Coffee and a Case Note

“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!

Sure, corporate oppression is fun but what about reasonable notice for board meetings?!   A director (or *former* director) applied for immediate interlocutory relief.  The relevant Co found mining tenements and on-sold them. Its strength was its speed: [9]. Perhaps naturally, the board often met on short notice: [21]   In August 2018 the directors declared our applicant was no long...

I hope you take some value from this one hour (or so) CLE where I sketch out the Australian privacy regime as it currently stands including a consideration of notifiable data breaches. This talk covers four areas: 1. What is the legislative privacy framework? 2. How does privacy work in practice? Both "macro" statistics and "micro" examples. 3. How do you avoid a data breach? 4. What do you do if...

“Get it in writing!”    Relying on a conversation to vary a contract has its challenges, especially after you’ve gone down at first instance.  Party A provided services to Party B – a company – pursuant to a contract. Party C guaranteed Party B’s contractual obligations.   Party B failed to pay the fees owed pursuant to the contract. Party A sued for the fees and won. But by th...

So, when is your loan agreement void for uncertainty?  When are a contract's terms so vague that the Court can't find any real agreement between the parties?  The NSW Supreme Court  considered a loan agreement obliging the borrower to pay interest "at such times, for such periods and at such rate or rates as shall be determined by the lender from time to time": [6].  Generally,...

“Mr X, in the company of a young female acquaintance, lost control when driving the vehicle for purposes unrelated to his possession of the vehicle.”: [4].   Has a saucier sentence even been written?   Anyway, here a car owner gave possession of his 2006 F430 Spider Ferrari (which is a type of car, I’m told)* to a company for the company to rent it out.  The owner said he did so bec...

I’m Australian lawyer, James d’Apice. I host a video series called “Coffee and a Case Note” where I try to give some value by summarising a recent legal case while sipping a coffee. This podcast is the audio version of that series. I hope you’ll join me!