News & Publications
Last month, Lawyers’ Weekly interviewed Laina Chan. They discussed what constitutes success for those at the Bar, particularly in a post-pandemic market.
Laina discusses her own career and success at the Bar, and how she’s adapted to maintain it during the challenging 2 years the pandemic has brought. Laina also touches on how she gives back to the community and profession by mentoring up-and-coming members of the legal industry and being a part of the New South Wales Bar Pro Bono Scheme.
A copy of Laina’s interview can be found here
Parisa Hart considered the defence of qualified privilege in her article “Defence of Qualified Privilege” by comparing its applications in Australian and English common law, under s 30 of the Defamation Act 2005 (NSW) and the new of public interest journalism defence added by s 29A of the recent defamation amendments in New South Wales and other states. It indicates that this defence has developed substantially over time and considers the changes made by s 29A and s 30, as well as the matters raised by the High Court in Lange v ABC.
You can read the article here. A copy of it will also be published in the Torts Law Journal in the coming months.
Congratulations to Laina Chan for her win in the New South Wales Court of Appeal on Friday in Aslan v Stepanoski  NSWCA 24 where she acted for the appellant builder. Laina persuaded the Court to overturn the $2.7m judgment against her client for restitution and damages for consequential loss. Instead, she convinced the Court that the owners had repudiated that building contract when her client was locked out. She helped secure a judgment for her client for $50,000 for unpaid fees plus costs of the trial and appeal. Well done, Laina! Your client is grateful for this lift altering outcome. Mr Aslan will now be able to have the suspension over his building licence lifted and have his livelihood restored.
Please join Laina Chan at 5:00pm on Thursday, 27 January 2022 as she presents at Society of Construction Law’s Annual Construction Law webinar.
Laina’s topic 2021: The International Perspective will review some of the important decisions from around the world.
For more information and to register your interest, please click here
Vera Culkoff of 2 Selborne gave an interview with Lawyers Weekly last week about her new book Freedom from Fear.
Freedom from Fear gives an insight into Vera’s personal and professional journeys and explains how the power of our thoughts can create fears that prevent many from realising their dreams while providing different strategies on how to overcome those negative thoughts.
The interview explores many tips and messages for lawyers of all ages and career stages and offers insights on how to overcome our many illusory fears based on Vera’s life experiences that she openly and candidly shares in the book that she hopes may open some doors for lawyers.
Vera’s interview with Lawyers Weekly can be found here
2 Selborne is delighted to announce that Laina Chan has been named Barrister of the Year at Lawyers Weekly’s Women in Law Awards 2021.
Laina’s recognition comes from being an authority on the interplay between construction and insurance law and ‘go-to’ counsel in property law, conveyancing and lease disputes. In addition, she is the Chair of the Society of Construction Law and has worked tirelessly to represent the interests of the members in industry and government, to optimise the deliverability of projects measured against time, cost and quality. She is also generous with her time and mentors young professionals.
Laina is adept at identifying the rights and liabilities of the parties of a dispute and will design the best strategy to achieve favourable client outcomes. See for example her recent win in the NSW Supreme Court in Goyal v West  NSWSC 526 where she was briefed by the NSW 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 residents and former occupants of retirement villages going forward.
Congratulations Laina on a well-deserved achievement!
Peter Berg of 2 Selborne acted for the accused who faced 27 indictable offences which carried a penalty of up to 10 years imprisonment. Peter was able to identify the detrimental defects in the Office of the Director of Public Prosecutions case which forced an early dismissal of all charges by the Court. This outcome shows that no special weight attaches to either the number of alleged offences, or to the seriousness of the penalty.
Well done, Peter!
A copy of the article can be found here
Laina Chan, a senior junior specialising in property, construction, and insurance law, accepted an urgent brief from the NSW Bar Pro Bono Scheme to act for an elderly couple with dementia who were at risk of losing their ingoing contributions to a retirement village in Goyal v West. The operator was insolvent and receivers had been appointed to sell the property on which the retirement village had operated. A court order was needed to effect the sale pursuant to the Retirement Villages Act 1999 (NSW) (the Act).
The court was also required to determine the order in which the proceeds of sale were to be distributed. Under the Act, unregistered statutory charges secured against the land upon which the retirement village operated, were created at the time that each resident entered into a new village contract which granted them a licence to occupy a unit in the retirement village in return for an ingoing contribution. The receiver of the first mortgagee contended that the statutory charges created under the Act ranked in chronological order of creation with the registered and unregistered mortgages. If this construction was accepted then this meant that half of the former occupants would not receive a refund of their ingoing contributions. Laina put forward a competing construction. She contended that irrespective of when the statutory charges were created, all of the former occupants ranked ahead of the registered mortgagee and the unregistered second mortgage of the Catholic Church. she said that this arose from the literal construction of s 182G and was consisted with the purpose of the Act. One of the other former occupants who stood to lose their ingoing contribution also adopted the submissions of Laina. The other former occupants were agnostic.
In the first judicial consideration of s 182G of the Act, Ward CJ in Equity of the Supreme Court accepted the submissions of Laina and found that all of the unregistered statutory charges rank ahead of the registered and unregistered mortgages. This judgment is of universal application and will be very unpopular with all financiers of retirement villages. While the statutory charges are not registered, the certificate of title will note that the property is being used as a retirement village.
This outcome is consistent with the purpose and intention of the Act which is beneficial legislation enacted, for the protection of the vulnerable residents and former occupants of retirement villages.
Simon Burchett & Ishita Sethi
Bankruptcy and Contract Law: Power to extend the life of a bankruptcy petition retrospectively and beyond the statutory maximum of 24 months and consideration for acknowledgements of debt.
In dismissing an appeal from the Federal Circuit Court, the availability to that Court of the slip rule and power to make an order nunc pro tunc curing an error of calculation of the maximum period of permissible extension of a petition was recently confirmed by the Federal Court, while also upholding for the first time the application of s.36(2) Acts Interpretation Act 1901 (Cth) to extend the 24 month maximum life of a petition from expiry on a Saturday (even after the slip rule/nunc pro tunc cure) to the following Monday.
The Federal Court also rejected the bankrupt’s appeal from the refusal of an adjournment of the petition pending an appeal against the judgment debt on the ground it lacked reasonable prospects of success. That judgment in the District Court discussed at length the defence of want of consideration for an acknowledgement of debt and accepted consideration was provided by way of implied forbearance to sue on a bona fide claim, despite the principal debt otherwise being owed by a third party.
A copy of the judgment can be found here.