“My 1st claim was about land. I’m not estopped from bringing this one about shares!” ___ P sought orders confirming they were a shareholder in two Cos: [1] P, D1, and D2 were siblings. The shares were part of their parent’s estate: [2] In 1994, the parent made a will bequeathing their estate in equal parts to P, D1, and D2. In 2016, D1 obtained a grant of probate in respect of that will and transferred the shares to D1’s name: [2], [7] D1 then refused to distribute some of the estate (including ...
Aug 19, 2025•9 min
P, a public company of some size, was obliged to have its accounts audited: [1]From 2016 to 2025 an auditor audited the Co’s financial reports. The auditor was qualified but not validly appointed in contravention of the Corps Act: [2]P sought a declaration pursuant to s1322(4) that the purported appointment of the auditor was not invalid: [3](Importantly, the order sought was that the appointment be declared not invalid pursuant to a certain section that would otherwise cause it to be invalid; r...
Jul 26, 2025•8 min
James had a chance to sit down and chat with the legend, boss of Ruby Assembly, and all-round all-star Iolanthe Gabrie on her podcast Real Ambition in June 2025. Together they get deep on branding, Rory Sutherland, and contemporary horror films. Check it out! You can find Iolanthe's podcast here: https://open.spotify.com/show/3fgIdiaiSxD4F8iZO7xgXo
Jul 16, 2025•37 min
James was lucky enough to sit down and chat with the legendary leader of Lawyers Weekly, Jerome Doraisamy in 2025 and had an in-depth conversation and life, law, and where Gravamen is still a side-hustle... You can find a link here https://www.lawyersweekly.com.au/podcast/42265-the-boutique-lawyer-show-unique-branding-charitable-donations-and-the-firm-as-a-side-hustle?utm_source=LawyersWeekly&utm_campaign=05_06_2025&utm_medium=email&utm_content=Boutique-Podcast&utm_emailID=55716e...
Jun 30, 2025•34 min
“You can’t sue in the company’s shoes. You’re not coming in good faith!” ___ ShopCo had two 50% shareholders, P and D. Each of P and D were Cos. P’s dir and D’s dir were the dirs of ShopCo. ShopCo owned a retail centre with a possible value of ~$53m: [2], [3], [57] The dirs had a falling out: [3] D provided property services to ShopCo, with P’s knowledge The arrangement was longstanding, but not reduced to writing: [5] Some of the services D provided were managing tenants, negotiating leases, co...
Jun 23, 2025•7 min
“Don’t call the meeting to sell those shares!” ___ P was a shareholder in D1. D1 owned Techshares, shares in TechCo: [1] D1 did not trade. Its purpose was holding Techshares: [16] The Techshares were illiquid: [25], [26] A GM of D1 was called proposing D1 would either (i) sell the Techshares to a specified purchaser or (ii) failing that, go into MVL: [2] P sought injunctions restraining D1 from calling the meeting: [3] P said: P had made a purchase offer more favourable to D1 than the proposed o...
May 20, 2025•9 min
www.gravamen.com.au “We need the Court’s help to call a meeting of the company!” ___ P sought s249G orders to call a members meeting of a Co, D1, to consider certain special resol’ns. D4 opposed the application. (D4 was a director of D1, D2, and D3.): [1] D1, and the parties generally, were part of a larger corporate group: [2] D2 held 599 of the 600 issues shares in D1. D3 held the other share in D1: [3] P, D4, and another were the dirs of D2: [2]P and D4 were the dirs of D3: [3] D1’s articles ...
May 02, 2025•9 min
“That loan was for a purpose. Pay it back!” ___ P sued natural persons and Cos. D1 was not served and D2 was bankrupt, leaving P to pursue Cos only: [9] P’s dad spoke with D1 and D2 about an investment. P later transferred $9.2m to one of the DCos: [3], [5] There was no written agreement: [6] In 2017, all agreed the $9.2m would be used for property investment, that if the property bought was then sold in a year 35% would be returned, and if unsold the funds would be returned: [6] In 2018, when t...
Mar 30, 2025•12 min
This is probably my favourite podcast to appear on as a guest! Another great discussion with Jordan and Nathan about life, branding, Drake v Kendrick, hourly rates, touch football results, and how to chart a principled path in professional services. Enjoy! You can find Jordan's and Nathan's pod here: https://podcasts.apple.com/au/podcast/challenge-the-standard-in-financial-advice/id1725733771 Nathan's site: https://www.nathanfradley.com.au/ Jordan's site: https://www.planningsolo.com.au/ www.gra...
Mar 28, 2025•1 hr 9 min
As part of a series of three talks together, James d'Apice recently joined eminent senior junior barrister Jonathon Dooley of Greenway Chambers to discuss the law of Corporate Oppression. This is Jonathon's and James' first talk about the big ticket items when advising your shareholder clients whether they want to *stay* or whether they want to *go*. The three talks they gave on this topic were: 1. Corporate oppression (this talk!) 2. Derivative actions (to be released in future) 3. Just and equ...
