Coffee and a Case Note

A partnership dispute (that I have previously summarised part of) was litigated in large part, then settled: [2] Before final orders were made, deeds were signed that saw the D pay a sum, surrender their partnership assets, and the proceedings dismissed: [4] P, a former partner of the partnership then sued D for the same breach: [5] D said P (1) was bound by the deeds; (2) was estopped due to res...

“Sell the land I own 1/56th of!” ___ From the early 1980s a property was owned as tenants in common. Ownership was divided in sevenths: [6] P owned one 40th of the 5/7th intersect - a 1/56th interest in the land. P sought the appointment of trustees to sell the property pursuant to s66G of the Conveyancing Act 1919 (NSW) Each co-owner had “spheres of influence”. Some constructed residences: [9] Th...

James is sometimes invited to give presentations and talks for external legal training providers. Please enjoy this talk James gives on the distinctions between corporate oppression and derivative actions. And please don't forget to follow James and Coffee and a Case Note on your favourite platforms!

“You said our companies wouldn’t have to pay back those loans!” ___ A group of entities controlled by P (“P”) was in business with a group of entities controlled by D (“D”). P and D did property development work together via various operating Cos (“OpCos”): [3] P commenced oppression proceedings (s232) saying that D breached their duty to OpCos, and the ACL: [4] P sought the Court’s leave to bring...

P lodged a caveat on a property owned by D in Darling Point, Sydney. D sought its removal. P was the deceased’s son by an earlier marriage. After P’s birth, the deceased married D and they had another child together: [4] - [7] The deceased operated a cattle and macadamia business on land owned by an entity the deceased and D themselves owned and controlled: [9], [10] In 2011 the deceased made a wi...

“We amended the contract, now give me my bonus!” ___ P agreed to sell their shares in SubjectCo to D for: cash, shares in D, and (if further earnout conditions were met) further shares in D: [1] P sued D for those shares and unpaid dividends, saying the conditions were met: [2] SubjectCo made hazardous area electrical equipment for mining machinery: [11] D was a listed business whose strategy incl...

"The vesting date is too early. Rectify the deed!" ___ In 1976 a trust was established: [2] P and P’s parent signed the deed for Tee: [3] The trust assets included land in SW Sydney; likely “substantially” exceeding $100m: [5], [20] The trust vested on the earlier of: a date in 2032, the date of death of a royal family member (“royal lives” clause), or a date determined by the Tee: [7] The trust’s...

“I’m a director.” “No you aren’t.” “Yes, I am!” ___ Two people, and their Cos, founded a Co to develop property on the NSW coast: [1] P was a director. PCo and DCo were equal shareholders: [37] Their records could “fairly be described as a mess” with “gaping holes” in the evidence: [3], [11] The parties agreed that they would share the profits, but disagreed on sharing investment: [175] The Court...

"Investigation isn't legal advice. You waived privilege!" ___ D discovered ~29K documents in a piece of litigation, and claimed ~9K were privileged: [1]   The Court considered 27 representative docs. The docs included docs about an ASIC investigation re “fees for no service” claims: [2]    D had to prove the docs were privileged. If privileged, P had to prove privilege had been...

On 31 October 2022 I gave a lecture at Macquarie Uni for Dr Madeline Taylor's commercial law course.  We traversed some practical issues that were commercial, but not corporate (and you might recognise a few of them)!   If you would like a copy of the paper, please reach out to me and I can provide it to you.  Jd'A  #auslaw  @Macquarie University  #commerciallaw

"Stop competing with the business you sold me!" ___ In 2018, P bought a business from the Ds by buying all shares in the Co, ObjectCo, that operated the business from D1 and D2 for $9.5m: [1], [10] P is a local subsidiary of a multi-national group that sells and installs business software: [2], [3] ObjectCo sold and installed similar but more complex, pricier software: [4] ObjectCo’s business was...

A was the national body responsible for go-karting in Australia and trustee of a related trust: [12] R was responsible for go-karting in NSW and the ACT, and a member of A: [14] A’s constitution obliged its members to pay on the fees they collected from go-kart drivers in races A approved: [15], [16] A was Tee of a fund for the construction of new go-kart tracks: [17] The trust deed empowered A to...

