Coffee and a Case Note

In July and August 2023 James d'Apice gave a series of 5 CLEs "live" on Instagram, Facebook, Linkedin and YouTube. This one covers corporate oppression pursuant to s232 of the Corporations Act 2001 (Cth) using the structure: 1. The law of corporate oppression 2. Some litigated examples 3. Practical suggestions Please send James or Coffee and a Case Note a follow on your favourite pla...

“You complied with the contract by paying someone else, but pay me too!” ___ P and their (then) spouse, X, agreed to lend $1m to D. The money - which was actually P’s solely - was lent: [1] X directed D to repay the money into one of X’s accounts. D did so. At this time P and X were separated. They later divorced: [2] P sued X for the money and, X having been made bankrupt, expects receive under $...

“That’s my warehouse, or at least half of it is…” ___ From its purchase in 2010 P and D were registered as 50-50 TiC co-owners of a warehouse. P was D’s parent. P had borrowed the money to buy the property. D operated a business from the property until 2012 when it become non-viable: [4] From 2017 the property was leased with all rental proceeds being paid to D: [7] P commenced proceedings (not by...

“But you’re who’s stopping the Co from bringing the claim!?” ___ The Ps (a parent and their child) were the dirs and only shareholders of the D. The D was trustee of an SMSF and the Ps were beneficiaries: [1], [2] The Ps, proceeding without legal advice, sought leave to cause D to sue for some alleged trust property: shares. The Ps said FormerTCo, a former Tee of the SMSF, owned shares in OtherCo,...

"This motel ain't big enough for the both of us!" ___ Two families operated a motel together until their relationship deteriorated. 2XD owned the land the motel was operated on and leased it to 1XD, a Co co-owned by 2XD: [2] 2XC had assisted 2XD over the years, and came to assist with the motel: [13] - [17] The arrangements (for 2XC to help at the motel, and to eventually purchase it...

“Those unjust terms are void, but not the whole contract.” ___ A Co borrowed money. The Co’s dir and that dir’s spouse (together, “the Ps”) guaranteed the Co’s borrowing including by mortgage: [4] The Ps said the contract was unjust pursuant to the Contracts Review Act 1980 (NSW): [6] The Co borrowed ~$9m from the D on a 15 month term with ~$1m immediately payable to the D: [7] On default a higher...

“You can’t bring your derivative suit; an oppression claim does that job!” ___ Ps, shareholders in a Co that produced fire collars and similar products for the building industry, sought leave to bring derivative proceedings on behalf of the Co. The relevant IP for the Co was held in a unit trust with TCo as trustee. Each of the Ps and the Ds were shareholders in Co and TCo, and unitholders in the...

“You can have their shares, even though they’re worth nothing!” ___ P commenced oppression proceedings seeking buyout orders, or a windup. Co1 was owned 50-50 between P and D2, and bought a site for $4.6m: [4] Co2 was owned 50-50 between P and D2, and bought a site for $2.9m: [5] P said they contributed $1.3m to finance and D1 and D2 ~$700K between themselves: [6] Further funds were also contribut...

“Is the whole group a partnership, and can we dissolve it?” ___ In the 1950s 3 brothers started a business which became successful. It was run as a group of Cos and trusts that grew in value and complexity. The group was run informally by the 3 brothers (and later their kids) and structured pursuant to tax advice: [20]  In 2018 P sued seeking to divide the business into 3 equal parts; each part pa...

“It’s not unreasonable that I rejected your offer!” ___ A dispute arose about how much tax a Co should have to pay. The dispute related to P’s alleged status as an employment agent: [22], [24] As the matter progressed P made a partial payment in respect of the claimed tax debt and litigation was commenced. In January 2021 D made a Calderbank offer (and not a UCPR offer) to accept about $3.4m for i...

“Money down; then you can sue me!” ___ P sued the Ds for $4m claiming it was an unpaid builders margin: [1] The Ds sought security for their costs: [2] In 2018 P worked on 2 projects for some Ds, with the Ds’ Dir expressing interest in buying shares in P despite a dropping margin: [7] Later in 2018 some of the Ds entered into the shareholders deed. One of the Ds became a 50% shareholder in P and P...

“Nope! The injunction stays and you’re still restrained.” ___ P was a member of an international group of leasing businesses. D was a former employee of P’s. Commencing in 2016, over time D had been promoted, signing a number of new employment agreements: [4] The most recent contract included a 3 month notice period and an extended restraint. D gave evidence they did not read the agreement before...

“But our relationship hasn’t broken down!” ___ C1 and C2 did development work together. Two natural persons, P and D, were inter alia (i) equal shareholders in C1 and C2, and (ii) dirs of C2. D was the sole dir of C1: [1]  P brought an application pursuant to s233 and s461 to wind up C1 and C2: [2] Originally, D had borrowed money from P’s parent for the venture. P’s parent only agreed so P could...

James had the chance to sit down with the wonderful Rose Inglis for her Rose Tinted Law podcast the other week! James (me - I am just writing this and pretending we are a big team) probably revealed more personal stuff, and more TikTok beef stuff, here than ever before. Enjoy! And catch Rose here: https://rosetintedlaw.com.au/rtl-the-podcast

“Nope. You can’t stand in the company’s shoes.” ___ In a family dispute, P wanted the Court’s leave to pursue a $10m claim on behalf of Co. P said the $10m was owed by D1, trustee of a family trust, as a loan to be repaid: [2], [17] P also sought leave to proceed against D2 and D3 for breaching their duties to Co: [3] P said the loans were made where D1 had doubtful capacity to repay, and where in...

"Cancel the meeting you've set to remove me!" ___ An association relating to the education of First Nations people, D, planned to convene a meeting to consider removing its president, P. P applied to the Court on an urgent basis to restrain D from doing so: [1] The meeting was set for a Sunday, P having been provided with very little notice. P approached the Court for an urgent hearing on the Frid...

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...