Mar 25, 2025•1 hr 1 min
"You need to show good faith to sue on the Co's behalf!" ___ A sought to bring a derivative suit on behalf of TCo. TCo was trustee of a trust. A was a principal benef of the trust: [3] Pursuant to the trust deed, absent a resol from TCo the trust’s income would be paid to the trust’s principal benefs: [3] From 1988 to 1994 A was a director of TCo: [3] Broadly, as former director A sought to bring a claim on TCo’s behalf re a 2005 transaction that saw the Rs (or entities related to them) acquire ...
Mar 06, 2025•9 min
“Repay that tax refund into the trust!”___P was a Unit TeeCo incorporated by D1. D3 (whose sole dir and s/holder was D1) was the sole unitholder. D2 was D1’s spouse: [1] - [3]D1 incorporated P to buy a valuable piece of land (“Property”). P borrowed the funds from Lender for that: [4]After completion, D1 caused P to lodge a BAS. The resultant refund of ~$2.6m was paid to P: [5]P sued seeking repayment: [8], [10]The Ds said $1.1m of it was a “Success/Performance Fee” for D1 and $1.5m was a “Manag...
Feb 26, 2025•9 min
“You can’t run that claim. You’ll expose the Co to a cross-claim!” ___ P sought, among other things, s236 leave to sue D on the Co’s behalf for $110k: [2], [3] P held 70% of the shares in the Co, and an entity related to D held 10%. The Co was no longer active: [4], [10], [25] The issue was: D caused $110K to be transferred from the Co to one of D’s entities and P said there was no authorisation for the transfer: [4] D argued the transfer was authorised by way of WeChat message: [4] The parties ...
Feb 02, 2025•10 min
"Pay the trust's funds to the estate!" ___ A Tee was the trustee of a trust with about $2.8m in assets. The trust had two beneficiaries, Spouse 1 and Spouse 2: [2], [8] Spouse 1 died in 2014 bequeathing their estate entirely to Spouse 2: [2], [11] The Tee lost the trust deed: [2] While general law dictated some of the terms of the trust, having lost the trust deed the Tee has no certainty about the beneficiaries of the trust (aside from Spouse 1 and Spouse 2): [3] The Tee was incorporated in 198...
Nov 27, 2024•6 min
“Hey! You can’t transfer your shopping centre stake to them!” ____ Two contracts governed the relationship between co-owners of a large, suburban shopping centre: [1] In 2012 the co-owners were P as to 50%, and two other entities in the same group for 25% each: [2] The arrangement contained rights regarding share transfers; the breach of which allowed the non-breaching party to automatically buyout the breaching party’s stake: [5] In 2014, after some compliant share transfers, the ownership stru...
Nov 14, 2024•10 min
“The partnership’s book is a liability, not an asset!” ___ A and R operated an insolvency practice in partnership. Like many such businesses, it would build up “WIP” in a matter and that WIP would be paid (or not) over time: [3], [4], [6] The business was profitable: [49] In September 2014, A ended the partnership electing to go out on their own with most of the business’s book of work: [7] - [10] A number of pieces of litigation followed. Some led to orders for an account of the partnership to ...
Nov 11, 2024•9 min
"Is it the tree that's held in trust, or just the fruit?" ___ The Ps came to Court arguing that one D - a trustee, DTee - held shares in the other D, a Co, on trust for the Ps: [1], [3], [4] The Ps further sough for the shares be transferred to the Ps: [2]The Co’s defence essentially put the Ps to proof - a “non admission”: [5] DTee took a more expansive approach: [5] - [8] After particulars of its defence were sought, DTee asserted that if the Ps were benefs of a trust including shares in the C...
Oct 24, 2024•9 min
“We need to *wind up* the trust and sell the farms!” ___ The Ps and the Ds each owned 50% of the units in a unit trust: [1] TCo owned substantial real property - farms. The Ps sought to have the trust ended and distribute the assets. The Ds took the opposite view: [5] The Ps said: 1. there was an agreement or estoppel that if one party wanted to exit, the assets would be sold; 2. the trust deed allowed a unit holder to terminate; 3. the TCo’s conduct was oppressive; and 4. a receiver should be a...
Sep 17, 2024•13 min
In August 2024 James was invited to appear on Glover Lane's ESG podcast, 'What Keeps You Up At Night?' This interview traverses Gravamen's journey to becoming a firm that tries to live its values by donating $1,000.00 per month to charity; and reflects on what the future might hold. It's also a great primer for anyone hoping to understand ESG a little better. You can find Rebecca Barry's firm Glover Lan here: https://www.gloverlaneconsulting.com.au/
Sep 09, 2024•59 min
“Some of these debts are trivial… do I still have to pay the really small ones?” ___ 2,653 clients deposited money with a Co, who was a trustee. Only 74 of those beneficiary clients had a balance worth over $100: [2], [3] A liquidator, P, was appointed to the Co: [1] P approached the Court seeking advice as to whether (i) the benefs with a <$100 balance could be treated as having no right to participate in the dist'n of funds, and (ii) the balance could be distributed to the remaining 74 pro ...
