Coffee and a Case Note

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.

Coffee and a Case Note is a education podcast hosted by James d'Apice, with 262 episodes on record and a Required Pod Score of 80.

James d'Apice hosts Coffee and a Case Note, a education show with 262 episodes published.

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  Coffee and a Case Note

  Sibley Investments Pty Limited v Oldfields Advance Scaffold [2026] NSWSC 1021

  Sep 23, 20267 min

  “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

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  Coffee and a Case Note

  James d'Apice with Seun Idowu, "What's In A Name?" Series | Hall and Wilcox Smarter Lawcast July 2026

  Aug 30, 202630 min

  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/

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  Coffee and a Case Note

  Oceanic Capital v Freedom Care [2026] WASC 308

  Aug 23, 20267 min

  “I need some documents to figure out if I have an oppression claim.” ___ P, a 1.15% shareholder in ASX-listed D, sought production of 6 categories of documents from D pursuant to s 247A: [1], [6] D opposed the application saying there was no case to be investigated: [4] D’s major business was an NDIS service provider operated by a wholly owned subsidiary, SubCo: [7] The NDIA claimed SubCo has received $800K it was not entitled to, with the figure of $400K eventually arrived at: [8], [12] In September 2024, SubCo’s inconsistency in NDIS claims led the NDIA to suspend payments: [9] A trading halt and suspension were placed on D’s shares: [14] Admins were appointed to SubCo who reported SubCo had poor controls and D’s Dirs may have breached their duties: [15] In Jan 2025 SubCo was placed into liq: [16] SubCo was later permanently banned from providing NDIS services: [17] Since June 2025, P raised concerns the management of SubCo and possible claims against SubCo’s Dirs: [18] SubCo did not conduct an AGM in 2025 or 2026 and did not allow shareholders an opportunity to ask Qs of its dirs or auditors: [19] A Feb 2026 update from SubCo noted the turbulence and telegraphed hopes at improved performance in future; disposing of some assets and thinking strategically: [21], [22] P’s reasons for seeking the documents were (i) to ascertain whether SubCo could remain listed, (ii) whether the Dirs could manage SubCo, (iii) whether the Dirs breached their DDs, (iv) whether the shareholders had any claims, or (v) whether there had been oppressive conduct: [23] The Court considered the law relating to s 247A applications and found production of some documents was appropriate, noting: an application must be brought in “good faith and for a proper purpose”; the Court has a broad discretion as to relief; document access is for specific purposes, not to give an applicant a general picture; noting SubCo’s failure to comply with its obligs: [24] – [31] The Court accepted there were cases to be investigated as to whether D breached its NDIS and other governance / reporting obligations, and whether its Dirs breached their duties: [32] The Court then considered the various proposed document categories.P sought a broad range of documents. The Court (respectfully) closely considered the various categories finding some (like Dir meeting minutes) ought to be produced and others (like corro between D and its auditors) ought not, while leaving room for the parties to negotiate amended categories if needed: [34] – [52] The Court accepted it was appropriate to exercise its discretion to make orders for inspection of some documents sought by P: [54], [55] ___ Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform. www.gravamen.com.au

