Coffee and a Case Note

“You got the money, now get me my luxury goods!” ___ A commenced proceedings against R1, a father, and R2, a son who was a minor at the relevant time, to recover payments made for luxury brand name furniture and accessories that were never delivered: [45] At first instance, A succeeded against R1, but lost against R2: [46] A and R1 had an established commercial relationship: [48] There was some co...

“Give that $30m back to the Co and wind it up!” ___ Some Ps were executors of a shareholder’s estate: [2] The Co conducted a retirement village business which was sold in 2017 for $25m: [3] Over time money was dissipated to a director, WH, and WH’s related entity, HHC, who used some money for buying a Balinese property: [4] The litigation was complex but, crucially, the Ps sought repayment of the...

On 5 November 2021 I spoke (remotely) at 'The Retreat' by Clarissa Rayward, the Happy Family Lawyer. It's a fantastic event and I was delighted to be a part of it. (And am hoping for an invite back next year!) This is my presentation which I hope brings you value. A link to just some of Clarissa's fabulous content is here: https://www.thehappyfamilylawyer.com   A link to my appearance on Clar...

“There’s no deadlock, so there’s no windup!” ___ P, a director, applied to wind up a Co that was Tee of a unit trust: [2] P’s fellow directors were S and D. P said there was a deadlock and relations had broken down: [4] P and S were builders. D was a property developer. The 3 agreed to found the Co to develop a site together with P and S to share 50% of the profits and D to take the remaining half...

“The Co paid too much for that helicopter!” ___ W and B were 50/50 shareholders in a Co that bought a helicopter for $1.6m. They were also the Co’s sole directors. $1.12m of the purchase price was borrowed. W and some related entities gave a guarantee in respect of that loan. The Co couldn’t make the payments. The lender caused the helicopter to be sold for a shortfall of ~$457K. The lender sued W...

Earlier this year, James sat down with Legalsites' founder and law grad turned legal firm marketer, Brendan Kelso. Hope you enjoy their conversation! A link to the Legalsites website is here: https://legalsites.com.au/social-media-101-w-james-dapice-facebook-instagram-linkedin-tiktok-and-twitter-which-is-best-for-law-firms/

“Wind up the company that runs this pub!” ___ An uncle, and his Co, (“P” or “the Ps”) sued a nephew and his Co (“D” or “the Ds”) to wind up a Co that operated a pub and the T’ee that owned the land it was on: [1] Uncle and nephew were the directors of both the Co and the T’ee: [2] All parties accepted the relationship had broken down. Each blamed the other: [3] The grandfather - P’s dad - assisted...

James had a chance to chat with the legend, Mike Bromley, from Team BB earlier this year. You can catch what the Beyond Billables team are up to here: https://www.beyondbillables.com

In September 2021 James d'Apice spoke with Susanna Lobez from TVED about one of James' pet topics: derivative actions. You can find TVED's content here: https://www.tved.net.au

"No trust? No confidence? No company." ___ B and G founded the Co and entered into a shareholders agreement. The Co provided in-car cameras for race cars to be used in TV broadcasts. In 2015 the Co agreed to provide cameras for 5 years: 2016 - 2020: [6] B transferred valuable camera equipment (and later loaned other equipment) to the Co for the Co to use: [9], [60] At the end of 2020 B wanted to t...

“You moved the Co’s money, so let’s wind it up!” ___ The As, spouses and owners of 45% of the shares in a Co, came to Court to try to wind up the Co including pursuant to s461 of the Corporations Act 2001 (Cth). One of the Rs owned the balance of the Co’s shares, being 55%: [4] The As, as shareholders, had standing to bring the claim: [10] They had the consent of a liquidator willing to accept an...

James had the chance to sit down with Jerome Doraisamy in September 2021 to have a fantastic chat about James' views on the profession and his suggestions for other practitioners. Please check out Laywers Weekly here: https://www.lawyersweekly.com.au/podcast/32455-blending-contemporary-branding-with-traditional-practice-approaches

James had a great chat with Anvita Nair of Monash University's Monash Future Thinkers podcast. Why not check out what Monash Future Thinkers are up to by heading here: https://www.futurethinkers.org.au

"I didn't agree to sell you shares. I agreed to sell you other stuff!" ___ A successful Co was founded by D and their spouse in the 1970s. At all relevant times, they were its sole shareholders. Two Ps worked for the Co, and were later appointed directors with D. In 2005 there was an oral agreement between D and the Ps. Each had a different version what it meant. The Ps said they paid $150K to eac...

On 2 September 2021, James sat down on a TikTok Live and spoke with the legendary Jahan Kalantar. To learn more about Jahan, head here: https://www.jahankalantar.com

“Just transfer the shares to me!” ___ Years ago, mum and dad incorporated a Co and, among other things, became shareholders of the Co’s Class “A” voting shares: [10] The Co held assets in its own capacity and as trustee of the family trust: [13] Mum and dad’s two sons, S1 and S2, eventually became directors of the Co: [12] In 2011, Mum retired leaving S1 and S2 as sole directors. In the same year...

“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/