Coffee and a Case Note

“Nope! It’s not convenient for the Court to stop that meeting.” ____ A dispute arose about (i) rights to units in a unit trust, (ii) whether a Co that purported to be the unit trustee was indeed the trustee, and (iii) who owned the shares in the Co. St sought an injunction to stop the Co having a meeting of the unit holders. To get the injunction St had to show likelihood of success, and that the...

“I sued and got what I wanted, so pay my legal costs!” ___ The Ps enjoyed an easement over the Ds’ land.  The parties were neighbouring farmers. The easement related to irrigation water and included rights to access the land to maintain pumping apparatus. The Ds installed locks and fences that interfered with the Ps’ access. The Ps commenced proceedings. After that the Ds took steps to resolv...

“Get me out, and value my units properly!” ___ Two dentists worked together using a unit trust in which D1’s and D2’s entities held units. The relationship between all was governed by an agreement. The agreement contemplated a unitholder exit for “fair market value”. D1 sought to exit. The T'ee sought judicial advice regarding a valuer. D1 applied for a stay and failed. The T'ee got the advice tha...

“Can we liquidators defend this appeal, and use someone else’s lawyers?” ___ A dispute between two Dirs and equal shareholders of a mining Co led to it being wound up. Before the windup SH1 brought a derivative action on behalf of the Co against SH2 and related entities. The claim succeeded re revenue from one mine which SH2 diverted away from the Co to their own interests, and failed in relation...

“My product is not toxic. That’s defamatory!” ___ A honey-making Co and its CEO kicked off injurious falsehood and defamation proceedings. They wanted damages and orders restraining the D from making further publications. The Ps complained about D saying: - The Ps’ honey was toxic: [14] - The Ps conspired with the judiciary and a consumer advocate magazine: [15], [20] - There exists a “sex tape” s...

James spoke to the wonderful Susanna Lobez from TVED for this partnership disputes CLE. Hope you enjoy! You can find great offerings from TVED here: https://www.tved.net.au

“Don’t steal my confidential information!” ___ A, a former shareholder in and employee of R, ceased being a shareholder, quit, and set up a competing business in the same industry. A lost a set of proceedings at first, and appealed. Before leaving: - A arranged for another employee of R to send A R’s client lists: [26] - On the day A gave notice they were intending to set up a competing business,...

“Hey! Give me those shares!” ___ P, executor and sole beneficiary of an estate, pressed D to register the transmission of shares to them. P did this by sending 2 letters in January. When the letters didn’t bear fruit, P commenced proceedings in mid-February: [2] Later in February solicitors for D’s directors (but not for D) indicated instructions had been or would shortly be given for the transmis...

P's shareholding was diluted from 70% to ~15%. P sued the Co and its Dirs for causing the Co to issue over 3m shares to 2 Dirs: [3], [5] P asked the Court to reverse the share issue, and replace the Dirs: [2] Oddly, as the hearing approached all the Dir defendants consented to the P’s application, and most Ds withdrew instructions from their lawyers: [8], [10], [44] However, P still had to prove i...

“Whoever’s sending those mean letters must stop!” ___ Someone sent >20 anonymous letters about the Ps to many recipients: [34] - [74] The writer (or writers) made allegations including that the Ps (or some of them) - who ran an aged care facility - breached their duties, overlooked medical misconduct, engaged in extra-marital affairs and nepotism, stole funds, claimed expertise they did not hav...

P, a managed person, brought a claim in the Supreme Court to eject D from P’s apartment. D had already commenced Family Court proceedings against P seeking $4.2m, approximately the value of the apartment: [10], [11], [25] D applied to the Supreme Court to either (i) transfer P’s "ejection" claim to the Family Court, or (ii) pause it until the Family Court claim was over: [8] P was bedridden and re...

James spoke with Damon Laffin at the Young Lawyer podcast earlier this year and there traversed many topics: James' failures and recoveries, dealing with poisonous partners, his approach to law, and everything in-between. You can find Damon on LinkedIn here: https://www.linkedin.com/in/damon-laffin-01789942/?originalSubdomain=au

"Fair value! No minority discount." ___ When valuing a minority shareholding - especially a “market” valuation (rather than “fair”) - it is often said a “minority discount” applies.  This discount reflects a minority’s lack of power to influence the company.   Recently, a minority shareholder, P, tried to cause the majority, D, to purchase their shares.  All agreed a share purchase...

