FENG WANG v ONE DIRECTION REAL ESTATE PTY LTD [2026] SASCA 28

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BURNETT) CIV- 22-010562 Appellant: FENG WANG Counsel: MR A LAZAREVICH - Solicitor: GORDON CHENG Respondent: ONE DIRECTION REAL ESTATE PTY LTD Counsel: MR S OWER KC WITH MR J NAPIER - Solicitor: ADELTA LEGAL Hearing Date/s: 04/03/2026 File No/s: CIV-25-015240 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WANG v ONE DIRECTION REAL ESTATE PTY LTD [2026] SASCA 28 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice B Doyle) 26 March 2026 CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS - CONTRACTS CONTRARY TO PUBLIC POLICY CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS - EFFECT OF ILLEGALITY OR INVALIDITY - ENFORCEMENT OF ILLEGAL TRANSACTIONS AND CLAIMS ARISING - NECESSITY FOR PLEADING ILLEGALITY The appellant together with the respondent and Solid Times Pty Ltd (‘Solid Times’) were parties to a joint venture agreement in relation to the purchase, proposed renovation and sale of a property in North Adelaide (‘the property’). The respondent had acted as real estate agent for the vendor of the property. The property was purchased in the name of a director of Solid Times on an ‘and/or nominee basis’. The appellant was nominated as purchaser at settlement. The deposit was paid by the joint venturers in proportions reflecting their agreed respective interests (the appellant – 25%, the respondent – 25%, Solid Times – 50%). The purchase was otherwise financed in part by a loan and in part by payments made by the joint venturers in the same percentages. Monthly payments were made by Solid Times and the respondent to the appellant to contribute towards mortgage repayments. Work was carried out on the property and contributions were made by the joint venturers but their relationship broke down irretrievably before the property was sold. The respondent and Solid Times instituted proceedings seeking a declaration that the appellant held the property on trust partly for them. Solid Times reached a settlement with the appellant before trial. The judge held that the joint venture failed without blame attributable to the respondent and that in all the circumstances it was appropriate to declare that the appellant held the improved property on a constructive trust on terms which were reflected in the final orders made. -- 1 of 43 -- The appellant contends that the judge erred by not withholding relief in favour of the respondent in circumstances where the respondent’s conduct in obtaining or attempting to obtain a beneficial interest in the property was or would involve a contravention of s 24G of the Land and Business (Sale and Conveyancing) Act 1994 (SA) (‘LSBC Act’). Held, dismissing the appeal: 1. the LSBC Act does not expressly or by necessarily implication require that the joint venture agreement nor any beneficial interest that might be obtained by an agent is unenforceable at the suit of the agent nor voidable at the election of the other party to the relevant transaction; 2. the judge did not err in failing to find that preserving coherence with any public policy derived from or manifested by the statutory prohibition in s 24G of the LSBC Act required the withholding of discretionary equitable relief. Land Agents Act 1994 (SA) s 4; Land and Business (Sale and Conveyancing) Act 1994 (SA) ss 3, 5-9, 18-20, 23, 24, 24A, 24C, 24D, 24F, 24G, 34, 35, 37B, 39, pt 2, pt 4 and pt 6; Land and Business (Sale and Conveyancing) Regulations 2010 (SA) reg 25; Land and Business (Sale and Conveyancing) Regulations 2025 (SA) reg 25; Liquor Act 2007 (NSW) s 92; Retail Leases Act 1994 (NSW); Real Property Act 1886 (SA); Statutes Amendment (Real Estate Industry Reform) Act 2007 (SA); Trade Practices Act 1974 (Cth) ss 4L, 51AD, 87, 87A; Uniform Civil Rules 2020 (SA) r 67.2, referred to. Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; Australian Competition and Consumer Commission v Baxter Health Care Pty Ltd (2007) 232 CLR 1; Brodie v Singleton Shire Council (2001) 206 CLR 512; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Carr v Western Australia (2007) 232 CLR 138; Chan v Zacharia (1984) 154 CLR 178; Chehade v Commissioner for Consumer Affairs [2016] SASC 105; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179 CLR 101; D Capital 2 Pty Ltd v Western (2022) 20 BPR 42, [2022] NSWSC 1064; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (receivers & managers appointed) (in liq) (No 3) (2006) 94 SASR 103; Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592; Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; Gnych v Polish Club Ltd (2015) 255 CLR 414; Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143; Guan v Lui [2021] NSWCA 65; Harry Goudias Pty Ltd v Akakios (2007) 87 SASR 93; Holman v Johnson (1775) 1 Cowp 341, 98 ER 1120; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; Kennon v Spry (2008) 238 CLR 336; Lewis v Nortex Pty Ltd (in liq) (2004) 214 ALR 634; Maguire v Makaronis (1997) 188 CLR 449; Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Miller v Miller (2011) 242 CLR 446; Nelson v Nelson (1995) 184 CLR 538; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Pedersen v Larcombe [2008] NSWSC 1362; Permanent Trustee Australia Ltd v FAI General Insurance Company Ltd (in liq) (2003) 214 CLR 514; Redland City Council v Kozik (2024) 281 CLR 202; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; Ryde Developments Pty Ltd v The Property Investors Alliance (No 4) [2017] NSWSC 436; Solid Times Pty Ltd, One Direction Real Estate Pty Ltd v Wang [2025] SADC 119; SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516; The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2022] NSWSC 1081; The Corporation of the City of Adelaide v India Pty Ltd [2018] SASC 154; The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291; Tinsley v Milligan [1994] 1 AC 340; Warman International Ltd v Dwyer (1995) 182 CLR 544; Yango Pastoral Company Pty Ltd v First Chicago Australia Pty Ltd (1978) 139 CLR 410, discussed. -- 2 of 43 -- WANG v ONE DIRECTION REAL ESTATE PTY LTD [2026] SASCA 28 Court of Appeal – Civil: Livesey P, S Doyle and B Doyle JJA 1 THE COURT: The issue raised by this appeal is whether the trial judge erred by declaring that the appellant held real property the subject of a failed joint venture on a constructive trust for the benefit of himself and the respondent in circumstances where the property had been acquired in the appellant’s name from vendors for whom the respondent had acted as real estate agent. 2 Section 24G(1) of the Land and Business (Sale and Conveyancing) Act 1994 (SA) (‘LBSC Act’) provides that an agent must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land. The appellant argues that the respondent contravened this provision and that its effect was to render unenforceable the joint venture agreement that in part founded his claimed beneficial interest. Alternatively, he argues that the respondent should have been denied an equitable remedy on the basis that it was against public policy for the respondent to be granted an interest that it was prohibited by statute from obtaining or attempting to obtain, or because it lacked ‘clean hands’. 3 In his reasons for judgment,1 the trial judge rejected a contention that the respondent should be denied equitable relief because he had not come to the court with ‘clean hands’.2 He also rejected the appellant’s apparent contention that s 24G of the LBSC Act rendered the joint venture or the respondent’s interest in the joint venture void.3 4 The appellant’s contentions respecting illegality on appeal were presented in more detail and with greater sophistication than they were at trial, where the appellant was self-represented. Consequently, the judge’s reasons do not address all the issues raised by the submissions made on appeal. However, for the reasons that follow, the trial judge did not err by declining to withhold relief and the appeal must be dismissed. Background 5 The dispute concerns a residential property at 77 Mackinnon Parade North Adelaide (‘the property’). The registered proprietor had been Mr Paul Mellor. Following his death, his executors entered into a contract for the sale of the property in or around September 2017 with Xuan Tian and/or nominee for the amount of $1.1 million. Mr Tian (commonly referred to as Tony), along with Mr Yang Shao (commonly referred to as Brady), was a director of Solid Times Pty Ltd. 1 Solid Times Pty Ltd, One Direction Real Estate Pty Ltd v Wang [2025] SADC 119 (‘Reasons’). 2 Reasons [103]-[106]. 3 Reasons [107]-[111]. -- 3 of 43 -- [2026] SASCA 28 The Court 2 6 The respondent, One Direction Real Estate Pty Ltd, was the real estate agent for the vendors. The sole director of the respondent is Mr Yun Liu (commonly referred to as Zac). 7 Initially, there was a joint venture, not reduced to writing, between Mr Tian, Mr Shao and Mr Liu. Mr Tian was unable to borrow sufficient funds to complete the purchase of the property. Whilst he may have been able to source the funds from overseas he could not do so in a timely manner. He therefore arranged for the appellant, Mr Wang (sometimes referred to in the evidence as David) to become involved in a joint venture. Mr Liu did not know Mr Wang at that time. 8 On 4 May 2018, prior to settlement on the contract, Mr Wang, Mr Liu and Solid Times Pty Ltd entered into and signed a joint venture agreement. It was not clear how the document came to be prepared. 9 The agreement wrongly recited that Mr Wang had acquired a fee simple in the property. Whilst Mr Wang was nominated as the transferee and became the registered proprietor at settlement on 30 November 2018, he was not in fact the registered proprietor on 4 May 2018, the date of the agreement. A valuation prepared for security purposes suggests that by 16 April 2018 it had been contemplated that Mr Wang would be the nominated purchaser.4 10 The agreement also recited that the parties had agreed they would undertake a joint venture ‘for doing the extension and renovation works on the existing dwelling’ on the property and then ‘for the sale of the land’. This was described as ‘the project’. The operative terms of the agreement provided, inter alia: 2. JOINT VENTURE FORMATION 2.1 The parties hereby formally agree to engage in an unincorporated joint venture for the purposes of carrying out the project. 2.2 The respective interests of the parties are as follows: Feng Wang 25% Yun Liu 25% Solid Times Pty Ltd 50% 2.3 The parties confirm, with respect to the joint venture assets that they beneficially own those as tenants in common with their respective interests. 2.4 Each party hereby commits its interest to the joint venture and agrees to do all things necessary to enable the project to be carried out. 4 There is also correspondence that confirms that by 27 September 2018, it had been decided that Mr Wang would be the purchaser. -- 4 of 43 -- [2026] SASCA 28 The Court 3 3. TERM AND TERMINATION 3.1 The joint venture shall commence on the commencement date and terminate on the date that the land or the balance remaining is sold. 3.2 On the termination of the joint venture the net proceeds shall be divided between the parties in the ration [sic] as set out in clause 2.2 hereof. 11 The express terms included provision for an operating committee comprising members appointed by the joint venturers (cl 4.4), the parties’ obligations with respect to financing the expenses and servicing the borrowings (cl 4.5) and the transfer of interests between joint venturers (cl 5). It also contained a number of miscellaneous provisions of an unexceptional kind concerning prior representations, variations, execution, severance, waiver, the giving of notices, governing law and submission to the courts of this State (cll 6-9). 12 It was not clear when Mr Wang was formally nominated as the purchaser under the contract with the vendors. Mr Liu, whose evidence the judge accepted,5 said that he did not have any role in the nomination of Mr Wang as purchaser and that there had been no discussion about why the property was not purchased in the name of all three joint venture partners rather than solely in the name of Mr Wang.6 13 Settlement on the sale of the property occurred on 30 November 2018 and Mr Wang became the registered proprietor. The deposit of $30,000 was paid by the three joint venturers in the proportions indicated in cl 2.2 of the agreement. The purchase was otherwise partly financed by a loan from RAMS (a division of Westpac Bank) with the balance of about $316,000 paid in the same proportions as the deposit. 14 For a time, monthly payments were made by the other joint venturers to Mr Wang to contribute towards mortgage repayments. There were other payments made, which need not be detailed. 15 Planning consent for renovation and extension works was obtained in late 2019. Development approval was granted on 3 March 2020. Solid Times Pty Ltd was engaged by Mr Wang, as registered proprietor, to undertake the building works. The works commenced in late 2019 and were completed, later than expected, in May 2022. The respondent made payments to Solid Times Pty Ltd in relation to the building work. So did Mr Wang. 16 At some stage in 2022, an ‘Addendum to Joint Venture Agreement’ was signed and executed by the relevant parties, the effect of which was to substitute the respondent, One Direction Real Estate Pty Ltd, in place of Mr Liu. There is no dispute that this was efficacious to constitute the respondent as a joint venturer under the agreement in lieu of Mr Liu. 5 Reasons [6]. 6 Reasons [16]. -- 5 of 43 -- [2026] SASCA 28 The Court 4 17 The respondent and Solid Times Pty Ltd stopped making payments in around January 2022. This was because they had requested financial documents from Mr Wang but he had not provided them. Later that year, Mr Wang refinanced the borrowings with ANZ and the mortgage in favour of RAMS was discharged. 18 The trial judge rejected the appellant’s contention that the joint venture (and, by extension, the interest of the joint venturers) was limited to the extension and renovation of the property and did not include the property itself.7 No challenge is made to that conclusion on appeal. 19 The trial judge found that there was a premature breakdown in the parties’ relationship before the project was completed in the manner contemplated by the joint venture agreement. Whilst the joint venture agreement did not provide for what should occur in that circumstance, it was not intended that Mr Wang should enjoy the property to the exclusion of the respondent or Solid Times Pty Ltd.8 Because the joint venture had failed without attributable blame on the part of the respondent, the judge considered that, prima facie, it was appropriate to declare that the appellant held the property on constructive trust for the respondent and him.9 The judge’s reasons in relation to contravention of s 24G of the LBSC Act 20 Before turning to the terms of the constructive trust, and the precise form of relief to be granted, the judge addressed a contention by the appellant that the respondent should be denied any form of equitable relief because it had not come to the court with ‘clean hands’. The judge observed that:10 It is not disputed that Mr Liu acted as the agent for the vendor when that Property was acquired by Mr Wang. The contract was originally between the vendor and Solid Times [sic pro Mr Tian] and/or nominee. Mr Wang was nominated as the purchaser. It is also not disputed that by the time of settlement Mr Liu had an interest in the JVA and was entitled to 25% of the net sale proceeds under the JVA. At the time that the contract was entered into, Mr Liu had an interest in the Property by way of the informal joint venture agreement. At that time, it was not intended that Mr Tian or Solid Times would be the sole beneficial owner of the Property. In these circumstances, Mr Liu and later One Direction had an interest in the Property. Mr Wang contends that Mr Liu contravened s 24G of the [LBSC Act] and therefore does not come to the Court with clean hands. 