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PROFESSIONAL NEGLIGENCE
1. Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 7) [2020] NSWSC 554
– Successful defence of a finance broker.
– Order for indemnity costs.
2. Thiess v Parsons Brinckerhoff [2016] NSWSC 173
– Multi party dispute in connection with the collapse of the Lane Cove Tunnel during construction where David Williams SC and I acted for the geotechnical monitoring engineer.
– See article by Burman, Kotze and Chan referred to in paragraph 6 of Recent Publications of Note below.
3. Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority (No 2) [2006] VSC 117
– An important case on proportionate liability in the context of multi-party dispute when I was unled and acted for the structural design engineer for a sewerage plant.
– Successful claim upon an indemnity contained in a Deed of Novation.
– While the client did not participate in the appeal in MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) [2010] VSCA 245; 31 VR 575 the construction of the scope of the release in the Deed of Novation that the Victorian Court of Appeal upheld was consistent with the submissions advanced by counsel at trial before Byrne J.
4. Brand v Monks [2009] NSWSC 1454
– Successful defence of a town planner who had reported her client’s unlawful clearing of land to the relevant authorities.
5. Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94
– David Williams SC and I acted for a surveyor who had amended plans prepared for the creation of a new right of carriageway without notice to the dominant and servient tenements. At issue was the damages that flowed from this breach of duty of care.
– Important case on causation and damages.
– Successful defence of the mechanical engineer who had allegedly been negligent in the design of the mechanical services at the home of the plaintiff.
7. Hourani v Siemsen [2012] NSWDC 203
– Successful defence of an insurer’s subcontractor in respect of personal injury when the plaintiff slipped on a wet floor.
– The allegation that there had been inadequate assessment and delayed repair of insured premises by insurer’s sub-contractors was refuted.
8. Dymocks Book Arcade Pty Ltd v Capral Ltd [2013] NSWSC 514.
– The case was constrained by the length of time between the alleged negligence and the proceedings.
– The insured architect had destroyed his records and was unable to corroborate his defence.
FIXED COSTS, INDEMNITY COSTS AND COSTS ORDERS AGAINST THIRD PARTIES
9. Brand v Monks [2010] NSWSC 313 (indemnity costs against 3rd party Director)
11. Gupta v Fordham Laboratories Pty Ltd (No 2) [2018] NSWSC 694 (fixed cost orders)
GUARANTEES
– Successful defence of a claim under a guarantee.
14. Filmlock Pty Ltd v Nissi Investments Pty Ltd (No 2) [2013] NSWSC 959.
– Successful claim against guarantors pursuant to a deed of guarantee and indemnity when purchasers failed to complete a contract for sale.
INDEMNITIES AND LEAPFROG ORDERS
15. Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority (No 9) [2007] VSC 531.
– Successful application for a leapfrog order such that obviated the need for TTW to satisfy the judgment in favour of the cross-claimant prior to claiming upon the indemnity that it was a beneficiary of.
REAL ESTATE AND CONVEYANCING
16. West v Goyal [2021] NSWSC 526
– Helped in the creation of new law when the Court accepted my submissions on the construction of s 182G of the Retirement Villages Act 1999 (NSW).
– It was the first time that s 182G had received judicial consideration.
– It is now the law that all residents and former occupants, beneficiaries of unregistered statutory charges, rank in priority ahead of registered and unregistered mortgagees.
17. Ng v Filmlock Pty Ltd [2014] NSWCA 389; 88 NSWLR 146
– Termination of a contract for sale and the appropriate measure of loss where there is no available market for the sale of land.
18. Filmlock Pty Ltd v Nissi Investments Pty Ltd (No 2) [2013] NSWSC 959
– Alleged defects in title arising from rights of carriageway and restrictions on use created after contract.
– Purchaser was held to be obliged to complete the contract for sale.
19. Monzer Tabbouch v Scott Devlin [2008] NSWSC 600
– Significant case establishing that 14 days constitutes a reasonable time for a notice to complete.
20. Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
– A case in respect of agreements to lease, the entitlement to specific performance and when a party may have abandoned their agreement to lease.
COMMERCIAL DISPUTES INVOLVING POORLY DOCUMENTED AGREEMENTS
21. Yakiti Pty Ltd v MacDonald [2019] NSWSC 1772
– A difficult case in which the plaintiff was a secured creditor of the defendant and the parties had an acrimonious relationship.
– The key defence of the defendant was that the loan had effectively been repaid by reason of certain actions of the plaintiff.
– The attempt to apply the equitable principles of double satisfaction to the facts of the case was unsuccessful at first instance.
– The difficulty in the case arose from the fact that the defendant alleged that the parties had entered into a joint venture agreement which was unfortunately not properly documented.
– The judgment went on appeal and counsel declined to act on the appeal.
