Coffee and a Case Note

“My offer is: you lose.” ___ Parties in a legal dispute often exchange settlement offers. Speaking loosely, many of those offers might be characterised as: “I am claiming $X + Y, but I’ll go away if you pay me $X.” Sometimes an offer is made that could be described as: “Let’s agree that you lose, but I won’t chase you for my legal costs. We will each pay our own.” Generally, when a party “loses” i...

“You’re excluding me from the company, competing with the company, and taking money from the company?” ___ 3 brothers started an enterprise building houses on vacant land and selling them. 2 brothers, P and D, might be thought of as “active” taking a large stake; for our purposes Brother 3 was silent. D removed P from the enterprise: appointing a general manager over P’s objection, excluding the P...

P and D agreed to cause a Co (“I Need A Massage Pty Limited”) to purchase a massage business. P and D made equal contributions to the Co for expenses. P and D’s relationship broke down. D excluded P from the business. D removed P as a director without P’s consent or proper authority: [39], [43]. D altered P’s shareholding on the share register – reducing it to nil – without P’s consent or proper a...

“You’re not even saying I did anything wrong!”   Ps brought claims against various Ds for corporate oppression and breach of directors duties.  The second defendant, D2 (a former spouse of D1), was mentioned only twice in the Ps’ evidence; once by mistake: [3]   The Ps’ proposed Statement of Claim repeated the mistaken reference: [6]   The Ps asserted 2D was involved in th...

On Saturday 7 March 2020 I spoke at the Young Lawyers Property 1 Day Property CPD event.   I was lucky enough to be able to chat about s66G of the Conveyancing Act and the appointment of trustees for sale pursuant to that section and s36A.   I tried to do a bit of nifty time management, too, to make sure we all enjoyed a full lunch!   The discussion covers:  1. The law relating...

“OK, so we’re beneficiaries, but how much do we get? " ___  Two former lovers jointly owned a piece of land.   The relationship ended with one co-owner moving away. After a time the other co-owner did too, though not voluntarily. (He was imprisoned.)  The co-owner who left first applied for s66G orders appointing trustees to sell the property and divide the proceeds between the co-o...

“Forget assessment. Just pay me a fixed amount of costs!”   ___   The plaintiff was trustee of a bankrupt estate that included a co-ownership interest in some land: [6]   After some back and forth about selling it, the plaintiff commenced s66G proceedings and got the Court to appoint trustees for sale: [14]   The orders made included an order that the other co-owner pay the leg...

DadCo sold its rent roll to P. P got to work collecting rent, employing DadCo’s former property manager, PM.   P later made PM redundant. PM planned to take up employment with another estate agent, CousCo, 1.8km away performing the same role: [59]   To add spice: PM’s dad was a director of DadCo and PM’s cousin was the sole director of CousCo. The relevant family name carried weight: [11...

"Transfer the shares so we can solve this the Chinese way!" ___  Without telling the rest of the board, and without payment beforehand, 2 of a Co’s directors transferred some of the Co’s shares to an entity owned by an influential person in China.   The idea was to allow the Co to solve its problems “the Chinese way”: [96]    The transfer gave the "optics" that the influential...

Mum died and relationships between her children eroded.   Some (but not all) children were executors. Some (but not all) were directors of a Co, the shares in which were the chief asset of the estate.   The Co had a substantial landholding which was being subdivided. Disputes arose.  The plaintiffs commenced oppression proceedings seeking new directors.    They failed enti...

Heading out the door on holidays, team. But don’t worry! Apart from the one further episode I have scheduled to come out in a few days, there’ll be a bit of a break and then more to come from then.

“It’s not certain I would have lost in the end, so I shouldn’t have to pay costs!”   ___ Often, if a piece of litigation gets to final hearing ‘costs follow the event’: UCPR r42.1. Put another way: at the end, the loser pays the legal costs incurred by the winner.   But what if a matter finishes before a final hearing?   ___   A party sought orders including replacing an admini...

