Podcasts about gravamen

“I removed your trustee, but you shouldn't have removed me!”__A corporate group focussed on car sales and property holding.The Ps complained a Tee was wrongly removed by the Ds. One the Ds, the group's CEO, was then removed as CEO and director of various Cos by the Ps: [14]The Ps brought a claim re the Tee removal. The Ds brought a cross-claim about the removal of the CEO D: [15], [16]The natural person parties were relatives: [28]In 2017, the CEO D purported to become the relevant trust's appointor: [29] – [33]In 2019, the CEO D attempted to sell their stake in the enterprise for $42m. On the offer's rejection, relationships deteriorated: [34] – [36]In 2021 and 2022, various offers were rejected, and proceedings commenced: [37] – [51]In 2024, CEO D unsuccessfully attempted to remove their aunts, Ps, as directors: [55] – [60]CEO D as appointor removed the trustee P and appointed a related entity of the Ds: [61] – [72]The CEO D was then removed as CEO and director by their aunts: [73] – [82]Each witness faced credibility challenges. Evidence showed the CEO D had falsified docs: [83] – [100], [182]CEO D's placement as appointor followed an audit of the group showing some roles were held by the dead: [132] – [138]There were inconsistent written records of the purported 1 May 2017 meeting placing CEO D as appointor. Some records suggested proper steps to place CEO D as appointor were not taken: [146] – [267]The Court concluded the relevant P was not in attendance at the relevant meeting, making the meeting inquorate, and meaning CEO D's placement as appointor was not properly made: [268]The Ds' application for s 1322 relief (curing what the Ds characterised as a procedural irregularity) was unsuccessful: [283]The Ps therefore succeeded: the purported appointment of the Ds' replacement Tee was invalid as CEO D was not appointor: [399] – [404]The Court then considered CEO D's termination as an employee: [407] – [409]The Ds suggested CEO D's removal by the Ps was improperly motivated; a ruse to cause a share sale: [461] – [476]CEO D “shut out” the Ps from management [479], wrote to car makers (who provided the group with its stock for sale) criticising the Ps [483] – [496] and spoke of the Ps in contemptuous, belittling ways over time [497] – [500]The Court found CEO D properly terminated as the relevant Ps had lost trust and confidence in them: [503]Nor was the termination found to be a breach of contract: [508]The Ds alleged CEO D's termination and removal as director was oppressive for s 232 reasons: [567]CEO D's employment termination was not improper, and so not oppressive. Similarly: nor was their removal as director: [589], [606]The oppression claim failed: [637]The Ps' claim succeeded, and the Ds cross-claim failed. Costs followed the event: [648], [649]___Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform.#auslaw #coffeeandacasenote #corporatelawyer #gravamenwww.gravamen.com.au

In late 2025 James was lucky enough to sit down with Ryan Tan for a wide-ranging interview traversing James' insights about branding, the building of his firm Gravamen, and what the future might hold...___www.gravamen.com.auYou can find the Ryan Tan show here: The Ryan Tan Show - Podcast - Apple Podcasts

Resumen de noticias de LA NACION de la tarde del 18 de noviembre de 2025

As part of a series of three talks together, James d'Apice recently joined eminent senior junior barrister Jonathon Dooley of Greenway Chambers to discuss the law of Just and Equitable Winding Up (s 461(1)(k) of the Corporations Act 2001 (Cth)).This is Jonathon's and James' third talk about the big ticket items when advising your shareholder clients whether they want to *stay* or whether they want to *go*.The three talks they gave on this topic were:1. Corporate oppression (this talk!)2. Derivative actions (to be released in future)3. Just and equitable winding up (to be released in future)Hope this one brings you some value. As you may be able to tell, James and Jonathon had good fun presenting!___Jonathon's profile can be found here: https://www.greenway.com.au/jonathon-dooley/BenchmarkTV's website is here for all of your CLE needs: https://benchtv.com.au/And of course, James' firm Gravamen has its website is here: www.gravamen.com.au

As part of a series of three talks together, James d'Apice recently joined eminent senior junior barrister Jonathon Dooley of Greenway Chambers to discuss the law of Derivative Actions (ss 236 and 237 of the Corporations Act 2001 (Cth)).This is Jonathon's and James' second talk about the big ticket items when advising your shareholder clients whether they want to *stay* or whether they want to *go*.The three talks they gave on this topic were:1. Corporate oppression (this talk!)2. Derivative actions (to be released in future)3. Just and equitable winding up (to be released in future)Hope this one brings you some value. As you may be able to tell, James and Jonathon had good fun presenting!___Jonathon's profile can be found here: https://www.greenway.com.au/jonathon-dooley/BenchmarkTV's website is here for all of your CLE needs: https://benchtv.com.au/And of course, James' firm Gravamen has its website is here: www.gravamen.com.au

“Issuing those shares at an undervalue was unfair!”my dad is a farty bum___DCo, whose chief asset was a domain name related to real estate, issued shares in various tranches.In May 2018 the Ps subscribed at a value of $0.6667: [3]Some Ds were issued shares in various tranches at a lower value – from $0.001 to $0.02: [4]The Ps sought orders including that the lower priced shares were invalidly issued: [8](The Ps commenced parallel proceedings about related regarding DCo and its (deceased) controlling mind, C: [10])In May 2018, C caused DCo to make the share offer to the Ps on the basis $20m was needed to realise the value of DCo's use of the domain name: [33]The offer included various warnings about the risk of investing, and was open only to sophisticated investors: [34] – [37], [41]The docs suggested the domain name and associated “intangible assets” had a value exceeding $70m: [38]The Ps responded, many investing hundreds of thousands of dollars thereby raising $23m at a $0.6667 per share valuation: [43]In July 2018, C caused their related entity to transfer ownership of the domain name to DCo in exchange for 80m shares for a value of $80K i.e. $0.001 per share: [45] – [48]Later in 2018 and through to June 2019, further shares were issued at the ~$0.001 – $0.02 value: [50] – [56]11 million shares were issued from late 2020 into 2021 at a price of $0.001 pursuant to options: [69]In 2022, following a whistleblower complaint, DCo circulated its alleged share register and invited corrections. No member alleged inaccuracy: [73] – [82]Ps brought their claim that issuing shares for inadequate consideration was oppressive: [109] – [112]The Ps' concerns were the shares being transferred for a sum other than “market price” and a “self interested” transaction caused by C: [138], [139]As at April 2018, the transfer was not an undervalue; the “market” for shares in a $1 company was not significant: [142] – [144]Further, the warnings made in the original offer were such that the Ps' acceptance of it was not oppressive: [169] – [171]The Ps' contention that DCo should retain the value of domain name transferred to it without the shares issued to the former owner as consideration would be an unfair result: [179]In relation to lower priced shares issued to consultants and directors, the Court found a reasonable director of a start up may consider issuing shares to people who have made a valuable contribution (thereby securing their services) as a valuable incentive, and so not oppressive: [226], [227], [236]The Court found the issuing of 11.1m option shares was oppressive to the $0.6667 shareholders [261] but, in the context of other transactions and restructuring moves, had no continuing effect requiring s 233 relief: [281] – [283]The proceedings were dismissed: [287]___Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform.www.gravamen.com.au#auslaw #coffeeandacasenote #gravamen

