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. -4 ДН.

    AMCI Investments Pty Limited [2025] NSWSC 1019

    "You chair that other company. You can't fire me from this one!" ___ The managing director of a company, MD, was purportedly fired from MainCo by the Chair of another company, ChiefCo: [1] ChiefCo was part of the same group but had no direct interest in MainCo: [3] The Chair had power over entities in the “Series” companies that formed part of the group: [4] (MainCo was not a “Series” entity: [5]) In taking the role as MD, MD was required to take a few directorial roles in other entities in the group, and retire from them if validly terminated: [8], [14] Various steps were taken in early 2025 suggesting ChiefCo and Chair thought their decisions would bind MainCo in spite of the relevant corporate docs suggesting the opposite: [9] – [11] After this it became clear any previous acquiescence by MainCo to Chair’s unilateral decisions binding all group members was resisted (except for “Series” entities): [12] It was put to Chair in corro that decisions of MainCo and other Cos in the group should be delegated to the relevant board in line with their constitutions, and not Chair or ChiefCo: [20], [21] In August 2025, Chair purported to terminate MD both as employee and so as director: [22] The evidence showed members of the group consulted with Chair, and Chair may have had a strong voice in hiring MD, but this did not confer authority on Chair to terminate MD absent constitutional authority or relevant board approval: [25] The Ps (being a large shareholder in the group, and a director appointed by that shareholder) sought orders including that MD’s purported terminated was of no effect: [1], [27] The Court accepted this on the basis that MainCo was “the Employer” in MD’s employment contract, and so the only party capable of terminating MD’s employment: [28] The Court rejected the Ds’ contention that the Chair had actual or implied authority to terminate MD and considered to the extent Chair ever did, that authority was revoked by the early 2025 correspondence: [29] – [39] The Court rejected the Ds’ contention that the Chair’s authority extended to “non-Series” members of the Group: [40] – [41] The Court rejected the Ds’ contention that the Chair approved MD’s employment agreement and so retained authority over MD’s employment generally, including termination: [46] The Court rejected the Ds’ contention that MD’s obligation to report to Chair as part of their role conferred authority on Chair to terminate MD: [50] The court found the Ps had standing to apply for the relevant relief (noting MD was not themselves a plaintiff) in their role as shareholder and relevantly appointed director: [53] As MD was not validly terminated they were not obliged to resign their relevant directorships: [56] The Court declared MD’s termination was of no effect, and MD remained in their role: [58] ___ Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform. www.gravamen.com.au #auslaw #coffeeandacasenote #gravamen

    7 мин.

  2. 23 СЕНТ.

    James d'Apice interview with Steve Cole on 'Path to Partnership' Podcast | August 2025

    In August 2025 James had an opportunity to sit down with recruiter and expert podcaster Steve Cole to discuss his career path, his approach to marketing, and the many uses of his childhood nickname "Peach". We hope you enjoy this discussion! ___ You can find Steve's podcast 'Path to Partnership' here: Path to Partnership - Podcast - Apple Podcasts

    1 ч. 9 мин.

  3. 14 СЕНТ.

    James d'Apice on Law Society's 'Just Chat' Podcast | August 2025

    James was lucky enough to sit down and chat with Amy Dale from the Law Society to have a deep chat about the law, life, and James' past - as well as some lighter moments chatting Gravamen merch and horror film podcasts! James doesn't hold back about personal reflections even on touchy subjects like mental health and money. (James also made sure he dropped Amy and the legendary co-host Francisco Silva one of his very popular Gravamen hoodies!) ___ You can find a link to the Law Society's 'Just Chat' podcast here: Just Chat Archives - Law Society Journal www.gravamen.com.au

    1 ч.

  4. 19 АВГ.