21 The judge considered there were a number of reasons why the appellant was unable to make out a clean hands defence.11 First, it had not been properly 7 Reasons [75]-[82]. 8 Reasons [97]. 9 By the time of trial, Solid Times Pty Ltd, which had initially been a claimant in the proceeding, had reached a settlement with the appellant on terms which effectively saw the appellant acquire its interest in the joint venture and succeed to any rights it would have had pursuant to the constructive trust recognised or imposed by the Court: Reasons [61]-[62]. 10 Reasons [101]-[102]. 11 Reasons [103]. -- 6 of 43 -- [2026] SASCA 28 The Court 5 pleaded.12 Secondly, there was no clear evidence the respondent had come to the court with a lack of clean hands. Even if it were accepted that it or Mr Liu contravened the LBSC Act, there was no evidence concerning what knowledge the vendor of the property had about his interests in the property and the vendor was not called to give evidence nor was Mr Liu cross-examined on that topic.13 Thirdly, for the ‘clean hands’ doctrine to apply, the impropriety on the part of a claimant must display an immediate and necessary relationship to the equity sued for; that is, for the defence to operate, the claimant’s misconduct must be directly related to the wrongful actions of the respondent to the claim. The respondent’s earlier conduct here did not relate to the joint venture or its breakdown, or in any way relate to Mr Wang.14 22 The judge then noted that the appellant also appeared to contend that the LBSC Act rendered void the joint venture, or perhaps the interest of the appellant or Mr Liu in the joint venture.15 23 The judge rejected that contention for four reasons. First, illegality should be clearly and specifically pleaded, and had not been.16 Secondly, the LBSC Act rendered conduct unlawful but did not, expressly or impliedly, render unlawful any contract connected with that conduct. The judge referred to the observations of Mason J in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd17 (‘Yango’), to which we will return.18 Thirdly, it did not follow that because the contract rendered it an offence for one party to enter into a contract, the contract was necessarily unenforceable.19 Fourthly, even if a contractual provision was unenforceable, that would not mean that the Court would grant relief to the appellant. The respondent was not seeking relief in respect of any contract by which the property was purchased from the vendors.20 The relief granted 24 Having examined the various contributions made at the outset and subsequently to the joint venture, and accounting for the fact that prior to trial the appellant had acquired Solid Times Pty Ltd’s interest, the judge declared that the appellant held the property by way of a constructive trust for him and the respondent.21 25 The terms of the constructive trust required that the property be sold and that the proceeds be applied to the discharge of any mortgage, to refund contributions 12 Reasons [104]. 13 Reasons [105]. 14 Reasons [106]. 15 Reasons [107]. 16 Reasons [108]. 17 (1978) 139 CLR 410. 18 Reasons [109]. 19 Reasons [110]. 20 Reasons [111]. 21 Reasons [144]. -- 7 of 43 -- [2026] SASCA 28 The Court 6 made by the appellant, Solid Times Pty Ltd and the respondent, with any surplus then distributed as to 75% to the appellant and as to 25% to the respondent.22 26 There was evidence at trial to suggest that the property may have a value in the order of $4,000,000.23 If so, in view of the contributions quantified in the final orders ultimately made,24 there is likely to be a substantial surplus to be distributed to the respondent over and above the return of his direct contributions. Grounds of appeal 27 The appellant contends that the judge erred by declaring a constructive trust. He says any relief should have been limited to requiring the ‘restitution of amounts paid under the joint venture’. 28 The grounds of appeal complain that: • the relief sought and granted by the Court involved a contravention of the LBSC Act because it resulted in the respondent obtaining an interest in the property. Relief of that kind should not be granted because it is against the public interest to allow the obtaining of an interest the respondent was prohibited from obtaining or attempting to obtain;25 • alternatively, the joint venture was void on grounds of illegality and no relief should have been granted that would give effect to it;26 • alternatively, equitable relief should have been declined on discretionary grounds because the respondent was not coming to court with clean hands, ‘in part because of its breach of fiduciary [duty] to the vendor in having a conflict of interest’ and in part because of its contravention of s 24G.27 29 The appellant also contends that the judge erred in relying upon the fact that illegality or lack of clean hands was not pleaded, particularly where the appellant was self-represented at trial.28 30 The appellant also contends that the judge erred: • in finding there was no evidence of a lack of clean hands on the basis there was no evidence of the vendors’ knowledge and Mr Liu not being cross- examined on the topic. The appellant contends that he did cross-examine 22 Reasons [144]. 23 Reasons [63]-[65]. 24 FDN 119. 25 Appeal grounds 2(a)-(d). 26 Appeal ground 2(e). 27 Appeal ground 2(f). 28 Appeal ground 3. -- 8 of 43 -- [2026] SASCA 28 The Court 7 Mr Liu about not obtaining approval from the Commissioner and about what notification had been given to the vendors;29 • in finding that the impropriety lacked the requisite relationship with the equity claimed. The equity claimed was an interest in the property, and the attempt to obtain that interest was directly or impliedly contrary to s 24G;30 and • in wrongly focusing upon the contract with the vendors instead of the joint venture agreement.31 Statutory illegality and private law rights and remedies 31 This appeal concerns the asserted consequences for the recognition of an equitable remedy, the constructive trust, of asserted statutory illegality. However, as the appeal grounds recognise, it also raises the question whether statutory illegality rendered void or unenforceable a contract (the joint venture agreement) which provided an important foundation for the decision that a constructive trust should be declared. 32 The ‘symbiotic relationship’32 between statute, common law and equity has been considered in a number of modern authorities and in academic writing.33 In recent decades, the potential effect of ‘statutory illegality’ upon private law duties, rights and remedies has been the subject of consideration by the High Court in the context of trusts,34 tort,35 restitutionary claims36 and defences,37 and contract.38 33 At a high level, it may be said that these authorities recognise that there are two distinct aspects to the relevant inquiry in a case where a question about statutory illegality arises.39 34 The first is to ascertain the direct effect of the statute in question, whether that be by express provision or implication.40 This involves the application of 29 Appeal ground 4. 30 Appeal ground 5. 31 Appeal ground 6. 32 Brodie v Singleton Shire Council (2001) 206 CLR 512 at [31] (Gleeson CJ). 33 Leeming, Common Law, Equity and Statute: A Complex Entangled System (2023), pp 122-123, 190. See also, Stowe, ‘The ‘Unruly Horse’ has Bolted: Tinsley v Milligan’ (1994) 57 Modern Law Review 441, Kremer, ‘An ‘Unruly Horse’ in a ‘Shadowy World?’: The Law of Illegality after Nelson v Nelson (1997) 19 Sydney Law Review 240. 34 Nelson v Nelson (1995) 184 CLR 538 (‘Nelson’). 35 Miller v Miller (2011) 242 CLR 446 (‘Miller’). 36 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 (‘Equuscorp’). 37 Redland City Council v Kozik (2024) 281 CLR 202 (‘Kozik’). 38 SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516 (‘SST’), Australian Competition and Consumer Commission v Baxter Health Care Pty Ltd (2007) 232 CLR 1 (‘Baxter’), Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 (‘Ketchell’), Gnych v Polish Club Ltd (2015) 255 CLR 414 (‘Gnych’). 39 Gnych at [62] (Gageler J). 40 Gnych at [70] (Gageler J). -- 9 of 43 -- [2026] SASCA 28 The Court 8 orthodox principles of statutory construction41 to determine whether the statute expressly or impliedly requires a claim or a defence to fail by rendering a relevant arrangement or remedy void, voidable, unenforceable (generally, or at the suit of a particular party) or otherwise unavailable, either generally or upon the occurrence or non-occurrence of particular facts and circumstances. In those cases, the statute itself has the effect upon the rights or remedies determined.42 35 The second is to consider whether considerations of public policy, informed by or derived from the statutory provision in question require that, in order to maintain coherence of the law as a whole, common law or equitable remedies must be withheld, adapted or moulded to meet or accommodate the statutory policy.43 The same considerations may require the conclusion that a norm or obligation that otherwise would be recognised is not to be enforced by the courts.44 There are indications that this approach is common to common law and equity,45 albeit that, in the nature of equitable remedies (which are said to be discretionary and may be moulded in ways that common law remedies cannot), there is greater scope for a more calibrated or fact-sensitive response to the statutory policy in question.46 36 Finally, and by way of general observation, it may be said that rules or principles expressed in an earlier time in more absolute terms47 require a more flexible or nuanced application in a modern age of statute and pervasive regulation.48 The observations of Mason J in Yango49 – to the effect that the public policy informing a statutory provision will often or usually be sufficiently addressed by the penalties or other consequences expressly provided for in the statute itself – have been influential beyond their immediate contractual context.50 37 In particular, at the first stage of analysis, it is now understood that, within ‘a framework of legislation that makes elaborate provision not only for the creation of norms of conduct but also for the consequences that are to follow’ from their contravention, it is ‘not readily to be supposed that the consequences of 41 Yango at 413 (Gibbs ACJ), at 423, 425 (Mason J), Baxter at [45]-[46] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), Ketchell at [11] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ), Miller at [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Gnych at [36] (French CJ, Kiefel, Keane and Nettle JJ), at [64] (Gageler J). 42 Gnych at [70] (Gageler J). 43 Yango at 429-430 (Mason J), Nelson at 552 (Deane and Gummow JJ), Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 at 227 (McHugh and Gummow JJ), Miller at [25]-[26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Equuscorp at [23]-[25] (French CJ, Crennan and Kiefel JJ), at [96] (Gummow and Bell JJ), Gnych at [35] (French CJ, Kiefel, Keane and Nettle JJ), at [70]-[75] (Gageler J). 44 Miller at [27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 45 Nelson at 608 (McHugh J). 46 Nelson at 559 (Deane and Gummow JJ), Gnych at [75] (Gageler J). 47 See, eg, Holman v Johnson (1775) 1 Cowp 341 at 343; 98 ER 1120 at 1121 (Lord Mansfield). 48 Nelson at 611 (McHugh J), Miller at [27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 49 (1978) 139 CLR 410 at 428-429. See also at 430-431 (Jacobs J). 50 See, eg, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 (Brennan CJ, Dawson and Toohey JJ), Nelson at 610, 613-614 (McHugh J). -- 10 of 43 -- [2026] SASCA 28 The Court 9 contravention are to be determined by resort to principles hinging upon inferences about legislative intention’.51 The decision in Nelson 38 With those general observations in mind, it is useful to consider some aspects of the High Court’s decision in Nelson v Nelson52 (‘Nelson’), concerning, as it did, the relationship between statutory illegality and trusts. 39 Nelson concerned a resulting, rather than constructive, trust. A mother paid the purchase price for a house but arranged for title to be transferred into the names of her adult children. Her purpose was to ensure that she might subsequently purchase another house with the benefit of a subsidy under a Commonwealth statute for which she would not have been eligible if she had a financial interest in a house other than the one for which the loan was sought. She later made a false declaration and obtained a financial benefit under the legislation. When the first property was sold and one of the children sought a declaration to the effect that the mother had no beneficial interest in the funds, a question arose as to whether the presumption of advancement applied and, if so, was rebutted. If it was rebutted, the question was whether the mother’s conduct was such that she should be denied equitable relief. 40 The Court unanimously held that the presumption of advancement applied but was rebutted by the mother’s intention to hold the beneficial interest for herself. The Court rejected any general proposition that equity will ‘let the loss lie where it falls’ in a case of illegality consisting of a contravention of the policy of the statute. Deane and Gummow JJ and, in separate reasons, McHugh J, considered that a declaration of a beneficial interest in favour of the mother should be subject to a requirement that she be denied the benefit she had obtained by her unlawful conduct. Dawson and Toohey JJ, in separate reasons, would not have imposed such a requirement. Whilst the Court was unanimous that relief which recognised the existence of the mother’s equitable rights should not be denied, it is convenient to focus upon the reasoning of the majority. 41 The majority considered that the public policy considerations to which equity might have regard in denying or moulding relief were conceptually and jurisprudentially distinct from the requirement that a plaintiff who comes to equity seeking relief must come with ‘clean hands’.53 The ‘clean hands’ doctrine arises from the relationship between the parties to the proceedings, whereas the illegality doctrine derives from public policy considerations which are not peculiar to equity.54 51 SST at [30] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), referred to in Gnych at [69] (Gageler J). 52 (1995) 184 CLR 538. 53 Nelson at 550 (Deane and Gummow JJ), 608-609 (McHugh J). 