Advocacy skills

Cross-examination

Finely honed cross-examination skills, particularly cross-examination challenging credit and experts. Key cases impeaching opponent witnesses:

• Girchow Enterprises v Ultimate Franchising Group Pty Ltd [2023] FCA 420

• Shah v Hagemrad [2018] FCA 91

• Sarker Trading Pty Ltd v Vanege Pty Ltd [2016] NSWDC 250

• Nolan v Nolan & Ors [2014] QSC 218

Expert evidence

Well versed in experts from diverse disciplines including: accounting, construction, earthworks, economics, engineering, elevator design, finance, solicitors’ professional conduct, quantity surveying, real estate valuation, secant walls,
share trading and town planning.

Experienced in “hot-tub” cross-examination of multiple experts.

Building and construction,
security of payment

Andrew is one of Australia’s leading junior barristers in building and construction law with special expertise in claims under
Security of Payment legislation. Cases in which Andrew has appeared have set important precedents.

He appears regularly on specialist lists including the Technology and Construction List in the Supreme Court of New South Wales.

Recently in Hestbay Pty Ltd v One Sector Pty Ltd [2024] QSC 180 he was successful in opposing a $7 million construction claim in the Supreme Court of Queensland (led by Mark Ambrose KC).

Expertise in judicial and merits review of rectification orders made against builders and nominees.

Notable security of payment cases:

Kennedy Civil Contracting Pty Ltd (subject to Deed of Co Arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366 (under appeal) - whether a claimed set-off constitutes an improper cross-claim

Civil & Civic Corp Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 - whether building work attaches to specific reference dates

Kennedy Civil Contracting Pty Ltd (subject to deed of company arrangement) v Total Construction Pty Ltd [2023] NSWCA 306; [2023] NSWDC 325 - requirements for a valid payment claim, misleading or deceptive conduct

Bloc Constructions (ACT) Pty Ltd v ABS Façade (ACT) Pty Ltd [2023] FCA 1282 - sufficient identification of construction work, jurisdictional error

Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; ACTCA 42 - whether issue estoppel applies to adjudication determinations

Style Timber Floor v Krivosudsky (2019) 100 NSWLR 133; [2019] NSWCA 17 - the requirements for a valid payment schedule, proper approach for summary judgment applications under SoPA

Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWCA 157 - jurisdictional error, identification of construction work, good faith

University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635; Urban Traders Pty Ltd v Paul Michael Pty Ltd [2009] NSWSC 1072 - restraint of repetitive SoPA payment claims as an abuse of process

Equitable remedies

Andrew has special expertise in seeking relief within equity’s exclusive jurisdiction: breaches of fiduciary duties, undue influence, unconscionable conduct, estoppel and constructive trusts.

His article with Dr Gillian Dempsey on fiduciary duties appearing in the Australian Bar Review has been cited with approval by the Full Federal Court and the NSW Court of Appeal.

Dempsey, G.C. & Greinke, A.J. (2004) “Proscriptive Fiduciary Duties in Australia” 25 Australian Bar Review 1-13, approved by Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 and by the New South Wales Court of Appeal in Brown v NSW [2008] NSWCA 287.

Notable equity cases:

Aboriginal Housing Office v Jacky [2022] NSWSC 916 - whether trust was a charitable trust (appearing pro bono for Aboriginal residents)

Birch v Birch [2020] QCA 31 ; [2018] QSC 289 – presumed undue influence, unconscionable conduct

Nolan & Ors v Nolan [2015] QCA 199 ; [2014] QSC 218 – common endeavour constructive trust from a family farm; the first Australian case in which a wife successfully claimed such an interest

Agripay Pty Ltd v Byrne [2011] 2 Qd R 501; [2011] QCA 85 – setting aside a personal guarantee by "wife's special equity" in Yerkey v Jones

Smith v Glegg [2005] 1 Qd R 561; [2004] QSC 443 – presumed undue influence arising from s 87 of the Powers of Attorney Act 1998 (Qld)

Bartier v Kounza Investments Pty Ltd [2003] QSC 390 - equitable estoppel creating charge on land as security

Franchise disputes

Andrew acts in disputes between franchisor and franchisee (such as breaches of the Franchising Code of Conduct) and in respect of sales of franchised businesses, cases have involved some of Australia’s most well-known franchise brands, including:

Crema Coffee
Crust Pizza
Dominos Pizza
Gloria Jean's Coffee
Michel's Patisserie
Pizza Hut
Roll’d
Subway
UFC Gyms
Zuzu's Gelato

Notable franchise cases:

Each of these cases involved the successful impeachment of opposing witnesses including exposing fraud:

Girchow Enterprises v Ultimate Franchising Group Pty Ltd [2023] FCA 420 - misleading representations by franchisor, $5.8 million compensation

Shah v Hagemrad [2018] FCA 91 - fraudulent representations by seller of Subway franchise

Sarker Trading Pty Ltd v Vanege Pty Ltd [2016] NSWDC 25 - misleading representations by seller of Subway franchise

Misleading conduct

Andrew is regularly briefed on matters involving misleading conduct and related consumer protection provisions under the Australian Consumer Law. He has published articles and given seminars in this area.

As well as claims for misleading conduct by franchisors (above) he has acted for many “off-the plan” purchasers in respect of residential developments in Brisbane, Sydney and the Gold Coast.

Notable cases:

Colly Cotton Marketing Pty Ltd v Simmons [2006] NSWCA 134 - cotton producer induced by a cotton trader into signing millions of dollars of foreign exchange contracts, misleading conduct, unconscionable conduct, negligence and Contracts Review Act

Orchid Avenue Pty Ltd v Goode [2014] QDC 217 – misleading conduct regarding the Hilton development in Surfers Paradise

Deep v Robinson (2016, Commercial List, NSW Supreme Court)
– lead Counsel for $21 million for losses caused by share trading by an investment manager, settled during the trial

Real property, caveats, commercial leases

Andrew has expertise in real property disputes, caveats, mortgages, commercial leases including retail shop leases.

He regularly appears in the Real Property List in the Supreme Court of New South Wales.

Notable cases:

Stone Living Pty Ltd v 3 Property Group 9 Pty Ltd [2020] ACTSC 149 - extension of caveats

Guan v Lui [2021] NSWCA 65 - proper interpretation of Property, Stock and Business Agents Act 2002 (NSW)

Hatala v Graglee Pastoral Company Pty Ltd [2017] NSWSC 155 - equitable mortgage arising from deposit of title deeds

Li v Deng (No 2) [2012] NSWSC 1245 - claim for proprietary estoppel, resulting trust, credit of witnesses

Wills and estates

Andrew is briefed regularly in family provision claims in Queensland and New South Wales, almost all of which settle at mediation. He has appeared in contested probate claims and in litigation involving charitable trusts.

He was recently retained as lead Counsel in a family provision matter in an estate in excess of $6 million, involving contested allegations of disentitling conduct.

Contested probate matters:

• a fabricated will, requiring expert forensic paper and ink examination;

• removal of executors for misconduct including suppression of testamentary documents;

• establishing donationes mortis causa, and implied trusts;

• an urgent interlocutory application to restrain the cremation of a body and orders for post-mortem examination where the capacity of the deceased was in contest.