A coffee Co and a delivery firm, yes? Our delivery firm collects coffee-laden pallets from coffee Co and returns the equivalent number of empties the following week. Cool. Now, coffee Co does its sums and realises it’s short >1,000 pallets over a 3 year period. The delivery firm was “almost continually (in) breach” ([48]) of the agreement. Coffee Co complains. Importantly, the delivery firm had increased the number of pallets it was returning in the months immediately before the complaint, ap...
Sep 30, 2019•6 min
“Do I really have to sell that flour mill?” A bread researching NFP went through a restructure. Its subsidiaries held IP and physical assets the plaintffs alleged were held by way of chartiable trust. The assets included a significant landholding (~$62M) which had a “pilot mill” on it; for flour experimentation. The plaintiffs claimed the assets were held on charitable trust. A receiver was appointed in respect of the assets and granted leave to approach the Court for guidance. Those overarching...
Sep 21, 2019•6 min
“I’m not paying you if that grain catches fire!” An ethanol manufacturer stored grain at a refinery. An insurance policy obliged the insurer to indemnify the manufacturer. The policy had exclusions for “spontaneous combustion… spontaneous fermentation or heating or any process involving the direct application of heat”: [4] One morning, smoke was detected in one of the refinery’s bays. Emergency services attended, found a “burnt smell” in one bay, and significant damage in two others. These disco...
Sep 15, 2019•8 min
Take a syndicate of lottery winners, most of whom work at the same factory. They're up $40M. Take a disappointed member of a former, different syndicate also chiefly made up of workers from the same factory. Our disappointed former member sues, seeking some of $40M, and loses. Having lost, a cost order is made against him. The lottery winners (who also "won" the litigation) made a number of offers during the litigation, suggesting that they pay a small sum of money to settle the claim. Having ma...
Sep 05, 2019•6 min
Today’s plaintiff was a shareholder, not a director (but the wife of one of the directors) and the financial controller of a Co. The Co enjoyed some success and embarked on a restructure. The company would “run bare” and pay profits in the form of licence fees to a third party. That third party would distribute those fees to the trustees of discretionary family trusts. Crucially: our plaintiff's right to a distribution from the discretionary trust was as a secondary beneficiary of the family tru...
Sep 01, 2019•8 min
So what does the exclusion clause exclude? A lender relied on valuations in advancing money. The loans were defaulted on. The lender tried, and failed, to sell the property to satisfy the outstanding sum. The lender then sued the valuers. The valuers cross-claimed against their insurer. The insurer attempted to rely on an exclusion clause set out at [6]. The clause excused the insurer from paying out to the valuers if the loss was caused by a valuation being given lender who was not an ADTI supe...
Aug 23, 2019•6 min
Corporate oppression and wine in a can! Hooray! (Lots in this one. Broad brushstrokes only, I’m afraid.) An Australian co, ACo, sells wine in a can. A Japanese co, JCo, produces cans. One of JCo’s subsidiaries, JSub, competes with ACo, especially in China and Japan. In 2012, JCo bought 60% of the shares in ACo. JCo entered into an agreement with the other ACo shareholders including a good faith term. JSub continued to compete with ACo. ACo asserted JSub was required to pay it licence fees for it...
Aug 21, 2019•7 min
In 2005 Dad and his wife, D1, established a super fund. They were the trustees and beneficiaries of the fund. Before Dad’s death his son from a previous marriage, P, was appointed as trustee in his place. P was also Dad’s financial manager and guardian, and held his Power of Attorney. In 2015 Dad died. His executor was D2. In 2018 D1 and D2 entered into a deed apparently confirming D2’s replacement of P as trustee of the fund with retrospective and apparently automatic effect from the date of Da...
Aug 19, 2019•6 min
I say that we are not moving online. We have already moved. So have our clients. This is the audio from a CLE video I delivered for the fine folks at the University of New South Wales in 2019. It is a bit of a "deep dive" into three problems lawyers who advise creators and others with an online presence face, and some solutions to those problems. It might all sound a little technical and fiddly, but I pride myself on being able to discuss this sort of stuff in an approachable way. I hope you lea...
