“Get us out, and get a prov liq in!” ___ P, A director and 70% shareholder of a Co sought to have it wound up and a provisional liquidator appointed: [1] - [3] P brought this application shortly after D1 (P’s former spouse, a Dir, and a 20% shareholder) commenced family law litigation: [20] D2, D1’s sibling who owned the remaining 10% of the Co’s issued shares, commenced their own shareholder oppression proceedings: [4], [5] The Co sold car parts, both wholesale and retail: [6] Appointing a prov...
Aug 18, 2022•6 min
“The new deal you all made breaches the old deal we made!” ___ In 2001, some Cos came together to incorporate a new Co. NewCo was incorporated to contract with a big client. The client’s work would then be shared between the shareholders: [3] NewCo would invoice the big client, and each shareholder would then invoice NewCo such that NewCo never made a profit: [39], [68] A dispute arose: did that 2001 agreement establish a partnership?: [3], [43] - [45] The 2001 agreement did not create a partner...
Aug 02, 2022•8 min
“Oi! Let me manage the company I said I didn’t want to manage!” ___ One brother, P, tried to wind up a Co, Tee, he owned with his elderly mum and two other brothers. Tee was trustee of a family trust whose ~$5.8m corpus included some real estate related to a family auto repair business formerly operated by Tee: [8], [12] (There was also a s66G issue that we will ignore.) P had left the auto repair business in 2012: [22] - [26] In a 2012 letter, P’s lawyers wrote a letter confirming P intentional...
Jul 08, 2022•11 min
“I submit to orders that I have to repay Dad. Or do I…?” ___ Mum and dad - elderly and unwell - sued two of their kids, and their son-in-law. First, the fascinating procedural issues. One child and the son-in-law filed submitting appearances. Another child (who we won’t discuss further here) resisted Mum and Dad’s claim and made a cross claim: [1] During the final hearing, the submitting daughter later sought to withdraw her submitting appearance and actively contest the proceedings: [12] That d...
Jun 21, 2022•7 min
"Can we charge a fee for administering the trust?" ___ A trustee sought judicial advice from the Court that it would be justified in amending a super fund trust deed. The proposed change would allow it to charge a fee to be paid from the fund: [38], [44], [67] (The T’ee sought and was granted non-publication orders in respect of some of its commercial evidence because if it became public it could be exploited by competitors: [14], [55], [56]) The fund, which originally related to educators assoc...
Jun 15, 2022•7 min
“Does the trustee really own the farm, or it still in mum’s estate?” ___ In the 1970s, Dad - a farm owner - planned to transfer his farm into a trust with TCo as trustee and his family as beneficiaries. If it worked, his wife and 4 kids could take the benefit of the farm without paying death duties: [78] At this time, rural families often faced death duties at “confiscatory levels” when farms passed to the next generation: [51] Dad died in 1976. Mum died in 2017. A number of disputes arose betwe...
May 24, 2022•9 min
"That money's for the business, not for you!" ___ If you'd like to contact me my please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! ___ Ps claimed they paid $160K cash to D in connection with an online payment business: [3] D said the $110K was appropriately spent on business expenses and D’s salary, and the $50K was for some units in a unit trust: [5] The parties’ dealings were informal: a lack of documents, cash only paymen...
May 15, 2022•7 min
5 partners - 3 Ps and 2 Ds - from the same extended family carried on a partnership. There was no written agreement: [1], [2] D2 was married to D1: [3] The partnership business was owning rental property (shops and units) and collecting rent. D1 took a leading role and was a paid a management fee. All partners were paid drawings, controlled by D1: [4] - [6] Drawings were paid 1/4 to each P, and 1/8 each to D1 and D2: [12] The partnership was dissolved in 2019. Issues regarding public auction ver...
Apr 24, 2022•10 min
I so enjoyed this interview with Nicole Davidson, a gun mediator and host of the Negotiation in Real Life podcast. Please check it out here: https://podcasts.apple.com/gb/podcast/negotiation-in-real-life/id1590259533
Apr 21, 2022•41 min
(A couple of goofs in my delivery of this one this week - apologies!) R and 7 As were in partnership operating various diagnostic medical imaging businesses pursuant to a partnership agreement. R and 5 of the As were “full” partners each entitled to 1/7; 2 As were “half” partners entitled to 1/14 each: [3], [31] The As entered into an agreement with a purchaser to sell the partnership’s assets, with R to receive $3m as part of the purchase: [4] Clause 32 of the Partnership Agreement dealt with t...