Multiple related interlocutory proceedings
– Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970
– Yakiti Pty Ltd v MacDonald [2018] NSWSC 1505
– MacDonald v Yakiti Pty Ltd [2018] NSWCA 108
– Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392
22. Fields Group Pty Ltd v Wilson Security Pty Ltd [2019] NSWCA 286
– A case which involved an alleged agreement between an indigenous security company and the defendant.
– The difficulty arose because the alleged agreement upon which the plaintiff relied was not properly documented even though it formed the basis of and was referred to in a government tender for security work.
– The appellant/plaintiff was adamant that a concluded agreement had been formed. Neither the Court of Appeal or the Trial Judge agreed.
23. Fields Group Pty Ltd v Wilson Security Pty Ltd [2019] NSWSC 475
ARBITRATION
24. Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276
25. Tensioned Concrete Pty Ltd v Munich Re [2020] WASC 431
– On the interplay between Insurance Contracts Act 1984 (Cth), the Commercial Arbitration Act 2012 (WA) and the inherent jurisdiction of the Court to control its own proceedings.
– Appeal was resolved via negotiated outcome.
EMPLOYMENT – NOTICE PERIODS
26. Adventure World Travel Pty Ltd v Newsom [2014] NSWCA 174; 86 NSWLR 515 (affirming the decision of Gibson DCJ on 27 Sept 2013)
ADVICE WORK
27. For various Insurers in respect of Insurance coverage for all Financial Lines Policies including CAR Policies, Management Liability Policies, Product Liability Policies, Professional Indemnity Policies.
28. For purchasers and vendors in connection with their rights under the contracts for sale.
NEGOTIATED OUTCOMES
29. Strategic preparation of multiple cases in connection with:
– retail and other commercial leases and contracts for sale;
– professional indemnity claims for architects, certifiers, real estate agents and other professionals;
– restraint of trade in contracts for employment of real estate agents;
– commercial disputes involving Macquarie University and their tenants.
for hearing prior to them being resolved at mediations or informal settlement conferences on favourable terms.
RECENT PUBLICATIONS OF NOTE
1. JW Carter and L Chan, Contract and the Australian Consumer Law, Federation Press (March 2019)
– A text that explores the extent to which the ACL has modified the law of contract. The effects of the provisions in respect of misleading or deceptive conduct, unconscionable conduct, exclusion clauses, unfair contract terms and consumer guarantees are explored.
– Prescribed text for the contracts and torts law course at the University of Sydney.
– Prescribed reading for the Remedies in Contract course for the University of Melbourne, Master of Construction Law Program.
4. Contributing author to Bailey, Construction Law in Australia, Thomson Reuters, 4th edition, 2018 – chapters on Professional Liability and Insuring Risk in Construction Projects
– Prescribed text for the University of Melbourne, Master of Construction Law Program.
5. Chan, Insuring Risk in Construction Projects, (2018) 34 BCL 378
– An expanded and academic version of the chapter in Bailey’s Construction Law in Australia setting out key insurance issues in construction projects.
– An unexpectedly controversial paper in the geotechnical community which posits that the cause of the collapse of the Lane Cove Tunnel arose from construction defects at odds with the findings of McDougall J in the Supreme Court Proceedings.
– Hundreds of copies of this paper have been supplied to the geotechnical community at their request.
– A work referenced widely by construction lawyers. Researched and prepared at the invitation of and the guidance of Professor J W Carter
– A work exploring the different approaches to enforcement of arbitral awards in the Asia Pacific Region prepared at the invitation of the editor of the New York International Law Review.
10. Chan, A Penumbral Duty of care – is a principled approach possible? (2013) 21 TLJ 106
– A work exploring the salient features test and its potential application.
11. Chan, When Conveyances go Wrong — Vendor breaches Laina Chan (2011) 20 APLJ 33
– A widely referenced work exploring the disclosure obligations of a vendor pursuant to a contract for sale and the consequences of non-compliance.
13. Contributor to the Australian Insurance Law Bulletin:
– Case note on Globe Church Inc v Allianz Australia Insurance Ltd (2019) 34(10) ILB 125.
– Case note on Delta Pty Ltd v Mechanical and Construction Insurance Pty Ltd (2019) 35(1&2) ILB 14(1).
– The Opal Tower is a product — the purpose of product liability policies 10 Icon Co (NSW) v Liberty Mutual Insurance (2020) 36(7) ILB 110.
– Class actions and multiple plaintiffs — how many claims do they constitute Bank of Queensland Ltd v AIG Australia Ltd (2019) 35(5) ILB 55.
– Question — double insurance claim within the Federal Court jurisdiction? Epsilon v Liberty (2019) 35(4) ILB 38.
14. Reporter for the Building and Construction Law Journal.