Coffee and a Case Note

[First, an apology: this awful audio is the result of my own poor microphone management. Sorry!] “OK. We sold these units. Now what do we do with the money?”    Trustees for sale were appointed to sell a Bondi block of units.    In 2018 the defendant, who was one of the two co-owners/beneficiaries, offered to purchase the property for >$6M.  The sale did not complete. &...

“The company acted unfairly! But I don’t know what I want the Court to do about it…”   A board dispute arose. The issues raised were complex.   They revolved around an app to be used by car dealers, and the sale of the IP in that app.    The app was developed by a company with three directors, each of whom were also shareholders.   One director was “virtually impossible to...

“Is it OK if I sell this property?”   A liquidator of a Co sought Court directions relating to a possible property sale.   In 2002, an ABN was obtained for Trust 1. It appeared there was no trust deed for Trust 1.    In 2014, Trust 2 was settled. Our Co was trustee. Bank accounts were opened. High value transactions followed.   In 2015, property was purchased in the name o...

“Hey, bank, you should have stopped that share sale!”   Spouse A invited Spouse B to become a trustee of a SMSF that was previously solely Spouse A’s. The SMSF and the spouses had a number of *joint* bank accounts and *joint* stock trading accounts.   Spouse B caused a sale of shares from the joint stock trading account ([39]) and a transfer of the proceeds from the joint account into an...

On 15 November 2019 I was lucky enough to have the opportunity to present to the Chartered Accountants Australia New Zealand forensic accounting stream on corporate oppression. We worked through the legislation, the case law, some practical suggestions and - somehow - managed to have a little fun along the way. There were great questions along the way, and the whole session was brilliantly put tog...

“I (genuinely) dispute that!”   A dispute between family members and various related Cos arose.  The dispute was complicated.    It included a son making 8 stat demands on “family” Cos.  Earlier proceedings were settled on bases including that a property be sold, and $950K be paid to the son. The property was not sold and the $950K not paid.   The son demanded that th...

Can a director run legal proceedings on behalf of a company *without lawyers*?   A company sought leave to appeal a decision of the NSW Supreme Court.  A director sought to run the application on the company’s behalf.  If a company wants to start and run Supreme Court litigation by a director, without a lawyer, then that director must also be a party to the proceedings: UCRP r7.1(3)...

On 29 October 2019 I was invited to present at the TEN Network Commercial Drafting Masterclass, speaking about exclusion clauses. Due to my exuberant hand gestures, I disconnected my mic and failed to record the session. This pod is a "do over" of that talk recorded in my offices the next day and I hope it brings you value. We discuss: The "why" of exclusion clauses The law relating to exclusion c...

A trade mark owner registered and – for a time – used a slogan.   After it stopped using the slogan, another party sought the owner’s consent to register it as a trade mark, threatening deregistration for non-use if consent was not provided.  The owner consented.   The other party became the new owner of the mark and the owner cancelled its own registration: [6].   Following th...

As you know, we three are Novocastrian optometrists.   We operated a business through a unit trust.  We were the directors of the trustee. Entities associated with, or controlled by, us were the unit holders.  One of us became worried about the behaviour of the other two.  The concerned one appointed a new trustee, a Co controlled by him and his wife.  Eventually, over res...

In this episode I flesh out the reasoning and the tactical angle on my approach to lawyers and branding. It's - in no small part -  my response to having to answer similar questions about this project over and over. From that perspective: I hope it helps you! In this session I (passionately) recommend Gary Vaynerchuck: https://www.garyvaynerchuk.com/the-ga... In the session I recommend Chris...

A coffee Co and a delivery firm, yes?   Our delivery firm collects coffee-laden pallets from coffee Co and returns the equivalent number of empties the following week.  Cool.   Now, coffee Co does its sums and realises it’s short >1,000 pallets over a 3 year period.  The delivery firm was “almost continually (in) breach” ([48]) of the agreement.  Coffee Co complains. Im...