"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

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 Journalwww.gravamen.com.au

“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

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

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

“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 #coffeeandacasenotewww.gravamen.com.au

Rigoberta Bandini firma nuestro disco de la semana con "Jesucrista Superstar", su segundo y ambicioso trabajo. Escuchamos varias de sus canciones en un programa cargado de actualidad musical. Las novedades nacionales las protagonizan Dorian, Sen Senra, Depresión Sonora, Va Salva Sal, Maria de Juan, Mike G69, Anora Kito, Calibre 91, Extasis, Nadadora, Veloce, Colorado, La Paloma, Kanfurneira, Pequeño Mal, Sr Bizarro, Da Loma, Nievla y Por Las Noches. Además Elyella hacen aparición para presentarnos su nuevo single junto a Besmaya. La actualidad internacional la protagonizan Mighty Joe Castro and the Gravamen, Silverlakerodeo, Sharon Roter, Cami Tal, Emilio, Atario y LeoPardo. La versión de la semana la firman Carletti Porta y Curro Violero llevándose a su terreno el clásico "Un buen día" de Los Planetas y el toque más bailable lo pone DJ Clandestino con su nuevo remix de Sexy Zebras. Además recordamos el pasado Festival de les Arts de Valencia, te hablamos de los próximos Mallorca Live Festival y Mediterrànea de Gandía y recomendamos conciertos de los artistas que escuchamos.

As a small-firm owner, James d'Apice is walking the road less travelled – not just in terms of his marketing and revenue distribution but also in terms of how he views the firm as an entity. In this episode of The Boutique Lawyer Show, host Jerome Doraisamy welcomes back Gravamen founder and principal James d'Apice to discuss his firm's journey since its recent inception, its success thus far, whether he's had a clear vision in mind or has figured the business approach out along the way, what has surprised him about the experience of being a firm owner, and why he has viewed the running of the firm as a “side hustle”. d'Apice also delves into how his mindset aligns with his perception of himself and his purpose as a lawyer, why he donates firm proceeds to chosen charities, navigating pressure points, making hiring decisions for the best interests of the firm, and what excites him about the future. If you like this episode, show your support by  rating us or leaving a review on Apple Podcasts (The Lawyers Weekly Show) and by following Lawyers Weekly on social media: Facebook, Twitter and LinkedIn. If you have any questions about what you heard today, any topics of interest you have in mind, or if you'd like to lend your voice to the show, email editor@lawyersweekly.com.au for more insights!

Primer grupo de refugiados palestinos llega a México57 de cada 100 cédulas profesionales corresponden a mujeresMás información en nuestro Podcast

“Don't call the meeting to sell those shares!”___P was a shareholder in D1. D1 owned Techshares, shares in TechCo: [1]D1 did not trade. Its purpose was holding Techshares: [16] The Techshares were illiquid: [25], [26]A GM of D1 was called proposing D1 would either (i) sell the Techshares to a specified purchaser or (ii) failing that, go into MVL: [2]P sought injunctions restraining D1 from calling the meeting: [3]P said: P had made a purchase offer more favourable to D1 than the proposed offer, and inadequate time had been given to consider proposal (i): [6](An earlier injunction had been granted, restraining D1 from issuing further shares that would dilute P's holding: [9], [10])Following the costs of the initial part of this litigation, D1's dirs represented that it would need funding or D1 would be placed in VA or MVL with the Techshares sold for “fire sale” prices: [19], [20], [24]D1 hoped to obtain TechCo's shareholder list to sell the Techshares. TechCo resisted, instead proposing Offeror: [30] - [32]Offers were made by Offeror: [34], [36]D1 sought TechCo's approval to “shop” Offeror's offer to other TechCo shareholders, but TechCo made no response: [39]Another, apparently more attractive offer, was made by another party backed by P's controlling mind: [42]Interestingly, P (having changed its name, leading to brief confusion) made a further more attractive offer: [47] - [51]The D1 dirs reviewed all offers and (including because of some opacity with P's finances) recommended that Offeror's (apparently less attractive) offer be accepted: [65]P provided evidence to show it had the assets to underpin its offer: [70] - [73]Further corro was exchanged regarding the P's (and the P's controlling mind's) ability to fund the offer: [74] - [78]The evidence put forward did not convince the Court of P's ability to fund the offer: [79]RE (i) the Court found no serious Q in part because P's argument (“a summary is not sufficient. The full offer should have been disclosed”) did not ID any part of the offer not disclosed in the offer summary: [87] - [91], [97], [101]With that, balance of convenience for (i) became irrelevant: [114]RE (ii) and the P's previous application re share dilution the Court was prepared to proceed as if there was a serious question to be tried: [119]The Court found the BoC favoured a limited injunction; a short delay on the SHs' ability to appoint a liquidator while they negotiated: [126]The outcome would have been different if P had sought a longer, or indefinite, injunction: [127]___Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform!www.gravamen.com.au

CJNG, el ganador de la guerra Chapitos-Mayitos. Gravamen a remesas en EU, mina de oro para el narco. Él es “Doble R”, sospechoso de asesinato de Valeria Márquez. ¿Cómo consiguió MrBeast permiso del INAH para grabar en sitios arqueológicos?Un podcast de EL UNIVERSAL Hosted on Acast. See acast.com/privacy for more information.

Trump promueve enojo social en MX, ahora con gravamen a remesasEnlace para apoyar vía Patreon:https://www.patreon.com/julioastilleroEnlace para hacer donaciones vía PayPal:https://www.paypal.me/julioastilleroCuenta para hacer transferencias a cuenta BBVA a nombre de Julio Hernández López: 1539408017CLABE: 012 320 01539408017 2Tienda:https://julioastillerotienda.com/ Hosted on Acast. See acast.com/privacy for more information.

Analizamos el tema de la adopción del CUI en lugar del NIT, y el tema del gravamen a los pequeños negocios en Guatemala #guatemala #pyme #contabilidad #pequeñocontribuyente #agricola #EmprendimientoRural #Decreto31_2024 #Impuestos #CUI #sat

José Pakomio, presidente de la Cámara Nacional de Comercio, abordó en Canal 24 Horas los aranceles globales anunciados por el presidente de Estados Unidos, Donald Trump.