54 Nelson at 608-609 (McHugh J). -- 11 of 43 -- [2026] SASCA 28 The Court 10 42 Although Deane and Gummow JJ rejected any bright line between the institutions of contract and trust when considering the impact of statutory illegality, the range and flexibility of equity remedies, as distinct from the ‘all or nothing’ availability of common law remedies, provided a greater capacity to achieve the appropriate result in the particular case.55 Their Honours emphasised that when considering the asserted impact of statutory illegality upon the remedial response of a court of equity, ‘equity eschews any broad generalisations in favour of concentrating upon the specific situation which has arisen, in the light of the relevant statutory provisions’.56 43 The question as Deane and Gummow JJ saw it was whether the policy against the unjust enrichment of the grantee was outweighed by the policy against giving relief to a party who had engaged in an illegal transaction.57 The statutory policy was to provide financial assistance only in defined circumstances and, in the event that a benefit was obtained as a result of a false statement, the scheme provided for steps to be taken to recover the benefits, or for the imposition of a penalty.58 44 The imposition of an additional sanction, by disabling the mother from enjoying the proceeds of what otherwise was her beneficial ownership of the property she had paid for, was not an appropriate adjunct to the scheme for which the legislation provided.59 However, the price of obtaining the relief she sought for the recognition and enforcement of a resulting trust in respect of the proceeds was to disgorge to the Commonwealth the benefits illegally obtained.60 45 In his reasons for judgment, McHugh J made a number of observations which assist in the resolution of the present appeal. First, he denied any absolute proposition that a person who has participated in the making or execution of an unlawful agreement or trust never has a curial remedy.61 He went on:62 A court that finds that an agreement is unlawful or has an unlawful purpose has merely set the stage for a further inquiry: are the circumstances surrounding the agreement such that the court should deny a relevant remedy to the party seeking the assistance of the court? 46 His Honour said that whilst there had in the early authorities been suggestions to the effect that no court would lend its aid to a person who founds their action upon an immoral or an illegal act, any such proposition was subject to exceptions. These included: where the claimant was ignorant or mistaken as to factual circumstances that rendered an agreement or arrangement illegal; where an illegal 55 Nelson at 556-559. 56 Nelson at 561. 57 Nelson at 564. 58 Nelson at 567-570. 59 Nelson at 570. 60 Nelson at 571-573. 61 Nelson at 604. 62 Nelson at 604. -- 12 of 43 -- [2026] SASCA 28 The Court 11 agreement was induced by the defendant’s fraud, oppression or undue influence; and where the illegal purpose had not been carried into effect.63 47 McHugh J observed that in many of the early authorities, the policy of the Acts required the courts firmly to suppress the use of trusts and agreements to avoid the operation of the legislation. Those decisions said nothing about legislation whose policy did not require such drastic remedies, and:64 [n]or do they require a court of equity to disregard a circumstance that affects the real justice of the case and calls for the assistance of equitable remedies. 48 McHugh J agreed with the rejection by the majority in Tinsley v Milligan65 of any ‘wide principle’ that a court exercising equitable jurisdiction would not assist a claimant to recover property that had been transferred to another person for an unlawful purpose.66 However, he also considered the majority’s favoured approach, which turned on the question whether the party seeking relief needed to plead or disclose their unlawful purpose in order to make out their case, produced results that were essentially ‘random’ and would produce ‘windfall gains as well as losses, even when the parties are in pari delicto’.67 Such an approach also ignored a consideration of the substantial merits of the case or whether the sanctions imposed by the legislation sufficiently protected the purpose of the legislation.68 His Honour noted that Parliament almost invariably provides mechanisms for dealing with breaches of its laws and those mechanisms:69 ... sometimes include a provision that makes unlawful and unenforceable an agreement that defeats or evades the operation of the relevant law. If a particular enactment does not contain such a provision, the prima facie conclusion to be drawn is that Parliament regarded the sanctions and remedies contained in the enactment as sufficient to deter illegal conduct and saw no need to take the drastic step of making unenforceable an agreement or trust that defeats the purpose of the enactment. 49 His Honour was concerned to emphasise that the rejection of any inflexible approach did not pave the way for the exercise of an ‘unstructured discretion’.70 In an attempt to identify guiding principles, McHugh J made the following observations, which he considered were consistent with the approach of Mason J in Yango:71 If courts withhold relief because of an illegal transaction, they necessarily impose a sanction on one of the parties to that transaction, a sanction that will deprive one party of his or her property rights and effectively vest them in another person who will almost always be a willing participant in the illegality. Leaving aside cases where the statute makes 63 Nelson at 604-605. 64 Nelson at 608. 65 [1994] 1 AC 340. 66 Nelson at 608. 67 Nelson at 609. 68 Nelson at 609. 69 Nelson at 610, referring to Yango at 429 (Mason J). 70 Nelson at 612. 71 Nelson at 612-613 (citations omitted). -- 13 of 43 -- [2026] SASCA 28 The Court 12 rights arising out of the transaction unenforceable in all circumstances, such a sanction can only be justified if two conditions are met. First, the sanction imposed should be proportionate to the seriousness of the illegality involved. It is not in accord with contemporaneous notions of justice that the penalty for breaching a law or frustrating its policy should be disproportionate to the seriousness of the breach. The seriousness of the illegality must be judged by reference to the statute whose terms or policy is contravened. It cannot be assessed in a vacuum. The statute must always be the reference point for determining the seriousness of the illegality; otherwise the courts would embark on an assessment of moral turpitude independently of and potentially in conflict with the assessment made by the legislature. Second, the imposition of the civil sanction must further the purpose of the statute and must not impose a further sanction for the unlawful conduct if Parliament has indicated that the sanctions imposed by the statute are sufficient to deal with conduct that breaches or evades the operation of the statute and its policies. In most cases, the statute will provide some guidance, express or inferred, as to the policy of the legislature in respect of a transaction that contravenes the statute or its purpose. It is this policy that must guide the courts in determining, consistent with their duty not to condone or encourage breaches of the statute, what the consequences of the illegality will be. Thus, the statute may disclose an intention, explicitly or implicitly, that a transaction contrary to its terms or its policy should be unenforceable. On the other hand, the statute may inferentially disclose an intention that the only sanctions for breach of the statute or its policy are to be those specifically provided for in the legislation. Accordingly, in my opinion, even if a case does not come within one of the four exceptions to the Holman dictum to which I have referred, courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless: (a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or (b)(i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and (iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies. 50 Subsequent decisions of the High Court outside of the field of trusts have reinforced the concepts emphasised in Nelson and by Mason J in Yango, albeit by reference to the governing principles of the private law rights and remedies under consideration. Subsequent decisions of the High Court 51 In Miller v Miller72 (‘Miller’), the plurality recognised that whilst the relevant offence proceedings did not expressly or impliedly create consequences for claims in tort with which offending conduct may intersect, and whilst there was no rule that a duty of care could not be owed as between participants in criminal activity, policy considerations are presented when a plaintiff sues another for damages 72 (2011) 242 CLR 446. -- 14 of 43 -- [2026] SASCA 28 The Court 13 sustained by the plaintiff in the course of, or as a result of, some illegal conduct on the part of the plaintiff.73 In particular:74 … the central policy consideration at stake is the coherence of the law. The importance of that consideration has been remarked on in decisions of this Court. … It is a consideration that is important at two levels. First, the principles applied in relation to the tort of negligence must be congruent with those applied in other areas of the civil law (most notably contract and trusts). Secondly, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted. 52 In Equuscorp Pty Ltd v Haxton75 (‘Equuscorp’), a financier (‘Rural’) made loans in connection with a scheme which were unenforceable by reason of illegality occasioned with the promoters’ failure to register prospectuses and comply with regulatory obligations. The question for the Court was whether the appellant was precluded from recovering the funds advanced on a restitutionary claim for money had and received.76 53 Illegality is an issue that frequently arises in the field of restitutionary claims and defences for the very reason that the inefficacy of the contractual arrangements brought about by illegality may simultaneously supply a vitiating factor which is a prima facie basis for restitution77 and remove what might otherwise be an impediment to the success of a restitutionary claim, namely, an enforceable contract which comprehensively governs the parties’ respective rights.78 54 Where a statutory provision renders a contract unenforceable there may be no impediment to a successful claim in quantum meruit for work done under it, such as in Pavey & Matthews Pty Ltd v Paul.79 In that case, the statutory policy was not to penalise the builder beyond making the agreement itself unenforceable 73 Miller at [15] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 74 Miller at [15]-[16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted). 75 (2012) 246 CLR 498. 76 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 (‘Mann’) at [169] (Nettle, Gordon and Edelman JJ). 77 Equuscorp at [32]-[33] (French CJ, Crennan and Kiefel JJ), at [101] (Gummow and Bell JJ), cf. Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 and the ‘without attributable blame’ requirement in a case based on failure of consideration (as discussed by Gummow and Bell JJ in Equuscorp at [112]). 78 Mann at [182] (Nettle, Gordon and Edelman JJ). 79 (1987) 162 CLR 221. -- 15 of 43 -- [2026] SASCA 28 The Court 14 against the other party; it did not extend to enabling the owner to request and accept work but then to decline to pay for it.80 55 In Equuscorp, the majority made clear that deciding whether a restitutionary claim could succeed required attention to considerations of coherence of the kind central to the reasoning in Miller and Nelson. French CJ, Crennan and Kiefel JJ said:81 In this case, the answer to the question whether it would have been open to Rural to pursue claims for money had and received under the loan agreements depends upon a number of factors but critically upon whether vindication of those claims would have frustrated or defeated, or have been inconsistent with, the statutory purpose of the provisions of the Code relating to the issue of prescribed interests. The requirement of coherence in this area of the law is not satisfied by the mere exclusion of an implied legislative intention to render unenforceable a contract made in furtherance of a contravening purpose. Unenforceability flows from the application of the common law informed, inter alia, by the scope and purpose of the relevant statute. 56 Elaborating upon these propositions later in their judgment, their Honours said:82 The outcome of a restitutionary claim for benefits received under a contract which is unenforceable for illegality, will depend upon whether it would be unjust for the recipient of a benefit under the contract to retain that benefit. There is no one-size-fits-all answer to the question of recoverability. As with the question of recoverability under a contract affected by illegality the outcome of the claim will depend upon the scope and purpose of the relevant statute. The central policy consideration at stake, as this Court said in Miller, is the coherence of the law. In that context it will be relevant that the statutory purpose is protective of a class of persons from whom the claimant seeks recovery. Also relevant will be the position of the claimant and whether it is an innocent party or involved in the illegality. 57 Unsurprisingly, given the centrality of coherence, their Honours gave consideration not only to the policy of the statutory scheme but to the consideration whether to allow the restitutionary claim would make a nonsense of the refusal to enforce the contract (something Professor Birks had styled a question about ‘self- stultification’).83 In deciding that the assignee of the financier could not succeed, their Honours had regard, amongst other things, to whether the respondents to the claims were in pari delicto. They said:84 Had a right to claim restitution for money had and received been available to Rural in this case, it would have been able to recover by such claims what the policy of the law denied it in respect of the loan agreements. Rural was not an arms length financier. It was part of the closely related group of companies that were involved in the promotion of the schemes. The loan agreements were an integral part of the schemes and in so far as they involved the 80 (1987) 162 CLR 221 at 228-229 (Mason and Wilson JJ), at 262 (Deane J). 81 Equuscorp at [25]. 82 Equuscorp at [34]. 83 Equuscorp at [37], referring to Birks, ‘Recovering Value Transferred Under an Illegal Contract’, (2000) Theoretical Inquiries in Law 155. 