Apr 10, 2022•6 min
(I don’t know why these short lost trust deed cases appeal to me so much. Perhaps it is the intersection of the capital “L” Law with all its tradition and solemnity, with the very human problem of losing a few old pieces of paper.) ___ A trustee administered a trust in accordance with an unexecuted (or unsigned) trust deed. When the original was needed, no one could find it. The trustee sought the Court’s advice that it would be justified in administering the trust in accordance with the unexecu...
Mar 24, 2022•4 min
“Hey that money belongs to the partnership. Give it back!” ___ C and S, verbally agreed to (i) try to buy some adjoining properties, (ii) sell them at a profit, (iii) share the costs and expenses of doing so equally, and (iv) share the profit equally: [9] Speaking broadly, S took responsibility for financing and buying the properties, while C looked for purchasers: [14], [55] S argued the agreement included a Sunset Date, that C would have no interest in the venture if a buyer was not found by a...
Feb 28, 2022•8 min
P, a school, bought a bus from D. It was old stock sold at a substantial discount. The Court found D had engaged in misleading and deceptive conduct by silence (as to the build year of the bus) when selling the bus to P. But - crucially - the Court found P did not rely on that misrepresentation: [13] That meant P lost its claim, despite D’s conduct: [1] This left open the question of legal costs. Often “costs follow the event” in litigation: the winner will benefit from an order that the loser p...
Feb 22, 2022•5 min
“The deal’s off. Now give me back my $6m!” ____ P, a Chinese frozen meat company, and D, an Australian feedlot and abattoir company, found themselves in dispute. A 2015 contractual arrangement required P to pay a $6m “advance payment” to D to acquire 45% of the shares in D: [7] P made that payment. The 45% stake was valued ~$140m: [17] The deal between D and P included unusual conditional terms. The price was $140m, but subject to further negotiation after an investigation procedure including D ...
Feb 05, 2022•9 min
If you'd like to contact me my please look for James d'Apice or Coffee and a Case Note on your favourite social media spot - I should pop up right away! (TikTok is one of my strongest suits these days!) ___ Two partners P2 and D4 - both companies - were in partnership from 1996 to 2003. The Ps said that D1 had been paid partnership money and sought an order for the taking of partnership accounts: [2] The Ps made other claims in relation to alleged subsequent agreements. (But we won’t engage with...
Jan 22, 2022•13 min
“Victory with no word from the misbehaving NZ director? No problem.” ___ Ps, liquidators of a holding Co whose subsidiaries provided cloud-based SMSF software and support, sued three of the Co’s directors, and settled the claims against two of them: [2] They pursued the remaining director, D. D was served with the originating process (the document that kicked off the litigation) in NZ, but did not appear (or participate) in the litigation: [4] The Ps sought summary judgment against D i.e. victor...
Jan 09, 2022•8 min
“We’re liquidating the trustee Co, but we also need to be made receivers of the trust assets!” ___ A Co was incorporated to be a trustee and, in that capacity, developed an apartment complex in Lindfield: [12] The trust deed provided that the Co was to be indemnified for all liabilities incurred in its capacity as trustee, and that it would cease to be trustee upon its liquidation: [11] Following completion of the development 35 apartments were sold. 5 remained in the hands of the Co as trust pr...
Dec 20, 2021•4 min
Earlier this year I had the chance to chat with David Turner of Hearsay: The Legal Podcast. It was (honestly) one of the most enjoyable chats I have ever had about technical legal practice. You can find other episodes on the fabulous Hearsay podcast here: https://htlp.com.au
Dec 19, 2021•56 min
“You got the money, now get me my luxury goods!” ___ A commenced proceedings against R1, a father, and R2, a son who was a minor at the relevant time, to recover payments made for luxury brand name furniture and accessories that were never delivered: [45] At first instance, A succeeded against R1, but lost against R2: [46] A and R1 had an established commercial relationship: [48] There was some complexity in this case, though, as both R1 and R2 - arguably - held themselves out as agents of each ...
Dec 12, 2021•5 min
“Give that $30m back to the Co and wind it up!” ___ Some Ps were executors of a shareholder’s estate: [2] The Co conducted a retirement village business which was sold in 2017 for $25m: [3] Over time money was dissipated to a director, WH, and WH’s related entity, HHC, who used some money for buying a Balinese property: [4] The litigation was complex but, crucially, the Ps sought repayment of the Co’s money, and for the Co to be wound up pursuant to s461(k) or s233: [5] ___ In 1997 the Co entere...
