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OUR BARRISTERS
Laina Chan Barrister
BSc (Hons), LLB (Hons)

 

Counsel are strategists. My strength is to make judgment calls based upon my experience and understanding of what arguments are likely to succeed and which ones are not. Retaining me ensures that judgment calls can be made as to which causes of action should be pursued and which should not. Like every good business plan, a winning litigation strategy focuses upon 2 and at most 3 major actions. It is as important to know which causes of action we should be focusing on as to be aware of which causes of action will not be pursued.

 

I will make an assessment of the merits of the case as well as the risks of not pursuing some of the weaker causes of action. This assessment should ideally be made at the outset of every case and revised when new or unexpected evidence comes to light. In the same way that a business cannot succeed in the absence of a carefully thought out and mapped out business plan which is implemented, a case cannot be won without a clear case strategy that informs the content of all the case preparation that is done to advance the cause of your client. If I am briefed at the outset, I can then collaborate with the entire legal team to set the strategy to ensure the most efficient way towards dispute resolution and an ultimate containment of costs. An article that I have written on the benefits of briefing counsel early in Inhouse Counsel can be downloaded here.

 

I have been at the bar since 2004 where my main areas of specialty professional indemnity with a particular bent on building and construction law, property law as well as all forms of contractual disputes.

 

I am working on disputes representing major engineering firms in cases including cases involving failures in relation to the Lane Cove Tunnel project in New South Wales, delay claims in relation to the construction of a gas refractory in Western Australia as well coverage matters in relation to construction all risk policies. Also current are several disputes in connection with conveyances that have gone wrong.

 

Since I have been at the bar, I have worked on a range of professional indemnity matters defending construction professionals, town planners, pre-purchase building inspectors, real estate agents, financial planners, stock brokers and lawyers. See for example Brand v Monks [2009] NSWSC 1454 and Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94.   I have also worked with a number of leading senior counsel on large insurance disputes (worth in excess of $15million) in relation to insurance coverage.

 

In the last 12 months, I have presented throughout Australia and in New York on the enforcement of international arbitral awards in the Asia Pacific. I have been published in Construction Law International as well as the New York International Law Review on the issue. I have advised widely on the impact of Arbitration Clauses in Commercial Contracts and also appeared in Traxys Europe SA v Balaji Coke Industry PVT Ltd (No 2) (2012) 201 FCR 535.

 

Of note in my career at the bar is that after only having been at the bar for just over a year, I represented Taylor Thomson Whitting, the design engineer in Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority (No. 2) [2006] VSC 117, a significant decision of Byrne J in relation to proportionate liability. See also judgment in the Victoria Court of Appeal MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) (2010) 31 VR 575 [2010] VSCA 245 where the construction of the deed put forward was Taylor Thomson Whitting at the trial prevailed in the Court of Appeal and special leave was refused. It was also pleasing that I was able to secure a favourable result for the minority shareholder in Tonuna Pty Ltd v South Asian Television Pty Ltd & World Media Group Private Ltd which included recovery 100% of the value of the minority shareholding and the costs incurred in the proceedings.

 

I lectured from 2007 to 2010 in the University of Melbourne’s graduate construction law program in which I taught Security for Performance and Insuring Risk in Construction Projects. I am also a contributing author to the latest edition of Bailey and Bell, Construction Law in Australia, Thomson Reuters, 3rd edition in which I wrote the chapter on professional liability.

 

In September 2015, I was elected to the Board of the Society of Construction Law and am on the subcommittee in relation to private certification. I look forward to the opportunity to address the problematic issue of private certification in the coming months.

 

I graduated from the University of Sydney in 1994 and commenced working for the then Justice Clarke in the Court of Appeal as his researcher, carrying out detailed research and preparing draft judgments including that of Woollahra Municipal Council v Sved & ors (1996) 40 NSWLR 101 and Akins v National Australia Bank (1994) 34 NSWLR 155. For the 6 months of the 2 years that I worked for the judge, I was assigned to Justice Michael Kirby as his researcher where I had the opportunity to work closely with the judge and to also prepare several draft judgments. Those judgments include Nicholson v Nicholson (1994) 35 NSWLR 308, Forgeard v Shanahan (1994) 35 NSWLR 206 and several more.

 

It was in early 1998 when I left Phillips Fox to join Minter Ellison that my association with building and construction law commenced. During the 5 years that I was at Minter Ellison, I worked on many construction cases defending architects, engineers and other building professionals.

 

In 2003 and prior to joining the bar, I joined the construction department of Herbert Geer Rundle where I headed the litigation construction team. At Herbert Geer, I represented both head-contractors and sub-contractors in 3 significant pieces of litigation, 2 of which were claims against the State concerning massive delays and EOT claims during the construction of the Sydney Conservatorium of Music.

 

For more information on me, go to www.lainachanbarrister.com

 

Contact Details:

Phone: +612 8915 2895

Mobile: +61 409 500 685

Fax: +612 8028 6064

Email: laina.chan@3wentworth.com.au



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