Coffee and a Case Note

James d'Apice

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.

  1. Nov 1

    Valtimo Holdings Pty Limited [2026] NSWSC 1284

    “Your new jewellery Co breaches the duties you owed our old Co!”___P, a 40% shareholder in OldCo, sued D1 for breaching their duties to OldCo, and sued other Ds for knowingly assisting: [1] – [5]OldCo ran a jewellery business which grew over time: [2], [24]In April 2022, NewCo was incorp’d with D1 as s/h. It began doing retail and online business from OldCo’s premises (!) without P’s controlling mind’s knowledge: [33] - [38]A dispute arose in relation to “shareholder loans”, leading D1 to apply to wind up OldCo on just and equitable grounds: [39] – [44]In 2022, after OldCo failed to pay rent, the landlord offered a lease to NewCo which was accepted: [45] – [48]Later in 2022, OldCo was wound up: [52] – [54]In 2023, D1 became a director of NewCo: [61], [62]Following Court approval OldCo’s claims against the Ds were assigned (for value) to P, with any proceeds paid to P and OldCo: [63] – [65], [87] – [92]Having purchased the claims, P brought these proceedings: [66]It was alleged that D1 breached inter alia the profit rule and the conflict rule, as well as statutory duties: [99]It was alleged that the other Ds knowingly assisted D1: [141]P said that D1’s causing of NewCo to make jewellery sales from the Premises while OldCo was still registered diverted OldCo sales; a DD breach: [144]From NewCo’s incorporation to OldCo’s deregistation, all sales made by NewCo were made while D1 was in a position of conflict: [156]The Court was satisfied D1 incorp’d NewCo to take over the business of OldCo: [157]D1 ensured NewCo could use OldCo’s premises for its business (including by paying OldCo’s unpaid backrent to secure the premises for NewCo): [159]D1 was found to have breached the profit rule and the conflict rule, as well as their statutory duties: [168], [169]The Court considered whether the other Ds engaged in Barnes v Addy “knowing assistance” and / or “involvement” in the breach of D1’s statutory DDs: [170]It was found that D1’s breach of duties was indeed dishonest: [190]D2, which was NewCo, was found liable. The other Ds (some natural persons and a Co) were not: [196], [208], [209] – [211]After much consideration, the Court ordered compensation against D1 of ~$690K plus interest (that amount being goodwill, diverted sales, and fitout): [276], [277], [288], [295]An opportunity to make costs submissions was granted: [292], [293] ___ Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform. www.gravamen.com.au

  2. Oct 19

    James d'Apice on Unbilled Unfiltered Podcast | September 2026

    In 2026 James had the opportunity to sit down with Ben Hudson from the Unbilled Unfiltered podcast for a wide-ranging discussion about legal practice, the lawyers James is "deeply unimpressed" by, and what role a failed rap career plays for a litigator. You can find the podcast here: https://www.unbilledunfiltered.com/

