Coffee and a Case Note

Mar 06 2025 229 ep. 17 mins 29

Coffee and a Case Note Podcast artwork

I’m Australian lawyer, James d’Apice. Coffee and a Case Note began as a video series where I sip a coffee and chat about recent legal cases. This is the audio version! I hope it brings you value.

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Gillespie v Gillespie [2025] NSWCA 24

Mar 06 2025 8 mins

"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 forme

In the matter of Macarthur Farm Pty Ltd [2025] NSWSC 40

Feb 25 2025 9 mins

“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

QLD Keystone Pty Limited [2024] NSWSC 1678

Feb 01 2025 10 mins

“You can’t run that claim. You’ll expose the Co to a cross-claim!” ___ P sought, among other things, s236 leave to sue D on the Co’s behalf for $110k: [2], [3] P held 70% of the shares in the Co, and an entity related to D held 10%. The Co was no longer active: [4], [10], [25] The issue was: D caused $110K to be transferred from the Co to one of D’s entities and P said

Gainer Associates Pty Limited [2024] NSWSC 1437

Nov 27 2024 5 mins

"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 c

Macquarie Retail Pty Ltd v Dexus Capital Funds Management Ltd [2024] NSWSC 1413

Nov 13 2024 9 mins

“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

Warner Capital v Shazbot [2024] NSWCA 245

Nov 10 2024 8 mins

“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�

Eighth Avenue Austral Pty Ltd [2024] NSWSC 1262

Oct 23 2024 9 mins

"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] A

David & Ros Carr Holdings Pty Ltd v Ritossa [2024] NSWSC 1125

Sep 17 2024 12 mins

“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;

James d'Apice Interview with Rebecca Barry August 2024 | Glover Lane's 'What Keeps You Up At Night?' Podcast

Sep 09 2024 58 mins

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. Yo

Direct FX Trading Pty Ltd (in liq) (No 2) [2024] NSWSC 1079

Sep 04 2024 7 mins

“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 <$100 balance could be treated as