Coffee and a Case Note

(A couple of goofs in my delivery of this one this week - apologies!)   R and 7 As were in partnership operating various diagnostic medical imaging businesses pursuant to a partnership agreement. R and 5 of the As were “full” partners each entitled to 1/7; 2 As were “half” partners entitled to 1/14 each: [3], [31]   The As entered into an agreement with a purchaser to sell the partnershi...

(I don’t know why these short lost trust deed cases appeal to me so much. Perhaps it is the intersection of the capital “L” Law with all its tradition and solemnity, with the very human problem of losing a few old pieces of paper.) ___ A trustee administered a trust in accordance with an unexecuted (or unsigned) trust deed. When the original was needed, no one could find it. The trustee sought the...

“Hey that money belongs to the partnership. Give it back!” ___ C and S, verbally agreed to (i) try to buy some adjoining properties, (ii) sell them at a profit, (iii) share the costs and expenses of doing so equally, and (iv) share the profit equally: [9] Speaking broadly, S took responsibility for financing and buying the properties, while C looked for purchasers: [14], [55] S argued the agreemen...

P, a school, bought a bus from D. It was old stock sold at a substantial discount. The Court found D had engaged in misleading and deceptive conduct by silence (as to the build year of the bus) when selling the bus to P. But - crucially - the Court found P did not rely on that misrepresentation: [13] That meant P lost its claim, despite D’s conduct: [1] This left open the question of legal costs....

“The deal’s off. Now give me back my $6m!” ____ P, a Chinese frozen meat company, and D, an Australian feedlot and abattoir company, found themselves in dispute.   A 2015 contractual arrangement required P to pay a $6m “advance payment” to D to acquire 45% of the shares in D: [7] P made that payment. The 45% stake was valued ~$140m: [17] The deal between D and P included unusual conditional t...

If you'd like to contact me my please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! (TikTok is one of my strongest suits these days!) ___ Two partners P2 and D4 - both companies - were in partnership from 1996 to 2003.  The Ps said that D1 had been paid partnership money and sought an order for the taking of partnership acco...

“Victory with no word from the misbehaving NZ director? No problem.” ___ Ps, liquidators of a holding Co whose subsidiaries provided cloud-based SMSF software and support, sued three of the Co’s directors, and settled the claims against two of them: [2] They pursued the remaining director, D. D was served with the originating process (the document that kicked off the litigation) in NZ, but did not...

“We’re liquidating the trustee Co, but we also need to be made receivers of the trust assets!” ___ A Co was incorporated to be a trustee and, in that capacity, developed an apartment complex in Lindfield: [12] The trust deed provided that the Co was to be indemnified for all liabilities incurred in its capacity as trustee, and that it would cease to be trustee upon its liquidation: [11] Following...

Earlier this year I had the chance to chat with David Turner of Hearsay: The Legal Podcast. It was (honestly) one of the most enjoyable chats I have ever had about technical legal practice. You can find other episodes on the fabulous Hearsay podcast here: https://htlp.com.au

“You got the money, now get me my luxury goods!” ___ A commenced proceedings against R1, a father, and R2, a son who was a minor at the relevant time, to recover payments made for luxury brand name furniture and accessories that were never delivered: [45] At first instance, A succeeded against R1, but lost against R2: [46] A and R1 had an established commercial relationship: [48] There was some co...

“Give that $30m back to the Co and wind it up!” ___ Some Ps were executors of a shareholder’s estate: [2] The Co conducted a retirement village business which was sold in 2017 for $25m: [3] Over time money was dissipated to a director, WH, and WH’s related entity, HHC, who used some money for buying a Balinese property: [4] The litigation was complex but, crucially, the Ps sought repayment of the...

On 5 November 2021 I spoke (remotely) at 'The Retreat' by Clarissa Rayward, the Happy Family Lawyer. It's a fantastic event and I was delighted to be a part of it. (And am hoping for an invite back next year!) This is my presentation which I hope brings you value. A link to just some of Clarissa's fabulous content is here: https://www.thehappyfamilylawyer.com   A link to my appearance on Clar...

