When Illegality Meets Fairness in Contract Enforcement
Home › Case Studies › Case Law Library › Commercial & Business Cases › Contract Interpretation & Regulatory Compliance › Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133
Published: 11 November 2025 | Reviewed: 15 November 2025
(3-minute read)
The Case in Brief
In Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133, the NSW Court of Appeal delivered a detailed judgment on contracts, licensing, and restitution - a dispute at the edge of commercial fairness and public policy.
Creative Academy Group (CAG) engaged White Pointer Investments, run by Mr Hedley, to find childcare sites across NSW and the ACT. The deal - struck at Sydney’s Bistro Moncur - promised $2,000 per childcare place sourced, paid half on lease and approval, and half when the centre opened.
When CAG later tried to renegotiate lower fees under a “Settlement Proposal,” White Pointer refused and sued for unpaid commissions. CAG counterclaimed, arguing White Pointer was unlicensed under property agent legislation and couldn’t enforce or retain payment.
The Legal Issues
The Court of Appeal - Meagher JA, White JA, and Adamson JA - considered four key questions:
Was the Moncur Agreement binding and enforceable?
Was the Settlement Proposal supported by consideration?
Was White Pointer required to hold a real estate agent’s licence under the Agents Act 2003 (ACT)?
Could CAG recover payments already made (restitution) on grounds of illegality or mistake?
The Court’s Findings
(a) The Moncur Agreement stood.
All three judges confirmed the oral deal was binding. CAG had accepted a clear offer, $2,000 per place, paid in two tranches, creating a valid contract.
(b) The Settlement Proposal failed.
CAG’s “new offer” was an attempt to pay less for the same work. There was no fresh consideration, no bona fide dispute, and no new bargain.
(c) Licensing under the ACT Act divided the bench.
Adamson JA (majority) found that Mr Hedley’s negotiations and inducements at several ACT sites, Red Hill, MacGregor, Taylor and Dickson, amounted to acting as a real estate agent without a licence.
Meagher JA (dissenting) held those activities were merely introductions, not inducements, and so outside the Act.
The majority ordered that fees for unlicensed ACT sites be disallowed, reducing the total judgment to $567,250.
(d) Restitution denied.
Even though part of the work was technically unlicensed, the Court (Adamson JA, White JA agreeing) held that restitution was not available:
The Acts barred future recovery of illegal fees but did not require repayment of amounts already paid.
It wasn’t contrary to public policy for an unlicensed agent to keep money already received.
No “causative mistake” was proven - CAG didn’t show it would have withheld payment had it known about licensing defects.
The Court thus allowed the appeal in part but largely upheld the commercial outcome.
The Principle - Illegality and Restitution in Modern Law
This decision draws a careful line between regulatory breach and contractual fairness.
Unlicensed performance can bar future enforcement, but it doesn’t automatically unwind transactions already completed. As Adamson JA explained, the legislature chose to exclude quantum meruit claims and future enforcement - not retrospective recovery.
The case illustrates that courts prefer certainty over moral refunding: parties who deal knowingly, and who receive value, won’t be rescued from their bargains absent clear statutory command.
Clean Law Connection - Escrow Oversight and Regulatory Safety
The conflict in Creative Academy v White Pointer arose from asymmetric risk - one side held performance; the other held payment; and neither structure nor licensing oversight existed.
Clean Law’s Two-Lawyer Escrow Oversight Model prevents exactly this:
Funds are held independently, released only when both compliance and performance are verified.
Two lawyers - one controlling funds, one ensuring regulatory adherence - keep legality and equity in separate, transparent hands.
Licensing checks become built-in safeguards, not afterthoughts.
If the Moncur arrangement had operated through such escrow oversight, the dispute would never have reached court.
Payment would have awaited compliance verification, preserving fairness without forfeiture.
Clean Law’s model thus transforms the “illegality problem” into a design solution - proving that structural transparency protects both sides better than litigation ever can.
Reflection - Structure Before Sanction
Creative Academy v White Pointer teaches that fairness isn’t found in refunding an imperfect bargain; it’s found in structuring it lawfully from the start.
Where the Court preserved commercial outcomes, Clean Law perfects them - embedding legality, consideration, and oversight into every transaction.
Because in modern practice, fairness isn’t the absence of fault - it’s the presence of structure.
Request a Confidential Consultation to design your commercial relationships so compliance and fairness stay built-in - not litigated later.
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