84 Equuscorp at [45]. -- 16 of 43 -- [2026] SASCA 28 The Court 15 issue of invitations and offers to investors to take up prescribed interests without the benefit of the protections required by the Code, furthered that illegal purpose. As in the Hurst case, while not essential to the investments, the loans made the investments more attractive. Recovery from the investors would have been recovery from persons whose protection was the object of the statutory scheme. The respondents were not in pari delicto with Rural. The failure of consideration invoked by Equuscorp was the product of Rural's own conduct in offering the loan agreements in furtherance of an illegal purpose. This is a clear case in which the coherence of the law, and the avoidance of stultification of the statutory purpose by the common law, lead to the conclusion that Rural did not have a right to claim recovery of money advanced under the loan agreements as money had and received. There was therefore no right to claim such relief available for assignment to Equuscorp. In any event, for the reasons that follow, any such rights, if they had existed, would not have been assigned by the Deed. 58 Gummow and Bell JJ also emphasised that the prospectus provisions were not enacted for the protection of the Rural and related interests, but for the protection of the respondents as investors in the prescribed interests. For essentially the same reason that the loan contracts were unenforceable, so was a claim in restitution unavailable.85 59 Turning back to the law of contract, the recent decisions have emphasised the importance of considering the extent to which the statute in question provides for the consequences that do, or do not attach, to any contract the making or performance of which may be said to contravene a prohibition. 60 Thus in SST Consulting Services Pty Ltd v Rieson86 (‘SST’), it was important that s 4L of the Trade Practices Act 1974 (Cth) provided that, if the making of a contract contravened the Act by reason of the inclusion of a provision then, subject to any orders made under ss 87 or 87A, nothing in the Act affected the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision was severable. This language clarified that a severable provision (which rendered the making of the contract a contravention) was unenforceable, but that the balance was not, irrespective of what might otherwise have been the position by reason of a common law presumption in relation to contracts the making of which is prohibited by statute. 61 In Master Education Services Pty Ltd v Ketchell87 (‘Ketchell’), the statutory prohibition in issue was the contravention of an industry code.88 The relevant code provided that a franchisor must not enter into a franchise agreement or receive non- refundable money under the agreement unless the franchisor had received a written statement that the prospective franchisee had received, read and had a reasonable opportunity to understand the disclosure document and the code. 62 The Court held that a contravention of that provision did not result in a franchise agreement being illegal and unenforceable at common law. The relevant 85 Equuscorp at [109]. 86 (2006) 225 CLR 516. 87 (2008) 236 CLR 101. 88 Trade Practices Act 1974 (Cth), s 51AD. -- 17 of 43 -- [2026] SASCA 28 The Court 16 section did not in terms prohibit the making of the franchise agreement, and the fact that the legislation made comprehensive and detailed provision for the remedial consequences that might attend a contravention or non-compliance with the code left no room for a conclusion that the franchise agreement was relevantly vitiated. In respect of the first part of that reasoning, the Court emphasised that the fact that the provision in the code was expressed in imperative terms did not convert s 51AD into a prohibition upon the making of a contract in relevant circumstances.89 63 In Gnych v Polish Club Ltd90 (‘Gnych’), the Court considered whether a lessee who entered into possession of licensed premises that had been leased to it without approval from a relevant authority under the Liquor Act 2007 (NSW) was entitled to a declaration that it enjoyed a leasehold interest under the Retail Leases Act 1994 (NSW). 64 Section 92(1) of the former Act provided that a licensee must not enter into a lease in the relevant circumstances except with the approval of the relevant authority, and prescribed a penalty for breach of that prohibition. The licensee argued that that section made the lease void or unenforceable. That contention was rejected. 65 Emphasising the importance of statutory construction to an ascertainment of the scope of the prohibition and its consequences,91 the plurality pointed out that s 92(1)(d) was concerned with the act of the licensee and proscribed the grant by the licensee rather than that which was granted. It did not proscribe the performance by the parties of their obligations under the relationship created by the grant.92 Importantly, the language of the prohibition expressly postulated the existence of a lease notwithstanding the contravention.93 The prospect that the lack of approval would automatically sterilise a lease, potentially to the great prejudice of a lessee, was considered an unlikely intention to attribute to the legislature.94 66 The plurality referred with approval to Mason J’s statement in Yango that there was much to be said for the view that, once a statutory penalty has been provided for an offence, the role of the common law in determining the legal consequences of the offence is thereby diminished.95 They observed that in this case, in addition to prescribing a penalty, the statute provided for a range of consequences. These included the possibility that the relevant authority might take various steps, or later give approval.96 The regime was inconsistent with any notion that the lease was by force of the statute alone rendered void. 89 Ketchell at [26] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ). 90 (2015) 255 CLR 414. 91 Gnych at [40] (French CJ, Kiefel, Keane and Nettle JJ). 92 Gnych at [43] (French CJ, Kiefel, Keane and Nettle JJ). 93 Gnych at [51] (French CJ, Kiefel, Keane and Nettle JJ). 94 Gnych at [44]-[45] (French CJ, Kiefel, Keane and Nettle JJ). 95 Gnych at [47] (French CJ, Kiefel, Keane and Nettle JJ). 96 Gnych at [52]-[57] (French CJ, Kiefel, Keane and Nettle JJ). -- 18 of 43 -- [2026] SASCA 28 The Court 17 67 Gageler J, writing separately, provided a comprehensive survey of the relevant principles addressing each of the two stages of the relevant inquiry in terms which, because of their relevance to this appeal, merit recitation at length. He said:97 Making an agreement in breach of an express or implied statutory prohibition can have either of two differently sourced consequences for the legal enforcement of the agreement which has come to exist in fact. One is a statutory consequence, the nature and extent of which turns entirely on the construction of the statute imposing the prohibition or of some other statute. The other is a common law (or equitable) consequence, limited to withholding (or imposing conditions on) the grant of a remedy to enforce the agreement at the suit of one or more parties, the application of which turns on considerations of public policy. The distinction between those differently sourced consequences, although fundamental, has not always been recognised in the case law. The nature and extent of any statutory consequence of breach of a statutory prohibition on making, or on some step in making, an agreement is a question of statutory construction which is distinct from the question of statutory construction which determines the scope of that prohibition (if the prohibition is express) or the existence and scope of that prohibition (if the prohibition is implied). A statutory consequence of making an agreement in breach of an express statutory prohibition is sometimes set out in exhaustive terms in the statutory text. Almost inevitably in the case of an implied prohibition, and sometimes in the case of an express prohibition, the statutory consequence is left in whole or in part to statutory implication. Judicial determination of a statutory consequence left to statutory implication has become more sophisticated as statutory regulation has become more sophisticated and more pervasive. What was once a strong presumption of statutory interpretation that a purported agreement made in breach of a statutory prohibition “is not only illegal, but void because illegal, unless the statute indicates a contrary intention” has, since Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd, given way to an acceptance that “[t]he question whether a statute, on its proper construction, intends to vitiate a contract made in breach of its provisions, is one which must be determined in accordance with the ordinary principles that govern the construction of statutes”. An implied statutory consequence determined in accordance with the ordinary principles of statutory construction – if a statutory consequence is implied at all – need not always go so far as to render an agreement made in breach of an express or implied statutory prohibition “void” or “vitiated” or “nullified” or “invalid”, in the sense of being “devoid of legal consequences”. There is no reason why an implied statutory consequence cannot stop short of rendering an agreement made in breach of a particular statutory prohibition wholly unenforceable by all parties in all circumstances. An implied statutory consequence might be limited, for example, to rendering an agreement unenforceable by a contravening party in the occurrence or non-occurrence of particular events. The contemporary position is therefore that: “There is no universal rule that can be applied to the construction of statutes in order to determine whether the effect of a failure to comply with a provision of a particular statute is to render a category of contracts (or an individual contract) to which that 97 Gnych at [62]-[76] (citations omitted). -- 19 of 43 -- [2026] SASCA 28 The Court 18 provision applied invalid or unenforceable. Each statute has to be considered as a whole and as a separate entity.” … Reference to the range of considerations which have been identified as significant in other statutory contexts is nevertheless important to ensuring consistency in the approach taken in the application of ordinary principles of statutory construction and, in turn, to maximising the predictability of the judgment that must be made in a novel statutory context. Amongst the most prominent and recurring of the considerations which have been recognised as bearing on the determination of the implied statutory consequences of making an agreement in breach of a statutory prohibition are: the statutory object of the particular prohibition; any positive effect of implying or not implying some further particular statutory consequence on fulfilment of the identified statutory object; any negative effect of implying or not implying that further statutory consequence on the legitimate interests of one or more parties to the agreement or of third parties; and the extent to which the statute imposing the prohibition expressly addresses the consequences of its breach. The last of those considerations is often decisive, and is of particular importance in relation to a prohibition imposed as part of a complex statutory scheme. It is now understood that, within “a framework of legislation that makes elaborate provision not only for the creation of norms of conduct but also for the consequences that are to follow from the contravention of those norms”, “[i]t is not readily to be supposed that the consequences of contravention are to be determined by resort to principles hinging upon inferences about legislative intention or the imputed intentions of contracting parties”. Where a statute expressly or impliedly denies legal operation to an agreement, it is the statute itself which operates to render that agreement incapable of enforcement at common law. An agreement which is not denied legal operation by statutory force may still be unenforceable at the insistence of one or both parties by operation of the common law by reference to considerations of public policy. The cases in which that might occur, however, must now be closely confined. It is important to identify the considerations of public policy that might be in play in such cases. Although other considerations might arise in some circumstances, two overlapping considerations have generally been recognised in the decided cases to predominate. One of those considerations has long been identified in terms that a person ought not to be permitted by law to base a cause of action on an immoral or illegal act. The other, more focused, consideration has been identified in terms that a person ought not to be assisted by law to benefit from an immoral or illegal act. That other consideration is reflected in what has been described as the more specific rule that the court will not enforce the contract at the suit of a party who has entered into a contract with the object of committing an illegal act”. “Notions of public policy”, as Dixon J put it, “are not fixed but vary according to the state and development of society and conditions of life in a community”. No consideration of public policy is immutable. Each must accommodate not only societal conditions but also statutory context. In any consideration of public policy at common law (or in equity), “the central policy consideration at stake is the coherence of the law”. The consideration of public policy that a person ought not to be permitted by law to found a cause of action on an immoral or illegal act is the product of an earlier age. The broader consideration of public policy is now rarely recognised by the common law to have application in relation to illegality which arises under a modern regulatory statute. That is -- 20 of 43 -- [2026] SASCA 28 The Court 19 the import of the observation by Mason J in Yango that “[t]here is much to be said for the view that once a statutory penalty has been provided for an offence the rule of the common law in determining the legal consequences of commission of the offence is thereby diminished”. It is not the function of the common law to seek to improve on a regulatory scheme by supplementing the statutory sanctions for its breach. If a statute itself does not operate to deny legal operation to an agreement made in breach of one of its prohibitions, or to render that agreement unenforceable by reason of that breach, the coherence of the law is best served by a court respecting and enforcing that legislative choice. But the other consideration of public policy – that a person ought not to be assisted by law to benefit from an immoral or illegal act – can have application where the first does not. That is the import of the further observation by Mason J in Yango that “there could be a case where the facts disclose that the plaintiff stands to gain by enforcement of rights gained through an illegal activity far more than the prescribed penalty”. A court examining the application of that consideration of public policy to the enforcement of an agreement made in breach of a statutory prohibition will examine the intention of a person in entering into the agreement and in seeking to enforce the agreement. The court will recognise that, “whilst persons who deliberately set out to break the law cannot expect to be aided by a court, it is a different matter when the law is unwittingly broken”. The court will weigh the consequences of withholding a remedy to enforce the agreement in light of the objects or policies which the statute seeks to advance and the means which the statute has adopted to achieve that end. Ordinarily, it would be open to the court to conclude that withholding a common law remedy from a person whose intention was, and remained, to flout the statute was justified by reference to the narrower consideration of public policy only if the consequence of withholding the remedy could be determined by the court to be both proportionate to the seriousness of the illegality and not incongruous with the statutory scheme. The moulding of an equitable remedy, if sought, might involve other considerations and permit of greater flexibility. That consideration of public policy might have arisen here had Mr and Mrs Gnych been knowingly concerned in the breach by the Club of s 92(1)(d) of the Liquor Act. In the absence of Mr and Mrs Gnych having been knowingly concerned in the Club's breach or of any other circumstance suggesting wrongdoing on their part, however, no question arises of the common law (or of equity) operating, by reference to considerations of public policy, to withhold (or to impose conditions on) the declaratory relief which Mr and Mrs Gnych sought and which they were successful in obtaining at first instance. 