I was asked to give a paper in Adelaide last week on the topic of “Drafting Indemnities: Getting the Details Right”. It was part of a marathon one day session where Legalwise Seminars enabled practitioners to collect 10 CPD points in a single day. It is a pretty fair guess that the delegates (there were quite a number of them) were there because they needed the CPD points, and not so much because they were lying awake at night worrying about how to draft their indemnities.
I have had bigger challenges. It’s not long ago that I was asked to give an after dinner speech on the subject of insolvency in the construction industry. It was a topic of interest because there has been quite a lot of insolvency in the construction industry around here recently. The challenge was that I was told to try to make it funny!
Anyway, I did my best to make this rather dry topic of drafting indenity clauses as interesting as I could, and as far as I could tell, no one actually fell asleep.
After these events, the conference organisers, Legalwise Seminars, collate and send round the evaluation forms that the delegates are asked to fill in, so that speakers can get some feedback on how the session was received. I thought Continue reading →
SoCLA has submitted its response to the NSW discussion paper on last year’s admendments.
Those amendments have not gone done well in the courts:
McDougall J in Kitchen Xchange v Formacon Building Services  NSWSC 1602 said that the amendment to s 13(2)(c) – removing the requirement for payment claims to identify themselves as such – was “unwise”.
In BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors QSC 218 the Supreme Court of Queensland had to consider a contractual provision to the same effect as the new NSW statutory requirement for supporting statements. It found that, on balance, such a requirement ran so counter to the objects of the legislation (those objects being the same in Queensland and NSW) as to fall foul of the anti-avoidance provisions.
These ill-considered experiments also fail to take into account the observation of Justice Peter Vickery that:
We now have the luxury of more than a decade of experience derived from the “hard knocks” of litigation and the practice of adjudication. This is an excellent foundation to build upon. Most of the problems, both practical and legal, one way or another have been exposed. It is surely now time to capture the best from all jurisdictions and consolidate them into a coherent national framework.
I have a couple of talks this coming week, in Adelaide on Wednesday and then in Brisbane on Thursday.
The Wednesday talk is on indemnities, with the snappy title of Drafting Indemnities: Getting the Details Right. The session is part of a day run by Legalwise seminars – I suspect most people will be there because of the need to earn CPD points.
More fun will be the session in Brisbane on Thurday, where I will be joining my colleagues from my London chambers – Keating Chambers – Marcus Taverner, Adam Constable and Jennie Wild at a SoCLA event, debating the impact of Cavendish v Makdessi and other recent cases. It will take the form of a sort of debate, Jennie setting the scene, then Adam suggesting that not much has changed, and then me suggesting that the revival and expansion of the doctrine of relief from forfeiture might well be really quite a big change. I have Continue reading →