“That loan was for a purpose. Pay it back!”___P sued natural persons and Cos. D1 was not served and D2 was bankrupt, leaving P to pursue Cos only: [9]P's dad spoke with D1 and D2 about an investment. P later transferred $9.2m to one of the DCos: [3], [5]There was no written agreement: [6]In 2017, all agreed the $9.2m would be used for property investment, that if the property bought was then sold in a year 35% would be returned, and if unsold the funds would be returned: [6]In 2018, when the principal was not returned, the parties made a loan agreement, requiring repayment and interest: [8], [61]Repayments were not made. P sued: [9]P said the money was advanced to buy a specific property; and so was held in a purposive “Quistclose” trust. P said the money transferred to the other Cos was done with knowledge and so was recoverable: [11]The Ds denied a trust and said if there was one, then the loan agreement extinguished it: [12]The Ds served no evidence: [15]P had to prove the 2017 agreement, WITH a mutual intention that the funds would be used for a specific purpose, to be held on trust and returned if the purpose was not achieved: [21]P never discussed the proposed sum, proposed property or properties, location, or property size: [24]P said some docs sent after P's dad's the discussion were a representation that the money would be used for specific land: [29] - [31]There was no evidence of the purchase price being referable to specific properties or of any intention to purchase a specific property: [32] - [34]In this case, there was no intention to create a trust: [36], [41], [48], [54]That's because: the creation of a JV vehicle did not prove a trust creation intention [49], the potential of co-mingled funds absent a “trust account” points away from a trust [50], absence of language like “solely” or “exclusively” [51], and the parties treated the funds as loaned rather than held in trust [53]The Court then considered IF there was a trust, was it brought to an end by the loan agreement: [55]The Court held the loan extinguished the trust rights (if any) because (i) the loan came after and was inconsistent with a trust, (ii) the loan showed the parties abandoning the earlier agreement, and (iii) the loan's operation saw existing rights surrendered in exchange for additional terms secured under the loan: [65]The Court then considered the position if (a) there was a trust, and (b) that trust survived the loan: [68]Even if both criteria were met, the Court found no basis to order recovery against the DCos: [69] - [109]P's claim failed. Costs followed the event: [110]___Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform!www.gravamen.com.au

As part of a series of three talks together, James d'Apice recently joined eminent senior junior barrister Jonathon Dooley of Greenway Chambers to discuss the law of Corporate Oppression.This is Jonathon's and James' first talk about the big ticket items when advising your shareholder clients whether they want to *stay* or whether they want to *go*.The three talks they gave on this topic were:1. Corporate oppression (this talk!)2. Derivative actions (to be released in future)3. Just and equitable winding up (to be released in future)Hope this one brings you some value. As you may be able to tell, James and Jonathon had good fun presenting!___Jonathon's profile can be found here: https://www.greenway.com.au/jonathon-dooley/BenchmarkTV's website is here for all of your CLE needs: https://benchtv.com.au/And of course, James' firm Gravamen has its website is here: www.gravamen.com.au

"You need to show good faith to sue on the Co's behalf!"___A sought to bring a derivative suit on behalf of TCo. TCo was trustee of a trust. A was a principal benef of the trust: [3]Pursuant to the trust deed, absent a resol from TCo the trust's income would be paid to the trust's principal benefs: [3]From 1988 to 1994 A was a director of TCo: [3]Broadly, as former director A sought to bring a claim on TCo's behalf re a 2005 transaction that saw the Rs (or entities related to them) acquire valuable land. A claimed the opportunity to acquire that land was TCo's and the Rs breached their duties to TCo by directing that away from TCo: [4]At first instance A was denied leave on the basis the application was not brought in good faith: [5]A appealed.The Rs resisted on the basis of a previous judgment of the CoA, relevant real property law, and a statute bar: [23]A said that the previous judgment (which required a link between the status an applicant relies on, and the loss they seek to vindicate for the company) added a gloss on the s237 criteria. A also said the evidence weighed in their favour: [24]What amounts to “good faith” is context dependent: [29]The right to bring a derivative action is granted to vindicate a right of the company. An application made for another reason it is not made in good faith: [31]If there is no connection between an applicant's capacity and the loss alleged, it is difficult to find an application was brought in good faith: [32]The greater the lapse in time between an applicant occupying the relevant role, and the application, the more difficult it is to prove good faith: [32]Crucially, if an applicant, relying on their status as director, seeks to bring an action on behalf of trustee company where they are beneficiaries of the trust they will need to prove they are attempting to advance the interests of the company itself, and not merely their interests as a benef: [35]Unexplained delay may suggest ulterior purpose. A genuine application to vindicate the company's rights might be expected to be brought as soon as the applicant is aware of a claim: [36]The CoA found A was attempting to advance their interests as benef, and not TCo's interests because: (i) A took no steps at the time of the relevant transaction, (ii) A did not adequately explain their delay, (iii) A has separately commenced proceedings in their capacity as benef suggesting A is more interested in their rights than TCo's, and (iv) A has had no connection with TCo for many years providing a “compelling” reason to find the application was not brought to vindicate TCo's interests: [38]The Court dismissed A's appeal. Costs followed the event: [39] - [41]___Thanks for reading! Please head to www.gravamen.com.au to learn about my firm, and look for James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform!#gravamen #auslaw #coffeeandacasenote

“Repay that tax refund into the trust!”___P was a Unit TeeCo incorporated by D1. D3 (whose sole dir and s/holder was D1) was the sole unitholder. D2 was D1's spouse: [1] - [3]D1 incorporated P to buy a valuable piece of land (“Property”). P borrowed the funds from Lender for that: [4]After completion, D1 caused P to lodge a BAS. The resultant refund of ~$2.6m was paid to P: [5]P sued seeking repayment: [8], [10]The Ds said $1.1m of it was a “Success/Performance Fee” for D1 and $1.5m was a “Management/Performance Fee” for D1: [13]D1 was an experienced property developer whose usual practice was to incorporate SPVs (similarly to P) to exploit development opportunities: [14] - [16]Typically, as with P, the SPVs would have no funds of their own and would get third party finance: [17]Sometimes, as with P, D1 would not create a new bank account for a new SPV and would instead use D1's own: [16], [36]In around 2022 D1 identified the Property and began speaking to the Lender: [22] - [24]A loan agreement followed and in 2023 the purchase of the Property for ~$30m completed: [25] - [30], [61]After completion the Lender realised any profit calculations were absent GST tax refunds: [59]In October 2023 the ~$2.6m GST refund was paid into D1's account (remembering P did not have its own account): [64]Shortly after, $9m (which included the ~$2.6m) was transferred from D1's account to the D1/D2 joint account: [66], [67]These funds were then applied to buy a $22m Bronte property in D2's name: [69] - [71]The Lender chased D1 in relation to the GST refund position. D1 was evasive; at time dishonestly so: [72] - [83]The Lender appointed receiver managers demanding repayment of the BAS Refund to P. D1 did not comply: [87]The parties agreed D1 held the BAS Refund on trust for P: [89]D1 said the BAS Refund was then paid to D1 as fees “determined” by D1 as sole dir of P; but not pursuant to any written or oral agreement: [93]There was no evidence of an invoice, agreement, accounting entry etc. describing a fee to be paid to D1. Nor was there evidence for two types of fee: [97] - [100]There was written contemporaneous evidence against D1's case seeing D1: (i) declaring there were no related party transactions [112] and failing to declare the purported fees in the relevant BAS: [114]The only evidence supporting the Ds' view was D1's affidavit. D1's credibility was damaged by D1's dishonesty in dealing with Lender regarding the BAS Refund: [115] - [118]The Ds failed to establish a basis for fees, those transfers therefore being a breach of trust and of DDs: [119], [120], [155]Separate claims against D2 and D3 were not successful: [145], [148]The question of costs had complexity (P's success against D1, and failure against D2 and D3) and was saved for another day: [156], [157]___If you have made it this far please consider following James d'Apice, Coffee and a Case Note, and my firm Gravamen on your favourite platform!www.gravamen.com.au

