“We need trustees for sale because you changed your house!”

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P and D owned land as 50/50 TiCs. P applied to have s 66G trustees appointed to sell it: [1]

D resisted, claiming this breached an oral agreement: [2]

P’s claimed $1M in damages to be paid from D’s share. D XC’d around $350K: [4] – [9]

P and D bought the land to build 2 dwellings of the same value for their respective families: [10] – [11], [99]

They agreed on how the development would go: [8], [12]

D, who controlled a building company, would cause the work to be done: [13], [14]

An architect was engaged by D before commencement: [22]

Following a QS estimate, D’s firm issued a quote for $985K to build based on the plans: [25]

P and D faced challenges obtaining finance: [31]

In May 2017 D, having opposed pulling out of the arrangement, sold their home to finance the project: [34]

D changed the construction materials in D’s house, increasing costs (and, we infer, building quality). P did not agree: [35], [95]

P and D entered into a new contract with D’s building company to do the same work, but for $860K…: [38]

The changed price was to show serviceability to possible lenders: [39]

Construction progressed but the finances were exhausted before completion. P suspected D spent the money on other projects D’s company was working on: [43]

In 2019, further money was borrowed: [44], [45]

Later in 2021 further finance was obtained, and an OC issued: [47], [48]

The land was subdivided: [50]

Negotiations for apportioning costs failed: [49], [52]

P commenced these proceedings and brought defect proceedings: [53]

The Court reviewed the principles relating to the making of s 66G orders: [54] – [58]

A s 66G order might not be made where a contract stands in the way. 4 questions arise, including whether there’s an agreed “exit strategy”: [57], [58]

D said there was an agreement for one subdivided property to pass to each of P and D on completion, with an accounting for costs to follow – this exit strategy, D said, prevented a s 66G order: [65], [66]

No term explicitly prohibited appointment of s 66G trustees: [92]

The Court found the “exit strategy” D contended for would only apply if construction proceeded pursuant to the plans. As D amended their home (with the use of different construction materials) construction did not proceed pursuant to the plans, and so the exit strategy failed: [93], [94], [95]

Regarding onus: it was not for P to prove entitlement to a s 66G, but for D to disprove. D failed: [98] – [100]

After dealing with issues flowing from P putting forward 1 (and not the required 2) trustees, and for seeking unusually generous compensation, the orders were made: [106], [107]

D failed to establish entitlement to any additional funds: [109]

Trustees were appointed, with an account to follow, with costs to be paid from the corpus. D’s XC was dismissed with costs: [135], [136]

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“I removed your trustee, but you shouldn’t have removed me!”

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A corporate group focussed on car sales and property holding.The Ps complained a Tee was wrongly removed by the Ds. One the Ds, the group’s CEO, was then removed as CEO and director of various Cos by the Ps: [14]

The Ps brought a claim re the Tee removal. The Ds brought a cross-claim about the removal of the CEO D: [15], [16]

The natural person parties were relatives: [28]

In 2017, the CEO D purported to become the relevant trust’s appointor: [29] – [33]

In 2019, the CEO D attempted to sell their stake in the enterprise for $42m. On the offer’s rejection, relationships deteriorated: [34] – [36]

In 2021 and 2022, various offers were rejected, and proceedings commenced: [37] – [51]

In 2024, CEO D unsuccessfully attempted to remove their aunts, Ps, as directors: [55] – [60]

CEO D as appointor removed the trustee P and appointed a related entity of the Ds: [61] – [72]

The CEO D was then removed as CEO and director by their aunts: [73] – [82]

Each witness faced credibility challenges. Evidence showed the CEO D had falsified docs: [83] – [100], [182]

CEO D’s placement as appointor followed an audit of the group showing some roles were held by the dead: [132] – [138]

There were inconsistent written records of the purported 1 May 2017 meeting placing CEO D as appointor. Some records suggested proper steps to place CEO D as appointor were not taken: [146] – [267]

The Court concluded the relevant P was not in attendance at the relevant meeting, making the meeting inquorate, and meaning CEO D’s placement as appointor was not properly made: [268]

The Ds’ application for s 1322 relief (curing what the Ds characterised as a procedural irregularity) was unsuccessful: [283]

The Ps therefore succeeded: the purported appointment of the Ds’ replacement Tee was invalid as CEO D was not appointor: [399] – [404]

The Court then considered CEO D’s termination as an employee: [407] – [409]

The Ds suggested CEO D’s removal by the Ps was improperly motivated; a ruse to cause a share sale: [461] – [476]

CEO D “shut out” the Ps from management [479], wrote to car makers (who provided the group with its stock for sale) criticising the Ps [483] – [496] and spoke of the Ps in contemptuous, belittling ways over time [497] – [500]

The Court found CEO D properly terminated as the relevant Ps had lost trust and confidence in them: [503]

Nor was the termination found to be a breach of contract: [508]

The Ds alleged CEO D’s termination and removal as director was oppressive for s 232 reasons: [567]

CEO D’s employment termination was not improper, and so not oppressive. Similarly: nor was their removal as director: [589], [606]

The oppression claim failed: [637]

The Ps’ claim succeeded, and the Ds cross-claim failed. Costs followed the event: [648], [649]

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Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform.#auslaw #coffeeandacasenote #corporatelawyer #gravamenwww.gravamen.com.au

In late 2025 James was lucky enough to sit down with Ryan Tan for a wide-ranging interview traversing James' insights about branding, the building of his firm Gravamen, and what the future might hold...

