Show Notes
“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
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In 2026 James had the opportunity to sit down with Ben Hudson from the Unbilled Unfiltered podcast for a wide-ranging discussion about legal practice, the lawyers James is "deeply unimpressed" by, and what role a failed rap career plays for a litigator. You can find the podcast here: https://www.unbilledunfiltered.com/
“Put me back as director and correct the share register!” ___ P sought an interlocutory injunction. P said they had been invalidly removed as Dir of a Co, and their shareholding improperly diluted: [1], [2] P said D had taken control of the Co to make it sell its business and property: [1] P helped establish the Co, contributing assets: [7](1) – (2) There was past tension between P and a former Dir (now dead) leading to D’s involvement: [7](5) – (6) In August 2026 resol’s were passed including appointing P as Dir: [7](10) Later, forms were lodged suggesting P was removed as Dir, despite not having resigned nor having been provided with notice of any meeting re P’s potential removal as Dir: [7](12) P was then excluded from the Co’s mgmt: [7](13) Evidence suggested D was in Thailand: [7](17) In Sep 2026, P visited the Co’s offices only to be told the Co’s business had been sold, with responses to some Qs being “above [the answerer’s] paygrade”: [8] (The evidence was incomplete re the progress of any potential sale: [10]) P’s lawyer tried to inspect the Co’s books and records at its agent’s office and was turned away: [9] The Court considered the relevant law noting P had to show (i) a prima facie case, and (ii) that the balance of convenience favoured relief: [3] – [5] P’s claims were broadly stated; unauthorised dealings and “unwarranted oppression”: [12] The injunction sought was to prevent the Co dealing with its business and real property: [13] The Court found it arguable that (i) P was improperly removed as Dir, and (ii) an unauthorised agreement may have been improperly made with a 3rd party to sell the Co’s business: [14], [15] Further, it was arguable that (iii) any dist’n of sale proceeds would not be in a proportion with the true shareholding in the Co: [14] 1st re balance of convenience: there was a prospect of a sale completing and proceeds flowing to D out of jurisdiction, radically altering the status quo: [15] 2nd re BoC: even though the orders might complicate a possible sale and the Co’s mgmt, notice could be given to third parties and there was liberty for parties to apply – largely curing this issue: [16] The relief sought by the P was granted: [17] ___ Please follow leading partnership and shareholder disputes lawyer James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au
“I own 40% of you, and I’m winding you up!” ____ The Ps sued to wind up a Co pursuant to s461(1)(k), the “just and equitable” basis. The Co opposed: [1], [4] The Ps held 40% of the Co’s shares, an SPV incorp’d for residential development: [1], [2], [157] The remaining 60% to 2 entities whose controlling minds were also Dirs of the Co: [7] – [11] The Ps referred to: apparent insolvency of the Co, a breakdown of relationships, and “exorbitant” mgmt fees “gouged” by an entity related to 2 of the Co’s Dirs: [3], [149] – [151] In 2021 the Ps and the Co had entered into an arrangement where the Ps loaned ~$5m for buying the property, to be repaid from profits following development: [12] In December 2021, the Co bought the property for ~$10m; funded in part by the Ps’ loan: [13] – [15] The Dirs of the Co incorp’d OtherCo to provided management services to the Co; $30K per month. The Ps were not told of this: [16] – [20] From 2022, the Co undertook various steps (including running NSWLEC proceedings) to obtain relevant DAs: [21] – [28] Rent was collected on the Co’s property from 2022. It was not paid to the Co but was paid to OtherCo: [29] – [31] The Ps initially sued seeking repayment of the $5m. They lost: [32] – [34] The Ps took the view the development was “unviable”; likely unprofitable. The Court accepted this: [43], [95] The Ps’ experts’ figures suggest the development would be worth $22m, for a cost of $35m; a loss of ~$13m: [45] – [88] The Court accepted there was no possibility of the Co obtaining external finance: [110], [158] Nor was it likely finance could be obtained from a related party: [117] The Court noted insolvency may be relevant to a just and equitable wind up application: [118] After extended considering of the relevant tests for insolvency, and with the assistance of expert evidence, the Court accepted the Co was likely cash flow and balance sheet insolvent: [148] The Court lacked confidence in the conduct of the Co’s affairs, such that it was just and equitable that it be wound up: [164] Where the Co was not run as a quasi-partnership, the fact that there was a breakdown in the relationship of trust and confidence between the parties was not sufficient to obtain a winding up order: [169] – [176] The Court found there were no alternative s 467(4) remedies: [177] – [195] The Court ordered that the Co be wound up and that the Ps’ legal costs would be costs in the winding up: [199] ___ Please look out for James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au #auslaw #coffeeandacasenote #gravamen
“You breached the shareholders agreement, so transfer your shares to me!” ___ P and D were shareholders in a Co. P (who held 40%) sued D (who held 60%) alleging D’s breaches of the SHA entitled P to have D’s shares transferred to P: [1] – [4], [7] This breaches, said P, were D taking unauthorised loans and D’s granting security over its shares in the Co: [2] The Co did scaffolding work and was of some size; ~$11m annual revenue, ~55 employees: [6] The Co had developed out of a business operated by D, with P’s controlling mind acting as director and manager: [9] No party challenged the SHA’s validity. It applied: [17] D licensed its IP and provided services to the Co – for payment – over the years: [19], [20] The D’s work for the Co included, necessarily, having some control over the Co’s bank account. The D (whether by its agents or otherwise) made payments from these accounts: [21], [22] Over time a loan balance grew. By 2025 D was indebted to the Co for ~$1.9m: [23] – [27] P’s consent was not sought for the advances that led to this balance. i.e. they were made without P’s approval: [28] In 2025 an insolvency risk loomed for D. It missed some superannuation payments owed to its employees: [29] P issued D a default notice pursuant to the SHA in relation to the loan balance. D accepted the notice was properly issued [30] – [36] The issuing of the notice commenced the SHA’s default sale process: [34] In 2022 D had granted a security of all of its assets (i.e. including its shares in D): [37] In 2025 P discovered the security via a PPSR search conducted as part of prep for P acquiring D’s shares: [39] Shortly after this discovery, P issued a security default notice pursuant to the SHA: [40] Although the breach was remedied after the notice was issued, P had commenced the default sale process beforehand: [41] – [46] Despite D’s contrary assertion, the commencement of other legal proceedings by the Co was not a termination of the SHA – and even if it was, P’s rights pursuant to the default notices survived: [47] – [48] The Court then considered whether specific performance was the appropriate remedy. The remedy of specific performance is discretionary: [49] Damages were an inadequate remedy for the P’s loss. Prima facie: spec perf should be ordered for breaches concerning shares in a private Co: [54] D argued that the SHA had a valuation method, enabling damages to be quantified. The Court disagreed finding the control premium would not be accounted for with that method: [55] – [57] D tendered no evidence of its capacity to remedy the defaults: [62] No hardship issues stood in way of the Court exercising its discretion to order spec perf: [78] P was entitled to spec perf of the share transfer: [79] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au
In July 2026, James has an opportunity to sit down with Hall & Wilcox partner and host of the Hall & Wilcox podcast "What's in a name?" to talk about diversity, inclusiveness, and using one's privilege for the benefit of all. You can find the original podcast here: https://hallandwilcox.com.au/news/cultural-inclusion-conversations-whats-in-a-name-season-2/