Coffee and a Case Note

James was lucky enough to sit down and chat with the legendary leader of Lawyers Weekly, Jerome Doraisamy in 2025 and had an in-depth conversation and life, law, and where Gravamen is still a side-hustle...

You can find a link here https://www.lawyersweekly.com.au/podcast/42265-the-boutique-lawyer-show-unique-branding-charitable-donations-and-the-firm-as-a-side-hustle?utm_source=LawyersWeekly&utm_campaign=05_06_2025&utm_medium=email&utm_content=Boutique-Podcast&utm_emailID=55716e27c79db04faaa6ed1f3d3988938ab8fa86ca99f7fc2679bf363ed418c8

“You can’t sue in the company’s shoes. You’re not coming in good faith!”

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ShopCo had two 50% shareholders, P and D. Each of P and D were Cos. P’s dir and D’s dir were the dirs of ShopCo. ShopCo owned a retail centre with a possible value of ~$53m: [2], [3], [57]

The dirs had a falling out: [3]

D provided property services to ShopCo, with P’s knowledge The arrangement was longstanding, but not reduced to writing: [5]

Some of the services D provided were managing tenants, negotiating leases, collecting rent etc for ShopCo: [6]

P alleged this work was real estate agent work and, as D was not a real estate agent, any commission should be repaid to ShopCo as a debt: [7] - [9]

P sought leave to bring a claim pursuant to s237 leave to sue D for ~$700K it received on the above basis: [11], [12]Derivative action criteria (a) (will the Co bring the claim?), (d) (is there a serious question?), and (e) (notice requirements) were all met: [15]

It remained for the Court to consider (b) (good faith), and (c) (best interests of ShopCo): [15]

(There is, with respect, a useful summary of some relevant derivative actions principles at [18] - [29])

P’s dir and D’s dir ran similar developments together in the past. Their enmity appeared to arise from disagreements about other projects: [45], [46]

Attempts were made by P and P’s dir to cause ShopCo to pursue its alleged claims against D. Those attempts failed: [47], [48]

In relation to the best interests test, the Court considered no decision was necessary due to a conclusion P was not coming in good faith: [61]

In doing so, the Court considered the proportionality of the sum potentially claimed from D (~$700K) alongside the possibility of some costs being unrecoverable in any action (due to not being real estate agent work): [59]

In considering good faith, the Court noted a successful applicant must show (a) honest belief in the cause of action’s prospects, and (b) an absence of collateral purpose: [62]

The Court gave 11 reasons (or perhaps up to 13: [66], [67]) for finding P did not come in good faith.Those included: (i) P put forward no basis for P’s belief in the prospects of the claim, nor any legal advice on that point, (ii) there were real risks in the proceedings, (iii) a strong argument that D provided services at cost (i.e. for no benefit) was not addressed by P, (iv) the cost estimate of the proposed litigation was $500K for a possible $700K benefit, and (v) there was no suggestion of any defect in the services provided by D: [65]

P’s proposed course would see $500K in costs for a $700K return that would arise only if P’s submission that ALL work done by D was “real estate agent work” succeeded. A commercial return required complete success for P. This pointed away from good faith: [67]

Having found the P did not meet the good faith requirement, leave was not granted: [72]

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“Don’t call the meeting to sell those shares!”

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P was a shareholder in D1. D1 owned Techshares, shares in TechCo: [1]

D1 did not trade. Its purpose was holding Techshares: [16] The Techshares were illiquid: [25], [26]

A GM of D1 was called proposing D1 would either (i) sell the Techshares to a specified purchaser or (ii) failing that, go into MVL: [2]

P sought injunctions restraining D1 from calling the meeting: [3]

P said: P had made a purchase offer more favourable to D1 than the proposed offer, and inadequate time had been given to consider proposal (i): [6](

An earlier injunction had been granted, restraining D1 from issuing further shares that would dilute P’s holding: [9], [10])

Following the costs of the initial part of this litigation, D1’s dirs represented that it would need funding or D1 would be placed in VA or MVL with the Techshares sold for “fire sale” prices: [19], [20], [24]

D1 hoped to obtain TechCo’s shareholder list to sell the Techshares. TechCo resisted, instead proposing Offeror: [30] - [32]

Offers were made by Offeror: [34], [36]

D1 sought TechCo’s approval to “shop” Offeror’s offer to other TechCo shareholders, but TechCo made no response: [39]

Another, apparently more attractive offer, was made by another party backed by P’s controlling mind: [42]

Interestingly, P (having changed its name, leading to brief confusion) made a further more attractive offer: [47] - [51]

