Coffee and a Case Note

By James d'ApiceEducation

Coffee and a Case Note episodes

February 16, 2021 MJM v DT [2020] NSWSC 1881
P, a managed person, brought a claim in the Supreme Court to eject D from P’s apartment.

D had already commenced Family Court proceedings against P seeking $4.2m, approximately the value of the apartment: [10], [11], [25]

D applied to the Supreme Court to either (i) transfer P’s "ejection" claim to the Family Court, or (ii) pause it until the Family Court claim was over: [8]

P was bedridden and required constant, costly care: [31], [36]

P’s manager had to sell assets to pay for it, while D occupied the apartment rent free: [37]

P’s assets were ~$6m. Mainly the ~$4.2m apartment and one share valued ~$1.36m: [33]

P’s manager said the only realisable asset of P’s was the apartment [39] while D said P could sell the share: [40]

The Court held the share could not be easily sold as the Co would have to sell the boarding house to realise any funds: [43], [44], [87]

This process would be almost comically complex, requiring sequential replacements of directors in 4 different companies: [54]

The were other complexities including building defects which would affect the sale: [58], [59]

The Supreme Court did not make the transfer or order a stay: [90]
4 min
February 10, 2021 James d'Apice interview with Damon Laffin - The Young Lawyer Podcast Feb 2021
James spoke with Damon Laffin at the Young Lawyer podcast earlier this year and there traversed many topics: James' failures and recoveries, dealing with poisonous partners, his approach to law, and everything in-between.
You can find Damon on LinkedIn here: https://www.linkedin.com/in/damon-laffin-01789942/?originalSubdomain=au
41 min
January 27, 2021 Joint v Program IT [2020] VSC 867
"Fair value! No minority discount."
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When valuing a minority shareholding - especially a “market” valuation (rather than “fair”) - it is often said a “minority discount” applies. This discount reflects a minority’s lack of power to influence the company.
Recently, a minority shareholder, P, tried to cause the majority, D, to purchase their shares. All agreed a share purchase was best. The value was not agreed. D sought a minority discount.
Crucially, if there has been oppressive conduct, no minority discount: [4]
D got their holding from Dir in a 2015 transfer. Over the years Dir had caused the Co to pay Dir and D substantial amounts, and for travel. P, for their part, made no contribution and sought no info about the Co at all from 2011 until 2018 (shortly after the conclusion of P’s family law proceedings).
Aside from a period in 2009 to 2012 where Dir applied substantial effort, the remuneration of Dir and payments to Dir and D were oppressive: [131], [170]
The payment of travel expenses was oppressive: [178]
The “most egregious” appointment of administrators after the start of proceedings was oppressive: [223]
Noting the oppression, and despite P’s “absence” from 2011 to 2018, the Court ordered no minority discount for the share sale: [224]
Please join me to discuss this interesting decision.
8 min
January 21, 2021 French v Bremner [2020] NSWCA 339
"No new claims, no new claims. (No new claims. No, no new.)"

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A created an invention and R wanted to help commercialise it.

R made a loan of $335K to A, and then a further $3m loan. The two also became involved in property development together, with R providing some finance: [10], [11]

A lender sued A for failing to keep up with finance payments. A cross-claimed against R alleging a number of agreements.

A said R was contractually obliged to pay A (i) the money A had to pay the lender, (ii) $39m for breaching an agreement to commercialise the invention, and (iii) some property management fees: [18]

(R also cross-claimed against A seeking repayment of the loans, and declarations of resulting trusts for some properties: [19], [20])

A's cross-claim failed on all counts: [22]

Crucially, A explicitly said he was not pursuing any claims arising from the law of partnership nor any equitable remedies: [52], [53]

A appealed, saying the judge should have found there was a partnership and equitable relief should flow: [41]

The CoA said A's appeal could only be about claims he brought at first and could not raise a partnership claim on appeal, having failed to do so at first: [61]

A's appeal was dismissed.
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9 min
January 19, 2021 James d'Apice interview with Clarissa Rayward - The Happy Lawyer Happy Life Podcast, April 2020
In April 2020 I had an opportunity to have an incredible chat with The Happy Family Lawyer herself, Clarissa Rayward.
We did battle with the very early professional impacts of COVID-19 and some nearby renovations and emerged with a conversation I look back on with great fondness and gratitude.
You can check out Clarissa's fabulous projects, and the community she has built, here: https://www.thehappyfamilylawyer.com
1 hr 11 min
January 15, 2021 James d'Apice interview with Brendan Kelso - Legalsites, November 2020
In November 2020 I sat down for a great chat with Brendan Kelso of Legalsites.
We got into the nitty gritty of my approach, and what steps you might consider using in adopting a similar strategy.
And it was great fun!
You can access Brendan's podcast, and lots of great resources, here: https://legalsites.com.au/podcast/
1 hr 4 min
January 11, 2021 In the matter of Candy-Vend Pty Limited [2020] NSWSC 1735
“No oppression? No relief.”