"No new claims, no new claims. (No new claims. No, no new.)" __ A created an invention and R wanted to help commercialise it. R made a loan of $335K to A, and then a further $3m loan. The two also became involved in property development together, with R providing some finance: [10], [11] A lender sued A for failing to keep up with finance payments. A cross-claimed against R alleging a number of ag...

In April 2020 I had an opportunity to have an incredible chat with The Happy Family Lawyer herself, Clarissa Rayward. We did battle with the very early professional impacts of COVID-19 and some nearby renovations and emerged with a conversation I look back on with great fondness and gratitude. You can check out Clarissa's fabulous projects, and the community she has built, here: https://www.thehap...

In November 2020 I sat down for a great chat with Brendan Kelso of Legalsites.  We got into the nitty gritty of my approach, and what steps you might consider using in adopting a similar strategy. And it was great fun! You can access Brendan's podcast, and lots of great resources, here: https://legalsites.com.au/podcast/

“No oppression? No relief.” ___ A Co had 5 shareholders, all brothers, and owned some property. Two brothers, the Ps, said the conduct of the Co was oppressive and sought relief. They had a number of complaints. One was about about dividends not being paid. In fact, dividends (in the form of reduced loans) were paid. But even if they were not it would not be oppressive: the Co held substantial pro...

I had a great time having an expansive chat with Grant Williams about all things podcasting (and life!) for his new podcast Not Just Another Podcast launched January 2021!

“Tell ‘em about the legal fees!” ___ A joint venture kicked off by two natural persons, P and D, and involving a number of Cos, fell apart. A deed was entered into to deal with the wind down. The deed was between the natural persons and the relevant Cos. It dealt with the appointment of new independent directors to take an arm’s length approach to realising the JV’s assets. The deed included a pro...

“Can I just pay the Australian beneficiaries?” ___ In 1973 a trust was settled. The corpus included residential property: [3] Changes to the Land Tax Act and Duties Act mean surcharge tax won’t be charged if a trust whose corpus includes residential property has no potential or existing foreign beneficiaries: [7] - [9] i.e. Foreign beneficiaries mean a bigger tax bill. The trustee asked the Court...

“I should’ve accepted that offer…” ___ P sued 4 Ds for money, and for possession of some land. He failed. But before P’s failure, D3 and D4 had made an offer to settle. P having “lost” in his claim, was in a worse position than he would have been had he accepted the offer: [11] The Court said P had to pay D3’s and D4’s legal costs up to the date of the offer on the “ordinary” basis. The Court then...

“I don’t have to do what the deed I signed says. It’s unjust!” ___ An accountant resigned after suffering bullying and harassment: [14] A dispute arose after the former employer made an aggressive threat about the accountant’s conduct, including threatening criminal prosecution: [23] The parties settled their dispute in a wide-ranging deed. At the time the deed was signed the accountant said he wa...

"Are we partners, or what?" ___ P and D were former friends who worked together on software they used to place bets on horse-racing. They shared the profits, in the form of gambling returns, in various proportions over time. The relationship broke down. P sought to recover from D $870K he said he was entitled to as a partner. A partnership is relevantly defined as a relationship between "persons c...

“Let me get the company its share of the money!” ___ ~$100m was paid following the sale of a site in Sydney. The Co stood to receive some of the proceeds. P - a former director of the Co - had the benefit of a “side deed” which might see a related entity of his take a benefit if the Co received a greater share of the proceeds. It was contemplated that some of the sale proceeds would be distributed...

"It’s not clear that I have to pay your fees – and you drafted the contract!" ___ A client appointed an investment banker to advise on takeovers and mergers. The contract was formed by an engagement letter from the banker being accepted by the client: [3] The engagement letter entitled the banker to various fees based on different events, offers and payments. Following a "bidding war" the client b...