Coffee and a Case Note

On 3 November 2023 James gave a speech on marketing and branding for lawyers similar to one he had given a number of time before.

In November 2023 James d'Apice sat down to chat with Alex Nielsen of The Australian Law Student Podcast about his approach to practice, overcoming "fuck ups" including bad marks on exams, and the future of James' law firm Gravamen.

You can find the Australian Law Student here: https://www.theauslawstudent.com

“Your share of the sale proceeds gets reduced for us dealing with your complaints!”

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3 siblings co-owned real property. They disagreed on what use it ought to have been put to. 2 siblings, the Ps, applied to appoint s66G Tees, successfully.The Tees sold the land and distributed the Ps’ shares of the sale proceeds. The remaining sibling - the defendant, D - contested the Tees’ fees and criticised their management of the sale: [1] - [4]

The Tees applied to be paid further remuneration from the D’s share (based on those costs arising from the D’s conduct) and to retire as trustees: [5]

The Tees took the view that they should have distributed the net proceeds (after paying themselves 2/3 of their fees) proportionally to the Ps, and that the costs of any dispute with the D be borne solely from D’s share. The Court endorsed this approach: [11]

The Tees retained the D’s 1/3 share, and an amount on account of 1/3 of the remuneration they were entitled to: [12]

The D made various criticisms of the Tees' conduct of the sale including in lengthy correspondence, and then refused to attend meetings or provide bank details in order to accept a payment: [13] - [15]

The Tees instructed lawyers, and then so did the D. The D later withdrew his lawyers’ instructions, and then said they would accept the figure first offered by the Tees without deduction: [16] - [18]

The Tees reiterated they intended to make deductions and the D reiterated their claims. The Tees delayed approaching the Court and tried to negotiate, but eventually brought this application: [19]

The Court noted trustees for sale are entitled to be indemnified for their costs in the normal course, and that where litigation is threatened those costs may be higher than usual: [22]

The Tees’ claim for their own further remuneration was reasonable and “could even be characterised as modest” noting they did not claim for their time trying to negotiate with the D: [26]

The Tees claimed further costs for their engagement with solicitors and in bringing the relevant motion: [27]

The Court considered once the D raised their complaints the Tees needed legal advice on whether to negotiate with the D, or to consider making an application to the Court: [28]

Broadly D complained about the Tees time entries and professional conduct: [30] - [32]

After extensive consideration the Court found the Tees discharged their duties reasonably, diligently, and honestly: [33]

The Court found it appropriate, and permitted, that the D’s share of the sale proceeds bear the Tees' further remuneration and costs: [34] - [36]

The Tees originally attempted to pay $235K to the D as their share. The Court accepted the Tees costs and remuneration substantially exceeded $65K but accepted that figure as a compromise of the Tees’ remuneration and the fees to be charged by the Tees’ legal team: [40] - [42]

Having failed to accept payment of $235K, the Court ordered the D was to receive ~$172K: [45]

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“Those notes aren’t privileged! Hand them over.”
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P sued D in relation to personal injuries P alleged at around the time they were giving birth. D, to oversimplify, was the hospital’s insurer: [7], [9]
D instructed an expert who produced a report.
P filed a NoM seeking access to a document produced by the expert in response to a subpoena, but over which D asserted legal professional privilege: [1], [9]
P said the document was not privileged or, if it was, privilege was waived: [6]
D had briefed the expert and invited the expert to initially provide a verbal opinion on 6 Qs. The expert gave evidence that during that conversation “(they) referred to.. 2 pages of handwritten notes (they) had prepared. (They) used them as the basis for expressing (their) verbal opinion to (D’s lawyer)”: [10] - [14]
These 2 pages constituted the document P sought and D asserted was privileged.
Privilege attaches to a *communication* not a document. D asserted the document was a communication: [20], [21]
Documents generated unilaterally by an expert in the course of forming an opinion do not attract privilege: [22]
Despite there being a “grey area”, privilege may be claimed in communication between the expert and solicitor if made for the confidential use in the litigation: [24]
A draft report, for example, is not a communication: [25]
It is for the party asserting privilege to prove privilege attaches to a document: [32]
Despite having prepared an affidavit on the topic there was no evidence that the document was intended to be a means of communication between expert and lawyer: [34]
Having so found, the Court did not need to consider the question of waiver. However - noting that disclosure of an expert’s report is an implied waiver of the instructions underpinning that report, and that there was no suggestion the document did not cover material that eventually formed part of the final report - the Court would have concluded privilege was waived: [34] - [37]
P was granted access to, and permitted to inspect, the document: [38]

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In November 2023 James gave a presentation for prominent CPD provider TEN about a developing area of trust law.

In this CLE, James explores:

1. The corporate derivative action

2. Some litigated examples of it

3. The Court's decision in Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184

4. Practical suggestions for dealing with corporate derivative actions

5. Practical suggestions for the evolving landscape arising from Gillespie

A link to TEN's website is here: http://www.tved.net.au

#auslaw

#coffeeandacasenote

On 30 October 2023 James was lucky enough to accept an invitation from Dr Madeline Taylor to give a lecture in Dr Taylor's commercial law course at Macquarie University.

James was a guest of the Lawyers Weekly podcast hosted by the legendary Jerome Doraisamy in October 2023. The two discussed the process of finding your specialty, and the the importance (or otherwise!) of niches.