Sep 04, 2024•8 min
“Bring the company back from the dead so we can go to Court!” ___ P approached the Court to seek the reinstatement of a deregistered Co: [1] In 2010 the Co was incorporated. Shortly afterwards P and D1 - who were siblings - were the 2 Dirs and 2 equal shareholders: [4], [5] P said that at about this time P and D1 agreed the Co would purchase some property, each funding 50% of the purchase, each owning a 50% share, and each entitled to 50% of the rent. The property was tenanted by D1: [7] Shortly...
Aug 27, 2024•8 min
“Valuation is art not science; so let the partnership’s receiver sell it.” ___ 10 partners - 5 family members and their spouses - planned to run a blueberry farming and forestry business on land owned by the partnership: [2], [5] 8 partners, the Ps, sued the other 2, the Ds: [3] In 2007 the partners purchased the Property and entered into a deed: [4], [6] The deed required that forestry profits and losses be shared equally; but that each partner would take berry farming profits and bear losses i...
Aug 18, 2024•8 min
“You changed the business I sold you so you could underpay me!” ___ By deed P sold their shares in an online retail business to D.P was to receive $20M, some shares in D, and the Earn Out Amount (“EOM”): [3] According to the deed, the EOM was the Base EOM of $10M plus the Additional EOM: [6] The Additional EOM was the rounded difference between the Base EOM (I.e. $10M) and “Earnings”: [7] “Earnings” meant EBITDA over the relevant year. The deed contained a mechanism for D send a proposed Earning...
Jul 18, 2024•9 min
“Our parents’ citrus farm is a partnership asset!” ___ Two siblings in partnership, P and D, ran a citrus farming business, having received it from their parents in the 2000s: [1] (P, the parents’ exec, sought access to the parents’ privileged documents after death. As exec, P could waive privilege, however doing so was for themselves and not in the interests of the estate or benefs. Noting an exec’s duty to avoid conflict, access was denied: [4] - [10]) In the 1990s the parents gifted D the “Lo...
Jun 17, 2024•11 min
The most fun James has ever had guesting on another podcast! There's laughter, James' advice for how to enjoy Drake, there's more laughter, and there's also some depth as James, Jordan and Nathan reflect on what it means to be progressive (and to question some of the central tenets of capitalism) while also doing financial and corporate work. A wonderful chat - James just hopes he gets invited back!!!
Jun 06, 2024•57 min
In April 2024 James sat down with Roger Christie, MD of Propel, to talk about the use of LinkedIn for building a legal practice (but it's extremely interesting and includes James having to take a pause because Roge has said something pretty moving and insightful). You can catch the Digital Reputation Podcast here: https://propelgroup.com.au/podcast/
May 31, 2024•52 min
Gaaaah! James got to be the first ever private practice lawyer on Mel Storey's incredible in-house counsel themed podcast, Counsel! This pod was recorded IMMEDIATELY after James launched his firm Gravamen at the Happy Lawyer Happy Life retreat in November 2023. Grab yourself a mimosa and enjoy this incredible chat. A link to Mel's podcast is here: https://www.counselpodcast.com
May 22, 2024•37 min
“Give me back my job selling diamonds!” ___ A Co that sold diamonds and jewellery had 4 shareholders, entities related to the Co’s directors who were P1, D2, D3, and D4: [1], [9] P1 and their sibling, P2, were fired by the Co from their roles as CEO and sales director respectively: [3] The Ps (including P1’s shareholding entity) sued alleging the Co’s conduct was oppressive to P1 and seeking inter alia P1 and P2’s reinstatement on the basis of s232 oppression: [4], [5] A Terms Sheet and employme...
May 16, 2024•13 min
James got to sit down for a chat about his progression through the world of legal practice with the legal Amogh Kadhe, of the ChatterMatters Podcast in early 2024. Please enjoy! You can find the ChatterMatters LinkedIn page here: https://www.linkedin.com/company/chattermatters-podcast/?originalSubdomain=au
May 09, 2024•1 hr 1 min
“I’ve retired as a partner. I want market value with no discounts!” ___ In 2018, 4 Cos entered into a partnership agreement. The business related to growing and selling tea: [1], [5] P retired from the partnership. The agreement provided that the partnership would not be dissolved on a partner’s retirement: [2] The question was: what value should P receive for its partnership stake?P argued for, in essence, a pro rata distribution according to its 19% stake: [3] The Ds, who were the remaining pa...
May 08, 2024•8 min
