Coffee and a Case Note

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...

“With $1 mill, we can make $5 mill a year easy and safely.”   ___  Easy, safe ways to generate a 500% p.a. ROI? Sign me up!   This representation, and other similar ones, recently came before the Court.   The plaintiffs – a natural person resident in the US, two impecunious Australian corporations, and two Canadian companies – pursued the defendant, a natural person. &nbsp...

Here, a liquidator chased directors for debts incurred by a company.  The liquidator said the debts were incurred while the company was insolvent. The Court accepted that: [64].   The directors were a father and son. Dad retired as a director more or less simultaneously with son’s appointment.  The debts were incurred while Dad was a director, and before the son’s appointment. ...

[Forgive the audio - this one recorded in the bad old days before Rode came along] A plaintiff brought a defamation suit.  The defendants succeeded in having it summarily dismissed at first instance and the Court ordered that no further claim be made on the basis of the publications complained of without leave.  The plaintiff sought leave to appeal (leave being necessary if you’re appeal...

Hello there! This episode is a little different. Today I'm making use of the Gary Vaynerchuck metaphor of "Jab, Jab, Jab, Right Hook" that I am so fond of and am having a chat about a blog post. It's something I put up on Linkedin earlier in the year that I know a few people have got some value from. The post is here:   https://www.linkedin.com/pulse/jabs-right-hooks-james-d-apice/   Hop...

Does an expert have to make her or his determination “according to law”?   Not as silly a question as you might think.  A landowner and builder entered into a contract.    The contract included a dispute resolution clause. The effect was that any dispute about the contract must be referred to an expert for determination “according to law”.  A dispute arose and an expert wa...

[Please forgive the audio quality - this one was recorded before I got my microphone house in order] This is the first Coffee and a Case Note I ever recorded. Rather than give you a summary I thought I would let you know how strange it is that a legal decision about Canberran eye doctors I've never met, represented by lawyers I've never worked with, came to be important to me. The journey has been...

[Forgive the poor audio on this one - I was yet to invest in my current microphone!] “I’m not being oppressive. You are!”   A and B were directors and shareholders in a company that owned an orthotics business.   A brought a claim against B in oppression. A succeeded on bases including: B was paid as a consultant but caused the company to record a debt to him for unpaid annual leave: [11...

Your client is sued by a corporation. Your client’s defence succeeds. The Court orders the corporation to pay your client’s legal fees.  But – heartbreak! – the corporation has no money. Your client is left with its pyrrhic victory and its legal bills. To manage this the Court has the power to order security for the costs of a person in your client’s position. Today: a corporation commenced p...

On 17 April 2019 Corrs Chambers Westgarth hosted the annual NSW Young Lawyers great debate between solicitors and barristers. I spoke second for the solicitors team; after the excellent Sarah Dickins and before the amazing Thomas Spohr. I'm delighted to say that we won! Perhaps more delightful, though, was the even itself. Playful, but conducted in the right spirit. I hope you agree!