68 A number of important points emerge from this analysis. First, whilst an examination of the statute is important to each of the relevant inquiries, that does not mean that it is not necessary to pay close attention to the distinct foundations of those inquiries. 69 Next, as part of the first inquiry, among the potential direct effects (by express provision or necessary implication) of the statute are that a contract is not void but is unenforceable at the suit of a particular party, or subject to a particular contingency. (We would observe, however, that the more elaborate or contingent the proposed consequence, the less likely it is to be found to arise by necessary implication.) 70 Turning to the second inquiry involving the withholding or adaption of general law relief on public policy grounds, whilst more fact-sensitive, it involves -- 21 of 43 -- [2026] SASCA 28 The Court 20 a consideration of the public policy reflected in the statutory provision in its context. However, the court’s task is not to seek to supplement or improve upon a regulatory scheme. To do so may impede rather than promote coherence. Any broad proposition that the law must not give a remedy to a person who has engaged in immoral or illegal conduct is too indiscriminate for an age in which statutory prohibitions abound and may vary vastly in their seriousness. In considering whether a party should be assisted by the law to achieve a remedy as a result of their immoral or illegal act, a highly fact-sensitive inquiry may be required. It may need to be asked whether the contravention was deliberate, whether the party resisting the belief was party to or concerned in the contravention, and whether withholding relief is disproportionate to the statutory mischief. 71 Drawing upon the plurality reasons in Equuscorp, it may also be relevant to consider whether the relief sought in a given case would cut across or undermine any statutory purpose, for example, by permitting recovery from a person who belongs within a claim of person intended to be protected. Implications for pleading 72 These propositions in turn serve to highlight the importance of pleading the material facts and circumstances, as well as any statutory provisions relied upon, to establish a defence to a claim.98 73 In order to give fair notice of a party’s case and to avoid a party being taken by surprise,99 it is desirable that a pleading should also articulate whether: (1) it is said that the statute directly produces some legal result that is an obstacle to the grant of the remedy; or (2) it is said that by virtue of particular facts and circumstances relief should be withheld because coherence with the public policy which animates the statutory provision demands it. 74 In the first case, whilst the legal consequences of statutory illegality will turn on the statute, it is necessary to place squarely in issue the fact of contravention. The legal consequences may only apply subject to particular contingencies, and the parties should join issue on these questions. 75 In the second case, if a respondent says that the claimant’s state of mind is relevant, or that they were unaware of or not involved in any contravention, they should plead these as material facts. By notifying an intention to make such an argument, the claimant is given an opportunity to rely upon (and, if appropriate, 98 Uniform Civil Rules 2020 (SA) (‘UCRs’), r 67.2(2)(a)-(b). 99 UCRs, r 67.2(2)(c). -- 22 of 43 -- [2026] SASCA 28 The Court 21 adduce evidence going to) issues such as disproportion,100 or to raise any other factual issues going to ‘the real justice of the case’.101 76 Both parties made submissions on appeal about how the rules or principles of pleadings apply to contentions respecting statutory illegality. The respondent contends that illegality must be pleaded ‘clearly, specifically and with detailed particulars’,102 particularly if there is an allegation of fraud.103 The appellant, however, relied upon a proposition made in Halsbury’s Laws of Australia,104 that because of the importance of the subject matter, courts may have regard to un- pleaded illegality, including where the contract giving rise to the claim is ex facie illegal or where the party cannot prove their case without relying on an illegal transaction. The second exception just mentioned may reflect a pre-Nelson view of the law. As to the first, the respondent was prepared to meet that contention by observing that it is confined to cases where the statute itself makes illegal the agreement or arrangement sought to be enforced, and by contending that this was not such a case. 77 In our view, the requirement that matters of law or fact be disclosed by the pleadings depends upon the circumstances of the case and the issues, forensic or otherwise, that an identification of the pleading may throw up. Where there is no issue that a statute has been contravened and its consequences for the case turn entirely on statutory construction, the failure to plead the matter may not be critical, although the court will have to ensure procedural fairness to the parties before deciding the issue. 78 Usually, however, it will be necessary to plead all of the facts and circumstances upon which the party raising the issue of illegality will rely to make good their position, and a failure to do so will mean that unless the parties have acquiesced in a departure from the pleadings, a contention that relief should be withheld on grounds of statutory illegality will fail. The conduct of this case 79 The defence that was extant at the time the trial commenced did include a reference, albeit oblique, to s 24G of the LBSC Act.105 It said, as part of a lengthy first paragraph: The second applicant is the sales agent of this property. On one hand, through his sales agent role, the property was sold to the first applicant Director, Mr Xuan Tian on 15th September 2017. However, on the other hand, while the second applicant, failed to declare his interest as part of the buyers to CBS and vendor, which may trigger the violation 100 See, eg, The Corporation of the City of Adelaide v India Pty Ltd [2018] SASC 154 at [161] (Hinton J). 101 Nelson at 608 (McHugh J). 102 Harry Goudias Pty Ltd v Akakios (2007) 97 SASR 93 at [29] (Gray J, Doyle CJ and David J agreeing). 103 Permanent Trustee Australia Ltd v FAI General Insurance Company Ltd (in liq) (2003) 214 CLR 514 at 534 (McHugh, Kirby and Callinan JJ). 104 [110-7005]. 105 Defence (Revision 1) (FDN 68). The earlier Defence (FDN 21) contained the same statement. -- 23 of 43 -- [2026] SASCA 28 The Court 22 of the South Australian Real Estate Agent’s conflict of interest – also known as beneficial interest or s 24G. I encourage your honour to verify with CBS. 80 However, during the trial, the appellant (the respondent below) obtained leave to file an amended defence. The amended defence he filed did not include a reference to s 24G.106 81 During the trial, there was limited exploration of whether s 24G had been contravened and no direct questioning as to whether, at the time Mr Liu first became a party to an oral joint venture (it was not established precisely when this occurred) he knew that this was in contravention of s 24G, much less whether his purpose (whether known to Mr Tian or not) was to avoid its operation (or avoid detection of a contravention) by arranging for Mr Tian to purchase the property on an ‘and/or nominee’ basis on the basis he would nominate Mr Wang as the purchaser. 82 The extent of the cross-examination of Mr Liu was as follows: Q As a Real Estate agent, you should abide by all the relevant regulations in regards to this area, is that right. A Yes. … Q As a licensed real estate agent do you have the duty to notify the vendor and the Commissioner where you have the interest in this property. A Yes. Q Do you have the written document. A No. Q Did you lodge the documents to Commissioner and vendor at the time. A No. Q According to s.24G of the Land and Business Act 1994 sub-s.(1): 'An agent who is authorised by a person (the vendor) to sell land or a business must not obtain or be in any way concerned in obtaining, a beneficial interest in the land or business'. Do you know that according to s.24G(1) of the Land and Business Act 1994 an agent who is authorised by a person to sell land or a business must not obtain or be in any way concerned in obtaining a beneficial interest in the land or business. A Yes. Q Actually, I understand that you have the interest in this property and according to the law you need to lodge a certain document but you did not do that. 106 Defence (12 December 2012) (FDN 95). -- 24 of 43 -- [2026] SASCA 28 The Court 23 A The property was sold to the Solid Times first. Sorry, Tony Tian from the Solid Times. HIS HONOUR Q I think what Mr Wang is suggesting is that first that you were an agent for the vendor and secondly that by, at least by the joint venture agreement you had an interest in the property under the joint venture agreement and therefore you ought to have declared that interest. A Okay. My understanding is that ... was in the ... first. … 83 The cross-examination moved to another matter. Mr Wang was self- represented. It is not surprising that his questions did not explore some issues that might be important to an argument that equity should withhold relief by reference to public policy considerations derived from the statute. But the fact remains he did not. 84 Further, he did not seek to establish that there was any scheme to avoid (or avoid detection of a contravention of) s 24G. He did not call any evidence about the state of knowledge of the vendors. He did not say that he himself had been unaware that Mr Liu or One Direction Real Estate Pty Ltd was a real estate agent who had acted for the vendors. If he knew all along that that was the case, he did not give any evidence to explain why he was raising the propriety of a claim to the property some time after the event, and only after receiving the benefit of substantial contributions from the One Direction Real Estate Pty Ltd to assist with the financing and renovation of the property. 85 In its closing written submission, One Direction Real Estate Pty Ltd submitted that no issue arose in the proceedings about s 24G and that it should therefore not be determined whether there was a breach of s 24G and, if so, its effect.107 That was clearly a submission about the state of the pleadings. The submission continued: In any event, as a matter of statutory construction, s 24G does not expressly prohibit any agreement or contract. No implication or public policy arises either – a statute which prohibits the doing of an act under a penalty does not necessarily sterilise a legal relationship associated with that act: [Yango] at 429; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428. See the discussion in [Gnych]. The imposition of a penalty is the only sanction here; this was impliedly accepted by Hinton J in Chehade v Commissioner for Consumer Affairs [2016] SASC 105, where the sanction was discussed and there was no suggestion that it otherwise rendered the transaction void. 86 The appellant made closing written submissions which made occasional references to s 24G together with assertions that One Direction Real Estate Pty Ltd misled him into purchasing the property for Mr Liu’s benefit in a way that was a 107 Second Applicant’s Closing Submissions filed 3 January 2025 (FDN 101). -- 25 of 43 -- [2026] SASCA 28 The Court 24 ‘clear breach of fiduciary duty’. References were made to illegality and to the concept of ‘clean hands’.108 87 In a brief responding submission, One Direction Real Estate Pty Ltd reiterated that for the reasons set out in its primary submissions, any issues about statutory contraventions did not arise and that no defence of ‘clean hands’ had been pleaded.109 The parties’ contentions on appeal 88 The appellant’s submissions on appeal involved a refinement of the appeal grounds set out earlier. Whilst those grounds advanced contentions to the effect that the joint venture was ‘void’ and that, alternatively, relief should have been refused on the grounds of ‘clean hands’, the argument as ultimately presented was subtly different. 89 The appellant submitted that whilst the primary purpose of s 24G of the LBSC Act is to protect vendors, it may also have an additional purpose of removing the risk of a conflict of interest which may affect the interests of a co- purchaser. Further, if the prohibited conduct were not strongly disincentivised, it would allow a pattern that could spread through the industry. The seriousness with which Parliament regards the prohibited conduct was reflected in maximum penalties that exceed those prescribed for other offences against Part 4 of the LBSC Act. By enacting s 24G, the Parliament had made a decision both to forbid conduct (the act or acts of obtaining or being concerned in obtaining a beneficial interest in land) and to prohibit the result (the obtaining of that beneficial interest). 90 However, the appellant did not contend that this meant that any contract or arrangement which would confer such a beneficial interest was void ‘in all circumstances’. Rather, the appellant submitted that such an arrangement was either unenforceable by the agent or, perhaps, voidable by the other party to such an arrangement. 91 However, the primary thrust of the appellant’s argument on appeal was that having regard to the public policy of the statutory prohibition, this was a case in which equitable relief should have been withheld in the Court’s discretion. Illegality was central to the transaction and the granting of the relief would directly contradict the outcome that the statute was concerned to avoid. The appellant was correct, when advancing these submissions in oral argument, to avoid the language of ‘clean hands’. As was explained in Nelson, that is a conceptually distinct doctrine which had little if any relevance to this case.110 To the extent a separate 108 Respondent’s Closing Submissions filed 30 January 2025 (FDN 103). 109 Second Applicant’s Reply to Respondent’s Submissions (FDN 105). 