“It’s not my fault the payments were a pointless waste!”___2 families resolved to develop land through a unit trust: [1], [2]R held a 40% stake. A, and related interests, held the remaining 60%: [2] – [4]At trial, R won an oppression claim alleging A caused the Co’s conduct to be unfairly prejudicial: [6]The Co bought land in 2012 for $3m and sold it for $11m in 2015. The sale proceeds were distributed at A’s direction: [8]The docs for the sale were strange, including A instructing lawyers while withholding the purchase price: [35]After settlement, A finally disclosed the $11m sale price, and $3m in other payments: [47]Apart from costs, legal fees, duties, commission, balance to the Co etc, 3 further payments were made: one to the mortgagee, and two others which R criticised: [100]One of the payments was made to an entity controlled by A’s sibling: [109]The other was “highly unusual… to say the least”, with A’s evidence “very unimpressive”. The amount was large, not owed, and paid to a Co incorporated days before settlement whose Dir and s/h was known to A, with no connection to the land: [111]The sole Dir and s/h of the purchaser of the property was also a Dir of the real estate agent who enjoyed a commission of $1m on the sale: [30], [31]The trial judge found for R, that: (i) A was responsible for the payments, (ii) that the two payments made on settlement were oppressive, and (iii) A’s responses to requests for info were inadequate: [11]A appealed on the basis that: (i) the judge was wrong for finding A responsible for the payments, (ii) R delayed their claim, and (iii) the judge erred re A’s response to R’s enquiries: [13]There was no contest about whether the 3rd party recipients were entitled to receive the two payments. (All agreed they weren’t.) The issue was A causing the payments to be made: [14]The primary judge found A gave the payment directions, was responsible, and should have ensured all payments were properly incurred: [48] – [52], [54]Some payments were a “pointless waste” of Co funds: [53], [56]The trial judge found A’s responses to info requests for information were unfairly discriminatory: [59]The judge found any delay from R had not prejudiced A: [64]A’s subs on appeal were, broadly, that A was a mere intermediary; not responsible: [68] – [88]R said R’s claim was about a breach of duty misunderstood the nature of s 232: [89] – [93]The Court agreed with the primary judge that A was not a “mere intermediary”; mindlessly and powerlessly accepting direction from their sibling: [104], [105]The primary judge accepted A “did not profit personally” from the strange additional payments, though noted an entity controlled by their sibling did: [109], [110]A did not demonstrate an error made by the trial judge re R’s delay, or A’s non-disclosure: [119], [120]Appeal dismissed: [121], [122]___Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform and podcast provider!

While often a lawyer named 'James' I am also sometimes a podcast cohost called 'Peach'.Here is an episode of a podcast I cohost all about the Gordon Ramsay reality TV phenomenon 'Kitchen Nightmares'.It's playful, it's in depth, and I hope it gives you a new insight into what I get up to alongside law.If you enjoy it, please give it a subscribe! ___You can find the podcast here: https://podcasts.apple.com/au/podcast/the-nightmare-method/id1733972953

It's time for another great fun appearance on Jordan and Nathan's podcast, Challenge the Standard.We cover it all!- The progress of Gravamen- Intersectionality- The value of community- Sponsoring a sports team- The worst tech stuff up CACN has encountered!___You can find the Challenge the Standard podcast here: https://podcasts.apple.com/au/podcast/challenge-the-standard-in-financial-advice/id1725733771

“Who pays the legal fees for the property sale and the partnership windup?”___A recent, short decision concerned a s 66G application for the sale of a property and a winding up of the partnership that owned it: [2]In 1991 the partnership was formed between a sibling, some companies, and the deceased. The parties to the proceedings were the partners and some of the deceased’s children: [3]In 2022 the deceased died.At the time of the hearing, the deceased’s stake in the property was held by the deceased’s executors: [4]An accusation of “foot-dragging” on the part of the Ds coloured the Ps’ approach: [8]The Ps commenced proceedings seeking the appointment of s 66G trustees and for the winding up of the partnership: [2]The parties reached agreement that the orders sought ought to be made: [5]Unresolved was the question of legal costs: [6]The Ps took the view that the Ds’ foot-dragging conduct was unreasonable, thereby inviting the litigation. Based on this – the Ps said – the Ps should have their costs from residue but the Ds should not: [8]The Ds said the normal position ought to be maintained, that their conduct did not warrant a departure from it (noting the negotiations engaged in over the course of the matter): [9]The Court considered the usual position as to costs in a s 66G application and a partnership dissolution – absent an alternative order the parties’ costs be paid from residue: [10] – [12]Having considered the evidence tendered by both parties detailing their interactions over the course of years the Court was not satisfied that the usual costs order ought to be departed from: [14]Following some argument about a suggestion that proceeds ought to be paid into a controlled monies account, the Court ordered that the proceeds ought to be paid into Court: [16] – [21]___If you made it this far please consider giving my firm Gravamen a follow on your favourite platform!www.gravamen.com.au