"Pay the trust's funds to the estate!" ___ A Tee was the trustee of a trust with about $2.8m in assets. The trust had two beneficiaries, Spouse 1 and Spouse 2: [2], [8] Spouse 1 died in 2014 bequeathing their estate entirely to Spouse 2: [2], [11] The Tee lost the trust deed: [2] While general law dictated some of the terms of the trust, having lost the trust deed the Tee has no certainty about the beneficiaries of the trust (aside from Spouse 1 and Spouse 2): [3] The Tee was incorporated in 1982 and some evidence suggesting a deed settling the trust was entered into at or around that time: [5], [6] ATO records showed the trust was used for investment activity and that it distributed income to Spouse 1 and Spouse 2, and no one else: [10] Spouse 2 died in 2022 and an interim administrator of their estate was appointed: [12] At the time of their death, Spouse 2 was sole dir and shareholder in the Tee, which was also trust of the Spouses' SMSF: [13] An independent IP was appointed director of the Tee: [14] The IP gave evidence of numerous searches and enquiries conducted in relation to the trust deed, which did not lead to its being found: [15] This case was distinguished from usual trust deed cases (which sometimes deal with a photocopied deed, an unsigned deed, or a deed relied upon in relation to a very similar trust) noting that there was no evidence of any deed at all. Nor was there any evidence of the deed's terms: [16] The Court found that without the deed, the trust's benefs could not be identified meaning (without certainty of object) the trust failed. A resulting trust arose in favour of Spouse 1. Spouse 2, as Spouse 1's benef, stood to take in those circs: [17] The Court accepted as common knowledge of the general practice that a trust deed for a “family” trust will inevitably include more members of that family than the “main beneficiaries”, typically the relevant spouses: [20, [21] Having taken judicial notice of this, the Court considered that there would be more beneficiaries of the trust than Spouse 1 and Spouse 2 but - due to the absence of the deed - there could be no certainty as to who those beneficiaries might be.Whether due to their status as (likely) settlor of the trust or the conclusion that Spouse 1 did not intend to divest themselves of the assets in the corpus of the trust then - the trust having failed for uncertainty - a resulting trust arises in favour of Spouse 1: [25] - [27] The Court advised that (Spouse 1 having died, and Spouse 2 being sole benef of Spouse 1's estate) the Tee would be justified in paying the corpus of the trust into Spouse 2's estate: [30] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

“Hey! You can't transfer your shopping centre stake to them!” ____ Two contracts governed the relationship between co-owners of a large, suburban shopping centre: [1] In 2012 the co-owners were P as to 50%, and two other entities in the same group for 25% each: [2] The arrangement contained rights regarding share transfers; the breach of which allowed the non-breaching party to automatically buyout the breaching party's stake: [5] In 2014, after some compliant share transfers, the ownership structure became 50/50: [7], [8] In 2022, following a restructure of middling complexity (to this humble litigator!), P's co-owner transferred its shares to another entity in that group: [10], [25] - [34] Crucially the transferee (who was one of the Ds) did not fall within the relevant definition “Related Corporation”: [35] P said this transfer was a breach and triggered P's rights to buy their co-owners out of the property: [11] The operation of the clauses dealing with transfers of interests were considered closely: [13] - [24] P and the Ds exchanged (chiefly by emails between their solicitors) corro with the Ps asserting the transfer was a Prohibited Disposal (as defined) and pressing for a sale at $830m: [40] - [54] The sale did not proceed. P commenced proceedings: [55] The Ds resisted, including on the basis of the operation of technical parts of the documents, the structure of the transactions, and the service requirements in relation to the relevant notices: [61] The Court briefly restated the principles that applied to commercial contractual construction; congruence, the avoidance of commercial inconvenience, avoiding a capricious outcome etc: [70] The Court found that the a co-owner performing a Prohibited Disposal, and thereby being in default, exposed the entirety of its interest (and not merely, say, a severable proportion) to being bought out: [95] Regarding notice, notice in writing including email was sufficient - with no additional formal or ceremonial requirement: [103], [106] From the time the Ds received the notice from their lawyers, compliant notice was provided to the Ds: [109] Further in relation to the notice question, the Court found that an estoppel contended for by P did not arise whereby giving notice to the Ds' lawyers was sufficient to comply with the contract was not made out: [115], [116] (However, as mentioned, relevant notice requirements were complied with.) The Court found P was entitled to specific performance of the contract for P's purchase of the relevant D's interest in the shopping centre: [117] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

“The partnership's book is a liability, not an asset!” ___ A and R operated an insolvency practice in partnership. Like many such businesses, it would build up “WIP” in a matter and that WIP would be paid (or not) over time: [3], [4], [6] The business was profitable: [49] In September 2014, A ended the partnership electing to go out on their own with most of the business's book of work: [7] - [10] A number of pieces of litigation followed. Some led to orders for an account of the partnership to be taken: [5], [14] This process included the valuation of the partnership's book *after* the September 2014 dissolution: [12] A relied on two experts: [19] The primary judge took little value from A's experts' evidence: [20] Further: the experts gave no evidence of market transactions [22]; it was unlikely that a purchasing IP could demand a “discount” for purchasing the book [23]; and it was unlikely an outgoing IP would pay a purchaser a “discount” sum for taking on the administrations when the outgoing IP could simply resign: [24], [25] A appealed. A did so on 5 grounds: (i) a “discount” payment might be available and so should be borne in mind in a valuation [27]; (ii) the nature of the valuation - a hypothetical sale on complicated terms - meant a criticism for a lack of evidence of similar market transactions was inappropriate [28], [29]; (iii) the judge erred in not accepting the evidence of A's experts [30], [31]; (iv) the judge erred in finding the Court's power to appoint a replacement IP meant a discount would never be payable [32]; (v) and a failure on the part of the judge to evaluate individually each administration to then determine whether a discount would arise: [36] The dispute put another way might be that A argued the book was a liability, where R argued it was an asset: [38] RE (i): After reviewing IPs's professional obligations, the CoA concluded no hypothetical purchaser of the book could require or accept a “discount” payment without breaching them: [61] RE (ii): Similarly, this ground was not sufficient to disturb the primary judge's finding: [66] RE (iii) and (iv): A's experts failed to grapple with an IP's ability to resign from unfunded administrations. Elaborate analysis of the evidence was not required due to this failure to address the real issues: [68], [79], [80] RE (v): a vendor would not pay a “discount” to a purchaser for buying the IP business, first, because it would be a breach of their professional obligations and, second, (noting the opportunity they have to retire) it would make no financial sense as it would be cheaper to just resign from unwanted administrations: [73] The position was similar in relation to the bankruptcy trustee appointments: [77], [78] A's appeal was dismissed: [1], [81], [82] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

