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Laina Chan

 

Laina Chan has been named as a winner in the Top 100 Women in Construction 2023.

Laina is an appellate advocate with a significant appellate practice. Laina works on complex disputes with an emphasis in construction, property and insurance law. Recognised as the distinct expert in Australia on the interplay between construction and insurance law, Laina is the 2021 Lawyers Weekly Female Barrister of the year. She has also been a finalist for the Lawyers Weekly Australian Barrister of the Year for 2019, 2020, 2021 and 2022.

 

Her win in the New South Wales Court of Appeal has been life changing for the appellant in Aslan v Stepanoski [2022] NSWCA 24 where she successfully overturned a judgment of $2.6million against her contractor client. Laina appeared in the seminal case on the Design and Building Practitioners Act 2020 (NSW) on the scope of the extended statutory duty of care at trial and on appeal: see Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5.

 

Laina is also the "go to" counsel in property law, conveyancing and retail lease disputes. See for example Huang v 18 Woodville Holding Pty Ltd; Tao v 18 Woodville Holding Pty Ltd [2023] NSWCA 15 where she sought to extend the application of the principle in Burke v Dawes (1938) 59 CLR 1; [1938] HCA 6 to the equivalent section in the Real Property Act 1900 (NSW). Her win in the New South Wales Supreme Court in Goyal v West [2021] NSWSC 526 is significant. She was briefed by the New South Wales Pro Bono Scheme to appear at an urgent expedited hearing on the statutory construction of 182G of the Retirement Villages Act 1999 (NSW). The case has created "new law" that will benefit all residents and former occupants of retirement villages going forward.

 

Strategy, execution and resolution As your counsel, Laina strives to achieve the optimal resolution for your dispute utilising her legal, commercial and strategic skills.

 

Adept at identifying the rights and liabilities of the parties to a dispute, Laina will design the best strategy to achieve favourable client outcomes. Depending upon the needs of the clients, these outcomes may be achieved via negotiation or via contested hearings. Rest assured that Laina will utilise the most appropriate means to resolve your client’s dispute. This is likely to involve a combination of court room advocacy and her negotiation skills.

 

Laina is a fearless and ethical advocate who is willing to push the envelope to encourage the systematic development of the law both at first instance and also on appeal. Her negotiation technique is based upon the open, collaborative and relationship building methodology advocated at Harvard Business School. Laina used this technique and settled 12 matters in the six months following completion of her Harvard Business School Negotiation course in 2018 on extremely favourable terms. This included the settlement of 2 matters which had been the subject of 2 failed mediations at subsequent informal settlement conferences on better terms than had been on the table at the failed mediations.

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Arbitration In 2013, Laina completed the advanced ICC Institute PIDA Training on international arbitral practice at the ICC headquarters in Paris. In the last few years, she has presented throughout Australia and in New York on the enforcement of international arbitral awards in the Asia Pacific. She has been published in Construction Law International as well as the New York International Law Review on the issue. She has 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.

 

Subject Matter Expertise Laina has been commissioned to overhaul of the annotated Insurance Contracts Act 1984 for the LexisNexis Australian Insurance Law Practice. It is pleasing that since November 2022 and under her authorship, readership of the annotated Insurance Contracts Act has gone up in excess of 450%.

 

Laina authored the chapters on professional liability and insuring risk in construction projects in the fourth edition of Bailey's Construction Law in Australia, a Thomsen Reuters publication. She co-authored a book with Professor JW Carter on Contract and Consumer Law which was published by Federation Press in March 2019. The book looks at how Consumer Guarantees, Unfair Contract Terms, Misleading or Deceptive Conduct and Unconscionable Conduct have modified the law of contract. Her recent work with Professor JW Carter published in the Building and Construction Law Journal on the new way for quantum meruit claims is widely referenced by the professions.

 

Her publications are recommended reading at courses taught at the University of Sydney, the University of Melbourne Masters of Construction Law Course, the University of Queensland and many others. A published paper on the lessons to be learned from the failure of the Lane Cove Tunnel has been very well received by the geotechnical community as well as McDougall J, the trial judge and may be downloaded here.

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Since Laina has been at the bar, she has been briefed 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 as well as commercial disputes involving guarantees and indemnities. See for example Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551 (Specific Performance of a Retail Lease), Gupta v Fordham Laboratories Pty Ltd (No 2) [2018] NSWSC 694 (gross sum costs order), Thiess v Parsons Brinckerhoff [2016] NSWSC 173 (concerning the collapse of the Lane Cove Tunnel), Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority (No. 2) [2006] VSC 117 (a significant authority often cited on proportionate liability), Tabbouch v Devlin (2008) 14 BPR 26,325; [2008] NSWSC 600 (whether a contract for sale had been properly rescinded), Brand v Monks [2009] NSWSC 1454 (professional negligence of a town planner), Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 (professional negligence of a surveyor) and Filmlock Pty Ltd v Nissi Investments Pty Ltd (no 2) [2013] NSWSC 959.

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Laina 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 she worked for the judge, she was assigned to Justice Michael Kirby as his researcher where she 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.

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Most rewarding of all, Laina has been able to apply her skills as a barrister and as a business person to assist Tribal Warrior Association as their Executive Manager of Fundraising to raise funds for the continuation and expansion of the Clean Slate Without Prejudice Program. The CSWP program is a collaboration between the Redfern Police and Tribal Warrior Association and was featured on First Contact on SBS in November 2014. The CSWP program is credited with virtually eliminating indigenous juvenile crime in the Redfern area.

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The CV of Laina Chan may be downloaded here. A short form CV and select testimonials may also be downloaded. For more information and testimonials on Laina Chan, go to www.lainachanbarrister.com

 

The Honourable Justice JK Ward, President of the Court of Appeal, speaking at a New South Wales Bar Association CPD on appellate advocacy in 2022 speaks about the importance of preparation and how advocates can make a difference to the outcome of a case. Watch Video Here

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