You can find a link to the Lawyers Weekly version of the podcast here: https://www.lawyersweekly.com.au/podcast/38383-choosing-your-niche-and-communicating-it-to-the-market

“You stole the Co’s koala client base! That’s not good faith.”
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P, one of 3 equal shareholders in a Co operating a vet surgery, sought to bring a derivative action on the Co’s behalf.
The other 2 shareholders were the Co’s Dirs. D1 was a vet, and P’s former spouse. D2 was an E’ee of the vet clinic.
The Co offered traditional vet services as well as “rehabilitation” services; chiropractic and acupuncture: [6]
In 2019 P and D1’s marriage deteriorated. In 2021, P sought family law property orders. In 2022 the marriage was dissolved: [7]
As part of the family law litigation, all parties contemplated P selling their shares to D1 and D2: [8], [9]
In 2021, P’s was dismissed by the Co for alleged serious misconduct. No payment was made for annual leave (the Co saying it had all been used) or in lieu of notice (due to the alleged serious misconduct): [12] - [14]
One of the Co’s leading clients was a local koala hospital. P sought to siphon off this koala work (to the detriment of the Co) while still a Dir of the Co. (P was indeed later employed by the koala hospital, with the Co losing that work): [16] - [34]
D1 and D2 incorporated a new company and diverted the Co’s “rehabilitation” services away to it: [48] - [59]
The Court found it was likely the family law proceedings would lead to orders that P sell his shares in the Co to D1 and D2: [63]
P threatened bringing a derivative suit regarding the new “rehabilitation” company being a breach of the Ds’ directors duties if his claimed employment entitlements were not paid. They remained unpaid. The proceedings were brought. The Court accepted the derivative suit was brought by P to apply pressure to seek his unpaid claimed employment entitlements: [73] - [76]
The Court (with respect, quickly) concluded leave to bring the derivative suit should not be granted: [77]
The Court accepted the Co would not bring the claim, that there was a serious question as to whether the Ds breached their duties, and that notice had been given: [78]
The Court found the derivative suit would not be in the best interests fo the Co and was not brought in good faith: [79]
The Court found the derivative suit unnecessary and “pointless” as the issues relation to the Co’s value and the new “rehabilitation” business were to be litigated in the family law proceedings: [84], [86]
A “parallel” between family law proceedings and a derivative suit will not always stand in the way of the latter succeeding: [84]
Regarding best interests, granting leave would distract D1 and D2 from continuing to build the Co: [87]
Regarding good faith, P did not come in good faith because the claim was pointless and unnecessary, and because it was brought to secure employment entitlements - an abuse of process: [88]
Leave was not granted.

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“Your Honour, would it be OK if I entered into this deed?”
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Long-running litigation was on foot relating to, among other things, land with a value of around $40m.
By NoM, a receiver appointed by the Court to the relevant Ds in the litigation sought the Court’s advice about whether they would be justified entering into a Deed settling all the pieces of litigation: [12], [15]
The receiver relied on evidence, including confidential advice from counsel on the nature of the settlement: [17]
Some earlier claims, being a portion of the matters in dispute, were settled in a deed 2019: [23]
Some orders in the proceedings were made in May 2023. The Ps filed a Notice of Appeal in respect of them: [30]
Various negotiations followed by correspondence leading to a proposed draft Deed: [31] - [36] 
That was the question before the Court in this matter: whether the receiver would be justified in settling the dispute on the proposed terms. 
There is settled law that a Court can give advice and direction to a Court-appointed receiver in a manner analogous to judicial advice given to a trustee: [37]
The law relating to judicial advice to trustees was relevant with the question of whether a claim can be settled on certain terms being a well-recognised area for the giving of advice: [41]
The Court noted the complexity of the dispute: originating in 1948, proceedings commenced in 2013, 4 years of mediation leading to only partial settlement in 2019, a valuable underlying asset: [43]
The Court said the giving of its advice required a comparison of the position if the deed was entered into versus the position if it was not: [47]
The draft Deed contemplated that all proceedings would be dismissed, mutual releases provided, and all parties bearing their own costs - a “walk away”: [48]
The 2019 deed included releases for costs related to the litigation, but not "additional costs": [49]
Considerable attention was paid to the implication of the releases if the draft Deed was entered into including a claim the “additional costs” outside the bounds of the 2019 Deed: [50] - [58]
The draft Deed would also see the receiver releasing any rights to enforce a damages undertaking made by the Ps in relation to a 2013 interoloctory injunction: [60] - [63]
Ultimately, providing releases of the “additional costs” claim and the damages undertaking were commercial considerations for the receiver: [59], [64]
If the Deed was rejected outstanding risks would remain, including the outcome of the impending appeal, and the difficulty recovering costs in the face of the 2019 Deed: [65] - [68]
The Court considered it would be reasonable for the receiver to enter into the Deed, giving the judicial advice sought: [69], [70]

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Please look out for James d'Apice and Coffee and a Case Note on your favourite platform!

In July and August 2023 James d'Apice gave a series of one hour CLEs "live" on Facebook, Instagram, Linkedin and YouTube.

This one concerns s461(1)(k) of the Corporations Act 2001 (Cth) - the just and equitable winding up remedy - and has the following structure:

1. The law

2. Litigated examples

3. Practical suggestions

Please give James and Coffee and a Case Note a follow on your favourite platform!