208 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
    • 4.8 • 46 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.

    Park v Monreacon Pty Ltd & Ors [2024] QSC 44

    Park v Monreacon Pty Ltd & Ors [2024] QSC 44

    “Compensate the company. Then pay that money to me!”



    ___



    P, a former shareholder, sought to bring a claim on behalf of the Co and then have the proceeds paid to themselves: [1] - [3]



    s237(2)(a): the Co was not going to bring the claim itself: [8]



    s237(2)(d): the Court considered (i) whether the pleaded case could be proved, and (ii) if so whether that would ground the relief sought: [12]



    When practising, P was the sole shareholder of the Co and principal benef of the trust the Co operated. That way, P’s work earned income for the Co: [16]



    P chose that structure, and form of income distribution, likely due to financial advantages P considered arose - and so was bound to the risks arising from that choice: [17]



    P made an agreement with some the Ds that would see advisory work referred to the Co, and would see NewCo established to do additional work: [19]



    From 2013 the relationship between P and the Ds deteriorated with the Ds allegedly not referring work to NewCo and otherwise breaching the agreement: [24]



    The Ds purported to remove Co from controlling NewCo thereby displacing P NewCo and diverting NewCo’s business to themselves: [31]



    In 2017 P was made bankrupt, and later removed as beneficiary of the trust with the Ds buying P’s shares in Co from P’s bankruptcy trustee: [37], [53]



    Despite a contract claim being out of time, it appeared there was “apparent unlawfulness” and claims that the Ds breached their duties to NewCo: [32], [35]



    Importantly, the relief P sought chiefly was for distribution to be made to them as former benef of the trust, requiring the Co to on-pay its compensation to the P: [36], [40]



    P attempted to characterise the Co’s loss as P’s loss due to their benef status at the time: [44]



    P was unable to show (i) the Co’s income would inevitably be distributed [45], (ii) that if distributed that it would go to P solely, noting she was not the sole beneficiary [47], or (iii) that all the money paid to the Co would be distributed and not otherwise applied to e.g. costs of administering the trust etc: [48]



    The Court found there was no entitlement to the distribution relief sought by P: [49]



    An argument that P’s bankruptcy trustee may have entitlement did not require determination: [51]



    The Court found there was no serious question to be tried as to P’s final relief, leaving other prayers arguably intact. However the problems with the relief meant the s237(2)(c) best interests test was not met: [56[



    s237(2)(c): P’s claim was only for P’s benefit and without regard for the Co’s other obligations or objectives. It was not in the best interests of the Co that it be brought: [58] - [65]



    s237(2)(b): In seeking an unlitigated determination that the Co pay all compensation to her the Court found P was not coming in good faith: [82], [83]



    Having failed to meet the s237(2) criteria, P’s application was dismissed: [90]



    ___



    Please follow, James d'Apice, Coffee and a Case Note and Gravamen whereever you can! (If you'd like!)

    • 10 min
    David Turner and James d'Apice - Discussion on the Hearsay Podcast February 2024

    David Turner and James d'Apice - Discussion on the Hearsay Podcast February 2024

    In early 2024 James sat down (remotely) with David Turner to chat about starting a law firm from scratch.

    Even though James was only a matter of weeks (!) into his journey he did his best to share everything he could - warts and all.

    Please enjoy this revealing and entertaining chat between James and David.

    ___

    You can find other episodes of Hearsay: The Legal Podcast here: https://hearsay.legalcpd.com.au/episodes/

    • 46 min
    James d'Apice in conversation with Jacob Malby - March 2024

    James d'Apice in conversation with Jacob Malby - March 2024

    In March 2024 James had the opportunity to talk with Communications and Law student and producer of the Hearsay Legal Podcast, Jacob Malby, about creativity, freestyle rap, and law.

    This conversation traverses Coffee and a Case Note as well as other projects of James' with his Spooko co-creator, Thomas McMullan.

    A link to Spooko is here: https://fbiradio.com/podcast/spooko/

    A link to Hearsay is here: https://hearsay.legalcpd.com.au/

    • 23 min
    Scyne Advisory v Heaney [2024] NSWSC 275

    Scyne Advisory v Heaney [2024] NSWSC 275

    “Hey! Stop trying to work for our competitor!”

    D was a consultant who, in 2022, left one large firm and joined another. D’s expertise was defence work: [2], [3]

    The 2022 role included a 2 year restraint: [4]

    The 2022 employer underwent a restructure following a scandal and D was then employed by P, or an entity related to it: [6], [9]

    D’s contract with P included a 3 month notice period with a right for P to force D to take that time as “gardening leave” [11] and cascading restraints commencing at 12 months and Australia-wide: [12], [14]

    In November 2023 D resigned indicating they planned to work at another firm.

    Shortly afterwards P sent D a letter directing D to take gardening leave for 3 months and asserting the restraints: [16], [17]

    D acknowledged gardening leave but resisted the restraints: [18]

    By the end of D’s gardening leave, neither party had shifted from their position and P commenced proceedings seeking an urgent injunction: [19] - [24]

    P had to show there was a “legitimate commercial interest” in enforcing the restraint and that it went no further than necessary to protect it: [28]

    P said the restraint would protect P’s legitimate interest in (i) the relationships with P’s clients, or (ii) the confidentiality of P’s confidential information e.g. pricing: [32]

    The Court spent some time considering the work done with P and the work to be done at the new entity (noting the evidence was “bedevilled with management jargon” [44]) concluding that the question was one of contractual construction to be set aside for final hearing: [47]

    The Court accepted there was a prima facie case in respect of the information D had access to: [48], [49]

    The Court noted D had previously accepted a 2 year restraint and so there was a prima facie case for a one year restraint: [51]

    Generally, the Court considered P had a prima facie case and turned to the balance of convenience question: [52]

    The Court noted D was well paid, had no evidence to show their asset position, had tax liability suggesting significant income in the past, and had their “eyes wide open” when accepting the restraints and then resigning: [53] - [64]

    This weighed against D in a balance of convenience argument.

