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 each take an 8.33% share in the Co: [5] D said the Ps paid for 8.33% of the Co’s “plant and equipment” ...
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 the family trust deed was amended effectively placing the Co in complete control of the trust, as bo...
“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 which P accepted under protest: [6], [325] P relied on s232 of the Corporations Act to challenge the discou...
“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 that: [12] P’s pre-inspection estimate of damage was ~$1m and, P said, that was likely to increase afte...
“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 them removed: [9] In December 2018 the parties attended a mediation and negotiated a Heads of Agreeme...
“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 relation to the deed, forcing P to commence proceedings: [4] D said the deed had not been entered i...
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 relationship was somewhat colourful. P and P’s spouse invested substantial sums with the D - over US$15m - over a number of yea...
“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 creditors: [2] The Co attracted shareholders, in part, by offering price guarantees to incoming shareholde...
“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 with a price of $175K recorded on the sale contract, but nothing paid: [8], [9] F applied to subdivid...
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/
“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 balance of convenience was satisfied. St held 82 units in the trust; Pn the other 18 units: [11], [1...
“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 resolve the Ps’ complaints by removing padlocks, moving fences, and installing culverts. The Ps accepted all the...
“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 that instructing a valuer would be OK and did so: [5] D1 commenced further proceedings, and the parties...
“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 to redirected revenue from another mine. SH2 appealed. SH1 applied to lodge a cross-appeal on behalf...
“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” showing the CEO discussing a sex act performed with an employee: [16] The publications were made on t...
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, a person using A’s password-protected username altered 905 contacts in R’s database by altering a di...
“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 transmission to be registered: [3] The transmission happened, and P successfully applied to have the proceed...
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 its case!: [14] ASIC docs suggested the >3m shares were issued at $4 per share, however there was ...
“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 have, and were evil and ungrateful. The Court found each letter was defamatory: [69] D denied writing a...
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 required constant, costly care: [31], [36] P’s manager had to sell assets to pay for it, while D occup...
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 was best. The value was not agreed. D sought a minority discount. Crucially, if there has been oppressive conduct, no m...
"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 agreements. A said R was contractually obliged to pay A (i) the money A had to pay the lender, (ii) $3...
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.thehappyfamilylawyer.com
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 property expected to increase in value, and in any case an absence of dividends would be evenly shared ...
