165 episodes

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.

Coffee and a Case Note James d'Apice

    • Education
    • 4.9 • 44 Ratings

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.

    Ambrus v Buchanan [2022] NSWSC 1628

    Ambrus v Buchanan [2022] NSWSC 1628

    “Sell the land I own 1/56th of!”


    From the early 1980s a property was owned as tenants in common. Ownership was divided in sevenths: [6]

    P owned one 40th of the 5/7th intersect - a 1/56th interest in the land. P sought the appointment of trustees to sell the property pursuant to s66G of the Conveyancing Act 1919 (NSW)

    Each co-owner had “spheres of influence”. Some constructed residences: [9]

    The use was contrary to zoning and no DAs were obtained: [11]

    A 5 page “policy” document purported to deal with co-owners’ rights including a “no sale of land or transfer of shares unless all co owners agree” term: [16] - [26]

    Copies of the policy were not made. The original was held by various owners over the years: [27]

    The policy was only adhered to when convenient, and was contradicted at other times. New owners were not made aware of it before purchasing: [33] - [36]

    To the extent the Ds were aware of the policy, that occurred after their respective purchases: [36] - [42]

    In 2011, P purchased their 1/56th interest for $60K: [48]

    The vendor - one of the Ds - did not get consent from other shareholders (as the policy apparently required) before effecting the transaction: [61]

    P said they had not received the “policy” document before the purchase: [49] - [54]

    Prior to XX, the Ds had put the “policy” as a central governing document of the property. This was shown to be untrue as it was regularly contradicted, include by vendor D: [58]

    P had not returned to land since 2013, though remained owner of the land with her “sphere of influence” inaccessible except by vendor D’s driveway: [69]

    From 2020 P began exploring selling her share. The Ds, particularly vendor D, were obstructive: [72] - [76]

    The Ds argued appointing Tees would be an “extreme hardship” as all Ds would lose their homes: [84]

    The Ds’ said P’s small proportion should militate against an order being made: [85], [86]

    Unfairness and hardship are not enough to oppose a s66G order: [89]

    The D’s argued that P’s application breached fiduciary obligations, gave rise to an estoppel, or was unconscionable. The Court rejected all: [98] - [101], [102] - [113]

    Ds who had improved the land (despite low value due to non-compliance, no possibility for insurance, and elevated bushfire risk) could claim contributions from the sale proceeds: [116], [122]

    The Court made the orders appointing Tees: [123], [130]

    The Tees proposed by the Ds were appointed, as they were located closer to the property than the P’s proposed Tees: [127]


    Usually s66G legal costs are paid from sale proceeds: [1]

    Unreasonable conduct may lead to a departure from this rule: [6]

    P said the Ds should pay their own costs due to their unreasonable, failed defences; and that P’s fees should come from the sale. The Ds said all fees should be paid from sale: [7], [8]

    The Court ordered that the Ds bear most of their own costs, save for those relating to the appointment of their preferred Tees: [9] - [16]


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    • 11 min
    TVED CLE January 2023 - A discussion with James d'Apice and Susanna Lobez about "Shareholder Remedies"

    TVED CLE January 2023 - A discussion with James d'Apice and Susanna Lobez about "Shareholder Remedies"

    James is sometimes invited to give presentations and talks for external legal training providers.

    Please enjoy this talk James gives on the distinctions between corporate oppression and derivative actions.

    And please don't forget to follow James and Coffee and a Case Note on your favourite platforms!

    • 41 min
    CIP Group Pty Ltd v So [2022] FCA 1490

    CIP Group Pty Ltd v So [2022] FCA 1490

    “You said our companies wouldn’t have to pay back those loans!”


    A group of entities controlled by P (“P”) was in business with a group of entities controlled by D (“D”). P and D did property development work together via various operating Cos (“OpCos”): [3]

    P commenced oppression proceedings (s232) saying that D breached their duty to OpCos, and the ACL: [4]

    P sought the Court’s leave to bring those derivative claims on behalf of OpCos (s236): [5]

    P and D conducted their projects in quasi-partnership: [10]

    In around 2019 D made loans to OpCos to support a development. P says D promised those loans would not be called in except for in certain circs which had not occurred: [15]

    In late 2021 D, without notice, enforced their loans and appointed receivers to OpCos: [17]

    P says this was a breach of D’s directors duties, and that all Ds had engaged in misleading or deceptive conduct by: giving assurances the loans would not be enforced, and then enforcing them: [18], [19]

    There was a suggestion D did this to bring a specific development to an end: [22]

    P sought leave to bring derivative actions on behalf of OpCos in relation to this conduct, having already commenced an oppression claim.

