Contract Law Conference: Minimising Risks & Disputes
213N18: Ensure your contract drafting strategies are modern, effective & unassailable. Survey the latest contract interpretation methods & consider the duty to negotiate in good faith. Perfect your protections against default & insolvency. Fine tune your indemnity, insurance & exclusion clauses. In the afternoon, master contract disputes by examining dispute resolution clauses, how to recover damages or defend against them, and the latest contract termination strategies.
Description
Attend the full day and earn 7 CPD units in Substantive Law
This program is applicable to practitioners from all States & Territories
Session 1
Contract Interpretation, Protections & Risk Allocation
Chair: Gregory Martin, Principal, Martin Bullock Lawyers
9.00am to 10.00am Contractual Interpretation: Modern Methods & Strategies
- Update on interpretation principles and canons of construction
- The latest from the Courts & the cases you need to know
- The ambiguous ‘ambiguity gateway’: Codelfa and life after it
- Some divergences between the states to have on your radar
Presented by Carolyn Coventry, Barrister, 13 Wentworth Chambers
10.00am to 11.00am Duty to Negotiate in Good Faith: Contract and Beyond
- Enforceability of duty
- Meaning and scope of duty
- Limits to good faith negotiation duty
- What is the test – subjective or objective?
- Statutory comparison
- Question of breach
- Remedies
Presented by Adam Butt, Barrister, 8 Wentworth Chambers
11.00am to 11.15am Morning Tea
11.15am to 12.15pm Contractual Protections Against Default and Insolvency
- Minimising default risk while improving recoverability
- Key considerations: cure, default and termination
- Flexibility in varying the scope of the contract
- Considering what compensation is payable and what loss is recoverable
- PPSA implications and what to watch out for
- Example clauses: when drafting goes wrong leading to litigation and the lessons for contract drafters
Presented by Michael Rozdal, Consulting Principal, Keypoint Law; Accredited Specialist in Commercial Litigation
12.15pm to 1.15pm Allocating Risk in Risky Times: Indemnity, Insurance & Exclusion Clauses
- Contractual devices to avoid or minimise liability
- Indemnities, insurance, exclusion clauses, guarantees, & financial caps
- Perfecting your indemnity clauses
- Types of indemnities and how to effectively use them
- A guide to key clauses and considerations in your insurance provisions
- Critical points to know about the different types of insurance policies
- Interaction between insurance and indemnities
- Step by step guide to managing risk in commercial contracts
- Insurance coverage; negotiations; knowing your limits; gaps & exclusions
- Analysis of instructive cases, the specific clauses in each, and what happens when risk allocation goes wrong
Presented by Suzy Madar, Partner and Mandy Tsang, Special Counsel, King & Wood Mallesons
Session 2
Contract Dispute Resolution, Termination & Damages
Chair: Josephine Brook, Special Counsel, Clayton Utz
2.00pm to 3.00pm Dispute Resolution Clauses: How to Draft & How to Possibly Avoid
- A guide to drafting a watertight dispute resolution clause
- When do you need or not need a dispute resolution clause?
- Should the dispute resolution be mandatory?
- Roadmap to choosing the right dispute resolution method
- Can your dispute resolution clause be practically implemented?
- Example clauses & strategies to include in your contracts
- Possibly avoiding a dispute resolution clause
- Common errors to attack and weaknesses to exploit
Presented by Joern Schimmelfeder, Principal Lawyer, JSTTEC Legal
3.00pm to 4.00pm Damages for Breach of Contract: How to Successfully Recover Damages or Defend a Claim
- Triggering the right to damages in contract
- A guide to how contractual damages are assessed
- Differences between damages in contract, in tort and under the Australian Consumer Law
- Categories of recoverable loss and strategies for approaching each
- Expectation damages and reliance damages: A useful distinction?
- Loss of chance or opportunity: What must be proven?
- Loss of bargain damages: traps for the unwary
- Significance of time of assessment in changing market conditions
- Causation, remoteness and mitigation
- Liquidated damages
- Case law examples
Presented by Jennifer Mee, Barrister, 6 St James Hall Chambers
4.00pm to 4.15pm Afternoon Tea
4.15pm to 5.15pm A Guide to Contract Termination: Rights and Consequences
- What are the differences between express rights and general right?
- How do you give effective notice?
- What if the termination is not justified?
- Losing the right to terminate: the importance of election and delay
- What are the consequences of termination?