The D1 dirs reviewed all offers and (including because of some opacity with P’s finances) recommended that Offeror’s (apparently less attractive) offer be accepted: [65]

P provided evidence to show it had the assets to underpin its offer: [70] - [73]

Further corro was exchanged regarding the P’s (and the P’s controlling mind’s) ability to fund the offer: [74] - [78]

The evidence put forward did not convince the Court of P’s ability to fund the offer: [79]

RE (i) the Court found no serious Q in part because P’s argument (“a summary is not sufficient. The full offer should have been disclosed”) did not ID any part of the offer not disclosed in the offer summary: [87] - [91], [97], [101]

With that, balance of convenience for (i) became irrelevant: [114]

RE (ii) and the P’s previous application re share dilution the Court was prepared to proceed as if there was a serious question to be tried: [119]

The Court found the BoC favoured a limited injunction; a short delay on the SHs’ ability to appoint a liquidator while they negotiated: [126]

The outcome would have been different if P had sought a longer, or indefinite, injunction: [127]

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“We need the Court’s help to call a meeting of the company!”

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P sought s249G orders to call a members meeting of a Co, D1, to consider certain special resol’ns. D4 opposed the application. (D4 was a director of D1, D2, and D3.): [1]

D1, and the parties generally, were part of a larger corporate group: [2]

D2 held 599 of the 600 issues shares in D1. D3 held the other share in D1: [3]

P, D4, and another were the dirs of D2: [2]P and D4 were the dirs of D3: [3]

D1’s articles required 2 members to comprise a quorum for a general meeting. So: if either D2 or D3 was absent an EGM of D1 could not proceed: [3]

The parties litigated a dispute regarding P’s status as director of D3. D4 appealed. D4’s appeal was heard and judgment reserved at the time of these proceedings. (During which, it became common ground that the outcome of the appeal would have no moment in this application.) [8], [19], [22]

In January 2025, P convened a board meeting of D2 to consider causing an EGM of D1 to vote on causing the removal of D4 as a dir of D1: [9]

On 3 February 2025, D2’s board resolved to cause D2 to convene an EGM of D1, over D4’s objection: [10]

Later, P and D4 discussed causing D3 to attend the D1 EGM and disagreed, with D4 resisting: [11]

D4 resisted P’s causing of a D1 EGM on the basis it would “cut across” the appeal outcome: [12], [13]

On 26 February 2025 the would-be EGM of D1 was dissolved as inquorate: [14]

P commenced these proceedings, and D4 continued to resist allowing the D1 EGM to proceed before the appeal judgment was handed down: [15] - [18], [21]

(As noted: the parties came to accept the appeal would not have any bearing on the proposed EGM: [22])The P had to (i) show it was impracticable to call the meeting without the Court’s help and (ii) move the Court to exercise its discretion in favour of relief: [26] - [31]

The Court accepted that a deadlock existed in relation to P seeking to cause a quorate meeting to proceed and D4 being unwilling to cause D3 to attend the proposed EGM; and opposing the appointment of a representative of D3 to do so: [32] D4 maintained that they opposed the EGM and / or the appointment of a representative of D3 until the determination of the appeal: [33]

D4 argued holding the meeting “post-appeal” was a workable outcome: [35], [36]

The Court did not accept that its discretion ought to be exercised as D4 proposed because: (i) the appeal outcome had no moment on the EGM issue, (ii) the Court’s discretion ought to be exercised in the context of the current position and not what might happen in future, (iii) D4’s retained an ability to change their position after this litigation, and (iv) D4’s concerns could be addressed by other applications: [40]

The Court made orders largely in accordance with those sought by P, including costs: [48], [49]

“That loan was for a purpose. Pay it back!”

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P sued natural persons and Cos. D1 was not served and D2 was bankrupt, leaving P to pursue Cos only: [9]

P’s dad spoke with D1 and D2 about an investment. P later transferred $9.2m to one of the DCos: [3], [5]

There was no written agreement: [6]

In 2017, all agreed the $9.2m would be used for property investment, that if the property bought was then sold in a year 35% would be returned, and if unsold the funds would be returned: [6]

In 2018, when the principal was not returned, the parties made a loan agreement, requiring repayment and interest: [8], [61]

Repayments were not made. P sued: [9]

P said the money was advanced to buy a specific property; and so was held in a purposive “Quistclose” trust. P said the money transferred to the other Cos was done with knowledge and so was recoverable: [11]

The Ds denied a trust and said if there was one, then the loan agreement extinguished it: [12]The Ds served no evidence: [15]

P had to prove the 2017 agreement, WITH a mutual intention that the funds would be used for a specific purpose, to be held on trust and returned if the purpose was not achieved: [21]