"Is it the tree that's held in trust, or just the fruit?" ___ The Ps came to Court arguing that one D - a trustee, DTee - held shares in the other D, a Co, on trust for the Ps: [1], [3], [4] The Ps further sough for the shares be transferred to the Ps: [2]The Co's defence essentially put the Ps to proof - a “non admission”: [5] DTee took a more expansive approach: [5] - [8] After particulars of its defence were sought, DTee asserted that if the Ps were benefs of a trust including shares in the Co, the Ps were entitled only to the “benefit” of those shares (e.g. dividends and franking credits) rather than the shares themselves: [9], [14], [15] The assets underpinning the structure related to property development: [10] Evidence suggested the Ps had made some financial contribution, despite opacity as to the structure of the transaction: [11] In 2023, the parties entered into Declarations of Trust: [20] DTee pointed to evidence suggesting that a unit trust was contemplated by the parties abrogating the need for trust decs. The Court found that even if the trust decs were illogical or unnecessary, they bound the parties and would need to be considered: [18] Dividend statements suggesting dividends and franking credits passed to the Ps were referred to, absent an explanation as to how this was possible noting the Ps were not shareholders: [19] The trust decs and the Co's conduct were consistent with the shares, and not merely the “benefit” of the shares, being held on trust for the Ps: [21] - [23] That is: the corpus of the trust included the tree, and not merely the fruit of the tree: [20] The Ps said the trust decs unambiguously referred to the shares, and now called for their transfer whether pursuant to Saunders v Vautier or the terms of the decs themselves: [25], [26] After considering the application principles of construction, the Court founds the trust decs were clear and that (i) they extend to a trust over the shares themselves (not merely the “benefit” of them); and (ii) create a covenant to transfer the shares on demand: [29] DTee queried whether the corpus of the trust was sufficiently certain, noting DTee held a “pool” of shares and that none of the shares in the pool could be attributed precisely to an individual P: [30], [34] The Court disagreed, finding that a beneficiary could have a beneficial interest in a specified number of a larger parcel of shares: [31] - [34] Having so found, the Court considered orders transferring the shares back to the Ps (whether pursuant to Saunders v Vautier or the terms of the trust decs) were appropriate: [35] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform! www.gravamen.com.au

“We need to *wind up* the trust and sell the farms!” ___ The Ps and the Ds each owned 50% of the units in a unit trust: [1] TCo owned substantial real property - farms. The Ps sought to have the trust ended and distribute the assets. The Ds took the opposite view: [5] The Ps said: 1. there was an agreement or estoppel that if one party wanted to exit, the assets would be sold; 2. the trust deed allowed a unit holder to terminate; 3. the TCo's conduct was oppressive; and 4. a receiver should be appointed to trust assets: [7] The Ps and Ds were bankers who, after a time, resolved to add valuable farmland to their portfolio: [15] - [18] They sought advice on structuring: [19] - [30] TCo was incorporated and established as trustee, with Ps and Ds funding TCo's purchase of the land: [31], [32] A unit holders agreement was considered but not signed: [33] - [36] Once commenced, the parties considered: which farm management services Co was best, the possible acquisition of further properties by TCo, the Ds frustration with the Ps' acquisition of a farm themselves and not for TCo, and the looming threat of drought: [39] - [53] As the drought intensified, arguments arose about: (i) whether to de-stock or borrow to buy feed: [54] - [65], (ii) the Ps stretching their finances to make their own acquisitions thereby depriving TCo of a source of funds to buy land, and (iii) the Ps standing in the way of the Ds buying some land for themselves: [54] - [72] The relationship deteriorated.In 2021 and 2022 the Ps put purchase offers to the Ds. The Ds accepted neither: [87] - [89] Later in 2022, the Ps served a notice purporting to “wind up” the trust: [90] Re 1., the Ps said there was an agreement, or representations founding an estoppel, that each party could unilaterally terminate the JV on notice: [107], [109] The Court found no evidence of a “one out / all out” arrangement: [122] Re 2., the unit holders has a present entitlement to trust capital; a position adopted for land tax purposes: [126], [136] The Ps failed on this point; incl because the Deed did not give rise to a present entitlement for *each unit holder separately* rather than the unit holders together: [168], [184] Re 3., the Court accepted oppression can occur with a trustee Co, with the relevant member protecting their family's beneficiary interest: [202] - [204] None of the pleaded oppression bases was made out: [209] - [255] Ps' complaints arose from disagreements re management of the farms through drought, and the lack of an exit strategy - neither proved commercial unfairness: [256] - [258] Re 4., the trust property was not in jeopardy and TCo appeared to be performing satisfactorily: [266] The Court was not moved by the Ps' analogies to partnerships or s461 applications, leaving no basis for the appointment of a receiver: [267] - [283] The Ps' application was dismissed: [286] __ Please give James d'Apice, Coffee and a Case Note, and James' firm Gravamen a follow on your favourite platform! www.gravamen.com.au

In August 2024 James was invited to appear on Glover Lane's ESG podcast, 'What Keeps You Up At Night?' This interview traverses Gravamen's journey to becoming a firm that tries to live its values by donating $1,000.00 per month to charity; and reflects on what the future might hold. It's also a great primer for anyone hoping to understand ESG a little better. You can find Rebecca Barry's firm Glover Lan here: https://www.gloverlaneconsulting.com.au/

“Some of these debts are trivial… do I still have to pay the really small ones?” ___ 2,653 clients deposited money with a Co, who was a trustee. Only 74 of those beneficiary clients had a balance worth over $100: [2], [3] A liquidator, P, was appointed to the Co: [1] P approached the Court seeking advice as to whether (i) the benefs with a

“Bring the company back from the dead so we can go to Court!” ___ P approached the Court to seek the reinstatement of a deregistered Co: [1] In 2010 the Co was incorporated. Shortly afterwards P and D1 - who were siblings - were the 2 Dirs and 2 equal shareholders: [4], [5] P said that at about this time P and D1 agreed the Co would purchase some property, each funding 50% of the purchase, each owning a 50% share, and each entitled to 50% of the rent. The property was tenanted by D1: [7] Shortly after this, the Co became the registered proprietor of the property: [8] In 2012 (leaving aside the parties' confusion as to whether the Co was a trustee) forms were lodged with ASIC recording P's retirement as director. (P could not recall consenting or not.) From this time D1 managed the property for the Co: [9], [10] In 2021 terse emails were exchanged between P and D1. P sought information. D threatened to “transfer out” some of the Co's assets: [11] In 2022 the Co transferred the property to OtherCo with nil consideration recorded on the transfer. OtherCo's directors and shareholders were D1 and their spouse: [12], [13] Shortly after, in 2022, D1 paid to P half the purported net proceeds of a sale of the property which D1 said was sold for $1.7m: [14], [15] Some evidence showed that in August 2021 D1 had emailed P a valuation for the property at ~$2.4m and then attempted to recall that email; re-sending it with a valuation of $1.7m to $2.0m: [16] In August 2022 D1 caused the de-registration of the Co, with P alleging P had no knowledge of D1 doing so: [17], [18] P alleged the Co ought to have received around $1.6m in rental income over the period the Co owned the property. P said P had seen only $91K of this: [19] All Ds consented to the Co's reinstatement pursuant to s601AH: [20], [21] The Court considered the relevant principles relating to an application brought by a “person aggrieved” by reregistration: [23], [24] Where reinstatement is sought to bring legal proceedings, the Court need not forensically scrutinise the claim. There must be “some level of arguability” by the threshold is “very low”: [26] P said they met this threshold as the Co's deregistration prevented both an oppression claim and a derivative suit against D1 in the name of the Co: [28] The Court agreed: [29] In the normal course, D1 would be Dir upon reinstatement. D1 agreed to immediately retire on reinstatement: [31] The parties consented to P and P's nephew being appointed Dirs on reinstatement: [33] - [35] The Co was reinstated, P and nephew were appointed Dirs, and the costs of the application were reserved to the contemplated oppression and / or derivative action proceedings: [39] ___ Please following James d'Apice and his firm Gravamen on your favourite platform! www.gravamen.com.au