110 Nelson at 550 (Deane and Gummow JJ), 608-609 (McHugh J). See also Lewis v Nortex Pty Ltd (in liq) (2004) 214 ALR 634 at [135] (Hamilton J), D Capital 2 Pty Ltd v Western (2022) 20 BPR 42,919; [2022] NSWSC 1064 (‘D Capital 2’) at [847] (Meek J). -- 26 of 43 -- [2026] SASCA 28 The Court 25 defence of ‘clean hands’ was not abandoned on appeal, it should be rejected for the reasons the trial judge gave. 92 The appellant accepted that his ‘final’ pleadings did not raise, squarely or at all, a contention of statutory illegality, or that equitable relief should be denied on public policy grounds. He argued, however, that his earlier pleading, extant at the time evidence was led at trial, did refer to s 24G. He submitted that the questioning referred to earlier in these reasons elicited a sufficient factual foundation upon which the Court could and should have refused equitable relief. Whilst the evidentiary picture may not have been complete, it was open to One Direction Real Estate Pty Ltd to have adduced evidence (if it could) to establish that the vendors had knowledge of its proposed interest in the property, or to establish any other facts that might make it inappropriate to withhold relief. 93 The respondent’s submissions on appeal emphasised the lack of a clear pleading of illegality at the time of trial, and the absence of any reference to s 24G in the appellant’s final pleadings. Whilst parties may depart from the pleadings during the conduct of a case, the respondent’s closing submissions made clear that it did not acquiesce in any departure from the pleaded case. Whilst the absence of pleadings might not deny the Court the capacity to respond to ex facie illegality, this was not such a case because s 24G does not, on its proper construction, purport to sterilise the legal effect of a transaction by which an agent obtains a beneficial interest. Instead, it prescribes a norm of conduct and attaches penal and limited other statutory consequences to a demonstrated breach. The respondent submitted that it was not open to the Court to withhold equitable relief on public policy grounds, having regard to the state of the pleadings. By a notice of contention, the respondent submitted that even if that question were to be resolved, it should not be resolved adversely to the respondent. 94 In order to resolve these contentions, it is appropriate to commence with an analysis of the text, context and purpose of s 24G of the LBSC Act. This is necessary in order to determine whether a contravention of the provision would, by force of the statute, render void, voidable or unenforceable an arrangement by which an agent would obtain a beneficial interest in land. It is also necessary to identify the public policy by reference to which it may be contended that coherence demanded the refusal of equitable relief in this case. The construction and policy of s 24G 95 The principles governing the construction of s 24G are well-settled and require attention to the text, context and purpose of the provision. The context includes the immediate statutory context as well as the general law relating to the participation of agents in real estate transactions, upon which the statute operates and which it supplements.111 111 See, eg, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). -- 27 of 43 -- [2026] SASCA 28 The Court 26 General law context 96 A real estate agent will generally be engaged by a contract which may provide for particular duties or obligations. An agent will also owe duties arising by reason of the agency. These include a duty to inform the principal of all matters material to the agency.112 97 In the absence of some specially agreed limitation, a real estate agent will ordinarily owe fiduciary duties to their principal, the vendor. The fiduciary duties include the duty of loyalty and the duty to avoid any conflict between the interests of the vendor and any other duties owed by, or the interests of, the agent. A breach of that duty would ordinarily require the agent as fiduciary to account to the vendor for any benefit gained by the agent or their legal alter ego, unless there has been fully informed consent.113 The vendor may alternatively be in a position to claim damages or seek equitable compensation from the fiduciary. 98 In some cases, a constructive trust may arise over an interest acquired by the fiduciary, however a remedy of that kind is not automatic, and will ordinarily be warranted only if other equitable orders are not capable of doing complete justice in the circumstances of the case.114 A constructive trust may be inappropriate where it would result in disproportion relative to the gain derived, or loss suffered, by reason of the breach of duty, or where there is an insufficient connection between the scope of the fiduciary’s obligation and the property over which the trust is sought.115 Relatedly, where an account of profits is sought, or where a constructive trust (or the extent of it) is under consideration, the court may exclude profits or assets shown by the fiduciary to have been derived from their contributions or efforts, energy and skill, after or relevantly independently of the breach of duty.116 99 Finally, where a transaction involving the principal or vendor is affected by a breach of fiduciary duty on the part of the agent or purchaser (or their privy) the transaction may be voidable in equity at the suit of the former, who may obtain an order for rescission. There may however be circumstances which amount to affirmation or laches or which otherwise preclude the rescission of the transaction and any imposition of a constructive trust. In Greater Pacific Investments Pty Ltd 112 D Capital 2 at [400], [406] (Meek J). 113 See, eg, Pedersen v Larcombe [2008] NSWSC 1362 at [48]-[49] (Palmer J), referring to Chan v Zacharia (1984) 154 CLR 178 and Maguire v Makaronis (1997) 188 CLR 449. See also The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2022] NSWSC 1081 (‘C88 Project’) at [136]- [137] (Rees J). 114 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [128] (the Court), Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 (‘Ancient Order of Foresters’) at [74] (Gageler J). 115 cf. Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (‘Hospital Products’) at 110 (Mason J). 116 Hospital Products at 110 (Mason J), Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179 CLR 101 at 111 (Mason CJ, Deane, Dawson and Toohey JJ), Warman International Ltd v Dwyer (1995) 182 CLR 544 (‘Warman’) at 568 (the Court), Ancient Order of Foresters at [14] (Kiefel, Keane and Edelman JJ), at [94], [98] (Gageler J), at [182] (Nettle J). -- 28 of 43 -- [2026] SASCA 28 The Court 27 (in liq) v Australian National Industries Ltd,117 McLelland AJA (with whom Priestley and Meagher JJA agreed) said:118 In general, where there is a contract for the sale of property by A to B made in breach of a fiduciary duty owed to A by B (or by C in whose breach B knowingly participated), pursuant to which the legal title to the property has been transferred from A to B, the transaction is in equity voidable at the instance of A, who may (if necessary) obtain an order for rescission setting it aside. Unless and until A effectively avoids the transaction and (if necessary) obtains an order for rescission, B's property rights as a result of the transaction remain unaffected. However if A does effectively avoid the transaction and (if necessary) obtain an order for rescission, the parties will be treated in equity as if the transaction had never been effected; in other words equity will treat B as if he had held the property in trust for A, that is, as a constructive trustee, ab initio. A constructive trust arises in such circumstances as a consequence of the effective avoidance or rescission of the transaction. Where, for whatever reason, the transaction has not been and cannot be effectively avoided and rescission is unavailable, it remains effective and no constructive trust can arise: see generally Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 at 386-390, per Brennan J. 100 The remedial responses to a breach of fiduciary duty serve two related purposes. One is to prevent the unjust enrichment of the fiduciary. The other, more general, purpose is removing the incentive for a fiduciary to act other than in the sole interests of their principal.119 Immediate statutory context 101 Section 24G is located in Part 4 of the LBSC Act (‘Special requirements relating to agents and sales representatives’). Part 4 (substantially in its current form) was introduced by the Statutes Amendment (Real Estate Industry Reform) Act 2007 (SA). Its provisions have been the subject of minor amendment subsequently, including, in the case of s 24G, an increase to the maximum penalties for contravention. 102 Before 2007, an earlier form of Part 4 (then titled ‘Agents’ obligations’) contained prohibitions against agents acting without written authority, demanding or receiving commissions where the contract of sale etc was rescinded or avoided under the Act, and paying part or all of a commission to a person other than an officer, employee or registered agent of the agent. Relevantly, s 23(1) provided that an agent must not have a direct or indirect interest (except in their capacity as an agent) in the purchase of land or a business that the agent is commissioned to sell. Under s 23(4), the court by which a person was convicted of an offence against that section could order the person to pay to the principal any profit the person had made or was likely to make from a dealing with the land or business to which the offence related. 103 In its current form, Part 4 contains a wider range of measures. According to the Minister for Consumer Affairs, in her speech on the motion that the related Bill 117 (1996) 39 NSWLR 143. 118 (1996) 39 NSWLR 143 at 153. 119 Warman at 557-558 (the Court), Ancient Order of Foresters at [78] (Gageler J). -- 29 of 43 -- [2026] SASCA 28 The Court 28 be read a second time, a review of regulation of the real estate industry led agents to ask:120 … for legislation to provide a clear set of guidelines as to agents’ obligations. The reforms will establish clear standards for land agents as to what is lawful and ethical behaviour in the selling of real estate. However, this Bill is not intended to derogate from or limit the fiduciary obligations owed by land agents under the general law, including to avoid conflicts of interest and account for benefits gained. 104 Section 20(1) prohibits an agent from acting on behalf of a vendor in the sale of residential land unless authorised to do so by a written sales agreement that specifies a number of details and complies with regulations. Before entering into such an agreement, the agent must provide the vendor a written guide and details of sales of comparable land relied upon to support the estimated selling price.121 Agents must not act on behalf of the vendor of non-residential land or businesses, or for a purchaser, unless they have been authorised to so act by an instrument in writing.122 Contraventions of these requirements attract criminal penalties and, under s 20(7), a further consequence is that an agent who has not complied with the requirements of s 20 must not demand, receive or retain commission or expenses in respect of the sale or purchase of land or a business. If that prohibition is not complied with, again, a criminal penalty may apply, and, importantly, by s 20(8), any commission or expenses received or retained by an agent in contravention of the prohibition may be recovered as a debt from the agent by the person by whom it was paid. 105 Section 21 imposes requirements upon agents in relation to offers received for the purchase of residential land. Criminal penalties apply for contraventions of these requirements, but s 21(7) provides that a contravention of the section does not affect the validity of an offer or a contract for the sale of the land. 106 Section 23(1) prohibits an agent from demanding, receiving or retaining commission in respect of the sale or purchase of land or a business if the contract by which the transaction is to be effected is rescinded or avoided under the Act.123 Criminal penalties apply for contraventions and s 23(3) further provides that commission received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. 107 Section 24A imposes restrictions upon the making of representations as to the likely selling price in marketing residential land. Non-compliance attracts criminal penalties. Section 24A(3) builds upon those offence provisions by prohibiting an agent from demanding, receiving or retaining commission or expenses in respect of the sale of land if the sales representative employed by the agent has not complied with the requirements in s 24A(2). It is then provided in 120 South Australia, Parliamentary Debates, House of Assembly, 26 October 2006 at 1146-1147. 121 LBSC Act, s 20(2). 122 LBSC Act, s 20(3). 123 See, eg, LBSC Act ss 18(2) and 19, but note s 23(2)(a). -- 30 of 43 -- [2026] SASCA 28 The Court 29 s 24A(4) that any commission received or retained in contravention of the section may be recovered as a debt from the agent by the person by whom it was paid. 108 Section 24C(2) applies to the sale or purchase of land or a business and requires that an agent must disclose to the client (in a manner prescribed by regulation) a number of matters including the nature, source and amount of any benefit they expect to receive in connection with the sale or purchase, excluding certain benefits such as those disclosed in the sales agency agreement or received from the agent’s client.124 A criminal sanction applies to contravention of this provision. 109 Section 24D contains provisions which require an agent who refers a client to a third person for related services and receives a benefit for the referral to immediately pay the amount or value of the benefit to the client (unless it has been disclosed in a sales agency agreement or in accordance with s 24C), except to the extent that the agent has accounted for or paid the amount or value of the benefit. Non-compliance attracts a criminal penalty and s 24D(7) goes on to provide that, if an agent fails to pay back amounts required to be repaid under the section, the client may recover the amount as a debt due to the person by the agent. 110 Subject to narrow exceptions, s 24F prohibits an agent from acting as an agent on behalf of both the vendor and purchaser of the same land or business at the same time. 111 The provision of immediate significance for this appeal is s 24G. It provides as follows: 24G—Restriction on obtaining beneficial interest in selling or appraising property (1) An agent who is authorised by a person (the vendor) to sell land or a business must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (2) A sales representative employed by an agent must not obtain, or be in any way concerned in obtaining, a beneficial interest in land or a business that the agent is authorised to sell for a person (the vendor). Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. 