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  Coffee and a Case Note

  Capital Guard AU Pty Limited [2026] NSWSC 897

  Aug 13, 20267 min

  “I’m the regulator. You’re getting wound up.” ___ ASIC sought an order winding up a Co pursuant to s 461(1)(k): [1] Neither the Co nor its Dir appeared in the litigation: [2] (A Co failing to appear at its own winding up application did not inspire confidence in the Co’s management: [20]) The Court considered some general principles relating to ASIC s 461(1)(k) apps including: (i) the importance of a lack of confidence in a Co’s management; (ii) the requirement that a risk to the public interest (including where investor funds might be put at risk) be demonstrated; and (iii) generally, the Court’s reluctance to wind up a solvent Co: [16] – [18] At relevant times, the Co held an AFS and provided investment services, apparently specialising in bonds: [21] – [27] The Co purported to sell to retail clients (or acquire on their behalf) bonds which did not exist, or which the Co was unable to sell or hold on behalf of its clients: [28] i.e. It was a scam. The Court heard from various clients who has been deceived. One client transferred $100K to the Co to secure bonds issued by a reputable institution, the problem being: that institution had never issued bonds of that kind: [30] – [32] Another transferred $250K to the Co to secure bonds which the original issuer had not approved for issue to retail clients: [33] – [36] Another transferred $120K to the Co to secure bonds which, evidence showed, were not acquired by the Co: [37] – [39] A further client transferred $160K to acquire bonds which it appeared did not exist: [40], [41] The Co provided false information to its auditor: [42] – [45] ASIC reviewed the Co’s accounts forensically and found $17m had been transferred to the Co. $9m of that had been applied to crypto assets. Only $100K had been invested in bonds: [46] – [49] The Co had no other assets of note: [50] Evidence showed the Co’s sole director had no involvement in its affairs or knowledge of its financial position: [51] – [53] In July 2026, the Co indicated in writing to a client it was “winding down” operated with assets to be “assessed for liquidation”. This led ASIC to correspond with the Co’s lawyers, who were unable to obtain instructions: [58] – [60] There were strong grounds for a lack of confidence in the Co’s management: (i) the Co misled clients about investing in bonds that did not exist; (ii) the Co sent false accounts to its auditor; (iii) having taken ~$17m from clients for bonds, the Co has only purchased ~$100K of bonds, and otherwise invested in crypto and no other assets of value; and (iv) the Co’s Dir has exercised no oversight over the Co: [61] The Court accepted the Co’s existence presented a risk to the public interest: [62], [63] There was some doubt as to the Co’s solvency: [64] The Court found it was just and equitable that the Co be wound up pursuant to s461(1)(k): [67] ___ Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platforms! www.gravamen.com.au

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  Coffee and a Case Note

  Lanmar Pty Limited (No 2) [2026] NSWSC 800

  Aug 10, 202610 min

  “You haven’t proved the shares’ value, so we need a receiver!” ___ P, D3, and D4 were equal 1/3 shareholders in a defence consulting Co. P sought a s 233 order that D3 and D4 buy its shares: [1], [2], [9] There were disputes between the dirs (each controlling P, D3, and D4) in managing the Co: [3] – [43] In late 2024 the Co was invited to tender for defence work. D3 and D4 were unimpressed with P’s contribution calling P “a complete dud”: [65] – [71] D3 and D4 relied on ChatGPT to guide their removal of P – “not a prudent choice of adviser…”: [73], [77], [82], [83] ChatGPT’s output was employment focused; silent on corporate risks: [86], [93] The plan, which was executed in essence, was to gradually exclude P and to withhold dividends: [88], [121] Following this plan, D3 and D4 conducted meetings and sent emails incorrectly framing as employment only: [89] – [98] P removed D3’s and D4’s access to the Co’s Xero account: [99] The erosion of trust and confidence justified a s 461(1)(k) winding up orders, and amounted to oppression: [113] Further steps were taken to exclude P from a role at the Co, including directing P not to present to a new client: [116] – [129] In May 2025 P’s lawyers wrote to the D3, D4, and the Co making complaints upheld and accepted by the Ds in XX. No remedial steps were taken: [161], [162] On 14 May 2025 proceedings were commenced. D3 and D4 set a meeting for 7.30am the following day, apparently to frustrate P’s application: [163] – [167] D3’s and D4’s conduct, combined with the litigation, saw P’s role at the Co further reduced: [174] D3 and D4 took steps (in relation to IT and external contractors) that required unanimous approval without P’s consent: [178] D3 and D4 executed a contract between the Co and an external sub-Co they controlled, for provision of services: [189] Oppression was established noting the exclusion of P in the absence of a genuine offer to buy P’s shares; and in respect of the dividend strategy allowing D3 and D4 to be paid while P was not: [265] The Court found it could not accept either valuer’s evidence as to share value – leaving no finding made as to the valuation of P’s shares, and so no ability to make a buyout order: [285], [315] The Court was unmoved by one expert’s methodology; and disagreed with the way the other expert dealt with the “only one client who can terminate for convenience risk” of working for defence: [316] A share buyback did not arise as the Co did not appear: [320] After considering appointment of a receiver to sell the shares at length, and noting the Co was a viable one, the Court concluded a receiver was the best alternative: [340] Orders appointing a receiver to sell the shares were made: [351]

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