    C & V Engineering Co Pty Limited v Pizzolato Nominees Pty Limited [2025] NSWSC 857

    “My 1st claim was about land. I’m not estopped from bringing this one about shares!” ___ P sought orders confirming they were a shareholder in two Cos: [1] P, D1, and D2 were siblings. The shares were part of their parent’s estate: [2] In 1994, the parent made a will bequeathing their estate in equal parts to P, D1, and D2. In 2016, D1 obtained a grant of probate in respect of that will and transferred the shares to D1’s name: [2], [7] D1 then refused to distribute some of the estate (including the shares): [7] In 2018, P brought s66G proceedings re real property co-owned by the siblings, bequeathed to them by the parent. Those were finalised by consent: [8], [31], [32] P accepted in XX that it would have been neater if P claimed the shares in the 2018 litigation, but noted that D1 has promised to transfer the shares a number of times: [12], [13] From ~2016, after the parent’s death, the parties’ lawyers exchanged correspondence regarding the real property and the shares: [21] – [31] In that corro, D1 said the shares would be transferred to P in accordance with the will: [29], [30] Later in 2023, D1 said P pressed no further claim on the estate after the 2018 property litigation and did not seek the shares; and also said an Anshun estoppel arose: [36] P denied this, and in 2024 brought these proceedings: [36] P resisted the Anshun estoppel argument on the basis the 2018 proceedings related to specific real property, and not the parent’s estate generally: [37] The Court considered the relevant law including that an Anshun estoppel arises when “the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”: [40] Importantly, an estoppel does not necessarily arise because material *could* have been considered in the first claim. What is required is that it *should*: [41] P showed the shares’ status was not in dispute at the time of the 2018 proceedings. D1’s lawyers had indicated the share transfer was imminent: [48] The Ds pointed to P accepting in XX that it would have been “easier” had the 2018 proceedings dealt with the shares. The Court considered this evidence was informed by 2025 hindsight: [51], [52] The Court found there was no Anshun estoppel as: (i) ownership of the real property had passed at the time of the 2018 proceedings, meaning they did not concern the estate but a co-owners dispute [53]; (ii) at the time of 2018 proceedings, D1 had promised the share transfer would occur: [54]; and (iii) there is a strong public interest in holding an executor to their duties: [55] Nor did the Court find the application was an abuse of process: [57] – [61] Having, among other things, not established the Ds had suffered prejudice, nor was a delay defence successful: [72] The defences to P’s s175 application failed. ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

    9 мин.

  5. 26 ИЮЛ.

    Maroubra Seals Sports & Community Club Limited [2025] NSWSC 784

    P, a public company of some size, was obliged to have its accounts audited: [1]From 2016 to 2025 an auditor audited the Co’s financial reports. The auditor was qualified but not validly appointed in contravention of the Corps Act: [2]P sought a declaration pursuant to s1322(4) that the purported appointment of the auditor was not invalid: [3](Importantly, the order sought was that the appointment be declared not invalid pursuant to a certain section that would otherwise cause it to be invalid; rather than a declaration that the appointment was itself valid: [24])Broadly, a contravention of this kind can be ordered to be invalid if the mistake was (i) procedural, (ii) an honest error, (iii) and that there is no substantial injustice: [6]From around 1970 Mx A was appointed auditor. Over time “A & Co”, “A Partners”, “A Accountants etc” were appointed auditors – all of those entities related to Mx A: [11] – [14]In around 2016, Mx A died. Apparently their child, also named Mx A began work at the auditing firm: [14] – [16]Mx A, the younger, was a qualified auditor and fulfilled the role for P until early 2025, signing off similarly using a related entity: [16] – [20]In early 2025, P decided to put the role out to tender following tension between Mx A and P’s board: [21]Mx A resigned around this time, and the irregularity of their appointment as auditor was revealed: [22]There was no doubt that Mx A’s firm was retained as auditor and indeed performed the work and was paid for it: [23]The evidence tender satisfied the Court that P had a reasonable basis for suspecting the appointment was not properly made: [25]Following a consideration of the evidence, some of which evidence P’s searches of its own historical records, the Court was satisfied the potentially invalidity of the appointment was honest: [28] – [33]The Court considered shareholders and others who might be affected by the order sought and found there would be no injustice: [34] – [38]1322(4) relief is discretionary. While highlighting that the improper appointment of an order not a matter of small moment, the Court elected to exercise its discretion: [39] – [42]Following some amendments the Court made orders largely consistent with those sought by P: [50]The Court was not prepared to make orders that P and its dir complied with their duties where it appeared they had not done so: [49]___Please don't forget to follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

    8 мин.

  6. 16 ИЮЛ.