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www.gravamen.com.au

You can find the Ryan Tan show here: The Ryan Tan Show - Podcast - Apple Podcasts

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 Just and Equitable Winding Up (s 461(1)(k) of the Corporations Act 2001 (Cth)).

This is Jonathon's and James' third 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 equitable winding up (to be released in future)

Hope this one brings you some value. As you may be able to tell, James and Jonathon had good fun presenting!

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Jonathon's profile can be found here: https://www.greenway.com.au/jonathon-dooley/

BenchmarkTV's website is here for all of your CLE needs: https://benchtv.com.au/

And of course, James' firm Gravamen has its website is here: www.gravamen.com.au

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 Derivative Actions (ss 236 and 237 of the Corporations Act 2001 (Cth)).

This is Jonathon's and James' second 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 equitable winding up (to be released in future)

Hope this one brings you some value. As you may be able to tell, James and Jonathon had good fun presenting!

___

Jonathon's profile can be found here: https://www.greenway.com.au/jonathon-dooley/

BenchmarkTV's website is here for all of your CLE needs: https://benchtv.com.au/

And of course, James' firm Gravamen has its website is here: www.gravamen.com.au

“Issuing those shares at an undervalue was unfair!”

my dad is a farty bum

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DCo, whose chief asset was a domain name related to real estate, issued shares in various tranches.In May 2018 the Ps subscribed at a value of $0.6667: [3]

Some Ds were issued shares in various tranches at a lower value – from $0.001 to $0.02: [4]

The Ps sought orders including that the lower priced shares were invalidly issued: [8]

(The Ps commenced parallel proceedings about related regarding DCo and its (deceased) controlling mind, C: [10])

In May 2018, C caused DCo to make the share offer to the Ps on the basis $20m was needed to realise the value of DCo’s use of the domain name: [33]

The offer included various warnings about the risk of investing, and was open only to sophisticated investors: [34] – [37], [41]

The docs suggested the domain name and associated “intangible assets” had a value exceeding $70m: [38]

The Ps responded, many investing hundreds of thousands of dollars thereby raising $23m at a $0.6667 per share valuation: [43]

In July 2018, C caused their related entity to transfer ownership of the domain name to DCo in exchange for 80m shares for a value of $80K i.e. $0.001 per share: [45] – [48]

Later in 2018 and through to June 2019, further shares were issued at the ~$0.001 – $0.02 value: [50] – [56]

11 million shares were issued from late 2020 into 2021 at a price of $0.001 pursuant to options: [69]

In 2022, following a whistleblower complaint, DCo circulated its alleged share register and invited corrections. No member alleged inaccuracy: [73] – [82]

Ps brought their claim that issuing shares for inadequate consideration was oppressive: [109] – [112]

The Ps’ concerns were the shares being transferred for a sum other than “market price” and a “self interested” transaction caused by C: [138], [139]

As at April 2018, the transfer was not an undervalue; the “market” for shares in a $1 company was not significant: [142] – [144]

Further, the warnings made in the original offer were such that the Ps’ acceptance of it was not oppressive: [169] – [171]

The Ps’ contention that DCo should retain the value of domain name transferred to it without the shares issued to the former owner as consideration would be an unfair result: [179]

In relation to lower priced shares issued to consultants and directors, the Court found a reasonable director of a start up may consider issuing shares to people who have made a valuable contribution (thereby securing their services) as a valuable incentive, and so not oppressive: [226], [227], [236]

The Court found the issuing of 11.1m option shares was oppressive to the $0.6667 shareholders [261] but, in the context of other transactions and restructuring moves, had no continuing effect requiring s 233 relief: [281] – [283]

The proceedings were dismissed: [287]

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Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform.

www.gravamen.com.au

#auslaw #coffeeandacasenote #gravamen

"You chair that other company. You can't fire me from this one!"