  3. Oct 17

    Ziebarth v Nayaned [2026] FCA 1459

    “Put me back as director and correct the share register!”___P sought an interlocutory injunction. P said they had been invalidly removed as Dir of a Co, and their shareholding improperly diluted: [1], [2]P said D had taken control of the Co to make it sell its business and property: [1]P helped establish the Co, contributing assets: [7](1) – (2)There was past tension between P and a former Dir (now dead) leading to D’s involvement: [7](5) – (6)In August 2026 resol’s were passed including appointing P as Dir: [7](10)Later, forms were lodged suggesting P was removed as Dir, despite not having resigned nor having been provided with notice of any meeting re P’s potential removal as Dir: [7](12)P was then excluded from the Co’s mgmt: [7](13)Evidence suggested D was in Thailand: [7](17)In Sep 2026, P visited the Co’s offices only to be told the Co’s business had been sold, with responses to some Qs being “above [the answerer’s] paygrade”: [8](The evidence was incomplete re the progress of any potential sale: [10])P’s lawyer tried to inspect the Co’s books and records at its agent’s office and was turned away: [9]The Court considered the relevant law noting P had to show (i) a prima facie case, and (ii) that the balance of convenience favoured relief: [3] – [5]P’s claims were broadly stated; unauthorised dealings and “unwarranted oppression”: [12]The injunction sought was to prevent the Co dealing with its business and real property: [13]The Court found it arguable that (i) P was improperly removed as Dir, and (ii) an unauthorised agreement may have been improperly made with a 3rd party to sell the Co’s business: [14], [15]Further, it was arguable that (iii) any dist’n of sale proceeds would not be in a proportion with the true shareholding in the Co: [14]1st re balance of convenience: there was a prospect of a sale completing and proceeds flowing to D out of jurisdiction, radically altering the status quo: [15]2nd re BoC: even though the orders might complicate a possible sale and the Co’s mgmt, notice could be given to third parties and there was liberty for parties to apply – largely curing this issue: [16]The relief sought by the P was granted: [17] ___ Please follow leading partnership and shareholder disputes lawyer James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au

  4. Oct 13

    RD Beechworth Pty Limited [2026] NSWSC 1098

    “I own 40% of you, and I’m winding you up!”____The Ps sued to wind up a Co pursuant to s461(1)(k), the “just and equitable” basis. The Co opposed: [1], [4]The Ps held 40% of the Co’s shares, an SPV incorp’d for residential development: [1], [2], [157]The remaining 60% to 2 entities whose controlling minds were also Dirs of the Co: [7] – [11]The Ps referred to: apparent insolvency of the Co, a breakdown of relationships, and “exorbitant” mgmt fees “gouged” by an entity related to 2 of the Co’s Dirs: [3], [149] – [151]In 2021 the Ps and the Co had entered into an arrangement where the Ps loaned ~$5m for buying the property, to be repaid from profits following development: [12]In December 2021, the Co bought the property for ~$10m; funded in part by the Ps’ loan: [13] – [15]The Dirs of the Co incorp’d OtherCo to provided management services to the Co; $30K per month. The Ps were not told of this: [16] – [20]From 2022, the Co undertook various steps (including running NSWLEC proceedings) to obtain relevant DAs: [21] – [28]Rent was collected on the Co’s property from 2022. It was not paid to the Co but was paid to OtherCo: [29] – [31]The Ps initially sued seeking repayment of the $5m. They lost: [32] – [34]The Ps took the view the development was “unviable”; likely unprofitable. The Court accepted this: [43], [95]The Ps’ experts’ figures suggest the development would be worth $22m, for a cost of $35m; a loss of ~$13m: [45] – [88]The Court accepted there was no possibility of the Co obtaining external finance: [110], [158]Nor was it likely finance could be obtained from a related party: [117]The Court noted insolvency may be relevant to a just and equitable wind up application: [118]After extended considering of the relevant tests for insolvency, and with the assistance of expert evidence, the Court accepted the Co was likely cash flow and balance sheet insolvent: [148]The Court lacked confidence in the conduct of the Co’s affairs, such that it was just and equitable that it be wound up: [164]Where the Co was not run as a quasi-partnership, the fact that there was a breakdown in the relationship of trust and confidence between the parties was not sufficient to obtain a winding up order: [169] – [176]The Court found there were no alternative s 467(4) remedies: [177] – [195]The Court ordered that the Co be wound up and that the Ps’ legal costs would be costs in the winding up: [199] ___ Please look out for James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au #auslaw #coffeeandacasenote #gravamen