“Valuation is art not science; so let the partnership's receiver sell it.” ___ 10 partners - 5 family members and their spouses - planned to run a blueberry farming and forestry business on land owned by the partnership: [2], [5] 8 partners, the Ps, sued the other 2, the Ds: [3] In 2007 the partners purchased the Property and entered into a deed: [4], [6] The deed required that forestry profits and losses be shared equally; but that each partner would take berry farming profits and bear losses in relation to their own plots on the Property: [12] It was agreed partners would contribute equally to a partnership bank account for mortgage payments, rates, water, bills etc. Each partner agreed to pay for their own stock and machinery: [15] Over time, the partners did not contribute equally to this account: [16] Disputes began early about plot allocation, apparently excessive use of water by some partners etc: [17] The partnership did not sell blueberries (each partner did, with those blueberries having been grown on their own plot). No forestry business was ever operated: [18], [19] In 2020 the relevant regulator found the dams on the Property to be unlawfully large. Remediation works reducing dam capacity were done. From this time the Ps gave up farming the Property. The Ds continued: [22] The Ps commenced proceedings seeking the dissolution of the partnership and the appointment of a receiver. The Ds cross-claimed seeking to buyout the Ps for $1.5m, but later resiled from this position: [23], [24], [29] The Ps amended their claim their claim to propose two Ps buy the partnership assets for $2m: [26] There was no dispute that the partnership should be dissolved, that the Property was a partnership asset, or that the final distribution ought to account for the unequal contributions of each partner to the bank account: [32] - [34] The principal issue was: should the Ps' $2m buyout order be made?: [45] The Property was valued at ~$1.85m and the timber on it valued at ~$150K, those figures underpinning the Ps' proposal: [47] - [51] The Ps emphasised the saving in agent's fees that would be made, and the “purchasing Ps” longstanding relationship with the Property: [52] The Court noted its broad discretion on how a sale of partnership property should be effected: [54] The Court did not make the Ps' requested buyout: [56] The valuation evidence before the Court was 15 months old. Neither valuer was required for XX, but the Court was not bound to accept the evidence: [61] The Court had no evidence about property or timber prices in the ensuing 15 months meaning it could have no real confidence that the $2m sale price was beneficial to all partners: [62], [63] (The Court noted “valuation is an art, not a science”: [62]) The Court appointed a receiver who would be best placed to realise the full value of the partnership assets: [66], [75] ___ Please consider following James d'Apice, James' firm Gravamen, and Coffee and a Case Note on all your favourite platforms...

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“Our parents' citrus farm is a partnership asset!” ___ Two siblings in partnership, P and D, ran a citrus farming business, having received it from their parents in the 2000s: [1] (P, the parents' exec, sought access to the parents' privileged documents after death. As exec, P could waive privilege, however doing so was for themselves and not in the interests of the estate or benefs. Noting an exec's duty to avoid conflict, access was denied: [4] - [10]) In the 1990s the parents gifted D the “Lot”, a part of the citrus farm: [29] - [31], [45], [50], [268] In 1999, P bought a nearby farm with the parents providing both deposit and guarantee. P rented the house on the nearby farm out and continued to live with the parents at the citrus farm: [54], [60] The orchards on the nearby farm were deployed in the parents' business but there was no suggestion P's nearby farm was a partnership asset: [55], [149] In 2001, the parents gifted P and D the citrus farm and the business: [61], [62] The farm was transferred before the commencement of P and D's partnership and, being a gift, was not paid for with partnership funds: [142] From around 2018 relations between D and P soured: [104] - [107] As P's nearby farm was not providing fruit for the partnership (and even though P continued to work for the partnership) payments to P were reduced: [121], [122] Valuations were obtained as part of a potentially unwinding process. During this, P's lawyer shared comments on a Deed (apparently made on P's instructions) acknowledging P's ownership of the Lot: [123] P said that, in 2022, they attended D's home to demand their share of partnership profits and were rebuffed. Police became involved and an AVO was obtained: [125], [126] From around this time P was not paid by the partnership and did no further work for it: [129] Shortly after this, P's lawyer asserted the farm, including the Lot, was an asset of the partnership: [131] The Court found the partnership ended on the date of the altercation, noting that from that time, P did no work and received no payment: [140] P sought a declaration that the citrus farm, including the Lot, was a partnership asset: [141] Although the evidence was imperfect, the Court was not convinced by P's argument that the citrus farm was a partnership asset. This was based in part on its tax treatment via instructions given by P and D to an accountant over the years: [153] P was found to have an equitable interest in the farm, namely in the Lot: [155] - [223] The Court declined to make an s66G order and instead made a Woodson order, requiring P to offer their remaining interest in the farm to D at market value. If D was not willing or able to buy, a sale should proceed: [249] ___ Please give James d'Apice, Coffee and a Case Note and James' firm, Gravamen, a follow on your favourite platform! www.gravamen.com.au

Today marks the beginning of Synod 2024 and delegates have begun arriving at the campus of Calvin University for a weekend of deliberations and discussion. In this week's episode Pastor Mark and Pastor Zac get into some of the weightier matters about to be worked through in the crucial week ahead.   Visit www.almondvalley.org for information about Almond Valley Christian Reformed Church in Ripon, CA. Music by Jonathan Ogden used with permission.       Visit www.almondvalley.org for information about Almond Valley Christian Reformed Church in Ripon, CA. Music by Jonathan Ogden used with permission.