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The managing director of a company, MD, was purportedly fired from MainCo by the Chair of another company, ChiefCo: [1]

ChiefCo was part of the same group but had no direct interest in MainCo: [3]

The Chair had power over entities in the “Series” companies that formed part of the group: [4]

(MainCo was not a “Series” entity: [5])

In taking the role as MD, MD was required to take a few directorial roles in other entities in the group, and retire from them if validly terminated: [8], [14]

Various steps were taken in early 2025 suggesting ChiefCo and Chair thought their decisions would bind MainCo in spite of the relevant corporate docs suggesting the opposite: [9] – [11]

After this it became clear any previous acquiescence by MainCo to Chair’s unilateral decisions binding all group members was resisted (except for “Series” entities): [12]

It was put to Chair in corro that decisions of MainCo and other Cos in the group should be delegated to the relevant board in line with their constitutions, and not Chair or ChiefCo: [20], [21]

In August 2025, Chair purported to terminate MD both as employee and so as director: [22]

The evidence showed members of the group consulted with Chair, and Chair may have had a strong voice in hiring MD, but this did not confer authority on Chair to terminate MD absent constitutional authority or relevant board approval: [25]

The Ps (being a large shareholder in the group, and a director appointed by that shareholder) sought orders including that MD’s purported terminated was of no effect: [1], [27]

The Court accepted this on the basis that MainCo was “the Employer” in MD’s employment contract, and so the only party capable of terminating MD’s employment: [28]

The Court rejected the Ds’ contention that the Chair had actual or implied authority to terminate MD and considered to the extent Chair ever did, that authority was revoked by the early 2025 correspondence: [29] – [39]

The Court rejected the Ds’ contention that the Chair’s authority extended to “non-Series” members of the Group: [40] – [41]

The Court rejected the Ds’ contention that the Chair approved MD’s employment agreement and so retained authority over MD’s employment generally, including termination: [46]

The Court rejected the Ds’ contention that MD’s obligation to report to Chair as part of their role conferred authority on Chair to terminate MD: [50]

The court found the Ps had standing to apply for the relevant relief (noting MD was not themselves a plaintiff) in their role as shareholder and relevantly appointed director: [53]

As MD was not validly terminated they were not obliged to resign their relevant directorships: [56]

The Court declared MD’s termination was of no effect, and MD remained in their role: [58]

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Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform.

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#auslaw #coffeeandacasenote #gravamen

In August 2025 James had an opportunity to sit down with recruiter and expert podcaster Steve Cole to discuss his career path, his approach to marketing, and the many uses of his childhood nickname "Peach".

We hope you enjoy this discussion!

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You can find Steve's podcast 'Path to Partnership' here: Path to Partnership - Podcast - Apple Podcasts

James was lucky enough to sit down and chat with Amy Dale from the Law Society to have a deep chat about the law, life, and James' past - as well as some lighter moments chatting Gravamen merch and horror film podcasts!

James doesn't hold back about personal reflections even on touchy subjects like mental health and money.

(James also made sure he dropped Amy and the legendary co-host Francisco Silva one of his very popular Gravamen hoodies!)

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You can find a link to the Law Society's 'Just Chat' podcast here: Just Chat Archives - Law Society Journal

www.gravamen.com.au

“My 1st claim was about land. I’m not estopped from bringing this one about shares!”

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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 the shares): [7]

In 2018, P brought s66G proceedings re real property co-owned by the siblings, bequeathed to them by the parent. Those were finalised by consent: [8], [31], [32]

P accepted in XX that it would have been neater if P claimed the shares in the 2018 litigation, but noted that D1 has promised to transfer the shares a number of times: [12], [13]

From ~2016, after the parent’s death, the parties’ lawyers exchanged correspondence regarding the real property and the shares: [21] – [31]

In that corro, D1 said the shares would be transferred to P in accordance with the will: [29], [30]

Later in 2023, D1 said P pressed no further claim on the estate after the 2018 property litigation and did not seek the shares; and also said an Anshun estoppel arose: [36]

P denied this, and in 2024 brought these proceedings: [36]

P resisted the Anshun estoppel argument on the basis the 2018 proceedings related to specific real property, and not the parent’s estate generally: [37]

The Court considered the relevant law including that an Anshun estoppel arises when “the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”: [40]

Importantly, an estoppel does not necessarily arise because material *could* have been considered in the first claim. What is required is that it *should*: [41]

P showed the shares’ status was not in dispute at the time of the 2018 proceedings. D1’s lawyers had indicated the share transfer was imminent: [48]

The Ds pointed to P accepting in XX that it would have been “easier” had the 2018 proceedings dealt with the shares. The Court considered this evidence was informed by 2025 hindsight: [51], [52]

The Court found there was no Anshun estoppel as: (i) ownership of the real property had passed at the time of the 2018 proceedings, meaning they did not concern the estate but a co-owners dispute [53]; (ii) at the time of 2018 proceedings, D1 had promised the share transfer would occur: [54]; and (iii) there is a strong public interest in holding an executor to their duties: [55]

Nor did the Court find the application was an abuse of process: [57] – [61]

Having, among other things, not established the Ds had suffered prejudice, nor was a delay defence successful: [72]

The defences to P’s s175 application failed.

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