P never discussed the proposed sum, proposed property or properties, location, or property size: [24]

P said some docs sent after P’s dad’s the discussion were a representation that the money would be used for specific land: [29] - [31]

There was no evidence of the purchase price being referable to specific properties or of any intention to purchase a specific property: [32] - [34]

In this case, there was no intention to create a trust: [36], [41], [48], [54]

That’s because: the creation of a JV vehicle did not prove a trust creation intention [49], the potential of co-mingled funds absent a “trust account” points away from a trust [50], absence of language like “solely” or “exclusively” [51], and the parties treated the funds as loaned rather than held in trust [53]

The Court then considered IF there was a trust, was it brought to an end by the loan agreement: [55]

The Court held the loan extinguished the trust rights (if any) because (i) the loan came after and was inconsistent with a trust, (ii) the loan showed the parties abandoning the earlier agreement, and (iii) the loan’s operation saw existing rights surrendered in exchange for additional terms secured under the loan: [65]

The Court then considered the position if (a) there was a trust, and (b) that trust survived the loan: [68]

Even if both criteria were met, the Court found no basis to order recovery against the DCos: [69] - [109]

P’s claim failed. Costs followed the event: [110]

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This is probably my favourite podcast to appear on as a guest! Another great discussion with Jordan and Nathan about life, branding, Drake v Kendrick, hourly rates, touch football results, and how to chart a principled path in professional services.

Enjoy!

You can find Jordan's and Nathan's pod here: https://podcasts.apple.com/au/podcast/challenge-the-standard-in-financial-advice/id1725733771

Nathan's site: https://www.nathanfradley.com.au/

Jordan's site: https://www.planningsolo.com.au/

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 Corporate Oppression.

This is Jonathon's and James' first 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

"You need to show good faith to sue on the Co's behalf!"

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A sought to bring a derivative suit on behalf of TCo. TCo was trustee of a trust. A was a principal benef of the trust: [3]

Pursuant to the trust deed, absent a resol from TCo the trust’s income would be paid to the trust’s principal benefs: [3]

From 1988 to 1994 A was a director of TCo: [3]

Broadly, as former director A sought to bring a claim on TCo’s behalf re a 2005 transaction that saw the Rs (or entities related to them) acquire valuable land. A claimed the opportunity to acquire that land was TCo’s and the Rs breached their duties to TCo by directing that away from TCo: [4]

At first instance A was denied leave on the basis the application was not brought in good faith: [5]

A appealed.The Rs resisted on the basis of a previous judgment of the CoA, relevant real property law, and a statute bar: [23]

A said that the previous judgment (which required a link between the status an applicant relies on, and the loss they seek to vindicate for the company) added a gloss on the s237 criteria. A also said the evidence weighed in their favour: [24]

What amounts to “good faith” is context dependent: [29]

The right to bring a derivative action is granted to vindicate a right of the company. An application made for another reason it is not made in good faith: [31]

If there is no connection between an applicant’s capacity and the loss alleged, it is difficult to find an application was brought in good faith: [32]

The greater the lapse in time between an applicant occupying the relevant role, and the application, the more difficult it is to prove good faith: [32]

Crucially, if an applicant, relying on their status as director, seeks to bring an action on behalf of trustee company where they are beneficiaries of the trust they will need to prove they are attempting to advance the interests of the company itself, and not merely their interests as a benef: [35]

Unexplained delay may suggest ulterior purpose. A genuine application to vindicate the company’s rights might be expected to be brought as soon as the applicant is aware of a claim: [36]

The CoA found A was attempting to advance their interests as benef, and not TCo’s interests because: (i) A took no steps at the time of the relevant transaction, (ii) A did not adequately explain their delay, (iii) A has separately commenced proceedings in their capacity as benef suggesting A is more interested in their rights than TCo’s, and (iv) A has had no connection with TCo for many years providing a “compelling” reason to find the application was not brought to vindicate TCo’s interests: [38]

The Court dismissed A’s appeal. Costs followed the event: [39] - [41]

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Thanks for reading!