“Do I really have to sell that flour mill?”   A bread researching NFP went through a restructure.  Its subsidiaries held IP and physical assets the plaintffs alleged were held by way of chartiable trust. The assets included a significant landholding (~$62M) which had a “pilot mill” on it; for flour experimentation.   The plaintiffs claimed the assets were held on charitable trust.&n...

“I’m not paying you if that grain catches fire!”   An ethanol manufacturer stored grain at a refinery.  An insurance policy obliged the insurer to indemnify the manufacturer.   The policy had exclusions for “spontaneous combustion… spontaneous fermentation or heating or any process involving the direct application of heat”: [4]   One morning, smoke was detected in one of the re...

Take a syndicate of lottery winners, most of whom work at the same factory. They're up $40M.   Take a disappointed member of a former, different syndicate also chiefly made up of workers from the same factory.   Our disappointed former member sues, seeking some of $40M, and loses. Having lost, a cost order is made against him.   The lottery winners (who also "won" the litigation) ma...

Today’s plaintiff was a shareholder, not a director (but the wife of one of the directors) and the financial controller of a Co.   The Co enjoyed some success and embarked on a restructure.   The company would “run bare” and pay profits in the form of licence fees to a third party.  That third party would distribute those fees to the trustees of discretionary family trusts. &nb...

So what does the exclusion clause exclude?   A lender relied on valuations in advancing money. The loans were defaulted on. The lender tried, and failed, to sell the property to satisfy the outstanding sum.   The lender then sued the valuers. The valuers cross-claimed against their insurer.  The insurer attempted to rely on an exclusion clause set out at [6].    The clause...

Corporate oppression and wine in a can! Hooray!   (Lots in this one. Broad brushstrokes only, I’m afraid.)   An Australian co, ACo, sells wine in a can. A Japanese co, JCo, produces cans.  One of JCo’s subsidiaries, JSub, competes with ACo, especially in China and Japan.  In 2012, JCo bought 60% of the shares in ACo. JCo entered into an agreement with the other ACo shareholders...

In 2005 Dad and his wife, D1, established a super fund.  They were the trustees and beneficiaries of the fund.  Before Dad’s death his son from a previous marriage, P, was appointed as trustee in his place. P was also Dad’s financial manager and guardian, and held his Power of Attorney.   In 2015 Dad died. His executor was D2.   In 2018 D1 and D2 entered into a deed apparently...

I say that we are not moving online.  We have already moved.  So have our clients.  This is the audio from a CLE video I delivered for the fine folks at the University of New South Wales in 2019.  It is a bit of a "deep dive" into three problems lawyers who advise creators and others with an online presence face, and some solutions to those problems. It might all sound a little...

An indemnity costs order – for costs beyond the ordinary “party / party” order – sometimes feels like the pot of gold at the end of a rainbow: enticing but, too often, elusive.   Today we deal with the tail end of a larger dispute.  The second defendant was successful and the beneficiary of an ordinary costs order against the plaintiff.   Today’s application sees the second defendan...

Today, James takes us through the method he employs when sharing content, with an appropriately huge nod to Gary Vaynerchuck along the way. Hope there's some value here for you!

Our plaintiff, P, is an irrigation company. It owns pipes.   One pipe is on D’s property. P is the beneficiary of an easement for it.   D wanted to develop the site, including putting a driveway over the pipe. P’s engineer assessed the risk of the driveway damaging the pipe to be high: [14].  P demanded that all works cease and received no substantive reply.   P sought an inter...

What if a party needs more documents to decide whether to kick off litigation?  UCPR 5.3 can assist.   Here, we have a sale of a restaurant and grocery business to the plaintiff.  Prior to the sale the plaintiff was given payroll reports, staff rosters, and P&Ls.  Each defendant gave representations about the accuracy of that info: [4].  The plaintiff said turnover fol...

With thanks to the Television Education Network's Sound Education in Law project, I'm delighted to share this discussion with Susanna Lobez first published in April 2019. If you're interested in this content, TEN's website is here:   www.tved.net.au I am really happy with how this discussion turned out with thanks to the guiding hands and minds at TEN. Hopefully there's some real value in thi...