    James d'Apice and Iolanthe Gabrie, Ruby Assembly | Real Ambition Podcast June 2025

    James had a chance to sit down and chat with the legend, boss of Ruby Assembly, and all-round all-star Iolanthe Gabrie on her podcast Real Ambition in June 2025. Together they get deep on branding, Rory Sutherland, and contemporary horror films. Check it out! You can find Iolanthe's podcast here: https://open.spotify.com/show/3fgIdiaiSxD4F8iZO7xgXo

    37 мин.

  7. 30 ИЮН.

    Lawyers Weekly interview with James d'Apice | Jerome Doraisamy on the Boutique Lawyer Podcast June 2025

    James was lucky enough to sit down and chat with the legendary leader of Lawyers Weekly, Jerome Doraisamy in 2025 and had an in-depth conversation and life, law, and where Gravamen is still a side-hustle... You can find a link here https://www.lawyersweekly.com.au/podcast/42265-the-boutique-lawyer-show-unique-branding-charitable-donations-and-the-firm-as-a-side-hustle?utm_source=LawyersWeekly&utm_campaign=05_06_2025&utm_medium=email&utm_content=Boutique-Podcast&utm_emailID=55716e27c79db04faaa6ed1f3d3988938ab8fa86ca99f7fc2679bf363ed418c8

    34 мин.

  8. 23 ИЮН.

    Atalanta Investments v Kalgoorlie Projects [2025] FCA 607

    “You can’t sue in the company’s shoes. You’re not coming in good faith!” ___ ShopCo had two 50% shareholders, P and D. Each of P and D were Cos. P’s dir and D’s dir were the dirs of ShopCo. ShopCo owned a retail centre with a possible value of ~$53m: [2], [3], [57] The dirs had a falling out: [3] D provided property services to ShopCo, with P’s knowledge The arrangement was longstanding, but not reduced to writing: [5] Some of the services D provided were managing tenants, negotiating leases, collecting rent etc for ShopCo: [6] P alleged this work was real estate agent work and, as D was not a real estate agent, any commission should be repaid to ShopCo as a debt: [7] - [9] P sought leave to bring a claim pursuant to s237 leave to sue D for ~$700K it received on the above basis: [11], [12]Derivative action criteria (a) (will the Co bring the claim?), (d) (is there a serious question?), and (e) (notice requirements) were all met: [15] It remained for the Court to consider (b) (good faith), and (c) (best interests of ShopCo): [15] (There is, with respect, a useful summary of some relevant derivative actions principles at [18] - [29]) P’s dir and D’s dir ran similar developments together in the past. Their enmity appeared to arise from disagreements about other projects: [45], [46] Attempts were made by P and P’s dir to cause ShopCo to pursue its alleged claims against D. Those attempts failed: [47], [48] In relation to the best interests test, the Court considered no decision was necessary due to a conclusion P was not coming in good faith: [61] In doing so, the Court considered the proportionality of the sum potentially claimed from D (~$700K) alongside the possibility of some costs being unrecoverable in any action (due to not being real estate agent work): [59] In considering good faith, the Court noted a successful applicant must show (a) honest belief in the cause of action’s prospects, and (b) an absence of collateral purpose: [62] The Court gave 11 reasons (or perhaps up to 13: [66], [67]) for finding P did not come in good faith.Those included: (i) P put forward no basis for P’s belief in the prospects of the claim, nor any legal advice on that point, (ii) there were real risks in the proceedings, (iii) a strong argument that D provided services at cost (i.e. for no benefit) was not addressed by P, (iv) the cost estimate of the proposed litigation was $500K for a possible $700K benefit, and (v) there was no suggestion of any defect in the services provided by D: [65] P’s proposed course would see $500K in costs for a $700K return that would arise only if P’s submission that ALL work done by D was “real estate agent work” succeeded. A commercial return required complete success for P. This pointed away from good faith: [67] Having found the P did not meet the good faith requirement, leave was not granted: [72] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! #auslaw #coffeeandacasenote www.gravamen.com.au

    7 мин.
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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.

Информация

  • Автор
    James d'Apice
  • Годы выхода
    2019 - 2025
  • Выпуски
    242
  • Ограничения
    С ненормативной лексикой
  • Авторские права
    © James d'Apice
  • Сайт подкаста
    Coffee and a Case Note

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