About Laina Chan

Recognised as the leading expert in Australia on the interplay between construction and insurance law, Laina has been at the bar since 2004.  She specialises in property law and complex commercial disputes. She recently co-authored with Prof J W Carter the seminal work on Contract and the Australian Consumer Law, Federation Press, 2019.  She is also a contributing author to Bailey’s, Construction Law in Australia, 4th edition, Thomsen Reuters and is responsible for the chapters on professional liability and insuring risk in construction projects.

Counsel as strategists – the early management and resolution of disputes.

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

Laina has a Certificate of Management Excellence (CME) from Harvard Business School having completed programs in negotiation, strategy and leadership.  The negotiation and strategy programs have had a significant impact upon the way Laina approaches dispute resolution.  She has set aside the common adversarial approach to negotiations and has embraced the more open, collaborative and relationship building methodology advocated at Harvard.  The fact that Laina has settled 12 matters in the six months following completion of her Harvard Business School Negotiation course in 2018 is testament to the success of this alternative approach.  This included the settlement of 2 matters which had been the subject of 2 failed mediations at subsequent informal settlement conferences on more favourable terms than had been on the table at the failed mediations.

The programs have also reinforced the importance of early management of disputes. Court or arbitration hearings are not the ideal method of dispute resolution. An article that she has written on the benefits of briefing counsel early in Inhouse Counsel can be downloaded here.  If Laina is briefed when a dispute arises, she will work with the entire team to resolve the disputes early so that costs are contained and client margins preserved. Laina’s negotiation and strategic skills as well as understanding of commercial realities ensure that the most efficient strategy for resolution is identified and implemented.

Her book with Professor John Carter on Contract and Consumer Law looks at how Consumer Guarantees, Unfair Contract Terms, Misleading or Deceptive Conduct and Unconscionable Conduct have modified the law of contract.  In the last 15 years, Laina has lectured post graduate students in Contract Law at the University of Sydney and risk management via insurance and performance guarantees at the University of Melbourne Masters of Construction Law program.   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 through out 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.

Laina 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. She is also a finalist for the 2019 Lawyers Weekly Barrister of the Year award.

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.

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.   In the last few years, she 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.

In September 2015, Laina was elected to the Board of the Society of Construction Law.  Since 2016, she has been the company secretary for the Society. She is focused on starting a conversation within the construction industry addressing the allocation of risk in construction projects and the successful delivery of construction projects.

For the last 5 years Laina has mentored lawyers and professionals through the mentoring programs for the Society as well as the Asian Australian Law Association, an activity that she finds very rewarding.  In 2018, she had the opportunity to meet Dr Kakenya and to become involved with the program of the LBW Trust to mentor schoolgirls from the school founded by Dr Kakenya in Kenya to help them transition to University and professional life.

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 Laina worked for the judge, Laina 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 Laina was at Minter Ellison, she 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, she 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, 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.

A copy of the CV of Laina Chan 2019-08-08 here.