  5. Sep 23

    Sibley Investments Pty Limited v Oldfields Advance Scaffold [2026] NSWSC 1021

    “You breached the shareholders agreement, so transfer your shares to me!” ___ P and D were shareholders in a Co. P (who held 40%) sued D (who held 60%) alleging D’s breaches of the SHA entitled P to have D’s shares transferred to P: [1] – [4], [7] This breaches, said P, were D taking unauthorised loans and D’s granting security over its shares in the Co: [2] The Co did scaffolding work and was of some size; ~$11m annual revenue, ~55 employees: [6] The Co had developed out of a business operated by D, with P’s controlling mind acting as director and manager: [9] No party challenged the SHA’s validity. It applied: [17] D licensed its IP and provided services to the Co – for payment – over the years: [19], [20] The D’s work for the Co included, necessarily, having some control over the Co’s bank account. The D (whether by its agents or otherwise) made payments from these accounts: [21], [22] Over time a loan balance grew. By 2025 D was indebted to the Co for ~$1.9m: [23] – [27] P’s consent was not sought for the advances that led to this balance. i.e. they were made without P’s approval: [28] In 2025 an insolvency risk loomed for D. It missed some superannuation payments owed to its employees: [29] P issued D a default notice pursuant to the SHA in relation to the loan balance. D accepted the notice was properly issued [30] – [36] The issuing of the notice commenced the SHA’s default sale process: [34] In 2022 D had granted a security of all of its assets (i.e. including its shares in D): [37] In 2025 P discovered the security via a PPSR search conducted as part of prep for P acquiring D’s shares: [39] Shortly after this discovery, P issued a security default notice pursuant to the SHA: [40] Although the breach was remedied after the notice was issued, P had commenced the default sale process beforehand: [41] – [46] Despite D’s contrary assertion, the commencement of other legal proceedings by the Co was not a termination of the SHA – and even if it was, P’s rights pursuant to the default notices survived: [47] – [48] The Court then considered whether specific performance was the appropriate remedy. The remedy of specific performance is discretionary: [49] Damages were an inadequate remedy for the P’s loss. Prima facie: spec perf should be ordered for breaches concerning shares in a private Co: [54] D argued that the SHA had a valuation method, enabling damages to be quantified. The Court disagreed finding the control premium would not be accounted for with that method: [55] – [57] D tendered no evidence of its capacity to remedy the defaults: [62] No hardship issues stood in way of the Court exercising its discretion to order spec perf: [78] P was entitled to spec perf of the share transfer: [79] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au

  6. Aug 31

    James d'Apice with Seun Idowu, "What's In A Name?" Series | Hall and Wilcox Smarter Lawcast July 2026

    In July 2026, James has an opportunity to sit down with Hall & Wilcox partner and host of the Hall & Wilcox podcast "What's in a name?" to talk about diversity, inclusiveness, and using one's privilege for the benefit of all. You can find the original podcast here: https://hallandwilcox.com.au/news/cultural-inclusion-conversations-whats-in-a-name-season-2/

  7. Aug 24

    Oceanic Capital v Freedom Care [2026] WASC 308

    “I need some documents to figure out if I have an oppression claim.” ___ P, a 1.15% shareholder in ASX-listed D, sought production of 6 categories of documents from D pursuant to s 247A: [1], [6] D opposed the application saying there was no case to be investigated: [4] D’s major business was an NDIS service provider operated by a wholly owned subsidiary, SubCo: [7] The NDIA claimed SubCo has received $800K it was not entitled to, with the figure of $400K eventually arrived at: [8], [12] In September 2024, SubCo’s inconsistency in NDIS claims led the NDIA to suspend payments: [9] A trading halt and suspension were placed on D’s shares: [14] Admins were appointed to SubCo who reported SubCo had poor controls and D’s Dirs may have breached their duties: [15] In Jan 2025 SubCo was placed into liq: [16] SubCo was later permanently banned from providing NDIS services: [17] Since June 2025, P raised concerns the management of SubCo and possible claims against SubCo’s Dirs: [18] SubCo did not conduct an AGM in 2025 or 2026 and did not allow shareholders an opportunity to ask Qs of its dirs or auditors: [19] A Feb 2026 update from SubCo noted the turbulence and telegraphed hopes at improved performance in future; disposing of some assets and thinking strategically: [21], [22] P’s reasons for seeking the documents were (i) to ascertain whether SubCo could remain listed, (ii) whether the Dirs could manage SubCo, (iii) whether the Dirs breached their DDs, (iv) whether the shareholders had any claims, or (v) whether there had been oppressive conduct: [23] The Court considered the law relating to s 247A applications and found production of some documents was appropriate, noting: an application must be brought in “good faith and for a proper purpose”; the Court has a broad discretion as to relief; document access is for specific purposes, not to give an applicant a general picture; noting SubCo’s failure to comply with its obligs: [24] – [31] The Court accepted there were cases to be investigated as to whether D breached its NDIS and other governance / reporting obligations, and whether its Dirs breached their duties: [32] The Court then considered the various proposed document categories.P sought a broad range of documents. The Court (respectfully) closely considered the various categories finding some (like Dir meeting minutes) ought to be produced and others (like corro between D and its auditors) ought not, while leaving room for the parties to negotiate amended categories if needed: [34] – [52] The Court accepted it was appropriate to exercise its discretion to make orders for inspection of some documents sought by P: [54], [55] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au

