"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 the payment of money; and (iii) give an undertaking to pay damages if the Court orders it. ___ P and D entered in...
Apr 21, 2020•5 min
“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 liquidators alleging loss from the Cos assigning marks they didn’t own. To sue a liquidator, you need the Court’s ...
Apr 17, 2020•9 min
“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 appropriate referral fee might be: [64] D’s connect did not go ahead with the development, selling it to an...
Apr 13, 2020•7 min
“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” in Court proceedings, they will pay the “winner’s” legal fees. That way, an offer of “you lose, but I...
Mar 31, 2020•5 min
“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 from meetings, moving the enterprise to a new location inconvenient to the P, changing the enterpri...
Mar 25, 2020•5 min
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 authority: [39], [44] D caused the Co to sell the business and retained the proceeds: [57] P sought t...
Mar 24, 2020•6 min
“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 the former spouse’s improper conduct or received profits or benefits as a result of it: [7], [9] 2D said the evidence was on, it did n...
Mar 15, 2020•4 min
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 to s66G; 2. A number of judicially considered examples of what happens when s66G matters are litigated; and 3. Some practical ...
Mar 07, 2020•41 min
“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-owners. A properly prepared application like this will almost always succeed. The imprisoned respondent co-owner said th...
Mar 02, 2020•6 min
“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 legal costs of the plaintiff. The property was sold, yielding a modest sum: [15] The plaintiff’s lawyer itemised the legal costs in...
Feb 21, 2020•6 min
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: [114] The employment contract between P and PM included restraints on her post-employment conduct: [13] P sought an i...
Feb 11, 2020•8 min
"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 person had control: [258] The problems included Chinese State Authorities getting judgments against the Co, with any appeal “f...
Feb 05, 2020•9 min
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 entirely. Without proving a “permanent director” power was misused, an irregular appointment was not oppressive: [52] One child (who cont...
Jan 22, 2020•5 min
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.
Jan 14, 2020•1 min
“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 administrator. They said an administrator had been slow to sell some land. The delays were due to other litigation. The land was event...
Jan 13, 2020•4 min
“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 clients. He took advantage of an investment opportunity relating to that client without telling any partners. The yield? $1...
Jan 03, 2020•6 min
“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, common sense” : [44] There were also findings of commercial unfairness on the basis of: withheld information ([212]), “...
Jan 01, 2020•7 min
“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 the builder obtain a construction certificate at all: [13] The builder appealed, saying the contract required the owners to give 10...
Dec 25, 2019•5 min
“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 work: [23]. As it happened: the cleaner did about 10% of the work. The cleaner’s subcontractors (who the client did n...
Dec 17, 2019•5 min
[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. In 2019 following a sale at $5.8M and payment of various expenses, the trustees held ~$5.3M. The plaintiff – the other co-owner/benef...
Dec 07, 2019•7 min
“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 work with”: [232] The other two secured a sale of the company’s IP in the app for $2M as compared to a book value of $300K: [128] The...
Dec 02, 2019•7 min
“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 of the “the Co as trustee for Trust 1” i.e. the 2002 trust, not the 2014 trust: [7]. It appeared likely the money to fund the purchase ...
Nov 24, 2019•4 min
“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 account of Spouse B’s: [84]. The marriage didn’t last. Family law proceedings led to an outcome. However, Spouse ...
Nov 19, 2019•5 min
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 together by Adam Giliberti with assistance from Jade Baena. I hope to be invited back one day in future...
Nov 15, 2019•1 hr 20 min
“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 the Cos pay the money. If a Co receives a stat demand and fails to (i) pay, or (ii) get the Court to set it aside, it can be wound up. So the...
Nov 10, 2019•6 min
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). The director and the company were both parties seeking leave to appeal. The Court of Appeal has the power to dispense...
Oct 31, 2019•5 min
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 clauses Some exclusion clause case studies A brief aside regarding warning signs Some practical sugge...
Oct 29, 2019•48 min
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 this – surprisingly – the new owner sued the former owner for trade mark infringement in relation to the slogan. A person does no...
Oct 25, 2019•5 min
As you know, we three are Novocastrian optometrists. We operated a business through a unit trust. We were the directors of the trustee. Entities associated with, or controlled by, us were the unit holders. One of us became worried about the behaviour of the other two. The concerned one appointed a new trustee, a Co controlled by him and his wife. Eventually, over resistance from the other two (and the trust’s accountant whose conduct was “egregious”: [58]), the new trustee took control. Litigati...
Oct 19, 2019•7 min
In this episode I flesh out the reasoning and the tactical angle on my approach to lawyers and branding. It's - in no small part - my response to having to answer similar questions about this project over and over. From that perspective: I hope it helps you! In this session I (passionately) recommend Gary Vaynerchuck: https://www.garyvaynerchuk.com/the-ga... In the session I recommend Chris Hargreaves' podcast: https://www.stitcher.com/podcast/the-... In this session I recommend Mitch Jackson's ...
Oct 03, 2019•47 min