    The Court worked through the s237(2) criteria:
    (a) OpCos would not bring the claims as D would prevent that: [26]
    (b) P came in good faith, pursuing a genuine claim for a missed opportunity for profit: [27]
    (d) There was a serious issue to be tried, including because D provided no explanation: [28]
    (e) The notice requirement was not met but the Court would waive it: [29]

    This left s237(2)(c) for consideration: was in the best interests of OpCos for P to be granted leave?

    It was “undoubted” that resolving the P and D conflict would be in OpCos’ best interests: [39]

    Further, as OpCos were in receivership, litigation would not upset its day to day business: [40]

    D suggested P’s claim was weak. This was rejected: [50]

    The Ds suggested their worth was not proven (i.e. if leave was granted, would OpCos be suing parties with any assets?) Ds assets were within D’s knowledge and no evidence was put on it. Noting D’s ability to obtain big finance it was possible to infer D had substance: [51] - [53]

    P provided $750K as security if OpCos faced an adverse costs order, which was sufficient: [64]

    Extensive consideration was given to the contrast between the oppression remedy and a derivative action: [66] - [88]

    Some of the Ds were found not to be proper parties to an oppression claim. This left s236 as the appropriate path to pursue them, not s233: [92] - [96]

    Leave was granted to P to pursue the derivative actions against the Ds: [98]


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    • 9 min
    Thynne v Jevny Pty Limited [2022] NSWSC 1774

    Thynne v Jevny Pty Limited [2022] NSWSC 1774

    P lodged a caveat on a property owned by D in Darling Point, Sydney. D sought its removal.

    P was the deceased’s son by an earlier marriage. After P’s birth, the deceased married D and they had another child together: [4] - [7]

    The deceased operated a cattle and macadamia business on land owned by an entity the deceased and D themselves owned and controlled: [9], [10]

    In 2011 the deceased made a will and a Memorandum of Wishes. D counter-signed the latter: [12] - [15]

    By the Will the deceased bequeathed the property to D. By the MoW, D agreed to bequeath the property (or its replacement if the property was sold and a new property was bought) to P and the other child in equal shares. Until then the deceased acknowledged D may need to use the proceeds of sale of the property for their upkeep, or for the cattle and macadamia business: [17]

    (Perhaps unhelpfully, the deceased wished for the MoW to remain confidential: [18])

    P sued seeking a declaration D held half the property on trust for them and lodged a caveat on the basis of this alleged trust: [21], [22]

    D sought the removal of the caveat, including to allow them to deal with the property (possibly by refinancing) to help manage the farm and its business in the wake of flooding: [29], [30]

    P argued that their (and their half-sibling’s) interest in the property was held by D on trust created by the MoW: [32]

    P accepted D was free to sell the property: [33], [35]

    The Court found D accepted their obligation under the MoW to make a will bequeathing the property to the children equally. There was no suggestion D did not intend to do so: [36], [39]

    D’s “floating” obligation to bequeath the property to the children will only crystallise into a trust on D’s death, not before: [38]

    As such, P had no beneficial interest to support to caveat: [40]

    Even if a caveatable interest had been found, it was accepted that the caveat caused D inconvenience. However, P had the onus to show convenience favoured maintenance of the caveat and P failed to show that: [45], [46]

    P was ordered to remove the caveat and pay D’s legal costs: [47], [48]


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    • 6 min
    Flynn v PPK Mining Equipment Pty Ltd (No 2) [2022] NSWSC 1640

    Flynn v PPK Mining Equipment Pty Ltd (No 2) [2022] NSWSC 1640

    “We amended the contract, now give me my bonus!”


    P agreed to sell their shares in SubjectCo to D for: cash, shares in D, and (if further earnout conditions were met) further shares in D: [1]

    P sued D for those shares and unpaid dividends, saying the conditions were met: [2]

    SubjectCo made hazardous area electrical equipment for mining machinery: [11]

    D was a listed business whose strategy included buying smaller mining equipment firms: [17]

    D bought SubjectCo to complement its existing holdings: [22]

    In 2014 SubjectCo was in a difficult financial position, possibly insolvent. Evidence suggested P’s were engineering and product design, not finance: [28], [30]

    The sale went ahead after P fired their lawyers and proposed no changes to D’s proposed share sale documents: [36]

    The contract included the earnout bonus based on profit, with oral variation prohibited: [38] - [40]

    P became an employee of D and began operating SubjectCo as part of D’s business: [41]

    In around 2015 the coal market slumped. D’s senior E’ees took paycuts. P continued to cause SubjectCo to charge “full freight” for SubjectCo’s work to other parts of D’s business: [50] - [54]

