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.
James d'Apice on Unbilled Unfiltered Podcast | September 2026
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/
17 Oct 2026
Ziebarth v Nayaned [2026] FCA 1459
“Put me back as director and correct the share register!”
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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]
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13 Oct 2026
RD Beechworth Pty Limited [2026] NSWSC 1098
“I own 40% of you, and I’m winding you up!”
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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]
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