Coffee and a Case Note

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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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.

www.gravamen.com.au

#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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www.gravamen.com.au

P, a public company of some size, was obliged to have its accounts audited: [1]From 2016 to 2025 an auditor audited the Co’s financial reports. The auditor was qualified but not validly appointed in contravention of the Corps Act: [2]P sought a declaration pursuant to s1322(4) that the purported appointment of the auditor was not invalid: [3](Importantly, the order sought was that the appointment be declared not invalid pursuant to a certain section that would otherwise cause it to be invalid; rather than a declaration that the appointment was itself valid: [24])Broadly, a contravention of this kind can be ordered to be invalid if the mistake was (i) procedural, (ii) an honest error, (iii) and that there is no substantial injustice: [6]From around 1970 Mx A was appointed auditor. Over time “A & Co”, “A Partners”, “A Accountants etc” were appointed auditors – all of those entities related to Mx A: [11] – [14]In around 2016, Mx A died. Apparently their child, also named Mx A began work at the auditing firm: [14] – [16]Mx A, the younger, was a qualified auditor and fulfilled the role for P until early 2025, signing off similarly using a related entity: [16] – [20]In early 2025, P decided to put the role out to tender following tension between Mx A and P’s board: [21]Mx A resigned around this time, and the irregularity of their appointment as auditor was revealed: [22]There was no doubt that Mx A’s firm was retained as auditor and indeed performed the work and was paid for it: [23]The evidence tender satisfied the Court that P had a reasonable basis for suspecting the appointment was not properly made: [25]Following a consideration of the evidence, some of which evidence P’s searches of its own historical records, the Court was satisfied the potentially invalidity of the appointment was honest: [28] – [33]The Court considered shareholders and others who might be affected by the order sought and found there would be no injustice: [34] – [38]1322(4) relief is discretionary. While highlighting that the improper appointment of an order not a matter of small moment, the Court elected to exercise its discretion: [39] – [42]Following some amendments the Court made orders largely consistent with those sought by P: [50]The Court was not prepared to make orders that P and its dir complied with their duties where it appeared they had not done so: [49]___Please don't forget to follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform!

www.gravamen.com.au

James had a chance to sit down and chat with the legend, boss of Ruby Assembly, and all-round all-star Iolanthe Gabrie on her podcast Real Ambition in June 2025.

Together they get deep on branding, Rory Sutherland, and contemporary horror films. Check it out!

You can find Iolanthe's podcast here: https://open.spotify.com/show/3fgIdiaiSxD4F8iZO7xgXo