James (me! The person writing this!) criminally underappreciates the amazing community we have built together with this podcast.Here I have a quick personal message from me saying:- If you are thinking about your career please consider completing the Gravamen survey which you will find at surveymonkey- Thanks for being a part of this podcast journey! There is more to come...Jd'Awww.gravamen.com.au

In March 2026 James d'Apice had the opportunity to interview Michael Kirby, one of the most celebrated Australian lawyers of them all. Please join James and Michael as they discuss:1. Michael's new book edited by Dr Paul Vout KC, 'Law Justice and Other Challenges' available through Federation Press. https://federationpress.com.au/produc...2. Ethics, the billable hour, AI, and contemporary practice.3. International current events in the context of Michael's role as a champion of international law and the current "might is right" zeitgeist.4. The role of humour in legal practice.5. What advice Michael has for us.6. Heaps more!The interview was for BenchTV. A link to it can be found here: https://benchtv.com.au/preview-law-ju...

“The appointor is dead. Long live the appointor!”___G was born in 1923 and died in 2011. Before death G enjoyed business success and made a succession plan: [5]G had 4 children and a number of grandchildren: [15] – [20]The trust was settled by deed in 1986 with G appointor and settlor. P was (and remained) the trustee: [44] and [48]The property of the trust was real property of some value and some publicly traded shares: [76]G’s plan included a trust with unusual aspects, and without clear reasons: [9]The structure was odd: (i) the trust’s terms caused the range of benefs to be reduced on G’s death; (ii) G’s role as appointor had no path for a successor on G’s death; and (iii) G failed to let their family and advisers know their reasons for this approach: [7]P came to Court in 2025 seeking amendments to the trust deed pursuant to s 86A: [10]P’s proposed amendments included dealing with the appointor issues and the breadth of beneficiaries: [13], [14]The wording of the trust deed will dictate the nature of each appointor’s role: [26], [33]The role of appointor is an administrative power dictated by each trust deed: [26] – [36]No fiduciary duty attaches to the role of appointor. The Court considered contrasting authorities regarding how an appointor’s powers – to be used in good faith and for the benefs as a whole, or for the appointor’s benefit (perhaps in their capacity as benef): [41] – [43]The trust deed had no provision dealing with the death of the appointor: [51]G was the named appointor. The deed dictated various tasks the appointor could perform, and various matters referable to the appointor’s life: [60]E.g. (i) the number of benefs was reduced after G’s death; (ii) the trustee could validly distribute income to Cos whose board included G; and (iii) the trust could only be varied during G’s life: [61]The provenance of the trust deed was not clear with some suggestion the deed was a “standard precedent”: [71] – [74]In certain circs the Court can appoint an appointor pursuant to its inherent jurisdiction: [91] – [97](Respectfully) Excellent consideration was given to the statutory underpinning of the Sup Ct’s power to amend trusts: [106] – [150]After reviewing various jurisdictions’ evolving position on the point, the Court found the Sup Ct had that power to insert an appointor: [167]The Court noted it had the power to widen the pool of benefs and a discretion to approve proposed arrangements or amendments to trusts: [171], [172]The Court resolved its inherent jurisdiction would be exercised in this case to appoint the appointors contended for by P: [182]Having heard evidence that restoring the beneficiary class to its “pre-G’s death” position would be beneficial for family harmony, the Court made the amendment to that effect: [188] – [197]___Please follow James d'Apice, Gravamen, and Coffee and a Case Note on your favourite platform!www.gravamen.com.au

