Coffee and a Case Note

“You fired me just to get my Co’s shares at a discount!” ___ Y owned and controlled a Co, P.  P was a shareholder in the Cos in a group that operated a national business. Y was a director of the Cos: [1] Y was terminated as a director of each Co in the group and, and by operation of the shareholders agreements, P’s shares in those Cos were transferred to the other shareholders at a discount w...

“Just keep those assets frozen a little longer…” ___ P was an owners corporation that owned the common property in a building. P sued the developer, D, in relation to alleged defects P afflicting the building - a breach of the HBA statutory warranties: [9] P tried to organise site inspections of various experts to investigate and hopefully quantify the defects but COVID restrictions frustrated tha...

“Our agreement was for a bigger easement!” ___ In 2008 and then 2010, a developer, N, entered into agreements with adjoining landowners including V to develop some land: [2] N commenced development and lodged caveats over land including V’s securing obligations purportedly pursuant to the 2010 agreement: [6], [7] By 2018 the caveats were replaced by new caveats and V applied to the Court to have t...

“The proceedings were dismissed, so pay my costs!” ___ P commenced legal proceedings seeking specific performance of a deed that saw D grant P a drainage easement. Shortly afterwards, the proceedings were dismissed by agreement. When proceedings are dismissed the plaintiff ought to pay the defendant’s costs, unless the Court says otherwise: UCPR r42.20 P said D had engaged in unreasonable delay in...

James sat down to speak with Dean Cosgrove of Griffith University Law Society (GULS) in June and had a great chat about how the life of a commercial litigator works. You can find GULS on LinkedIn here: https://www.linkedin.com/company/griffith-university-law-society And you can find the GULS Law Student podcast wherever you get your podcasts!

"We settled those other debts, but you still owe me this one!" ___ A joint venture of some complexity fell apart, as they sometimes do.  The relevant parties entered into a “Termination Agreement” dealing with the fallout.   P sued D for a debt of £500K. D said that debt was discharged by operation of the Termination Agreement: accord and satisfaction.   P and D’s commercial relatio...

“Stop that Co from selling shares. Right now!” ___ P (who, incidentally, was the Australian corporations regulator, ASIC) commenced proceedings against a Co, and others, seeking to wind up the Co and - in the meantime - freeze the Co’s assets. P’s evidence showed the Co had significant debts and minimal funds. The Co’s MD alleged they held funds for the Co in trust, out of reach of the Co’s credit...

“Let’s get our company to buy a block of land. I’ll take some and you can have… none?” ___ F and A were directors and (with their families) 60/40 shareholders in a Co. The Co owned a block of land. F and A discussed an arrangement where each would get - for themselves - a small parcel of land subdivided from the Co’s larger block without paying: [7] A’s parcel was subdivided and transferred to A w...

James spoke with Lucy in 2021 and they had a wide-ranging chat about James' approach to leveraging social media to build a legal practice, and how he feels like the term "innovative" may not necessarily suit him! We hope you enjoy this fun chat! You can catch Lucy's podcast everywhere you get your pods and her website is here: https://www.lucydickens.com.au/doing-law-differently/

“Nope! It’s not convenient for the Court to stop that meeting.” ____ A dispute arose about (i) rights to units in a unit trust, (ii) whether a Co that purported to be the unit trustee was indeed the trustee, and (iii) who owned the shares in the Co. St sought an injunction to stop the Co having a meeting of the unit holders. To get the injunction St had to show likelihood of success, and that the...

“I sued and got what I wanted, so pay my legal costs!” ___ The Ps enjoyed an easement over the Ds’ land.  The parties were neighbouring farmers. The easement related to irrigation water and included rights to access the land to maintain pumping apparatus. The Ds installed locks and fences that interfered with the Ps’ access. The Ps commenced proceedings. After that the Ds took steps to resolv...

“Get me out, and value my units properly!” ___ Two dentists worked together using a unit trust in which D1’s and D2’s entities held units. The relationship between all was governed by an agreement. The agreement contemplated a unitholder exit for “fair market value”. D1 sought to exit. The T'ee sought judicial advice regarding a valuer. D1 applied for a stay and failed. The T'ee got the advice tha...