Please head to www.gravamen.com.au to learn about my firm, and look for James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform!#gravamen #auslaw #coffeeandacasenote

“Repay that tax refund into the trust!”___P was a Unit TeeCo incorporated by D1. D3 (whose sole dir and s/holder was D1) was the sole unitholder. D2 was D1’s spouse: [1] - [3]D1 incorporated P to buy a valuable piece of land (“Property”). P borrowed the funds from Lender for that: [4]After completion, D1 caused P to lodge a BAS. The resultant refund of ~$2.6m was paid to P: [5]P sued seeking repayment: [8], [10]The Ds said $1.1m of it was a “Success/Performance Fee” for D1 and $1.5m was a “Management/Performance Fee” for D1: [13]D1 was an experienced property developer whose usual practice was to incorporate SPVs (similarly to P) to exploit development opportunities: [14] - [16]Typically, as with P, the SPVs would have no funds of their own and would get third party finance: [17]Sometimes, as with P, D1 would not create a new bank account for a new SPV and would instead use D1’s own: [16], [36]In around 2022 D1 identified the Property and began speaking to the Lender: [22] - [24]A loan agreement followed and in 2023 the purchase of the Property for ~$30m completed: [25] - [30], [61]After completion the Lender realised any profit calculations were absent GST tax refunds: [59]In October 2023 the ~$2.6m GST refund was paid into D1’s account (remembering P did not have its own account): [64]Shortly after, $9m (which included the ~$2.6m) was transferred from D1’s account to the D1/D2 joint account: [66], [67]These funds were then applied to buy a $22m Bronte property in D2’s name: [69] - [71]The Lender chased D1 in relation to the GST refund position. D1 was evasive; at time dishonestly so: [72] - [83]The Lender appointed receiver managers demanding repayment of the BAS Refund to P. D1 did not comply: [87]The parties agreed D1 held the BAS Refund on trust for P: [89]D1 said the BAS Refund was then paid to D1 as fees “determined” by D1 as sole dir of P; but not pursuant to any written or oral agreement: [93]There was no evidence of an invoice, agreement, accounting entry etc. describing a fee to be paid to D1. Nor was there evidence for two types of fee: [97] - [100]There was written contemporaneous evidence against D1’s case seeing D1: (i) declaring there were no related party transactions [112] and failing to declare the purported fees in the relevant BAS: [114]The only evidence supporting the Ds’ view was D1’s affidavit. D1’s credibility was damaged by D1’s dishonesty in dealing with Lender regarding the BAS Refund: [115] - [118]The Ds failed to establish a basis for fees, those transfers therefore being a breach of trust and of DDs: [119], [120], [155]Separate claims against D2 and D3 were not successful: [145], [148]The question of costs had complexity (P’s success against D1, and failure against D2 and D3) and was saved for another day: [156], [157]

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“You can’t run that claim. You’ll expose the Co to a cross-claim!”

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P sought, among other things, s236 leave to sue D on the Co’s behalf for $110k: [2], [3]

P held 70% of the shares in the Co, and an entity related to D held 10%. The Co was no longer active: [4], [10], [25]

The issue was: D caused $110K to be transferred from the Co to one of D’s entities and P said there was no authorisation for the transfer: [4]

D argued the transfer was authorised by way of WeChat message: [4]

The parties led “voluminous” evidence which, with respect, was of only middling assistance to the Court: [6] - [12]

The heart of the dispute concerned the meaning of the WeChat exchange (which was translated to English). D proposed that an invoice be issued to their entity so that a VAT (which we infer was a reference to GST) of $10K could be recouped. P responded with an “okay” emoji: [13]

D argued this was authorisation for the $110K transfer to D’s entity - that sum being $100K plus the 10% “VAT” that would apply to it: [14]

The Court was then left to consider the s237(2) statutory criteria in relation to granting leave to bring derivative suits.

Re s237(2)(a): noting a board deadlock, the Court found the Co was not likely to bring the proceedings: [18]

Re s237(2)(b): D raised a likely quantum meruit cross-claim that would be raised if the claim was pressed [22] saying the claim was not brought in good faith. The Court assumed, without finding, P came in good faith with a genuine belief the WeChat exchange did not authorise the payment: [23]

Re 237(2)(c): P failed to convince the Court it was in the Co’s best interests for leave to be granted: [34]

The Court considered the likelihood that D would bring a cross-claim in quantum merit for the work D’s entity had actually done to benefit the Co: [28]

D said exposing the Co to that cross-claim could not be in the Co’s best interests.The Court considered the Co contemplating proceedings would rationally contemplate the pros and cons of running the claim, including the risk of the cross-claim: [29]

If the cross-claim exceeded the claim, then a rational company would not commence: [30]

P did not undertake this economic benefit analysis, nor did they provide the Court with enough evidence to allow the Court to do so: [31], [32]

The Court found that the $250K indemnity P offered to provide did not assist where the above analysis had not been undertaken, and where there appeared a real possibility that litigating the claim and cross-claim might expose the Co to costs orders exceeding that amount: [33]

Re ss237(2)(d) and (e): both serious question and notice criteria were uncontroversial: [35], [36]

The Court was not persuaded that it was (rather than *might be*) in the Co’s best interests that leave be granted: [37]Leave was not granted. The application failed.

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