Gaaaah! James got to be the first ever private practice lawyer on Mel Storey's incredible in-house counsel themed podcast, Counsel! This pod was recorded IMMEDIATELY after James launched his firm Gravamen at the Happy Lawyer Happy Life retreat in November 2023. Grab yourself a mimosa and enjoy this incredible chat. A link to Mel's podcast is here: https://www.counselpodcast.com

“Give me back my job selling diamonds!” ___ A Co that sold diamonds and jewellery had 4 shareholders, entities related to the Co's directors who were P1, D2, D3, and D4: [1], [9] P1 and their sibling, P2, were fired by the Co from their roles as CEO and sales director respectively: [3] The Ps (including P1's shareholding entity) sued alleging the Co's conduct was oppressive to P1 and seeking inter alia P1 and P2's reinstatement on the basis of s232 oppression: [4], [5] A Terms Sheet and employment contract governed P1's relationship with the Co and Dirs: [11], [12] Following slackening performance the Dirs met in Nov 2023. They resolved to reduce P1's salary by 11%. P1 mentioned that P1 and P2 may not be compatible with the Dirs into the future: [24], [25] In December 2023 P1 offered to sell their and P2's shares (on the basis P2's option had vested) for $750K: [27], [28] D2 responded that P1 could expect a response in January 2024: [29] Apparently with no further word in the intervening period, in April 2024 P1 and P2 received letters purporting to terminate their employment immediately: [30], [31] P1 and P2 sought reinstatement and were then prevented from entering the Co's premises: [35] The Co's Sydney office was closed. An industry publication informed other jewellers of P1's and P2's departure. Allegations were made regarding P1's use of their Co credit card: [37], [38], [40] The Court had to consider (i) whether there was a serious question to be tried, and (ii) whether the balance of convenience weighed in favour of reinstatement: [41] - [43] The Court accepted there was a serious question to be tried because - apparently in breach of the Terms Sheet - a resolution was reached to terminate P1 and P2, and to close the Sydney office, in the absence of P1: [48] A complexity arose: P1's employment contract gave the Co broad termination rights that, arguably, meant the Co's approach was not oppressive: [50] - [52] The Ps failed on their balance of convenience argument for four reasons: (i) the inconsistency between an interlocutory order for reinstatement and final order for a share buyout [54] - [56]; (ii) damages being adequate, noting any final share valuation will account for oppressive behaviour [57]; (iii) reinstatement would upset, not maintain, the status quo as new people were performing P1's and P2's roles [58]; and (iv) generally, the Court's reluctance to make reinstatement orders over the wishes of majority business owners: [59] - [62] The Court declined to order the interlocutory relief sought: [63] ___ Please consider giving Coffee and a Case Note, James d'Apice and Gravamen a follow on your favourite platform! #auslaw #gravamen

“I've retired as a partner. I want market value with no discounts!” ___ In 2018, 4 Cos entered into a partnership agreement. The business related to growing and selling tea: [1], [5] P retired from the partnership. The agreement provided that the partnership would not be dissolved on a partner's retirement: [2] The question was: what value should P receive for its partnership stake?P argued for, in essence, a pro rata distribution according to its 19% stake: [3] The Ds, who were the remaining partners, argued for a market value approach i.e. including discounts for P's lack of control and the lack of marketability of P's stake: [4] The partnership agreement provided that the partners were entitled to the property and goodwill of the partnership in their respective shares: [8] P sued, and initially applied for the appointment of a receiver to the partnership's assets without pressing this application: [21] By consent, the parties sought orders appointing a referee, a valuer, to value P's interest in the partnership including goodwill at the date of retirement: [22] - [24] The valuer sought further instruction on the basis of the valuation; fair value, market value, equitable value etc: [25] Following an informal conference with the parties and the valuer the details of which were not in evidence, the valuer prepared their report on the market value basis: [27] P's view of what a market valuation entailed differed from the D's views in that P resisted the suggestion that a discount ought to be applied for lack of control and a lack of marketability; or if those discounts were to be applied they ought to be reduced: [27] The Ds said P had “agreed” to the more traditional market value approach: [28] P said it was entitled to recover its share from the partnership as a debt due: [33] The Ds denied P was entitled to an account and instead considered the valuation as a “stepping stone” to a potential transaction or (if their valuation position was accepted) grounds for a Syers order requiring P to sell to the Ds at the relevant value: [34] The Court was receptive to P's suggestion that if P were forced into a minority discount, and the Ds then sold the partnership's business the Ds would enjoy a windfall: [50] The Court accepted P's entitlement to an account noting the parties could have agreed on a different outcome if they wished: [51] The Court found the P did not “agree” to the minority discount as part of the market valuation process, having openly argued against it through the valuation process: [52] -[57] The Court accepted P's view on valuation of its interest and considered as a preliminary matter that legal costs be paid from the assets of the partnership: [65], [68] The parties were invited to provide SMOs reflecting the outcome: [74] ___ Please consider giving Coffee and a Case Note, James d'Apice and Gravamen a follow on your favourite platform! www.gravamen.com.au #auslaw #gravamen

Join and Support us on Substack: https://themessyreformation.substack.com/   Check out the Abide Project:  https://www.abideproject.org   We love the Christian Reformed Church; we want to see reformation in our denomination; and we recognize that reformation is typically messy. So, we're having conversations with pastors throughout the CRC about what reformation might look like.   Intro Music by Matt Krotzer 

James d'Apice is a commercial and litigation lawyer who recently launched a new law firm, Gravamen. James is also passionate about sharing engaging and nuanced legal updates through his video series 'Coffee and a Case Note' which you can find wherever you get your social media fix. Mel gets the inside scoop from James on everything from rap battles to his new law firm and working with external counsel. Connect with James: Linkedin: https://www.linkedin.com/in/jamesdapice/ Instagram: @coffeeandacasenote Connect with Mel: LinkedIn: https://www.linkedin.com/in/theinhouselawyer/ Counsel Podcast Page on LinkedIn: https://www.linkedin.com/company/67479008/admin/feed/posts/ Instagram & TikTok: @theinhouselawyer

“You tried to kick me out of the law firm partnership!” ___ A partnership operated a law firm. A deed governed the partners' relationship. The partners were either fixed draw (“salaried”) partners or (often more lucrative) capital partners: [1], [2] Each partner was a trustee of a separate trust: [2] P was a capital partner, purportedly expelled from the partnership in November 2020: [5] P said the purported expulsion was contrary to the deed; meaning P remained a partner or was entitled to damages: [6] The Ds characterised the partnership as “easy in, easy out” - partners did not make a contribution to join, and were not “paid out” on their exit: [13] When a capital partner exited, that exit was a “complete, forced, and absolute divorce from the firm”: [29] The Ds proposed P's expulsion by email with a “voting button” mechanism and also proposed that the technical requirements for expulsion (e.g. the giving of 7 days notice) be waived or abridged: [38] - [40] Crucially, only one button was required to be pressed in order to vote on both proposed Extraordinary Resolutions (which the deed said needed 80% of the vote to pass): first (i) expulsion, and then (ii) waiver of technical requirements: [39] P said this process was invalid because (i) the waiver of technical requirements (like notice) should come before the substantive expulsion vote, and (ii) the question of waiver and the substantive expulsion vote should have had separate voting buttons, allowing partners to vote separately on each resolution: [41] The Court found the requirement of notice was for a purpose including, potentially, the marshalling of support by the capital partner at risk of expulsion: [48] The Court found it undermined the seriousness of the consequences of expulsion for the question to be bundled up with the technical variation resolution (or, in the alternative) before it: [49] The Court found what had taken place was a “plainly invalid process”: [50] P's expulsion from the partnership was, therefore, invalid: [51], [101] - [103] This view was bolstered by the Court's finding that the Extraordinary Resolution (as defined in the deed) required 80% of all partners to vote in its favour in order to be passed.This was by contrast to the Ds' position, who asserted that only 80% of the *voting* partners were needed for such a resolution to pass: [52] - [57] Noting the solemnity of the outcome of an Extraordinary Resolution, and based on the general tenets of commercial construction, the Court found 80% of the partnership was required to pass an extraordinary resolution, not merely 80% of partners engaging in the vote: [58], [59] P therefore succeeded in their liability argument, with a cost order made in their favour: [122] The argument about damages was saved for another day. ___ If you get a moment please give Coffee and a Case Note, James d'Apice, and / or Gravamen a follow on your favourite platform.