124 LBSC Act, s 24C(3). -- 31 of 43 -- [2026] SASCA 28 The Court 30 (2a) If an agent is authorised by a person (the vendor) to sell land or a business, the following persons must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business: (a) a natural person who is responsible for managing or supervising the agent's business (including, but not limited to, a natural person referred to in section 10 of the Land Agents Act 1994, in relation to that business); (b) a natural person who is responsible for managing or supervising 1 or more places of business of the agent at which any of the negotiations, administration or other functions relating to the sale are conducted by employees of the agent or persons otherwise engaged by the agent (including, but not limited to, a natural person referred to in section 11 of the Land Agents Act 1994, in relation to that place of business); (c) in the case of an agent that is a body corporate—a director of the body corporate (within the meaning of the Land Agents Act 1994). Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (3) An agent or sales representative who appraises land or a business for a person (the vendor) must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (4) Subject to subsection (10a), a person does not contravene subsection (3) by obtaining a beneficial interest in land or a business if an agent is acting on behalf of the vendor in the sale of the land or business. (5) A person does not contravene this section by obtaining a beneficial interest in land or a business if, before the person obtains the interest, the Commissioner approves such action in accordance with the regulations. (6) Without limiting this section, a person (being an agent, sales representative, natural person, or director of a body corporate, to whom a preceding subsection applies) is considered to obtain a beneficial interest in land or a business if the person or an associate of the person obtains a beneficial interest in the land or business. (7) Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in land or a business: (a) purchasing land or a business; (b) obtaining an option to purchase land or a business; (c) being granted a general power of appointment in respect of land or a business. -- 32 of 43 -- [2026] SASCA 28 The Court 31 (8) The court by which a person is convicted of an offence against this section may order the person to pay to the vendor any profit that the person has made, or is, in the opinion of the court, likely to make, from a dealing with the land or business to which the offence relates. (9) If an agent obtains a beneficial interest in land or a business that the agent is authorised to sell, the agent must not demand, receive or retain commission or expenses in respect of the sale or purchase of the land or business unless— (a) the Commissioner has approved the agent obtaining the benefit under subsection (5); and (b) the Commissioner has, when giving that approval, also approved the receipt of the commission or expenses. Maximum penalty: (a) in the case of an aggravated offence—$20 000; (b) in any other case—$10 000. (10) Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. (10a) In this section, an offence relating to the obtaining of a beneficial interest is an aggravated offence if it is proved that, at the time the beneficial interest was obtained, the vendor or any of the vendors were— (a) 70 years of age or over; or (b) protected persons within the meaning of the Guardianship and Administration Act 1993; or (c) suffering from a mental incapacity, (regardless of whether they were represented by another person during any of the negotiations giving rise to the obtaining of the beneficial interest). (10b) In proceedings, a certificate in the form prescribed by regulation signed by a medical practitioner stating that, in the opinion of the medical practitioner, a specified person was or was not suffering from a mental incapacity at a specified time, will, in the absence of proof to the contrary, be evidence of the facts so stated. (11) In this section— appraise—an agent or sales representative appraises land or a business if the agent or sales representative provides advice, whether or not at the request of the vendor, as to the value of the land or business in circumstances where it may be reasonably assumed that the vendor may rely on the advice of the agent or sales representative; associate, of a person, means— (a) — -- 33 of 43 -- [2026] SASCA 28 The Court 32 (i) a relative of the person or of the person's spouse or domestic partner; or (ii) an employee, employer or partner of the person; or (iii) a relative of an employee of the person; or (iv) a body corporate if any of the following persons: (A) the person; (B) a relative of the person or of the person's spouse or domestic partner; (C) an employee of the person; (D) 2 or more of the above persons together, have a relevant interest or relevant interests in shares in the body corporate the nominal value of which is 10% or more of the nominal value of the issued share capital of the body corporate; or (v) a body corporate if a director of the body corporate is— (A) a relative of the person or of the person's spouse or domestic partner; or (B) an employee of the person; or (vi) the trustee of a trust if any of the following are beneficiaries of the trust: (A) the person; (B) a relative of the person or of the person's spouse or domestic partner; (C) an employee of the person; (D) a body corporate referred to in subparagraph (iv) or (v); or (vii) a person who has a relationship with the person (whether or not similar to the relationships referred to in the preceding paragraphs) of a kind prescribed by the regulations for the purposes of this section; or (b) in addition— (i) in the case of a natural person referred to in subsection (2a)(a)—a relative of an employee of the relevant agent; or (ii) in the case of a natural person referred to in subsection (2a)(b)—a relative of a person employed at the relevant place or places of business of the agent; beneficiary of a trust includes an object of a discretionary trust; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; -- 34 of 43 -- [2026] SASCA 28 The Court 33 medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); relative of a person means— (a) the spouse or domestic partner of the person; or (b) a parent (including a step-parent), grandparent (including a step-grandparent) or remoter linear ancestor of the person; or (c) a child (including a step-child) or remoter issue of the person; or (d) a sibling (including a step-sibling or half-sibling) of the person; relevant interest has the same meaning as in the Corporations Act 2001 of the Commonwealth; spouse—a person is the spouse of another if they are legally married. 112 Before considering the text of s 24G, some aspects of the broader context of the LBSC Act may be noted. 113 The Act contains other provisions in Part 2 which are designed, broadly, to protect the interests of purchasers in connection with contracts for the sale of land or business. There are provisions requiring the provision of information and particulars, and conferring associated cooling-off rights.125 There is also a provision rendering void instalment contracts.126 114 Part 6 of the LBSC Act (‘Miscellaneous’) contains a number of provisions of general application that should be noted. 115 First, s 35 makes clear that no term or provision of an agreement for the sale and purchase of land or a business prevents a party from claiming or being awarded damages or other relief in respect of a misrepresentation in connection with the sale or purchase of the land or business. 116 Secondly, and more generally, s 34 states that nothing in the Act prejudices any civil remedy available apart from the Act. The presence of that section fortified Bleby J in holding that the provision in s 6(2) that money paid under an instalment contract rendered void under s 6(1) may be recovered by action in a court of competent jurisdiction paved the way for, but did not dictate the outcome of, the application of ordinary principles of restitution.127 117 Thirdly, s 36 makes it an offence to make a false or misleading representation for the purpose of inducing another person to, inter alia, sell or purchase land or 125 LBSC Act, ss 5, 7, 8 and 9. 126 LBSC Act, s 6. 127 Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (receivers & managers appointed) (in liq) (No 3) (2006) 94 SASR 103 at [59]-[61]. -- 35 of 43 -- [2026] SASCA 28 The Court 34 enter into any contract or arrangement in connection with the sale or purchase of land. 118 Fourthly, and more generally, s 37B creates a general defence to a charge of an offence including against Part 4 where the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. It may also be noted that where a body corporate is guilty of an offence under the Act, each director is also liable to the same penalty as is imposed for the principal offence, unless it is proved that they could not by the exercise of due diligence have prevented the commission of the offence.128 119 The foregoing matters of context reveal that the LBSC Act imposes various prescriptive and proscriptive obligations to protect vendors and purchasers in connection with transactions for the sale of land and business. The express consequences of non-compliance are not solely criminal in nature. Importantly, the LBSC Act makes provision in a variety of ways with respect to the private law rights and remedies available as between those parties and agents involved in those transactions. Against the background of the general provision in s 34, and in view of the presence of provisions which are specific as to the private law consequences of non-compliance with the Act’s requirements, the scheme of the Act would appear to support the proposition that where civil consequences are intended, they are the subject of express provision. 120 This general view is fortified in the context of the provisions relating to agents because, as has been noted, the general law (comprising equitable principles concerning fiduciaries and the general law of contract and agency) protects principals in a comprehensive but sophisticated way. It might be thought an unlikely proposition, against this background, that s 24G would produce consequences for the private law rights of participants in land sale transactions other than by express provision. That said, it is obviously important to consider closely the text of the provision, as well as its evident purpose. Text and purpose 121 Sub-sections 24G(1), (2), (2a) and (3) are expressed in similar terms and relate to agents authorised by a vendor to sell land or a business, sales representatives employed by such agents, managers or other natural persons with responsibilities for managing the business of an agent (including directors of an agency that is a body corporate) and agents or sales representatives who appraise land or a business for a vendor. The term agent is defined elsewhere.129 128 LBSC Act, s 39. 129 LBSC Act, s 3; Land Agents Act 1994 (SA), s 4. -- 36 of 43 -- [2026] SASCA 28 The Court 35 122 Each of these persons or entities ‘must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business’. In each case, the same maximum penalties apply. 123 The LBSC Act does not comprehensively define ‘beneficial interest’, but s 24G(7) makes clear that purchasing land or a business, obtaining an option to purchase the land or business, or being granted a general power of appointment in respect of the sale of land or a business is ‘considered to constitute the obtaining of a beneficial interest’ in the land or business. This suggests that ‘beneficial interest’ is not being used in a narrow or technical sense so as to exclude from its purview absolute ownership by way of legal title130 or a power in respect of land that may for some purposes amount to property, but which is not itself an equitable estate.131 124 In considering the implications of a contravention of these prohibitions, it is necessary to bear in mind the deeming effect of s 24G(6). A person or entity to whom any of the preceding subsections apply is considered to obtain a beneficial interest if an ‘associate’ of the person obtains a beneficial interest in the land or business. Section 24G(11) defines ‘associate’ for these purposes. 125 The upshot is that, prima facie, the prohibition in the earlier subsections will be breached in cases where the person or entity the subject of the prohibition has not themselves obtained a beneficial interest if such an interest is obtained by someone with whom they are in a defined relationship, including in the case of natural persons, the person’s relative, spouse, domestic partner, employee, employer or partner. Also included as associates are bodies corporate with a connection to the person the subject of the prohibition. For instance, a sales representative will obtain a beneficial interest if a body corporate of which their sibling is a director obtains such an interest. 126 The potential breadth of these provisions is qualified in two relevant respects. First, s 24G(5) provides that a person does not contravene the section by obtaining a beneficial interest in land or a business if, before they obtain the interest, the Commissioner for Consumer Affairs approves such action in accordance with the regulations.132 Secondly, in a prosecution of an offence against s 24G, the general defence in s 37B, mentioned earlier, is applicable. No offence is committed if shown not to have been committed intentionally and without a failure to take reasonable care to avoid commission of the offence. 127 This discussion of the scope of the prohibitions assists in identifying what lies at its heart. The section is not designed to avoid or sterilise the obtaining of 130 Strictly, such an owner does not hold an equitable estate; there is no such estate. See, eg, Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 at [30] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). 131 cf. Kennon v Spry (2008) 238 CLR 366. 132 Land and Business (Sale and Conveyancing) Regulations 2025 (SA), reg 25. At the time relevant to these proceedings, the relevant regulation was Land and Business (Sale and Conveyancing) Regulations 2010 (SA), reg 25. -- 37 of 43 -- [2026] SASCA 28 The Court 36 beneficial interests in the proscribed circumstances as an end in itself. So much is evident from the fact that the section could have been drafted in terms that expressly provided for such interests to be divested, or in terms that direct a court not to give effect to or recognise such interests. Particularly in the case of land (as distinct from businesses), it is to be expected that if it were intended that such interests were not to be given effect, the section would have addressed the intersection between the prohibition and the system of indefeasible title in the Real Property Act 1886 (SA). Indeed, many of the sub-sections tend to assume the efficacy of the transaction by which the beneficial interest has been obtained.133 128 As well, both the broadening and narrowing provisions just discussed tend to reinforce that the concern of the section is not the avoidance of the outcome per se but the conduct of a person involved in the sale of land who knows or has failed to take reasonable steps to avoid the existence of a conflict by reason of their having an actual or perceived interest in the outcome that may diverge from the interests of the vendor. 