Coffee and a Case Note

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

James got to sit down for a chat about his progression through the world of legal practice with the legal Amogh Kadhe, of the ChatterMatters Podcast in early 2024. Please enjoy! You can find the ChatterMatters LinkedIn page here: https://www.linkedin.com/company/chattermatters-podcast/?originalSubdomain=au

“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

“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.

In March 2024 James had a chat with Josh Lawlor and Monica Walmsley from the Personal Branding Unlocked podcast. It's a wide-ranging chat that features James' views on his own branding *journey* with some lessons you can apply in your practice. You can find the PBU pod here: https://www.personalbrandingunlocked.com.au/

“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!)

In early 2024 James sat down (remotely) with David Turner to chat about starting a law firm from scratch. Even though James was only a matter of weeks (!) into his journey he did his best to share everything he could - warts and all. Please enjoy this revealing and entertaining chat between James and David. ___ You can find other episodes of Hearsay: The Legal Podcast here: https://hearsay.legalcpd.com.au/episodes/

In March 2024 James had the opportunity to talk with Communications and Law student and producer of the Hearsay Legal Podcast, Jacob Malby, about creativity, freestyle rap, and law. This conversation traverses Coffee and a Case Note as well as other projects of James' with his Spooko co-creator, Thomas McMullan. A link to Spooko is here: https://fbiradio.com/podcast/spooko/ A link to Hearsay is here: https://hearsay.legalcpd.com.au/

“Hey! Stop trying to work for our competitor!” D was a consultant who, in 2022, left one large firm and joined another. D’s expertise was defence work: [2], [3] The 2022 role included a 2 year restraint: [4] The 2022 employer underwent a restructure following a scandal and D was then employed by P, or an entity related to it: [6], [9] D’s contract with P included a 3 month notice period with a right for P to force D to take that time as “gardening leave” [11] and cascading restraints commencing at 12 months and Australia-wide: [12], [14] In November 2023 D resigned indicating they planned to work at another firm. Shortly afterwards P sent D a letter directing D to take gardening leave for 3 months and asserting the restraints: [16], [17] D acknowledged gardening leave but resisted the restraints: [18] By the end of D’s gardening leave, neither party had shifted from their position and P commenced proceedings seeking an urgent injunction: [19] - [24] P had to show there was a “legitimate commercial interest” in enforcing the restraint and that it went no further than necessary to protect it: [28] P said the restraint would protect P’s legitimate interest in (i) the relationships with P’s clients, or (ii) the confidentiality of P’s confidential information e.g. pricing: [32] The Court spent some time considering the work done with P and the work to be done at the new entity (noting the evidence was “bedevilled with management jargon” [44]) concluding that the question was one of contractual construction to be set aside for final hearing: [47] The Court accepted there was a prima facie case in respect of the information D had access to: [48], [49] The Court noted D had previously accepted a 2 year restraint and so there was a prima facie case for a one year restraint: [51] Generally, the Court considered P had a prima facie case and turned to the balance of convenience question: [52] The Court noted D was well paid, had no evidence to show their asset position, had tax liability suggesting significant income in the past, and had their “eyes wide open” when accepting the restraints and then resigning: [53] - [64] This weighed against D in a balance of convenience argument. However, P’s delay was pivotal.P only brought the application at the conclusion of D’s gardening leave in February 2024 despite having first raised issues in November, and after various exchanges with D and D’s lawyers during leave: [65] Delay can be a complete answer to an interlocutory application: [67] The Court found it would be unreasonable now to restrain D from joining their new employer simply because P “has now belatedly discovered the urgency of the case” without P’s delay having been adequately explained: [80], [81] This delay tipped “the scale the other way”. P’s application failed. Costs followed the event: [81]

“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

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

“We can’t order a share sale. Decide yourselves, or it’s getting wound up!” ___ A number of plaintiffs applied for relief in relation to a shareholder dispute. Through the litigation the issues in dispute narrowed.Both the plaintiffs and defendants preferred for the Ds to buy out the Ps. A winding up order was all parties’ second preference: [1] - [6], [19] Commencing in 2014, the Ps and Ds incorporated Co1 and Co2 to (i) operate a GF bakery and (ii) own the land the bakery was situated on: [8] - [10] Evidentiary wrinkles included one of the Ds seeking a higher salary, one of the Ps resisting, the Ds causing the salary to be paid, the P then causing the same amount to be paid to their entity, and the Ds causing *that* payment to be recorded as a loan: [11] The Court exercised caution in relation to a winding up, noting the Cos likely had more value as a going concern, than as assets sold via liquidation: [25] All parties accepted that the relationship between themselves had failed such that an order winding up the Cos on the just and equitable basis would be appropriate: [29] The Court accepted that it would be appropriate for the Cos to be wound up on the just and equitable ground (and the appointment of a receiver to the Cos’ property held on trust: [30]) unless (noting s467) the Court was satisfied a buyout order could be made instead: [29] s467(1) grants the Court the power to make various orders on the hearing of a winding up application. The Court considered at length whether this power was broad enough to impose a forced share sale on litigants, eventually finding “with a degree of hesitation” it was not sufficiently broad: [37] - [51] The Ds sought a buyout order on the s233 “oppression” basis: [52] The Ds argued the Ps’ failure to agree to Co1 entering into a formal lease with Co2 was oppressive. Noting a lease had not previously been required, with no formal advice and with the risk of a conflict of interest arising, the Ds were not able to show a failure to enter into a lease was oppressive: [62], [63] Taken together: whether pursuant to s467 or s233 there was no basis for the Court to make a buyout order. Though not strictly necessary (as no buyout order was made) the Court considered the expert evidence placed before it in relation to the value of both Cos - the trading entity and the property owning entity: [64] - [78] The Court ordered that the Cos be wound up, but stayed the order for 14 days to allow possible negotiation of a share sale: [80] ___ #auslaw #coffeeandacasenote #gravamen Please follow James d'Apice, Coffee and a Case Note, and James' firm Gravamen wherever you can! www.gravamen.com.au