“I was not 2.01% oppressive!”___TeeCo had 2 directors, each a 50% shareholder and Dir; half the units were held by P (one of the directors, who held that interest as trustee) and D3 (a company related to the other director, A): [2] – [6]P’s spouse acted as P’s agent throughout: [7]P sued seeking s 233 sale orders. A cross-claimed seeking s 233 sale orders and alleging a breach of duty by P: [8], [9]The relevant property had a value of $4.74m: [10]A JV was struck between P and A to buy the property: [20] – [27]TeeCo was soon after incorporated and exchanged contracts: [29] – [31]An attempt to finance the purchase failed: [32] – [55]The sale completed with bridging finance obtained by A, and funds provided by P: [65]Discussions about finance continued. Due to A’s self-employed status and delays with tax returns, an “on-loan” arrangement was struck to deal with A’s bridging loan: [66] – [75]P got the finance and on-lent to TeeCo with a 2.01% margin, putting this to A and proceeding on that basis: [80], [81]In time, A grew dissatisfied with the margin: [87] – [90]A said they had thought the 2.01% margin was a lender-required necessity. On learning it was not, A objected: [100] – [107]P pressed for funding to pay TeeCo’s strata levies and other costs. A resisted. The Owners Corp sued: [108] – [128], [145]The parties fell into dispute, A asserting P had engaged in “profiteering” with the 2.01% margin: [130] – [144]Each party was critical of the other’s evidence: [152], [153]A alleged inter alia that P (incl by their spouse) breached their duties to TeeCo and to A by suggesting the 2.01% was a necessity: [179], [180], [184]The evidence showed the parties initially contemplated A’s side paying 4.5%. The lender lent to P at its rate (later confirmed at 2.49% - leaving the 2.01% margin for TeeCo to pay): [214] – [216]Relevantly, this arrangement was discussed with the idea of a prompt refinance being the goal of both: [221]Key issue: whether P represented to A that the lender *required* the margin that was eventually applied: [233]A was unable to convince the Court that P induced A into their misapprehension that the lender *required* a margin of 2.01%: [244]This was fatal to both A’s oppression claim and breach of duty claim: [246]This left P to progress their oppression claims against A in relation to failures to engage with payment of levies, delaying finance for the project with slowness in getting tax returns etc: [255]A’s failure to engage with P about TeeCo’s debts was oppressive: [276], [277]Some of P’s other complaints about A were not oppressive: [286], [295]Noting the deadlock, the Court resolved the relief should bring the relationship to an end: [305]A’s attempt to seek an order that they buy the property was not made in part due to A’s oppressive conduct: [333]P got their buyout orders: [344]___If you made it this far please head to www.gravamen.com.au#auslaw #coffeeandacasenote #gravamen

James had the pleasure of sitting down to chat with the legendary Jerome Doraisamy in early 2026 about James' firm Gravamen, long lunches, charity donations, and what it means for a firm when the honeymoon is over...https://www.lawyersweekly.com.au/podcast/43900-the-boutique-lawyer-show-what-happens-after-your-firm-s-initial-honeymoon-period

“We need trustees for sale because you changed your house!”___P and D owned land as 50/50 TiCs. P applied to have s 66G trustees appointed to sell it: [1]D resisted, claiming this breached an oral agreement: [2]P’s claimed $1M in damages to be paid from D’s share. D XC’d around $350K: [4] – [9]P and D bought the land to build 2 dwellings of the same value for their respective families: [10] – [11], [99]They agreed on how the development would go: [8], [12]D, who controlled a building company, would cause the work to be done: [13], [14]An architect was engaged by D before commencement: [22]Following a QS estimate, D’s firm issued a quote for $985K to build based on the plans: [25]P and D faced challenges obtaining finance: [31]In May 2017 D, having opposed pulling out of the arrangement, sold their home to finance the project: [34]D changed the construction materials in D’s house, increasing costs (and, we infer, building quality). P did not agree: [35], [95]P and D entered into a new contract with D’s building company to do the same work, but for $860K…: [38]The changed price was to show serviceability to possible lenders: [39]Construction progressed but the finances were exhausted before completion. P suspected D spent the money on other projects D’s company was working on: [43]In 2019, further money was borrowed: [44], [45]Later in 2021 further finance was obtained, and an OC issued: [47], [48]The land was subdivided: [50]Negotiations for apportioning costs failed: [49], [52]P commenced these proceedings and brought defect proceedings: [53]The Court reviewed the principles relating to the making of s 66G orders: [54] – [58]A s 66G order might not be made where a contract stands in the way. 4 questions arise, including whether there’s an agreed “exit strategy”: [57], [58]D said there was an agreement for one subdivided property to pass to each of P and D on completion, with an accounting for costs to follow – this exit strategy, D said, prevented a s 66G order: [65], [66]No term explicitly prohibited appointment of s 66G trustees: [92]The Court found the “exit strategy” D contended for would only apply if construction proceeded pursuant to the plans. As D amended their home (with the use of different construction materials) construction did not proceed pursuant to the plans, and so the exit strategy failed: [93], [94], [95]Regarding onus: it was not for P to prove entitlement to a s 66G, but for D to disprove. D failed: [98] – [100]After dealing with issues flowing from P putting forward 1 (and not the required 2) trustees, and for seeking unusually generous compensation, the orders were made: [106], [107]D failed to establish entitlement to any additional funds: [109]Trustees were appointed, with an account to follow, with costs to be paid from the corpus. D’s XC was dismissed with costs: [135], [136]___Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform!www.gravamen.com.au