fairness to the Defendants, I should leave this aspect of the claim by concluding that the “business model representation” has not been made out.

The question becomes, is the conduct, which I have identified as being in contravention of the law, being the issue of the IM and the ‘cheat sheet’, conduct engaged in by all three Defendants or is it just conduct of the First Defendant corporation which the Second and Third Defendants were “involved in" or “caused to happen." For reasons I have explained, for the purpose of this aspect of the case, I put to one side the press release. It was conduct of the First Defendant because it was issued by its agent, but the Second and Third Defendants had nothing to do with it.
The law in this area remains not entirely clear, despite a spate of relatively recent cases.
The question of where the line above which a person is primarily liable for contravention of the misleading or deceptive provisions found in legislation will ultimately turn on what sounds like a simple question of fact applied against a statutory context, being did the person “engage” in the conduct. This is not as easy as it might sound because it involves a legal question as to what “engaged in” means. The elusive distinction between engagement by a particular person on the one hand and involvement on the other as has been considered recently in Australian Securities and Investments Commission v GetSwift Ltd [2021] FCA 1384 per Lee J (“GetSwift); Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 (“Care A2”) per the New South Wales Court of Appeal; and Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304 (“Anchorage”) per the New South Wales Court of Appeal.
Most of those cases cite with approval the decision of the full Court of the Federal Court in Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 (“Narain”). In GetSwift, Lee J at [2121] considered that the ultimate question of fact as determined by the full Court in Narain was whether the impugned conduct was engaged in by the individual in the course of a corporation’s affairs and then exposed what he considered was the “ultimate question," being “whether all of the elements of the contravention are made out against the relevant individual in his own right, or whether he merely acted as a corporate organ, thereby binding the company but not himself personally.” In Narain, Mr Narain was held personally liable for the contravention by the company because he was the managing director who had:

The correct statutory question that arises from the words of the legislation itself and the various authorities is whether, in this case, the Second and Third Defendants engaged in the impugned conduct, and not merely that they were, in some way, “involved in” that conduct or even approved of it. However, to pose the question at this level of abstraction and generality begs the question, what does that mean? In Care A2, the Court of Appeal sought to explain the distinction by reference to “mere ministerial acts” by people or something more. This is a very difficult concept to understand in small companies as I tried to explain in STPG Constructions Pty Ltd v Multibuild Constructions Pty Ltd [2024] NSWDC 220 (”STPG”) at [77]-[83]. In that case, I concluded that the better way of looking at the question in sole director corporations was not by reference to whether the person was a minister or intermediary, but rather by whether the representation conveyed could sensibly have been understood as a representation by both the company and its director.
Part of the statutory context is that the legislature draws a very clear distinction between a person being engaged in conduct – leading to primary liability for contravention of the Act – or the requirement of the accessorial provisions that the person be “involved in the conduct."
As a matter of language, to be involved in something is to be more distant to that thing than to be engaged in that thing.
Another contextual matter is, in the regulated environment controlled by s 729 of the Corporations Act, the corporate veil is expressly pierced by the legislation making directors personally liable for any misrepresentations by a company in that context. There is no equivalent provision dealing with the unregulated environment.
Nor is an opening of the corporate veil warranted from the words of the misleading and deceptive conduct provisions themselves.
The question of fact, being whether Defendants can be seen to have been engaged in the relevant conduct needs to therefore be considered with a clear understanding that to be engaged means something more than being involved. This then poses the question of complexity. Where is the line between “involvement” and “engagement” to be found? Of the criteria identified by Lee J in GetSwift, an important one in the context of this case is the notion of “adoption.” Clearly enough, if one person can be seen to have adopted the conduct of another, then the conduct becomes conduct of both. However, this just poses another difficult question. What does “adoption” mean in this context?
In Anchorage, the question that was posed was “if the conduct could reasonably be attributed to the person by the representee”. I consider that the simplest and clearest statement of this elusive legal concept. In other words, the question becomes “whose conduct was it?”, as conveyed objectively to a reasonable representee. This is the same conclusion I arrived at in STPG at [78] in respect to sole director corporations. I consider that approach appropriate in a broader factual context.

There is a subtle, but important, difference between a director effectively warranting that a statement by a company is true and thus clearly making them his or her own, and a representation that, after making reasonable enquiries, he or she believes it to be true, but I do not think that distinction has a significant part to play here.
As I have said, I consider the legal question of whether someone engaged in conduct constituting a positive statement in contravention of the legislation must be answered by considering, as a matter of fact, who a reasonable recipient of the conduct would understand made the statement.
The Second Defendant signed the IM at two points, first, the Introduction Letter, and second, the Directors Declaration. In my judgment, a reasonable reader of the IM would reasonably have understood that the statements contained in the IM and the cheat sheet were those of the Second Defendant as well as the First Defendant. The final line is the declaration “have consented… to the issue of this offer document.” The notion of consent in this context suggests something more than approval. When read in context with the proceeding part of the declaration, I consider what is being conveyed is that, at least the Second Defendant was making the IM his own statement.
To put it in the words of Lee J in GetSwift at [2121], the whole of the conduct of the Second Defendant amounted to him “adopting and approving” the contents of the IM.
I accept that the Second Defendant did not approve or adopt the press release, but the misleading conduct I have identified was clearly evident without the press release.
I consider a reasonable person in the position of Mr Straatemeier would reasonably have understood the IM and cheat sheet to be statements by both the company and the Second Defendant.
Accordingly, I am satisfied that the Second Defendant did engage in the misleading and deceptive conduct which has caused the Plaintiff the loss of $100,000. A reasonable reader of the Directors’ Declaration would have understood that to be a statement made by both directors. True it is that the Third Defendant did not sign the introduction letter, but I consider the Directors’ Declaration to still be enough to convey that the statements in the IM were statements by the company and all of its then directors.