“Are we partners or are our companies partners? 😬😬😬" Various Cos entered into a partnership deed. Each was the corporate vehicle of a natural person (“Principal”).  The deed was signed by the Principals on behalf of their Cos.  The firm operated an accounting business, holding the Principals out as partners.   One Principal was appointed to the board of one of the firm’s big clie...

“If you’re making me buy the shares, tell me how much they’re worth!”   In a recent judgment, s232 commercial unfairness was made out.  The proceedings concerned a company with a significant value.   HH put it best: “large payments (were) made by (the defendant) without consultation, unsupported by contemporaneous records and at odds with basic accounting principles or, on occasion,...

“Hey! You were meant to give me 10 days before terminating the contract!”   Two property owners entered into a contract with a builder to construct two duplex buildings.  The builder moved slower than the owners hoped.  They ended up terminating the contract because the builder didn’t  complete the work, rectify defects, or get a construction certificate in time.   Nor did...

“I wanted YOU to do that cleaning!”   Two parties entered into a contract: a cleaner and a client. The job was to clean a number of large retail stores.   The cleaner agreed not to subcontract or assign its cleaning duties to anyone else without the client’s permission. If it did, the client had a right to immediately terminate and did not have to pay for any unauthorised subcontract wor...

[First, an apology: this awful audio is the result of my own poor microphone management. Sorry!] “OK. We sold these units. Now what do we do with the money?”    Trustees for sale were appointed to sell a Bondi block of units.    In 2018 the defendant, who was one of the two co-owners/beneficiaries, offered to purchase the property for >$6M.  The sale did not complete. &...

“The company acted unfairly! But I don’t know what I want the Court to do about it…”   A board dispute arose. The issues raised were complex.   They revolved around an app to be used by car dealers, and the sale of the IP in that app.    The app was developed by a company with three directors, each of whom were also shareholders.   One director was “virtually impossible to...

“Is it OK if I sell this property?”   A liquidator of a Co sought Court directions relating to a possible property sale.   In 2002, an ABN was obtained for Trust 1. It appeared there was no trust deed for Trust 1.    In 2014, Trust 2 was settled. Our Co was trustee. Bank accounts were opened. High value transactions followed.   In 2015, property was purchased in the name o...

“Hey, bank, you should have stopped that share sale!”   Spouse A invited Spouse B to become a trustee of a SMSF that was previously solely Spouse A’s. The SMSF and the spouses had a number of *joint* bank accounts and *joint* stock trading accounts.   Spouse B caused a sale of shares from the joint stock trading account ([39]) and a transfer of the proceeds from the joint account into an...

On 15 November 2019 I was lucky enough to have the opportunity to present to the Chartered Accountants Australia New Zealand forensic accounting stream on corporate oppression. We worked through the legislation, the case law, some practical suggestions and - somehow - managed to have a little fun along the way. There were great questions along the way, and the whole session was brilliantly put tog...

“I (genuinely) dispute that!”   A dispute between family members and various related Cos arose.  The dispute was complicated.    It included a son making 8 stat demands on “family” Cos.  Earlier proceedings were settled on bases including that a property be sold, and $950K be paid to the son. The property was not sold and the $950K not paid.   The son demanded that th...

Can a director run legal proceedings on behalf of a company *without lawyers*?   A company sought leave to appeal a decision of the NSW Supreme Court.  A director sought to run the application on the company’s behalf.  If a company wants to start and run Supreme Court litigation by a director, without a lawyer, then that director must also be a party to the proceedings: UCRP r7.1(3)...

On 29 October 2019 I was invited to present at the TEN Network Commercial Drafting Masterclass, speaking about exclusion clauses. Due to my exuberant hand gestures, I disconnected my mic and failed to record the session. This pod is a "do over" of that talk recorded in my offices the next day and I hope it brings you value. We discuss: The "why" of exclusion clauses The law relating to exclusion c...

A trade mark owner registered and – for a time – used a slogan.   After it stopped using the slogan, another party sought the owner’s consent to register it as a trade mark, threatening deregistration for non-use if consent was not provided.  The owner consented.   The other party became the new owner of the mark and the owner cancelled its own registration: [6].   Following th...