In September 2022 I had an opportunity to appear on the excellent Zeiler Floyd Zadkovich podcast, Case by Case.  Luke, Calum and I dicussed Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184 and the possibility of a derivative action being brought by the beneficiary of a trust.   You can also enjoy the chat to its fullest on the Case by Case YouTube channel: https://www.you...

“A trust law derivative action, or a common law one?” ___ In the early 80s, a trust was established. Its assets came to be worth around $55m: [5] A parent established the trust for the principal benefit of their spouse and 4 children, with TCo as trustee: [6], [10] TCo’s shareholders were 2 of the kids - the Ds: [7] The trust deed gave TCo a wide discretion to make resolutions on the distribution...

“Freeze those assets. You’ll need them to pay me when I win!” ___ D1, D2, P2 - all natural persons - agreed to incorporate a company to sell aluminium-framed glazing products, PCo, and did in fact do so with D2 and P2 holding equal shareholdings: [5] P2, the active plaintiff, wanted interlocutory freezing orders ahead of final s232 relief and s236 leave to pursue D2 for a breach of their DDs: [7]...

"You made the company pay too much money for that boat!" ___ R owned 55% and A owned 45% of shares in a Co that operated a leisure boat business on Sydney Harbour: [2] R was the “bank”, contributing funds to the venture. A was to contribute sweat equity, earning a wage while running the Co’s business: [3] A caused the Co to buy a boat from an entity related to A’s spouse for $315K “as is” with no...

“Get us out, and get a prov liq in!” ___ P, A director and 70% shareholder of a Co sought to have it wound up and a provisional liquidator appointed: [1] - [3] P brought this application shortly after D1 (P’s former spouse, a Dir, and a 20% shareholder) commenced family law litigation: [20] D2, D1’s sibling who owned the remaining 10% of the Co’s issued shares, commenced their own shareholder oppr...

“The new deal you all made breaches the old deal we made!” ___ In 2001, some Cos came together to incorporate a new Co. NewCo was incorporated to contract with a big client. The client’s work would then be shared between the shareholders: [3] NewCo would invoice the big client, and each shareholder would then invoice NewCo such that NewCo never made a profit: [39], [68] A dispute arose: did that 2...

“Oi! Let me manage the company I said I didn’t want to manage!” ___ One brother, P, tried to wind up a Co, Tee, he owned with his elderly mum and two other brothers. Tee was trustee of a family trust whose ~$5.8m corpus included some real estate related to a family auto repair business formerly operated by Tee: [8], [12] (There was also a s66G issue that we will ignore.) P had left the auto repair...

“I submit to orders that I have to repay Dad. Or do I…?” ___ Mum and dad - elderly and unwell - sued two of their kids, and their son-in-law. First, the fascinating procedural issues. One child and the son-in-law filed submitting appearances. Another child (who we won’t discuss further here) resisted Mum and Dad’s claim and made a cross claim: [1] During the final hearing, the submitting daughter...

"Can we charge a fee for administering the trust?" ___ A trustee sought judicial advice from the Court that it would be justified in amending a super fund trust deed. The proposed change would allow it to charge a fee to be paid from the fund: [38], [44], [67] (The T’ee sought and was granted non-publication orders in respect of some of its commercial evidence because if it became public it could...

“Does the trustee really own the farm, or it still in mum’s estate?” ___ In the 1970s, Dad - a farm owner - planned to transfer his farm into a trust with TCo as trustee and his family as beneficiaries.  If it worked, his wife and 4 kids could take the benefit of the farm without paying death duties: [78] At this time, rural families often faced death duties at “confiscatory levels” when farm...

"That money's for the business, not for you!" ___ 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! ___ Ps claimed they paid $160K cash to D in connection with an online payment business: [3] D said the $110K was appropriately spent on business expenses and D’s salary, and the $50K was for some u...

5 partners - 3 Ps and 2 Ds - from the same extended family carried on a partnership. There was no written agreement: [1], [2] D2 was married to D1: [3] The partnership business was owning rental property (shops and units) and collecting rent. D1 took a leading role and was a paid a management fee. All partners were paid drawings, controlled by D1: [4] - [6] Drawings were paid 1/4 to each P, a...

I so enjoyed this interview with Nicole Davidson, a gun mediator and host of the Negotiation in Real Life podcast. Please check it out here: https://podcasts.apple.com/gb/podcast/negotiation-in-real-life/id1590259533