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A Co had 5 shareholders, all brothers, and owned some property.

Two brothers, the Ps, said the conduct of the Co was oppressive and sought relief.

They had a number of complaints. One was about about dividends not being paid.

In fact, dividends (in the form of reduced loans) were paid. But even if they were not it would not be oppressive: the Co held substantial property expected to increase in value, and in any case an absence of dividends would be evenly shared across all shareholders: [41]

The narrowness of the company’s affairs (merely owning a property) meant the lack of trust between parties was not oppressive: [46], [47]

The plaintiffs valued the Co with all loans including those owed by the Ps (thus increasing its value). The Co claimed those loans in an XC. The Ps said that was oppressive.

Where the Ps used the loans to increase the value of the Co, it was not oppressive for the Co to seek payment: [50]

Even if there had been oppression, the Court considered the “property relief” was not appropriate: [52], [53]

Not all the shareholders were joined to the claim meaning while the Court might have the power to wind up, it shouldn’t as a matter of procedural fairness: [54]

The oppression claim failed.
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8 min
January 10, 2021 James d'Apice interview with Grant Williams - Not Just Another Podcast, January 2021
I had a great time having an expansive chat with Grant Williams about all things podcasting (and life!) for his new podcast Not Just Another Podcast launched January 2021!

1 hr 50 min
December 23, 2020 Graziers Pastoral Pty Limited [2020] NSWSC 1812
“Tell ‘em about the legal fees!”

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A joint venture kicked off by two natural persons, P and D, and involving a number of Cos, fell apart.

A deed was entered into to deal with the wind down.

The deed was between the natural persons and the relevant Cos. It dealt with the appointment of new independent directors to take an arm’s length approach to realising the JV’s assets.

The deed included a provision apparently granting the new directors an indemnity for their costs, paid from the venture’s funds: [3]

One venturer, P, sued: the Cos, the D and the new directors.

Over time, it became apparent the new directors were having the legal costs of their defence paid by the relevant Cos.

P sought an injunction stopping the Cos from paying the new directors’ legal costs.

The new directors said the terms of deed protected them whether by its operation or estoppel, allowing them an indemnity for their legal costs: [4]

Based on the evidence before it, the Court found it unnecessary and undesirable to rule on a fiddly construction or estoppel point on an interlocutory basis: [5], [7]

Instead, the Court required the new directors to disclose their lawyers’ fees to the P and his related entities on a regular basis: [8], [11]
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5 min
December 04, 2020 Re Dion Investments Pty Limited [2020] NSWSC 1661
“Can I just pay the Australian beneficiaries?”

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In 1973 a trust was settled. The corpus included residential property: [3]

Changes to the Land Tax Act and Duties Act mean surcharge tax won’t be charged if a trust whose corpus includes residential property has no potential or existing foreign beneficiaries: [7] - [9]

i.e. Foreign beneficiaries mean a bigger tax bill.

The trustee asked the Court for judicial advice (s63) and for orders (s81) releasing it from having to pay foreign benefs.

There were 3 bits to the Court’s s63 response.

1. The trustee would not be justified surrendering the foreign benef trusts as the trust deed gives no power to do that: [14], [18]

2. Possibility of “issue” class benefs in future means potential for further foreign benefs in future, meaning tax requirements not satisfied: [27]

3. Power to revoke trusts granted to certain people by the trust deed does not pass on to their executors: [32]

However, s81 allows the Court to grant trustees power to undertake transactions which are expedient for the trust: [34]

The tax advantage (to the tune of $100K per year) was expedient: [41]

Using s81, the Court granted the trustee the power to surrender trusts which might benefit a foreign person, and so take the tax advantage: [43]
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6 min

About Coffee and a Case Note

From the publisher's feed

I’m Australian lawyer, James d’Apice. Coffee and a Case Note began as a video series where I sip a coffee and chat about recent legal cases. This is the audio version! I hope it brings you value.