“Can we liquidators defend this appeal, and use someone else’s lawyers?” ___ A dispute between two Dirs and equal shareholders of a mining Co led to it being wound up. Before the windup SH1 brought a derivative action on behalf of the Co against SH2 and related entities. The claim succeeded re revenue from one mine which SH2 diverted away from the Co to their own interests, and failed in relation...

“My product is not toxic. That’s defamatory!” ___ A honey-making Co and its CEO kicked off injurious falsehood and defamation proceedings. They wanted damages and orders restraining the D from making further publications. The Ps complained about D saying: - The Ps’ honey was toxic: [14] - The Ps conspired with the judiciary and a consumer advocate magazine: [15], [20] - There exists a “sex tape” s...

James spoke to the wonderful Susanna Lobez from TVED for this partnership disputes CLE. Hope you enjoy! You can find great offerings from TVED here: https://www.tved.net.au

“Don’t steal my confidential information!” ___ A, a former shareholder in and employee of R, ceased being a shareholder, quit, and set up a competing business in the same industry. A lost a set of proceedings at first, and appealed. Before leaving: - A arranged for another employee of R to send A R’s client lists: [26] - On the day A gave notice they were intending to set up a competing business,...

“Hey! Give me those shares!” ___ P, executor and sole beneficiary of an estate, pressed D to register the transmission of shares to them. P did this by sending 2 letters in January. When the letters didn’t bear fruit, P commenced proceedings in mid-February: [2] Later in February solicitors for D’s directors (but not for D) indicated instructions had been or would shortly be given for the transmis...

P's shareholding was diluted from 70% to ~15%. P sued the Co and its Dirs for causing the Co to issue over 3m shares to 2 Dirs: [3], [5] P asked the Court to reverse the share issue, and replace the Dirs: [2] Oddly, as the hearing approached all the Dir defendants consented to the P’s application, and most Ds withdrew instructions from their lawyers: [8], [10], [44] However, P still had to prove i...

“Whoever’s sending those mean letters must stop!” ___ Someone sent >20 anonymous letters about the Ps to many recipients: [34] - [74] The writer (or writers) made allegations including that the Ps (or some of them) - who ran an aged care facility - breached their duties, overlooked medical misconduct, engaged in extra-marital affairs and nepotism, stole funds, claimed expertise they did not hav...

P, a managed person, brought a claim in the Supreme Court to eject D from P’s apartment. D had already commenced Family Court proceedings against P seeking $4.2m, approximately the value of the apartment: [10], [11], [25] D applied to the Supreme Court to either (i) transfer P’s "ejection" claim to the Family Court, or (ii) pause it until the Family Court claim was over: [8] P was bedridden and re...

James spoke with Damon Laffin at the Young Lawyer podcast earlier this year and there traversed many topics: James' failures and recoveries, dealing with poisonous partners, his approach to law, and everything in-between. You can find Damon on LinkedIn here: https://www.linkedin.com/in/damon-laffin-01789942/?originalSubdomain=au

"Fair value! No minority discount." ___ When valuing a minority shareholding - especially a “market” valuation (rather than “fair”) - it is often said a “minority discount” applies.  This discount reflects a minority’s lack of power to influence the company.   Recently, a minority shareholder, P, tried to cause the majority, D, to purchase their shares.  All agreed a share purchase...

"No new claims, no new claims. (No new claims. No, no new.)" __ A created an invention and R wanted to help commercialise it. R made a loan of $335K to A, and then a further $3m loan. The two also became involved in property development together, with R providing some finance: [10], [11] A lender sued A for failing to keep up with finance payments. A cross-claimed against R alleging a number of ag...

In April 2020 I had an opportunity to have an incredible chat with The Happy Family Lawyer herself, Clarissa Rayward. We did battle with the very early professional impacts of COVID-19 and some nearby renovations and emerged with a conversation I look back on with great fondness and gratitude. You can check out Clarissa's fabulous projects, and the community she has built, here: https://www.thehap...

In November 2020 I sat down for a great chat with Brendan Kelso of Legalsites.  We got into the nitty gritty of my approach, and what steps you might consider using in adopting a similar strategy. And it was great fun! You can access Brendan's podcast, and lots of great resources, here: https://legalsites.com.au/podcast/