Aug 14, 2019•35 min
An indemnity costs order – for costs beyond the ordinary “party / party” order – sometimes feels like the pot of gold at the end of a rainbow: enticing but, too often, elusive. Today we deal with the tail end of a larger dispute. The second defendant was successful and the beneficiary of an ordinary costs order against the plaintiff. Today’s application sees the second defendant seeking a variation of that order to become an indemnity costs order. The second defendant asserted that the plaintiff...
Aug 08, 2019•6 min
Today, James takes us through the method he employs when sharing content, with an appropriately huge nod to Gary Vaynerchuck along the way. Hope there's some value here for you!
Jul 26, 2019•8 min
Our plaintiff, P, is an irrigation company. It owns pipes. One pipe is on D’s property. P is the beneficiary of an easement for it. D wanted to develop the site, including putting a driveway over the pipe. P’s engineer assessed the risk of the driveway damaging the pipe to be high: [14]. P demanded that all works cease and received no substantive reply. P sought an interlocutory injunction to prevent D performing works on the land. D, essentially, consented. The outstanding issue? Costs. UCPR 42...
Jul 22, 2019•5 min
What if a party needs more documents to decide whether to kick off litigation? UCPR 5.3 can assist. Here, we have a sale of a restaurant and grocery business to the plaintiff. Prior to the sale the plaintiff was given payroll reports, staff rosters, and P&Ls. Each defendant gave representations about the accuracy of that info: [4]. The plaintiff said turnover following the sale was substantially less, and payroll was substantially more, than the info suggested. The plaintiff said it might be...
Jul 21, 2019•6 min
With thanks to the Television Education Network's Sound Education in Law project, I'm delighted to share this discussion with Susanna Lobez first published in April 2019. If you're interested in this content, TEN's website is here: www.tved.net.au I am really happy with how this discussion turned out with thanks to the guiding hands and minds at TEN. Hopefully there's some real value in this CLE for anyone looking to come to grips with ss232 and 233 of the Corporations Act 2001 or - basically - ...
Jul 15, 2019•33 min
“With $1 mill, we can make $5 mill a year easy and safely.” ___ Easy, safe ways to generate a 500% p.a. ROI? Sign me up! This representation, and other similar ones, recently came before the Court. The plaintiffs – a natural person resident in the US, two impecunious Australian corporations, and two Canadian companies – pursued the defendant, a natural person. The plaintiffs transferred USD$2.24M to the defendant for him to invest. The defendant returned USD$1.33M. In the difference lies the cla...
Jul 12, 2019•6 min
Here, a liquidator chased directors for debts incurred by a company. The liquidator said the debts were incurred while the company was insolvent. The Court accepted that: [64]. The directors were a father and son. Dad retired as a director more or less simultaneously with son’s appointment. The debts were incurred while Dad was a director, and before the son’s appointment. The quantum of the debts increased over time as interest accrued on both. This gave rise to the question: should Dad be liab...
Jul 09, 2019•6 min
[Forgive the audio - this one recorded in the bad old days before Rode came along] A plaintiff brought a defamation suit. The defendants succeeded in having it summarily dismissed at first instance and the Court ordered that no further claim be made on the basis of the publications complained of without leave. The plaintiff sought leave to appeal (leave being necessary if you’re appealing an interlocutary decision) and got it. The defendants/respondents then sought security for their costs of th...
Jul 02, 2019•8 min
Hello there! This episode is a little different. Today I'm making use of the Gary Vaynerchuck metaphor of "Jab, Jab, Jab, Right Hook" that I am so fond of and am having a chat about a blog post. It's something I put up on Linkedin earlier in the year that I know a few people have got some value from. The post is here: https://www.linkedin.com/pulse/jabs-right-hooks-james-d-apice/ Hopefully - whether in writing or on the podcast - it brings you some value too. Cheers!...
Jun 30, 2019•7 min
Does an expert have to make her or his determination “according to law”? Not as silly a question as you might think. A landowner and builder entered into a contract. The contract included a dispute resolution clause. The effect was that any dispute about the contract must be referred to an expert for determination “according to law”. A dispute arose and an expert was appointed. The expert made a determination in favour of the builder. The landowner commenced Court proceedings disputing the deter...
