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.
James d'Apice interview with Anvita Nair - Monash Future Thinkers Podcast August 2021
James had a great chat with Anvita Nair of Monash University's Monash Future Thinkers podcast.
Why not check out what Monash Future Thinkers are up to by heading here: https://www.futurethinkers.org.au
O’Connor v O’Connor  NSWSC 1056
"I didn't agree to sell you shares. I agreed to sell you other stuff!"
A successful Co was founded by D and their spouse in the 1970s. At all relevant times, they were its sole shareholders.
Two Ps worked for the Co, and were later appointed directors with D.
In 2005 there was an oral agreement between D and the Ps. Each had a different version what it meant.
The Ps said they paid $150K to each take an 8.33% share in the Co: 
D said the Ps paid for 8.33% of the Co’s “plant and equipment” and that, after 10 years, D would make the Ps shareholders in the Co: 
(The Court acknowledged the conceptual difficulty of owning a proportion of a Co’s plant and equipment: )
There were some failed attempts to negotiate a shareholders agreement over a number of years:  - 
Later, there were increasingly formal meetings to finalise and record the arrangement:  - 
(This included a tense meeting where the parties could not agree on the use of a tape recorder: )
One of the Ps commenced proceedings in 2014: 
In 2015 a big entity offered D $80m for their shares in the Co. D did not disclose this offer to the Ps:  - 
After negotiations, the parties agreed to settle all the Ps’ claims in exchange for D and the Co paying ~$2m to each to the Ps:  - 
The D went ahead with the sale of their (and their spouse’s) shares to the big entity for $90m: 
The P’s said that D (i) owed them a duty to disclose the offer, and (ii) held their 8.33% stakes on trust and breached trust by buying their shares at an undervalue: 
In addition to paying their money, the Ps gave personal guarantees for the Co’s benefit, served as directors, and undertook the Co’s work for some years away from their home state: , 
The Court found that *if* the Ps were shareholders, then an inference arises that $2m was an undervalue: 
The Court considered the well-known principle that where a party seeks to rely on spoken words to found their claim, the Court must feel actual persuasion of those words having been spoken: 
The Court felt actual persuasion of D’s version: , 
The Court considered the Ps’ evidence was plainly coloured by resentment at being excluded from knowledge of the sale: 
The value of 8.33% of the plant and equipment as at 2005 was about $150K. The Court found D was too shrewd to have given away a full equity stake for just the plant and equipment cost, ignoring goodwill: 
The Ps failed to establish the agreement they contended for, meaning the proceedings were dismissed: 
James d'Apice interview with Jahan Kalantar - September 2021
On 2 September 2021, James sat down on a TikTok Live and spoke with the legendary Jahan Kalantar.
To learn more about Jahan, head here: https://www.jahankalantar.com
Alon Pty Ltd  NSWSC 1021
“Just transfer the shares to me!”
Years ago, mum and dad incorporated a Co and, among other things, became shareholders of the Co’s Class “A” voting shares: 
The Co held assets in its own capacity and as trustee of the family trust: 
Mum and dad’s two sons, S1 and S2, eventually became directors of the Co: 
In 2011, Mum retired leaving S1 and S2 as sole directors. In the same year the family trust deed was amended effectively placing the Co in complete control of the trust, as both trustee and appointor: 
In 2018 S2 ceased being a director, leaving S1 as sole director: 
In 2019 mum died.
In 2020 an administrator was appointed to mum’s estate: 
The administrator found the Co then had 11 Class “A” shares in the Co - 9 owned by mum, and one each owned by S1 and S2: 
The administrator served on S1 an application to transfer mum’s shares to him: 
If the application was registered, the administrator would hold 9 voting shares, allowing him to instal new directors and take control of the Co: 
The administrator chased S1 a number of times to seek to become registered, and threatened Court proceedings and an indemnity costs order if the matter was litigated:  - 
S2, in 2021, then transferred mum’s Class “A” shares to himself and alloted more shares of other classes to himself: 
In May 2021 the administrator commenced the proceedings seeking to rectify the Co’s share register to reflect his ownership (as administrator) of Mum’s shares and to reverse the allotment: 
The Court found there was no just cause for S2 to fail to register the share transfer and made orders causing it to be registered: 
S2 did not have power to allot himself extra shares as the Co required two directors and, from 2018, S2 was its sole director: 
The transfer of mum’s shares and S2's purported allotment of further shares to himself were both made without power and had no effect: 
Due to S2’s intransigence, the administrator pressed for an indemnity costs order: 
An indemnity costs order arises from the unreasonable conduct of the litigation itself, not the conduct that led to the litigation: 
S2's intransigence and attempt to seize control as “majority shareholder” came before the litigation : 
However the administrator warned heavily of the possibility of an indemnity costs order in the correspondence sent before litigation was commenced, S2’s defence was hopeless, and the Court found the estate should not be depleted by S2’s unreasonable refusal to agree to the orders sought: 
The administrator got essentially what he came for, including the indemnity costs order: 
Yelland Security v Plus Architecture  VSC 416
“You fired me just to get my Co’s shares at a discount!”
