About Laina Chan

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 focusses 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 are insurance, construction and property as well all forms of complex commercial disputes.

I am working on delay claims in relation to the construction of a gas refractory in Western Australia, professional negligence claims against architects, commercial disputes involving significant sums and complex issues as well advising on insurance coverage matters. Also current are several property related disputes in connection with the construction of leases both legal and equitable, s 66ZL of the Conveyancing Act 1919 (NSW) and 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 as well as commercial disputes involving guarantees and indemnities. See for example 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.

Last year, I published an article on the vexatious issue of the Enforceability of Extended Contractual Warranties in (2016) 32(3) BCL 170. The work was the culmination of a year spent researching and developing the article with the guidance of Professor John Carter.   I also had the opportunity to present on this topic at the 2016 National Society of Construction Law conference in Canberra. My interest in property law has seen me act on many property related matters and I have also presented and published on a number of conveyancing related issues in the Torts Law Journal and the Australian Property Law Journal.

In the last couple of years, 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. In 2013, I completed the advanced ICC Institute PIDA Training on international arbitral practice at the ICC headquarters in Paris.

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.  In my role as director, I am working with Consult Australia to address the issue of the costs of procurement in infrastructure projects to identify ways in which this can be managed optimally and ultimately regularized via a change in the regulations governing procurement in public works.

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.

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

In early 1998, I left Phillips Fox to join Minter Ellison where my association with building and construction law and LawCover work commenced. During the 5 years that I was at Minter Ellison, I worked on many construction cases defending architects, engineers and other building professionals. For the whole period, I 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 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.

Most rewarding of all, I have been able to apply my 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, I have 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 I had this volunteer role, I 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.