  8. Aug 13

    Capital Guard AU Pty Limited [2026] NSWSC 897

    “I’m the regulator. You’re getting wound up.”___ASIC sought an order winding up a Co pursuant to s 461(1)(k): [1]Neither the Co nor its Dir appeared in the litigation: [2](A Co failing to appear at its own winding up application did not inspire confidence in the Co’s management: [20])The Court considered some general principles relating to ASIC s 461(1)(k) apps including: (i) the importance of a lack of confidence in a Co’s management; (ii) the requirement that a risk to the public interest (including where investor funds might be put at risk) be demonstrated; and (iii) generally, the Court’s reluctance to wind up a solvent Co: [16] – [18]At relevant times, the Co held an AFS and provided investment services, apparently specialising in bonds: [21] – [27]The Co purported to sell to retail clients (or acquire on their behalf) bonds which did not exist, or which the Co was unable to sell or hold on behalf of its clients: [28]i.e. It was a scam.The Court heard from various clients who has been deceived.One client transferred $100K to the Co to secure bonds issued by a reputable institution, the problem being: that institution had never issued bonds of that kind: [30] – [32]Another transferred $250K to the Co to secure bonds which the original issuer had not approved for issue to retail clients: [33] – [36]Another transferred $120K to the Co to secure bonds which, evidence showed, were not acquired by the Co: [37] – [39]A further client transferred $160K to acquire bonds which it appeared did not exist: [40], [41]The Co provided false information to its auditor: [42] – [45]ASIC reviewed the Co’s accounts forensically and found $17m had been transferred to the Co. $9m of that had been applied to crypto assets. Only $100K had been invested in bonds: [46] – [49]The Co had no other assets of note: [50]Evidence showed the Co’s sole director had no involvement in its affairs or knowledge of its financial position: [51] – [53]In July 2026, the Co indicated in writing to a client it was “winding down” operated with assets to be “assessed for liquidation”. This led ASIC to correspond with the Co’s lawyers, who were unable to obtain instructions: [58] – [60]There were strong grounds for a lack of confidence in the Co’s management: (i) the Co misled clients about investing in bonds that did not exist; (ii) the Co sent false accounts to its auditor; (iii) having taken ~$17m from clients for bonds, the Co has only purchased ~$100K of bonds, and otherwise invested in crypto and no other assets of value; and (iv) the Co’s Dir has exercised no oversight over the Co: [61]The Court accepted the Co’s existence presented a risk to the public interest: [62], [63]There was some doubt as to the Co’s solvency: [64]The Court found it was just and equitable that the Co be wound up pursuant to s461(1)(k): [67] ___ Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platforms! www.gravamen.com.au

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About

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.

Information

  • Creator
    James d'Apice
  • Years Active
    2019 - 2026
  • Episodes
    266
  • Rating
    Explicit
  • Copyright
    © James d'Apice
  • Show Website
    Coffee and a Case Note

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