Jun 25, 2019•7 min
[Please forgive the audio quality - this one was recorded before I got my microphone house in order] This is the first Coffee and a Case Note I ever recorded. Rather than give you a summary I thought I would let you know how strange it is that a legal decision about Canberran eye doctors I've never met, represented by lawyers I've never worked with, came to be important to me. The journey has been, and continues to be, wonderful and important to me. Thank you so much for being a part of it. P.S....
Jun 20, 2019•4 min
[Forgive the poor audio on this one - I was yet to invest in my current microphone!] “I’m not being oppressive. You are!” A and B were directors and shareholders in a company that owned an orthotics business. A brought a claim against B in oppression. A succeeded on bases including: B was paid as a consultant but caused the company to record a debt to him for unpaid annual leave: [116], B raised invoices without a proper basis: [139], B recording poorly debts owed by the company to entities asso...
Jun 18, 2019•7 min
Your client is sued by a corporation. Your client’s defence succeeds. The Court orders the corporation to pay your client’s legal fees. But – heartbreak! – the corporation has no money. Your client is left with its pyrrhic victory and its legal bills. To manage this the Court has the power to order security for the costs of a person in your client’s position. Today: a corporation commenced proceedings and incurred the costs of preparing all its evidence. Save for an expert report, the defendant ...
Jun 15, 2019•4 min
On 17 April 2019 Corrs Chambers Westgarth hosted the annual NSW Young Lawyers great debate between solicitors and barristers. I spoke second for the solicitors team; after the excellent Sarah Dickins and before the amazing Thomas Spohr. I'm delighted to say that we won! Perhaps more delightful, though, was the even itself. Playful, but conducted in the right spirit. I hope you agree!
Jun 12, 2019•5 min
Sure, corporate oppression is fun but what about reasonable notice for board meetings?! A director (or *former* director) applied for immediate interlocutory relief. The relevant Co found mining tenements and on-sold them. Its strength was its speed: [9]. Perhaps naturally, the board often met on short notice: [21] In August 2018 the directors declared our applicant was no longer a director, having been absent from board meetings for the previous 6 months. The proceedings were, in essence, the a...
Jun 11, 2019•6 min
I hope you take some value from this one hour (or so) CLE where I sketch out the Australian privacy regime as it currently stands including a consideration of notifiable data breaches. This talk covers four areas: 1. What is the legislative privacy framework? 2. How does privacy work in practice? Both "macro" statistics and "micro" examples. 3. How do you avoid a data breach? 4. What do you do if a data breach occurs? I hope there's some value here for anyone advising APP entities....
Jun 05, 2019•52 min
“Get it in writing!” Relying on a conversation to vary a contract has its challenges, especially after you’ve gone down at first instance. Party A provided services to Party B – a company – pursuant to a contract. Party C guaranteed Party B’s contractual obligations. Party B failed to pay the fees owed pursuant to the contract. Party A sued for the fees and won. But by the time of that victory, Party B had gone into liquidation. This left Party C and another guarantor “on the hook” for the judgm...
Jun 05, 2019•7 min
So, when is your loan agreement void for uncertainty? When are a contract's terms so vague that the Court can't find any real agreement between the parties? The NSW Supreme Court considered a loan agreement obliging the borrower to pay interest "at such times, for such periods and at such rate or rates as shall be determined by the lender from time to time": [6]. Generally, when confronted with a knotty term, Courts the Court will try to preserve the contract if possible: [9]. The term above put...
Jun 04, 2019•4 min
“Mr X, in the company of a young female acquaintance, lost control when driving the vehicle for purposes unrelated to his possession of the vehicle.”: [4]. Has a saucier sentence even been written? Anyway, here a car owner gave possession of his 2006 F430 Spider Ferrari (which is a type of car, I’m told)* to a company for the company to rent it out. The owner said he did so because a person, the representor, said the company had insurance. It did not. Car detailer, Mr X, came into the possession...
Jun 03, 2019•8 min
I’m Australian lawyer, James d’Apice. I host a video series called “Coffee and a Case Note” where I try to give some value by summarising a recent legal case while sipping a coffee. This podcast is the audio version of that series. I hope you’ll join me!
Jun 03, 2019•1 min