In January 2024 James got to sit down and chew the fat with BB head honcho, Mike Bromley! They spoke about the founding of Gravamen, the dreaded work / life balance, and why James finds TikTok boring. You can find BB here: https://www.beyondbillables.com/blog

In December 2023 James caught up with Lara Quie from the Legal Genie Podcast to discuss social media, marketing, legal practice, horror films, battle rap, and everything inbetween! You can find the Legal Genie podcast here: https://thelegalgeniepodcast.buzzsprout.com

“Yep! You can sue the author to get the company’s IP from them.” ___ A Co’s Dir, P, sought to bring derivative proceedings against a Co’s majority shareholder, D. P wanted declarations that the Co (and not D, who was also the book’s author) was the owner of all intellectual property rights in relation to a book: [1], [6] P said that after D wrote the book, D and the Co entered into an agreement for the Co to acquire the IP in the book: [7] Alternatively, P said D was estopped from asserting they owned the IP. Both D and the Co conducted themselves (including by the Co’s accounting and the collection of fees) as if D had assigned the IP. Indeed, in their capacity as co-director, D signed the relevant accounts reflecting this: [8], [10], [12] Evidence showed D received a real financial benefit in their corporate loan account on the basis of the transfer of IP having been made: [24] Evidence showed there had been negotiated of a written IP assignment agreement but that D had not signed it: [9] P attempted to commercialise the IP with one childcare provider. Conflict arose as D tried to do something similar with a competing childcare provider: [11] D did not lead evidence but said that, if leave was granted, they would defend the claim: [17] The Co being solvent, the Court then turned its attention to the five criteria regarding whether leave to bring derivative proceedings ought to be granted pursuant to the Corporations Act. (i) It was clear (from the deadlocked board and D’s refusal) that the Co was not going to bring the proceedings: [19] (ii) The Court accepted P was coming in good faith, bringing a claim P believed was well-founded, with reasonable prospects, and likely to bring value to shareholders if successful: [20] (iv) The Court accepted, on the basis of the material before it, that there was a serious question to be tried: [21] (v) Notice of the application was given to D: [31] This left the remaining criterion (iii) - whether it was in the best interests of the company for P to be granted leave to bring the application on behalf of the Co. The Court noted it appeared the Co paid for but had not obtained the value of the IP. The inference arose that the IP might be put to productive use in future; an inference reinforced by the fact that the IP is at the core of the Co’s business purpose and - without it - it was not clear how the Co could pursue its business purposes: [25] D’s suggestion that it was not in the Co’s best interests to be in dispute with its majority shareholder was acceptable on its face, but did not take the D’s argument very far noting this approach would serve only D’s interests, and not the Co’s: [26], [27] The Court considered the Co was better off pursuing the IP rights it paid for than going without them: [30] Noting the indemnity provided by the P for the Co’s costs (an indemnity obtained in part from a related trustee), leave was granted to P to bring the derivative suit: [32], [34] ___ Please follow James d'Apice, Coffee and a Case Note, and James' new firm Gravamen on all your favourite platforms!