- Claiming damages after termination
- Some practical tips for effective exercise of termination rights
Presented by Christopher Freeman, Barrister, Culwulla Chambers
Presenters
Gregory Martin
Greg is the principal of Martin Bullock and a senior solicitor of 33 years’ experience. He has practiced in litigation for the whole of his career, including commercial law, family law, wills and estates litigation, extensive commercial litigation, criminal law and personal injury litigation. He was an Accredited Specialist with the Law Society of NSW. Greg teaches law at Western Sydney University, lecturing in Criminal Law, Advanced Torts, Contracts and Alternative Dispute Resolution. Greg’s experience and big picture approach enables him to solve all problems on behalf of his clients, often approaching legal issues from outside the box to present cost effective and quick solutions.
Carolyn Coventry
Prior to joining the bar, Carolyn worked for a number of boutique, national and international law firms practising in the area of insurance litigation. She has extensive experience acting for defendants and insurers in public and product liability claims (both personal injury and property damage), professional negligence matters (particularly involving building professionals), intentional tort claims, strata disputes, coverage disputes and claims for dual insurance.
Adam Butt
Adam Butt is an Australian Barrister based in Sydney who specializes in international and domestic commercial arbitration and litigation and human rights law. Prior to joining the New South Wales Bar he practiced as a solicitor at Allens Linklaters and as a senior associate in the international arbitration team at Clayton Utz. Adam has acted on numerous international investment and commercial arbitrations. Adam has won major native title and Aboriginal land claim disputes across Australia and also acted as counsel for the Crown in such matters. In 2020, Adam was a finalist in the Australian Lawyers Weekly Barrister of the Year awards.
Michael Rozdal
Michael is a commercial litigator and insolvency lawyer who has joined Keypoint from Kemp Strang Lawyers, where he was a partner for 8 years. Michael is an accredited specialist in commercial litigation and his expertise in insolvency law has been recognised by his inclusion in Best Lawyers in Australia since 2017 for Insolvency and Reorganisation Law.
Suzy Madar
Suzy Madar is a Partner in the Dispute Resolution group in the Sydney office where she specialises in commercial and intellectual property disputes with a particular focus on healthcare and patents. Suzy has broad experience advising clients on the enforcement of intellectual property rights and defending allegations of infringement, as well as advising on commercial issues relating to intellectual property. She has represented clients in the Federal Court, Supreme Court and High Court as well as in Patent Office proceedings.
Josephine Brook
An experienced and client-focused negotiator and litigator, Josephine has represented and advised Federal and State Government entities and commercial clients in a wide range of complex construction and major projects, dispute resolution processes and litigation. Josephine's practice also focusses on dispute management and litigation strategy, risk reduction and cost minimisation.
Joern Schimmelfeder
Joern Schimmelfeder concentrates on legal issues affecting transport and engineering projects. He deals with a broad spectrum of clients including contractors, owners, manufacturers, builders, subcontractors and industry professional advisers., He frequently advises on the preparation and negotiation of contracts for the provision of transport, defence and aviation infrastructure, provision of outsourced services and long term infrastructure maintenance. He also has extensive experience advising clients on consortium transactions and project finance documents.
Jennifer Mee
Jennifer Mee has a broad commercial and public law practice, with particular expertise in complex commercial, corporate, property, construction, environmental and administrative law litigation. She also has specialist expertise in energy law. Prior to commencing at the bar in 2017, she practised as a solicitor for over 20 years, over 15 of which were as a partner at national and global law firms. She brings to her role as a barrister the benefit of many years of business, commercial, legal and regulatory experience. Jennifer regularly appears in numerous Federal and State courts and tribunals, including the High Court of Australia, Federal Court of Australia, and Supreme Court of NSW.
Christopher Freeman
Christopher Freeman has an equity and commercial dispute practice and has appeared in the Federal Court of Australia and the Equity Division of the Supreme Court of New South Wales for over 25 years. He has also appeared as an advocate in numerous international arbitrations at SIAC and HKIAC. He has given expert evidence on Australian contract law in Courts in Singapore, Thailand and Japan. He is an NMAS accredited mediator.
Mandy Tsang
Mandy regularly advises on the insurance aspects of large transactions, in particular warranty and indemnity insurance. Her practice spans from insurance issues in complex corporate mergers and acquisitions to high-profile public private partnerships. She advises listed entities and multinational corporations and their boards on indemnity arrangements and insurance programmes, in particular directors and officer liability and professional indemnity insurance policies. Mandy has assisted major financial institutions to navigate the challenges and uncertainties introduced into the market by the legislative reforms arising from the Banking Royal Commission and otherwise to comply with Australia's complex insurance and financial services regulatory frameworks
Venue
The Grace Hotel
77 York St
Sydney 2000
NSW
Australia