Y owned and controlled a Co, P.
P was a shareholder in the Cos in a group that operated a national business. Y was a director of the Cos: 
Y was terminated as a director of each Co in the group and, and by operation of the shareholders agreements, P’s shares in those Cos were transferred to the other shareholders at a discount which P accepted under protest: , 
P relied on s232 of the Corporations Act to challenge the discount; alleging termination of Y was unfair: , 
Separately P claimed the discount was a breach of the shareholders agreements: 
The Ds said the termination was appropriate due to Y’s behaviour, and was not motivated by the share discount: , 
In 2017 Y, and the other directors, had fallen into serious dispute: 
The disputes concerned possible share dilutions to let in new shareholders, pay for senior staff, governance, and the future direction of the business:  - , , 
There was evidence Y bullied staff: ,  - 
Y sought to renege on a more recent shareholder purchasing a departing “legacy shareholder”’s shares: 
This led to a mediation process: , 
Following mediation, the group’s board sent a letter to Y proposing resolutions that Y be terminated as a director at a board meeting a month later: 
The next day, Y purported to resign giving 3 months notice: 
Roughly a month later (and before the 3 month resignation notice period expired) the resolutions terminating Y passed: 
The Court found the group’s board had good reason for terminating Y; to bring to an end the problems Y was causing. It was not a mere share discount manouver: , 
The Court noted the terms of the shareholders agreement had been accepted by Y and P, so being held to them was not inappropriate: 
P’s primary oppression claim failed: 
(Interestingly, the Court raised the issue of whether unitholders in a unit trust could bring an oppression suit, suggesting it may be an open question: )
P also complained the discount was a breach of the various Cos’ shareholders agreements and constitutions: 
Whether the discount applied depended on whether termination or resignation took effect first: 
P argued that Y’s resignation took immediate effect, despite a 3 month notice period: 
The resignation would take effect 3 months after notice was given, so the termination resolutions passed in the intervening time took precedence: , 
P did not show that applying the discount was a breach of the agreements: 
The Court was taken to evidence about a “senior junior” colleague of Y’s valuer, whose work was about 70% of the invoices issued in preparing the report, was not independent:  - 
The Court dealt with the valuation at length:  - 
Speaking broadly, Ds’ valuer was preferred: 
The discount was found to be OK: 
SP98970 v Capitol Property Services Pty Ltd  NSWSC 950
“Just keep those assets frozen a little longer…”
P was an owners corporation that owned the common property in a building.
P sued the developer, D, in relation to alleged defects P afflicting the building - a breach of the HBA statutory warranties: 
P tried to organise site inspections of various experts to investigate and hopefully quantify the defects but COVID restrictions frustrated that: 
P’s pre-inspection estimate of damage was ~$1m and, P said, that was likely to increase after inspection: 
D owned Lot 2 in the building: 
P’s lawyers became concerned that D might sell Lot 2 and P’s lawyers raised this issue with D’s lawyers: 
Without P’s knowledge, D transferred Lot 2 to Q (a person who had a relationship with D) for a recorded price fo $3.78m, but with no money changing hands: , 
This left D with around $900K to pay any judgment P might get in the defect proceedings: 
P applied for, and got, a “freezing order” preventing Q from selling Lot 2, unless in an arm’s length transaction with the price paid to be held on terms both agreed: 
At the time the order was made, D had around $635K: 
The Court accepted there was a good, arguable case that the transfer of Lot 2 to Q was voidable, a transaction to defraud D’s creditors - s37A, Conveyancing Act: 
At the time of the hearing Q was already restrained by freezing orders. Today’s discussion is P’s application to extend them.
P sought an extension of the freezing orders to get its defect evidence on: 
D and Q did not oppose an extension but sought a reduction from the full value of Lot 2 to $800K, following a deposit of $200K into a trust account, and after giving an undertaking not to deal with Lot 2 without P’s knowledge: 
The Court accepted a freezing order is a drastic remedy, not to be used improperly as additional security: 
Because P undertook to bring s37A proceedings, with the potential to void the transfer of Lot 2 from D to Q, the Court extended the freezing order for Lot 2 (or its sale proceeds) by 4 months: 
James has a natural talent at clearly explaining recent legal cases, and why they matter. I’m very happy to recommend this podcast!
I found this on LinkedIn too. Very informative and easy to listen to.
I had the pleasure of coming across "coffee and a case note" on LinkedIn, I just say I am a now a HUGE fan!
This podcast is informative, well spoken and a delight to listen to :-) A+ work James !