    To manage this, the CEO discussed P’s earnout criteria being varied to revenue, from profit. There were subsequent emails reflecting this: [57], [61] - [65]

    P was moved from a business role to a more ideas-focused innovation role; a “good deal” for P: [99]

    The CEO P left D, and D’s new leaders were unaware of the purported “revenue earnout” change: [77] - [79]

    On the anniversary of the purchase, D issued a statement based on profit, not revenue. This (due in large part to the mining downturn) was an unhappy figure that missed the earnout criteria: [80]

    Written notices were exchanged by D and P putting their positions, with arguments about the attribution of a “new” business introduced to D after P joined: [81] - [87]

    D resisted the suggestion that the profit / revenue amendment had been made; and said even if it had P would not have met them as the “new” business was not P’s: [90]

    The Court agreed the CEO and P has effectively varied the agreement to $1m revenue from $250K profit: [103]

    There was extensive consideration of the “new” business and whether indeed P had brought it in: [166] - [187]

    P was unable to prove it undertook the “new” work before the sale and so it should form part of P’s earnout criteria: [185]

    Noting the above, revenue was less than $1m, and the earnout criteria were not met: [197]

    P succeeded in proving the agreement was varied - “a legal question on which the principles were clear”. This success “counted for nought” where the Ps did not meet the earnout criteria, which should have been apparent at the time. As a result, the Court ordered that P pay 80% of the Ds’ costs: [198]

    • 10 min
    Walker Corporation Pty Ltd [2022] NSWSC 1609

    Walker Corporation Pty Ltd [2022] NSWSC 1609

    "The vesting date is too early. Rectify the deed!"


    In 1976 a trust was established: [2]

    P and P’s parent signed the deed for Tee: [3]

    The trust assets included land in SW Sydney; likely “substantially” exceeding $100m: [5], [20]

    The trust vested on the earlier of: a date in 2032, the date of death of a royal family member (“royal lives” clause), or a date determined by the Tee: [7]

    The trust’s land might take years to develop, perhaps until 2046: [9], [54]

    The deed was amended by Tee various times (in accordance with the deed) but there was no power to amend the vesting date: [9], [23] - [37]

    Tee commenced proceedings to rectify the trust deed’s vesting date.

    Tee was the sole party to the proceedings. No benef opposed them: [11]

    The Court appointed a barrister as contradictor, with Tee to indemnify them for their costs: [12]

    The contradictor said: the criteria for rectification were not met, and the Tee had been too slow to apply: [13]

    The solic who drafted the deed had been involved in legal proceedings about a similar deed described as badly drafted, and criminal proceedings regarding a crime of dishonesty: [38] - [41], [43] - [46]

    P swore an affidavit in support of Tee’s application: [47]

    P’s evidence said they first turned their mind to the 2032 vesting date in 2016: [14] - [22]

    P gave evidence they did not understand, or intend, that the trust vest in 2032: [48], [49]

    Rectification requires proving: (i) what is in the deed is not what was intended, and (ii) what was actually intended: [74]

    The deed was created when the “no perpetuities” required a reference to a life or lives for a trust to last beyond 21 years: [78], [79]

    P said they thought the trust would last indefinitely, like a company; a legal impossibility. None of the criticisms of the solic come close to explaining why the solic would have given this wrong advice: [92]

    46 years after the fact P’s evidence was of little assistance, possible more reconstruction than recollection: [93]

    The deed was amended 9 times. It seemed inconceivable P had not been advised many times of the 2032 vesting date: [95] - [98]

    Tee pressed that P’s intention was not 2032, and no instructions were given for 2032: [103]

    In any case (presumably because it spoke in favour of an outcome not legally possible) P’s evidence did not support the application: [106]

    Importantly: P’s parent executed the deed for the Tee too - there was no evidence about their intention; and no evidence at all about the 1985 and 2001 restatements of the deed: [110] - [114]

    A defence based on laches - delay - was made out. The Tee was free to bring this claim from 1976 onwards. Relevant evidence had since been lost: [120 - [124]

    The Court said it would be better if a party could have been nominated as defendant (with the power to conduct XX etc) rather than a barrister act as contradictor: [125] - [133]


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    • 10 min

Customer Reviews

4.9 out of 5
44 Ratings

44 Ratings

CPH Soma ,

Love this podcast

Always look forward to the next episode

brendankelso ,

High quality!

James has a natural talent at clearly explaining recent legal cases, and why they matter. I’m very happy to recommend this podcast!

BPC2020 ,


I found this on LinkedIn too. Very informative and easy to listen to.

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