Coffee and a Case Note

"I'll repay the funds you invested. Trust me?!" ___ Two Ps invested money with D1. D1 didn’t repay it. The Ps said D1 held the funds on trust. The Ds didn’t go to the hearing but the Court found it was OK to go ahead in their absence: [12] D1 made representations about an investment being “100% safe and secure”: [24] The Ps then made a number of investments with D1. As they did, D1 would send a do...

“Worth the ‘powder and shot’?” ___ P sued D1 and D2 claiming statements made in a meeting were defamatory. P succeeded against D1 and failed against D2. Damages against D1 were modest - the sum of $11K: [6] Thought P raised the issue of delay, the Court found P should pay D2’s costs, costs following the event: [15] The P’s failure to accept an offer made jointly on behalf of D1 and D2 did not elev...

OK! The final one of these Instagram Live sessions. This one was a little loose with a lot of questions, but hopefully a lot of value too. It's basically my approach to marketing online as a lawyer, and some suggestions for you. Hope it brings you value! And if you could sling this pod a review, I'd be really grateful. Cheers!

Another great session of legal rigour and tonal lightheartedness. Please join in this fun and informative chat about ss232 and 233 of the Corporations Act. And please consider heading to instagram.com/coffeeandacasenote if you'd be so kind.

"Stop telling everyone you own my patents!" ___ Some Ps asked the Court for an interlocutory injunction – an immediate stop – preventing some Ds from saying they owned, or had a licence to use, some patents. The Ds accepted they didn’t own them: [37] But the Ds' website said they had an exclusive licence to use them and that one of the Ds owned or exclusively controlled them: [108], [111] The Ps s...

The latest in my series of Wednesday night Instagram CLE sessions. Please join me next Wednesday 8.00pm (Sydney time) for the next. This week we talked trustees for sale and, while it got a little messy, we had some good times too. Hope it brings you value!

In another edition of the tonally loose and legally rigorous Instagram Live series we discussed ss236 and 237 of the Corporations Act 2001 (Cth) as well as the Court's inherent jurisdiction. The comments were great, and I managed to stumble in my pronunciation of "derivative" a few times, so perhaps not cask strength whisk(e)y next time... Nonetheless, I hope this episode brings you value! Please...

"That person doesn't speak for the company!" ___ In 2012, Landlord Co and Tenant Co entered into a 5 year lease with a renewal option. Following a flood, a dispute arose about whether a new lease had been struck. In 2016 TCo's CEO told its solicitors to accept LCo's offer of a new lease. The first instance judge found the CEO didn't have authority to do that. So: no new lease. LCo appealed. LCo ac...

Each Wednesday at 8.00pm (Sydney time) for the next few weeks I will "Go live" on my Instagram account to deliver a CLE. The account is: www.instagram.com/coffeeandacasenote I'd love it if you could follow me there and join the future sessions! In this talk, we discussed: 1. The "why" of exclusion clauses 2. The law of exclusion clauses 3. Some litigated examples of what happens when exclusion cla...

"Should we wind it up, or nah?" ___ A Co ran a chiropractic business in Melbourne: [1] The P owned half the Co’s shares. One of the P's directors was a director of the Co. One the Ds owned the other half of the Co’s shares. Another of the Ds was the Co’s other director, D Dir: [2] The Dirs fell into a wide-ranging dispute. D Dir accused the P Dir of operating a competing business. P Dir accused D...

Please join me for a recorded discussion conducted for CLE provider TVED at 1.00pm on 10 August 2020. In this talk I cover: 1. The law of partnership 2. Some litigated examples of partnership disputes 3. Some practical suggestions for approaches you can take in practice I hope it brings you value!

“Stop the company paying a dividend. Right now!” An alleged shareholder, P, sought an immediate injunction to stop a Co declaring a dividend or reducing its share capital: [1] P’s alleged status a shareholder, P said, gave rise to an entitlement to $700K in dividends. Failure to pay those dividends was a breach of the Co’s constitution – which was, P said, a breach of duty and oppressive: [2] In t...

Two shareholders, P and D, sued each other; both trying to get the Court’s help to buy the other’s shares. Both failed: [2] P also sought to wind the Co up. That failed too, leaving the parties in their existing relationship: [3] Normally, as we know, costs follow the event – broadly, the “loser” in a piece of litigation pays (some of) the “winner’s” legal costs. But what was the appropriate cost...