Nov 29, 2021•10 min
On 5 November 2021 I spoke (remotely) at 'The Retreat' by Clarissa Rayward, the Happy Family Lawyer. It's a fantastic event and I was delighted to be a part of it. (And am hoping for an invite back next year!) This is my presentation which I hope brings you value. A link to just some of Clarissa's fabulous content is here: https://www.thehappyfamilylawyer.com A link to my appearance on Clarissa's podcast is here: https://www.thehappyfamilylawyer.com/podcast/episode-179-james-dapice/...
Nov 22, 2021•39 min
“There’s no deadlock, so there’s no windup!” ___ P, a director, applied to wind up a Co that was Tee of a unit trust: [2] P’s fellow directors were S and D. P said there was a deadlock and relations had broken down: [4] P and S were builders. D was a property developer. The 3 agreed to found the Co to develop a site together with P and S to share 50% of the profits and D to take the remaining half as unit holders: [13] There was no written agreement: [12] In 2013 the Co was established and the u...
Nov 18, 2021•8 min
“The Co paid too much for that helicopter!” ___ W and B were 50/50 shareholders in a Co that bought a helicopter for $1.6m. They were also the Co’s sole directors. $1.12m of the purchase price was borrowed. W and some related entities gave a guarantee in respect of that loan. The Co couldn’t make the payments. The lender caused the helicopter to be sold for a shortfall of ~$457K. The lender sued W and their related entities for the shortfall. Interestingly, the purchaser of the helicopter was a ...
Nov 12, 2021•6 min
Earlier this year, James sat down with Legalsites' founder and law grad turned legal firm marketer, Brendan Kelso. Hope you enjoy their conversation! A link to the Legalsites website is here: https://legalsites.com.au/social-media-101-w-james-dapice-facebook-instagram-linkedin-tiktok-and-twitter-which-is-best-for-law-firms/
Nov 07, 2021•53 min
“Wind up the company that runs this pub!” ___ An uncle, and his Co, (“P” or “the Ps”) sued a nephew and his Co (“D” or “the Ds”) to wind up a Co that operated a pub and the T’ee that owned the land it was on: [1] Uncle and nephew were the directors of both the Co and the T’ee: [2] All parties accepted the relationship had broken down. Each blamed the other: [3] The grandfather - P’s dad - assisted P and D in setting up the business. Later, grandad would swear an affidavit supporting D: [4] In 20...
Nov 02, 2021•10 min
James had a chance to chat with the legend, Mike Bromley, from Team BB earlier this year. You can catch what the Beyond Billables team are up to here: https://www.beyondbillables.com
Oct 27, 2021•1 hr 13 min
In September 2021 James d'Apice spoke with Susanna Lobez from TVED about one of James' pet topics: derivative actions. You can find TVED's content here: https://www.tved.net.au
Oct 25, 2021•30 min
"No trust? No confidence? No company." ___ B and G founded the Co and entered into a shareholders agreement. The Co provided in-car cameras for race cars to be used in TV broadcasts. In 2015 the Co agreed to provide cameras for 5 years: 2016 - 2020: [6] B transferred valuable camera equipment (and later loaned other equipment) to the Co for the Co to use: [9], [60] At the end of 2020 B wanted to terminate, and G wanted to keep it going: [15] On termination, B and G had rights to buy back equipme...
Oct 06, 2021•7 min
“You moved the Co’s money, so let’s wind it up!” ___ The As, spouses and owners of 45% of the shares in a Co, came to Court to try to wind up the Co including pursuant to s461 of the Corporations Act 2001 (Cth). One of the Rs owned the balance of the Co’s shares, being 55%: [4] The As, as shareholders, had standing to bring the claim: [10] They had the consent of a liquidator willing to accept an appointment: [8] The Co was in the business of finding buyers for new property developments: [13] Th...
Sep 29, 2021•7 min
James had the chance to sit down with Jerome Doraisamy in September 2021 to have a fantastic chat about James' views on the profession and his suggestions for other practitioners. Please check out Laywers Weekly here: https://www.lawyersweekly.com.au/podcast/32455-blending-contemporary-branding-with-traditional-practice-approaches
Sep 28, 2021•30 min