“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!)

“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

El comentario de José Carlos Díez, 'El faro económico', se centra en el impuesto extraordinario a la banca y otros tributos que ya paga el sector de la banca.

In Episode 43 of the Legal Genie Podcast, your host, Lara Quie, sits down with James D'Apiche, a multifaceted lawyer from Sydney, Australia. With his diverse background as a radio presenter, rapper aka Peach, journalist and lawyer, James discusses his journey from various creative pursuits to founding his own law firm, Gravamen. The episode delves into how he leverages his unique experiences and social media for business development, balancing professional rigor with approachability. The conversation also explores the evolving role of lawyers in the age of AI, emphasizing personal branding and the use of digital platforms to amplify one's potential reach. Listeners will learn strategies for building a personal brand, engaging audiences, and navigating the evolving landscape of digital marketing for lawyers. This is a must-listen for legal professionals seeking to enhance their online presence and effective client engagement.You can connect with James D'Apiche here:T: twitter.com/CoffeeandaCase1 I: instagram.com/coffeeandacasenote FB: facebook.com/CoffeeandaCaseNote YT: youtube.com/channel/UCzo6MrU2QQmwtLNGJ8kaBYAPodcast: https://anchor.fm/coffeeandacasenotePodcast 2: Spooko - FBi RadioLaw firm: Gravamen Law | Co-owner dispute specialistsLara Q Associates A boutique business and executive coaching consultancyDisclaimer: This post contains affiliate links. If you make a purchase, I may receive a commission at no extra cost to you.Support the show Also: · If you liked this episode, please rate the show, and leave a review wherever you listen to your podcasts to help the Legal Genie reach a wider audience. · Look out for the next episode coming soon. You can connect with Lara Quie: · On LinkedIn at https://www.linkedin.com/in/laraquie · Website: https://www.laraqassociates.com · Or Email at Lara@LaraQAssociates.com

Join our Newsletter: https://themessyreformation.jasonruis.com/join-the-reformation/   Support us on Patreon: https://www.patreon.com/themessyreformation?fan_landing=true   Check out our website: https://themessyreformation.jasonruis.com   Check out the Abide Project:  https://www.abideproject.org   We love the Christian Reformed Church; we want to see reformation in our denomination; and we recognize that reformation is typically messy. So, we're having conversations with pastors throughout the CRC about what reformation might look like.   Intro Music by Matt Krotzer

Join our Newsletter: https://themessyreformation.jasonruis.com/join-the-reformation/   Support us on Patreon: https://www.patreon.com/themessyreformation?fan_landing=true   Check out our website: https://themessyreformation.jasonruis.com   Check out the Abide Project:  https://www.abideproject.org   We love the Christian Reformed Church; we want to see reformation in our denomination; and we recognize that reformation is typically messy. So, we're having conversations with pastors throughout the CRC about what reformation might look like.   Intro Music by Matt Krotzer

CRCNA Synod ended on Thursday afternoon with division and chaos. Reports are all over the map. Did Progressives block a more restrictive Gravamen ruling with running down the clock? Was walking out in protest a new strategy? Will conservatives jump ship before the progressives? It's hard to say. What is clear is that it was a mess.   @crcna  Synod 2023 Thursday Morning https://www.youtube.com/live/XCbC6hmymC8?feature=share  Thursday Afternoon https://www.youtube.com/live/dyZfWMwks04?feature=share    July Washington DC Event with Michael Martin and Spencer Klavan https://www.eventbrite.com/e/christ-and-community-in-the-modern-age-tickets-608591853617 Paul Vander Klay clips channel https://www.youtube.com/channel/UCX0jIcadtoxELSwehCh5QTg Bridges of Meaning Discord https://discord.gg/rpf3zatJ https://www.meetup.com/sacramento-estuary/ My Substack https://paulvanderklay.substack.com/ Estuary Hub Link https://www.estuaryhub.com/ If you want to schedule a one-on-one conversation check here. https://paulvanderklay.me/2019/08/06/converzations-with-pvk/ There is a video version of this podcast on YouTube at http://www.youtube.com/paulvanderklay To listen to this on ITunes https://itunes.apple.com/us/podcast/paul-vanderklays-podcast/id1394314333  If you need the RSS feed for your podcast player https://paulvanderklay.podbean.com/feed/  All Amazon links here are part of the Amazon Affiliate Program. Amazon pays me a small commission at no additional cost to you if you buy through one of the product links here. This is is one (free to you) way to support my videos.  https://paypal.me/paulvanderklay Blockchain backup on Lbry https://odysee.com/@paulvanderklay https://www.patreon.com/paulvanderklay Paul's Church Content at Living Stones Channel https://www.youtube.com/channel/UCh7bdktIALZ9Nq41oVCvW-A To support Paul's work by supporting his church give here. https://tithe.ly/give?c=2160640

Merriam-Webster's Word of the Day for April 23, 2023 is: gravamen • gruh-VAY-mun • noun Gravamen is a formal word that refers to the significant part of a complaint or grievance. // The gravamen of Walter's letter to the editor was that the newspaper frequently reports on the school system's failures but rarely covers its successes and improvements. See the entry > Examples: “The only thing worse than living under a totalitarian Communist regime is outliving one. That seems to be the half-serious gravamen of ‘The Interim,' a novel published in 2000 by the East German writer Wolfgang Hilbig (1941-2007) and now translated into supple, vivid English by Isabel Fargo Cole. It's not a completely absurd grievance. Not everyone does well with the kind of freedom afforded by the free market.” — Caleb Crain, The New York Times, 2 Nov. 2021 Did you know? Gravamen is not a word you hear every day (even rarer is gravamina, the less expected of its two plural forms; gravamens is the other), but it does show up occasionally in modern-day publications. It comes from the Latin verb gravare, meaning “to burden,” and ultimately from the Latin adjective gravis, meaning “heavy.” Fittingly, gravamen refers to the part of a grievance or complaint that gives it weight or substance. In legal contexts, gravamen is used to refer to the grounds on which a legal action is allowed or upheld as valid. (The word is synonymous with a legal use of gist not found outside technical contexts). Gravis has given English several other heavy words that throw their weight around more frequently, including gravity, grieve, and the adjective grave, meaning “important” or “serious.”