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

 

Recognised as the inimitable expert in Australia on the interplay between construction and insurance law, Laina was a finalist for the Lawyers Weekly Australian Barrister of the Year for both 2019 and 2020. She is also the “go to” counsel in property law, conveyancing and retail lease disputes.  See for example her recent win in the New South Wales Supreme Court in Goyal v West [2021] NSWSC 526 where 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.   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.

 

One of Laina’s strengths is her technical proficiency which she uses to make judgment calls based upon her experience and understanding of what arguments are likely to succeed and which ones are not. 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 Laina is briefed at the outset, she will collaborate with the entire legal and consultant team to set the strategy to ensure the most efficient way towards dispute resolution and an ultimate containment of costs.

 

An article that she has written on the benefits of briefing counsel early in Inhouse Counsel can be downloaded here.

 

Currently, Laina is briefed on professional negligence claims involving construction and property management professionals, commercial disputes involving significant sums and complex issues as well advising on insurance coverage matters. She is currently involved in a recovery action against the consultant engineer of her client in the Supreme Court of Western Australia following the resolution of related arbitration and Supreme Court proceedings on excellent terms.  This suite of cases draws on her expertise in construction contracts, professional indemnity, insuring risk in construction projects and arbitration.

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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 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. She also 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. These publications are recommended reading at courses taught at the University of Sydney and the University of Melbourne Masters of Construction Law Course. A recently 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.  

 

In 2018, Laina lectured post graduate students in Contract Law at the University of Sydney.   Her talks in November 2018 in Sydney and Brisbane at the Thomsen Reuters Building and Construction Law conference on  alternative dispute resolution were well received.  She challenged and offered alternative views and pathways to the typical adversarial approach to mediations.  She continues to speak both internationally and throughout Australia on issues arising in the context of procurement and delivery of projects in the construction context as well as the impact of the Australian Consumer Law in this process.  She is also an advocacy coach for the New South Wales bar readership program.

 

She has  been identified as a game changer in the TOP 100 Women in Construction Initiative and she has also been featured as a woman to watch by the University of Sydney.  

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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.

 

In the last few years, Laina has also 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. In 2013, Laina completed the advanced ICC Institute PIDA Training on international arbitral practice at the ICC headquarters in Paris.  She will be presenting on 2 separate panels in New Zealand in November 2021 at the International Society of Construction Law Conference.

 

Advocate for change in the construction industry In September 2018, Laina presented in Chicago at the 8th International Society of Construction Law Conference – Construction Law: Local Issues- Global Perspectives where she addressed the issue of successful project delivery using the lessons learned from mega projects.   Since elected as the Chair of the Society of Construction Law and as a director of the Australian Construction Industry Forum in August 2020, Laina is continuing to advocate for change in the allocation of risk in infrastructure projects to optimise the successful delivery of projects.

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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.

 

Following her employment at the Court of Appeal, Laina joined Phillips Fox for about 2 years where she was introduced to a wide range of professional indemnity and defamation cases.

 

In early 1998, Laina left Phillips Fox to join Minter Ellison where her association with building and construction law and LawCover work commenced. During the 5 years that she was at Minter Ellison, Laina worked on many construction cases defending building professionals. For the whole period, she also worked on the matter of Maronis Holdings Ltd v Nippon Credit Australia Ltd & ors (2001) 38 ACSR 404 representing Clayton Utz who was successful at trial before Bryson J. The matter settled after the hearing of the appeal but prior to judgment.

 

In 2003, Laina joined the construction department of Herbert Geer Rundle where she headed the litigation construction team. At Herbert Geer, Laina 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.

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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.

 

In collaboration with Superintendent Luke Freudenstein of the Redfern Police and Shane Phillips, the CEO of Tribal Warrior, Laina documented the entire program to enable it to be franchised throughout Australia as well as developed and put in place mechanisms to measure the outcomes of the Program to enable adequate reporting to Government.

 

In the 18 months that Laina had this volunteer role, she prepared numerous funding applications not only addressing the need for the program but also addressing the capacity, capability and business case for its continued existence and expansion.  The key application was the application to the National Government pursuant to the Government’s Indigenous Advancement Strategy seeking funding for the expansion of the Clean Slate without Prejudice Program beyond Redfern. This application was successful and secured sufficient funds to ensure the expansion of the program to Leichhardt, Glebe, La Perouse and Maroubra.

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

Contact Details:

Phone: +612 8023 9026

Mobile: +61 409 500 685

Fax: +612 9231 3320

Email: laina.chan@selbornechambers.com.au


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