129 In this sense, as Hinton J has observed, the purpose of Part 4 including s 24G is the enforcement of norms of conduct that whilst not criminal according to ordinary conceptions, are acts which the public interest requires to be prohibited under penalty.134 This is to buttress and in some respects augment the fiduciary duties owed by participants in the real estate industry, and ultimately, to protect the consumers of their services, typically vendors. 130 That the primary focus of the provisions is the protection of vendors is, in a sense, obvious.135 However, it is reinforced by a number of express provisions: • first, s 24G(8) provides that the court by which a person is convicted of an offence against the section may order the person to pay ‘to the vendor’ any profit that the person has made, or is, in the opinion of the court, likely to make, from a dealing with the land or business to which the offence relates; • secondly, s 24G(9) provides that in a case where a beneficial interest has been obtained, the agent must not demand, receive or retain commission or expenses in respect of the sale or purchase unless the Commissioner has granted approval to the obtaining of the benefit and the receipt of the commission or expenses, and s 24G(10) facilitates recovery from the agent of such payments. These provisions will primarily operate for the protection and benefit of vendors; and 133 cf. Gnych at [51] (French CJ, Kiefel, Keane and Nettle JJ). 134 Chehade v Commissioner for Consumer Affairs [2016] SASC 105 at [76]. 135 cf. Guan v Lui [2021] NSWCA 65 at [34] (Meagher JA, Bell P and Basten JA agreeing), referring to Ryde Developments Pty Ltd v The Property Investors Alliance (No 4) [2017] NSWSC 436 at [90] (Ball J). -- 38 of 43 -- [2026] SASCA 28 The Court 37 • thirdly, the circumstances of aggravation in s 24G(10a) relate to the vulnerability of the vendors. 131 Sub-sections 24G(8) and 24G(9) identify circumstances in which civil consequences may follow from a contravention of the provision. In my view, consistent with the view expressed in the modern cases respecting statutory illegality, the specific identification of civil consequences leaves little, if any, room for a conclusion that, by implication, s 24G has the effect of rendering void, voidable or unenforceable a transaction which would otherwise result in the conferral of a beneficial interest. Conclusions as to the direct effect of s 24G 132 Whilst it is not strictly necessary to decide whether the effect of s 24G is to render unenforceable at the suit of the agent, or perhaps voidable at the suit of the vendor, a contract or other arrangement between the agent and the vendor which would facilitate a contravention of s 24G, there is reason to conclude that the Parliament left such matters to be decided by reference to the well-developed and sophisticated body of principles applying at general law. Section 24G(8) is to be seen in this light as a practical expedient that permits a criminal court to make an order that would routinely be made in a suit in equity. These opinions are consistent with the approach that has been taken to a very similar provision of New South Wales law.136 133 For present purposes, what is critical is that there is no sufficient basis to conclude that the (unstated but implied) direct effect of s 24G is to render unenforceable by the contravening party any contractual or other rights against a party who is not the vendor. That would be to adjust the rights they may have without reference to the interests of vendors, whose interests the section is primarily concerned to protect. Indeed, in some cases, it would have the potential to confer a benefit on a party who is in pari delicto such as where the other party also qualifies as an ‘associate’, or where they have knowingly procured or participated in the contravention. 134 This conclusion means that the statute did not itself produce the consequence that the joint venture agreement was void, voidable or unenforceable, and nor did the statute itself proscribe the obtaining by an agent of a beneficial interest in land acquired from a vendor, or in respect of land acquired by another purchaser. Notwithstanding its imperative form, 137 s 24G made the act of obtaining or being concerned in the obtaining of a beneficial interest unlawful, without directly speaking to or seeking to render ineffective the outcome. 136 D Capital 2 at [872]-[878] (Meek J), C88 Project at [146]-[151] (Rees J) (in a finding not challenged on appeal: The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [114]-[122] (White JA, Kirk JA and Griffiths AJA relevantly agreeing)). 137 cf. Ketchell at [26] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ). -- 39 of 43 -- [2026] SASCA 28 The Court 38 Public policy 135 It remains to be considered, however, whether the public policy to be derived from s 24G is such that, in order to maintain coherence, it is appropriate and necessary to withhold or adapt equitable relief. An identification of the relevant public policy also involves an exercise in statutory construction, albeit of a slightly different kind. At its essence, the question is whether the statute evinces a purpose or policy value that, whilst not given effect by the direct operation of the statute – perhaps because Parliament did not expressly or impliedly turn its mind to the situation before the Court – nevertheless requires that common law or equitable remedies be withheld or adapted so as to avoid an outcome which is incongruous with, or repugnant to, the statutory scheme.138 136 The respondent, for its part, did not dispute that there might be cases where the facts were such that to recognise or impose a trust in favour of an agent would be so incongruent with the statutory policy that relief would be withheld.139 It submitted, however, that the central policy of s 24G was the protection of vendors and that particularly in circumstances where a public policy ‘defence’ was not squarely pleaded, the state of the evidence and the factual findings in this case did not justify the withholding of relief. 137 That submission should be accepted. In the context of a relatively detailed statutory provision which forms part of a scheme with related and supporting prohibitions attracting penal and specified civil consequences, this Court’s task is not to seek to improve (or expand) upon the regulatory scheme,140 nor to state the relevant public policy in terms which fail to respect not only what the statute provides, but what it does not provide. That is to say, identification of a public policy, like identification of a broad statutory purpose, requires attention to be paid to how far the legislature has gone in pursuing the policy or purpose. As Gleeson CJ said in a different context, legislation rarely pursues a single purpose at all costs.141 138 Fundamentally, the public policy expressed by s 24G is to penalise and therefore deter an agent from placing themselves in a position of conflict with their duties to the vendor, by obtaining or being concerned in obtaining a conflicting interest in the property the subject of the transaction, save where their conduct is shown by them to be inadvertent and not lacking in diligence. However, the public policy is not one which the legislature considered warranted the automatic sterilisation of property rights vis-à-vis the vendor, let alone as between a contravening agent and others associated in the purchase. 139 Putting to one side the state of the pleadings for the moment, the question is whether the grant or recognition of a constructive trust in this case would involve 138 Nelson at 612-613 (McHugh J), Miller at [16], [74] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Gnych at [75] (Gageler J). 139 That possibility was accepted by Rees J in respect of the NSW provision in C88 Project at [151]-[152]. 140 Gnych at [73] (Gageler J). 141 Carr v Western Australia (2007) 232 CLR 138 at [5]. -- 40 of 43 -- [2026] SASCA 28 The Court 39 such contrariety with that policy that the unconscientiousness to which the constructive trust is addressed is outweighed.142 The intersection between the public policy and the litigious controversy 140 Neither the questioning of Mr Liu in cross-examination, nor any evidence called by the appellant, established that, in this case, the vendor was unaware that Mr Liu, or later the respondent, was party to a joint venture in relation to the purchase, renovation and subsequent sale of the property. 141 To the extent that there was evidence about why Mr Wang was nominated as purchaser, it was to the effect that this was not Mr Liu’s decision. Unlike in Nelson, it cannot be concluded on the evidence that the purpose of doing so was to hide the interests of Mr Liu (or the appellant) or Solid Times Pty Ltd in the joint venture from the vendors or for some illegal purpose. Indeed, whilst the cross- examination of Mr Liu tended to show that when he gave evidence he was aware of and accepted he had not complied with s 24G, it was ambiguous as to his state of knowledge at the time of the joint venture agreement. 142 It is important to appreciate that the constructive trust recognised by the court’s orders in this case was over property that had been substantially improved including by the contributions of the joint venturers over time. There is no evidence to suggest that any breach of fiduciary duty, or contravention of s 24G by entry into the joint venture agreement, resulted in the sale being effected at less than market value. The increase in value over time which is suggested by the valuation evidence may therefore be assumed to be attributable to the improvements made with the financial and other contributions of the joint venturers, along with any subsequent improvements in market conditions. The appellant does not now resist the notion that, on any view, he must make restitution of the actual financial contributions made by the respondent. 143 In the circumstances of this case, the real import of the imposition of a constructive trust was to permit the respondent to share, as to 25%, in the net growth in value of the property after accounting for the parties’ contributions. The constructive trust imposed here therefore responded to the unconscientiousness of the appellant seeking to deny the other joint venturers’ interests in the property in circumstances where the venture had failed without attributable blame on their part. The remedy responds in large part to the respondent’s participation in, and contributions to, the joint venture after or at least independently of any breach of fiduciary or contravention of s 24G on its part. 144 In that sense, there might be said to be a sense of disproportion,143 or a lack of correspondence, between the denial to the respondent of a proportionate interest in the growth in value of the property as part of the performance of the joint venture and the immediate consequences of its breach of duty or contravention of the 142 cf. Nelson at 564 (Deane and Gummow JJ). 143 Nelson at 612 (McHugh J), Gnych at [75] (Gageler J), C88 Project at [152] (Rees J). -- 41 of 43 -- [2026] SASCA 28 The Court 40 statute. Withholding relief here would certainly go further than denying the agent its commission consistently with s 24G(9). 145 Moreover, there was no exploration in the evidence of whether the appellant himself appreciated that Mr Liu or the respondent were in breach of duty or contravention of any statutory provision by participating in the joint venture. We would not be prepared to infer that he was not so aware. His knowledge or acquiescence in any illegality was, on the authorities,144 potentially relevant to a public policy argument against relief. It is true that Mr Liu might have been cross- examined about these matters, but in the absence of a clear pleading raising public policy as a ground for withholding equitable relief, the absence of evidence should not be a basis for an inference adverse to the respondent. 146 Unlike in Nelson, it is not accepted that there has in fact been a contravention of the statute. On the facts of that case, the condition imposed by the Court required disgorgement of the illegally obtained benefits as a condition of the relief. There was little or no risk that the claimant would suffer a penalty that exceeded, or interfered with, any consequence that the statutory regime may itself have produced. 147 Here, of course, the appellant does not propose a Nelson-style condition in favour of the vendors, quantified by reference to the statutory mischief. Rather, he seeks to deprive the respondent of its interest in the growth in value of the property produced by the joint venture and to keep that benefit for himself even though, for all the Court knows, he may himself have been a willing participant in, and beneficiary of, the respondent’s illegality. If relief were to be denied to the respondent, it (or Mr Liu) may still be exposed to a prosecution under s 24G and, if the vendors would otherwise have had a good claim against him to account for profits made, that claim would face a substantial factual hurdle. In this way there is a risk that withholding relief may subvert or distort the other rights and liabilities arising from any proved contravention. 148 Withholding relief in favour of the respondent would not in any way advance the interests of the vendors whom s 24G primarily seeks to protect. Granting the relief sought would not directly cut across or undermine the statutory purpose of protecting the interests of vendors. It may be true that denying relief to the respondent may have a prophylactic effect which may in turn discourage agents in future from acting contrary to the interests of vendors. But, to the extent that the statute may reflect a wider policy objective of that kind, it is insufficient to justify a result which would see the appellant’s unconscientious departure from the basis upon which the appellant and Solid Times Pty Ltd contributed to the joint venture. Put simply, the appellant is asking too much of the public policy that informs s 24G. 144 Nelson at 612 (McHugh J), Equuscorp at [34] (French CJ, Crennan and Kiefel JJ), Gnych at [76] (Gageler J). -- 42 of 43 -- [2026] SASCA 28 The Court 41 149 The appellant’s failure properly to plead the facts and circumstances relied upon to justify the Court may well have been a sufficient basis to withhold relief on public policy grounds. However, that question need not be finally decided. 150 The respondent was not required to establish all the facts and circumstances which might inform the question whether relief might be withheld on public policy grounds. The respondent established a prima facie entitlement to a constructive trust. It was for the appellant to establish facts and circumstances (including relating to his own knowledge) sufficient to show that, in order to preserve coherence with the public policy underlying s 24G, relief should be withheld in this case. He failed to do so. 151 The notice of appeal does not contend that any failure on the judge’s part to assist a self-represented litigant deprived him of the opportunity to adduce further evidence, such that a re-trial should be ordered. The appellant seeks that the appellate court reverse the outcome. The appellant has not established that that would be appropriate. Disposition 152 The appeal must be dismissed. -- 43 of 43 --