“There’s no deadlock, so there’s no windup!” ___ P, a director, applied to wind up a Co that was Tee of a unit trust: [2] P’s fellow directors were S and D. P said there was a deadlock and relations had broken down: [4] P and S were builders. D was a property developer. The 3 agreed to found the Co to develop a site together with P and S to share 50% of the profits and D to take the remaining half...

“The Co paid too much for that helicopter!” ___ W and B were 50/50 shareholders in a Co that bought a helicopter for $1.6m. They were also the Co’s sole directors. $1.12m of the purchase price was borrowed. W and some related entities gave a guarantee in respect of that loan. The Co couldn’t make the payments. The lender caused the helicopter to be sold for a shortfall of ~$457K. The lender sued W...

Earlier this year, James sat down with Legalsites' founder and law grad turned legal firm marketer, Brendan Kelso. Hope you enjoy their conversation! A link to the Legalsites website is here: https://legalsites.com.au/social-media-101-w-james-dapice-facebook-instagram-linkedin-tiktok-and-twitter-which-is-best-for-law-firms/

“Wind up the company that runs this pub!” ___ An uncle, and his Co, (“P” or “the Ps”) sued a nephew and his Co (“D” or “the Ds”) to wind up a Co that operated a pub and the T’ee that owned the land it was on: [1] Uncle and nephew were the directors of both the Co and the T’ee: [2] All parties accepted the relationship had broken down. Each blamed the other: [3] The grandfather - P’s dad - assisted...

James had a chance to chat with the legend, Mike Bromley, from Team BB earlier this year. You can catch what the Beyond Billables team are up to here: https://www.beyondbillables.com

In September 2021 James d'Apice spoke with Susanna Lobez from TVED about one of James' pet topics: derivative actions. You can find TVED's content here: https://www.tved.net.au

"No trust? No confidence? No company." ___ B and G founded the Co and entered into a shareholders agreement. The Co provided in-car cameras for race cars to be used in TV broadcasts. In 2015 the Co agreed to provide cameras for 5 years: 2016 - 2020: [6] B transferred valuable camera equipment (and later loaned other equipment) to the Co for the Co to use: [9], [60] At the end of 2020 B wanted to t...

“You moved the Co’s money, so let’s wind it up!” ___ The As, spouses and owners of 45% of the shares in a Co, came to Court to try to wind up the Co including pursuant to s461 of the Corporations Act 2001 (Cth). One of the Rs owned the balance of the Co’s shares, being 55%: [4] The As, as shareholders, had standing to bring the claim: [10] They had the consent of a liquidator willing to accept an...

James had the chance to sit down with Jerome Doraisamy in September 2021 to have a fantastic chat about James' views on the profession and his suggestions for other practitioners. Please check out Laywers Weekly here: https://www.lawyersweekly.com.au/podcast/32455-blending-contemporary-branding-with-traditional-practice-approaches

James had a great chat with Anvita Nair of Monash University's Monash Future Thinkers podcast. Why not check out what Monash Future Thinkers are up to by heading here: https://www.futurethinkers.org.au

"I didn't agree to sell you shares. I agreed to sell you other stuff!" ___ A successful Co was founded by D and their spouse in the 1970s. At all relevant times, they were its sole shareholders. Two Ps worked for the Co, and were later appointed directors with D. In 2005 there was an oral agreement between D and the Ps. Each had a different version what it meant. The Ps said they paid $150K to eac...

On 2 September 2021, James sat down on a TikTok Live and spoke with the legendary Jahan Kalantar. To learn more about Jahan, head here: https://www.jahankalantar.com

“Just transfer the shares to me!” ___ Years ago, mum and dad incorporated a Co and, among other things, became shareholders of the Co’s Class “A” voting shares: [10] The Co held assets in its own capacity and as trustee of the family trust: [13] Mum and dad’s two sons, S1 and S2, eventually became directors of the Co: [12] In 2011, Mum retired leaving S1 and S2 as sole directors. In the same year...