    However, P’s delay was pivotal.P only brought the application at the conclusion of D’s gardening leave in February 2024 despite having first raised issues in November, and after various exchanges with D and D’s lawyers during leave: [65]

    Delay can be a complete answer to an interlocutory application: [67]

    The Court found it would be unreasonable now to restrain D from joining their new employer simply because P “has now belatedly discovered the urgency of the case” without P’s delay having been adequately explained: [80], [81]

    This delay tipped “the scale the other way”. P’s application failed. Costs followed the event: [81]

    • 10 min
    In the matter of BH Holdings QLD Pty Ltd [2024] NSWSC 132

    In the matter of BH Holdings QLD Pty Ltd [2024] NSWSC 132

    “It’s my wind-up application, so surely I should get my choice of liquidator...?”___The Ps brought an application to windup various entities on the s461(1)(k) just and equitable basis, and to appoint receivers to the assets of the associated trusts: [1], [2], [6]The various entities were variously incorporated and settled to develop a marina. That development did not progress as hoped: [3], [13]The relationship between Dir1 and Dir2, the 50-50 controlling minds and shareholders of the relevant entities, irrevocably broke down: [1], [4], [5]The Court found it was just and equitable that the various companies be placed into liquidation on the just and equitable basis, and receivers appointed to the associated trusts: [10]The sole area of dispute was the identity of the liquidator(s) to be appointed: [14]Generally, a Court will appoint a plaintiff’s choice of liquidator, though will bear in mind partiality, fitness, qualification, cost, perceived independence etc. It is for a defendant to argue for a departure from that course: [15] - [18]The different hourly rates of the parties proposed IPs were found to be likely to lead to significantly different cost outcomes: [19]An argument that one IP had previous experience with marinas was “very thin” - especially noting that this venture did not proceed and that the Court was not provided with evidence of how this previous experience might assist: [20]The difference in the price of flights from Sydney or from Brisbane (to the venture’s Bundaberg location) was a “minor consideration”, especially noting the Sydney IPs had offices in Brisbane staffed by employees who could assist: [21]The Court was troubled by the perception (*perception* only - no finding or criticism was made) of possible conflict where the Ds’ proposed IP would likely use the advisory services of a firm who was the major shareholder in a proposed purchaser of the marina: [22]The Cos were wound up on the J and E basis, and relevant trust assets placed in receivership, with the Ps’ preferred IPs appointed: [24], [25]

    ___

    #auslaw #coffeeandacasenote #gravamen

    Please follow James d'Apice, Coffee and a Case Note, and James' firm Gravamen wherever you can!www.gravamen.com.au

    • 6 min
    Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73

    Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73

    “We put all our shit in mum’s name…”___

    P was the deceased’s spouse, and administrator and sole benef of the decd’s estate: [1]The Ds were the decd’s parent, D1; sibling, D2; and some related entities: [2]The decd and D2 - members of a motorcycle club and charged with drug offences years ago - used various entities to engage in business: [4], [5]In 2002 the decd and D2 transferred substantial assets to D1: [7]P said the arrangement was that D1 would hold those assets, and the income they generated, on trust in equal shares for the decd and D2. P said this scheme was to protect the assets from confiscation pursuant to the Proceeds of Crime Act: [8], [118] - [132], [248]D2’s evidence that they had no such concerns was rejected, as was the Ds’ evidence that evidence that D1 had a role in the businesses beyond book-keeping: [117], [138]The Court formed an unfavourable view of much of the Ds’ evidence, as “unsupported… and inherently unlikely”: [38]In 2002 steps were taken to put the “asset protection” regime in place including incorporating a corporate trustee of which D1 was director and shareholder; settling a trust with D1, D2 and the decd as beneficiaries; and causing D2’s and the decd’s assets to be transferred without consideration constituting the corpus of that trust: [142] - [152]The decd had described the arrangements as “we put all our shit in mum’s name”: [151]After the transfer D2 took some role in various business ventures and property developments for the trust, as did D2 and the decd: [154] - [212]Contemporaneous notes suggest the decd understood that their entitlement to 50% of the trust assets would pass to P (as their sole beneficiary) on death: [218]P made various submissions in support of their asset protection or “warehousing” characterisation of the arrangement between the parties. P also said the Ds’ arguments (such as they were) failed to take into account the Proceeds of Crime Act protections that the decd and D2 were pursuing: [260] - [263]The Ds said P’s characterisation was “Kafkaesque” and the assumptions underlying it unfounded: [269]The Court accepted P’s characterisation: [271], [287] - [289]That was because: (i) the Ds’ lack of evidence and explanation about how any debt arose to D1 or the “implausible” suggestion that the parties were unconcerned about the Crime Commission ([272] - [276]), and (ii) the P’s case was supported by contemporaneous evidence: [277] - [286]The Court found the parties intended to create a trust relationship, including because of language used by the parties to characterise it: [306] - [309]The relief P sought could be granted against the TCo (i.e. not just D1) on basis that the TCo would not have its discretion fettered but that it would be prevented from exercising power in respect of 50% of its assets: [387]Costs followed the event: [459]

    • 7 min

Customer Reviews

4.8 out of 5
46 Ratings

46 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 ,

Informative

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

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