“Let’s appoint an IP to chase the group’s debts!” ___ The Ps were 48% shareholders of a group of Cos that owned luxury car dealerships. The Ds were directors representing 52% of shareholders. The 52% majority owed a judgment debt to the group. The Ps proposed a course for recovering the debt. The Ds used their votes at board level (including a casting vote) to vote down the Ps’ course and vote up their own: [2] There was deep “anger” and “animosity” between the Ps and Ds and “very bitter and distrustful” feelings [58], [69] The Ps argued the Ds had a conflict of interest. The Ds said the Ps did too: [3] In previous litigation the Court found the Ds breached their duties to the group, pursuing litigation on the group’s behalf that benefitted them personally as part of a coordinated strategy to defeat the Ps: [12] This led to the Ds’ $19.8m judgment debt, plus costs incurred by the group: [13] To recover the debt the group needed to resolve: what were the group’s costs and how should they be pursued?: [14] The Ds suggested an insolvency practitioner (IP) be appointed to by the group to recover the debt: [30] The Ps proposed that they form a sub-committee to recover the debt: [31] The Ds resisted on the basis the Ps were also conflicted: [32] The Ds were critical of the Ps’ conduct in their dealings with the luxury car head franchisor, including providing them with Court documents and apparently paving the way for the Ps to take over the group’s operation of the dealerships: [44] - [48] A reduced franchise term followed - from the usual 5 years to 1 year, apparently as a result of the Ps’ conduct: [48] Despite the Ps’ conduct being “unwise” the Court found it was engaged in in an attempt to find a reasonable separation from the Ds. It was not found to be malicious: [49] The franchisor later threatened perhaps reducing the term to 3 months or 6 months: [51] The Ps accepted that if they were in charge of pursuing the judgment debt then negotiating that debt could be intermingled with negotiating the share price they wanted to pay for the Ds’ shares: [56], [57] The Court had regard to the “ongoing bitterness, conflict, and lack of trust” as reasons not to appoint the Ps to pursue the debt: [64], [65] The Court accepted the Ds’ submissions RE the appointment of an independent IP: [71] The Ps’ oppression claim failed with the Court noting that more than disappointment in the minds of minority shareholders is required to show a company’s conduct is unfairly prejudicial: [77] The Court dismissed the Ps’ claim and (noting the Ds were the majority and held the casting vote) was confident that the Ds’ resolution to appoint an insolvency practitioner would pass: [83] ___ Please follow James d'Apice, Coffee and a Case Note and Gravamen on your favourite platform! www.gravamen.com.au

On 3 November 2023 James gave a speech on marketing and branding for lawyers similar to one he had given a number of time before. However, this time, he gave the speech with a live case study: the lauch of his own law firm, Gravamen! Many thanks to Clarissa Rayward and the whole Happy Lawyer Happy Life and Retreat team for making this happen! https://www.happylawyerhappylife.com/ ___ Please support James' new firm, Gravamen, on your favourite platforms. www.gravamen.com.au #auslaw #gravamen #auslaw #coffeeandacasenote

In November 2023 James d'Apice sat down to chat with Alex Nielsen of The Australian Law Student Podcast about his approach to practice, overcoming "fuck ups" including bad marks on exams, and the future of James' law firm Gravamen. You can find the Australian Law Student here: https://www.theauslawstudent.com

“Your share of the sale proceeds gets reduced for us dealing with your complaints!” ___ 3 siblings co-owned real property. They disagreed on what use it ought to have been put to. 2 siblings, the Ps, applied to appoint s66G Tees, successfully.The Tees sold the land and distributed the Ps’ shares of the sale proceeds. The remaining sibling - the defendant, D - contested the Tees’ fees and criticised their management of the sale: [1] - [4] The Tees applied to be paid further remuneration from the D’s share (based on those costs arising from the D’s conduct) and to retire as trustees: [5] The Tees took the view that they should have distributed the net proceeds (after paying themselves 2/3 of their fees) proportionally to the Ps, and that the costs of any dispute with the D be borne solely from D’s share. The Court endorsed this approach: [11] The Tees retained the D’s 1/3 share, and an amount on account of 1/3 of the remuneration they were entitled to: [12] The D made various criticisms of the Tees' conduct of the sale including in lengthy correspondence, and then refused to attend meetings or provide bank details in order to accept a payment: [13] - [15] The Tees instructed lawyers, and then so did the D. The D later withdrew his lawyers’ instructions, and then said they would accept the figure first offered by the Tees without deduction: [16] - [18] The Tees reiterated they intended to make deductions and the D reiterated their claims. The Tees delayed approaching the Court and tried to negotiate, but eventually brought this application: [19] The Court noted trustees for sale are entitled to be indemnified for their costs in the normal course, and that where litigation is threatened those costs may be higher than usual: [22] The Tees’ claim for their own further remuneration was reasonable and “could even be characterised as modest” noting they did not claim for their time trying to negotiate with the D: [26] The Tees claimed further costs for their engagement with solicitors and in bringing the relevant motion: [27] The Court considered once the D raised their complaints the Tees needed legal advice on whether to negotiate with the D, or to consider making an application to the Court: [28] Broadly D complained about the Tees time entries and professional conduct: [30] - [32] After extensive consideration the Court found the Tees discharged their duties reasonably, diligently, and honestly: [33] The Court found it appropriate, and permitted, that the D’s share of the sale proceeds bear the Tees' further remuneration and costs: [34] - [36] The Tees originally attempted to pay $235K to the D as their share. The Court accepted the Tees costs and remuneration substantially exceeded $65K but accepted that figure as a compromise of the Tees’ remuneration and the fees to be charged by the Tees’ legal team: [40] - [42] Having failed to accept payment of $235K, the Court ordered the D was to receive ~$172K: [45] ___ And please follow James d'Apice, Coffee and a Case Note, and James' new firm Gravamen on all your favourite platforms!