“We’ve lost the trust deed!” ___ A trust was settled in 1972 with 3 trustees, all brothers. The trustees’ dad was settlor: [4] – [6] The trust was dormant until 2007 when, after the sale of a business, it was reactivated: [7] Around this time each brother was replaced by a separate Co as trustee, leaving 3 corporate trustees: [8] The trust assets were substantial and generated significant income:...

“Let me make the company chase the directors!” ___ P, a minority shareholder in a tantalum producing Co, sought the Court’s leave to sue the Co’s directors for breach of duties. P said that in 2016 the Co’s directors sold an asset of the Co’s for $60m when it was worth somewhere between $245m and $900m: [4] P asserted that the Co’s directors made the decision without enough info and without carefu...

"The directors aren't paying any rent!" ___ P, a shareholder, applied to the Court for leave to sue a Co’s directors on behalf of the Co – a “derivative suit”. The Co was the owner of farming property, and this dispute was one limb of a broader estate and succession dispute within a family: [3] P said the directors were occupying the Co’s land without paying rent, and so benefiting themselves at t...

“I want indemnity costs for the whole thing because your claim was so bad!” ___ In a case we have previously discussed (Cao v Zhu [2020] NSWSC 321) P enjoyed complete success over D. P made a settlement offer that was rejected. (Interestingly) The parties agreed that P should have its costs on an indemnity basis from the date of that offer: [2] The P said (i) the D ought to have known its defences...

“You’re too poor to stand in their shoes!” ___ A shareholder sought leave to bring derivative proceedings; to “stand in the shoes” of 4 companies and litigate on their behalf: [1] The shareholder said that each Co was a “farmer” and enforcement action was taken against them in breach of the Farm Debt Mediation Act 1994 (NSW): [2] The shareholder said that meant the lender’s actions were void, allo...

“Can we get permission to appeal?” ___ A Co was placed into liquidation. A member was granted leave to commence a derivative action: [1] He did, and the Co lost: [4] He then purported to cause the Co to appeal: [5] He sought a declaration that the original leave extended to running the appeal; or, alternatively, that fresh leave should be granted: [6] A company in liq can’t rely on the Corporation...

“So are we in partnership, or not?” ___ A claimed to own property and was in financial trouble. It agreed with R that A would sell the properties to R and A would help develop them and share profits: [3], [4], [143] This arrangement fell apart because A didn’t own the properties: [6] R did buy the properties from the mortgagee in possession and – speaking broadly – discussions progressed further o...

“So we’re dissolving the partnership. What next?”  ___ One group. 6 pharmacies. 3 are run by partnerships between 3 pharmacists. The 4th is run by a partnership between those 3 pharmacists, and one other. The 5th and 6th are run by companies owned by companies controlled by the 3 pharmacists. The parties were unable to work together: [18]   Negotiations with a view to an exit lead n...

"The liquidator personally, or the company?" ___ Judgment was handed down confirming Co A was a secured creditor of Co B (in liq): [1]  The next question was: who pays Co A’s legal costs? Co A sought to have Co B’s liquidator, in his personal capacity, pay.  A liquidator will be personally liable for costs in “exceptional circumstances” due to unreasonable conduct: [8]  The Court co...

"Stop that! Or I'll get the Court to stop you."  ___  The granting of an interlocutory injunction - a binding Court order that *immediately* stops a party doing something - is often complex. Speaking broadly and loosely, to get an interlocutory injunction you have to (i) convince the Court your claim is strong; (ii) convince the Court an injunction is more appropriate than an order for t...

“Sue a liquidator? First, get through us.”  ___  The liquidators of 2 Cos entered into a deed with a 3rd party. The deed assigned trade marks the liquidators thought the Cos owned: [38], [39] The Ps said the liquidated Cos did not own the marks, having previously abandoned them: [64] Common law rights in the abandoned marks arose, meaning other parties owned them: [74] The Ps sued the li...

“Yeah, I promise to pay. Unconditionally!” ___ P was a property developer. D was a real estate agent. D’s connect was developing a property. D was to be the selling agent. D angled for P to invest in his connect’s development. As an incentive, he offered to pay P $500K if he did. That amount was calculated based on D’s speculation on what commissions he might expect to receive, and what an appropr...