Construction & Major Projects

Our experienced Construction legal team regularly publishes articles and updates - the full list of publications appears below. The construction group's articles and publications provide timely and accurate insights into the industry, including analysis of legislation and news on upcoming seminars. This information is relevant to owners, contractors, subcontractors, government instrumentalities, developers, investors and consultants. If you'd like to be notified when we add new construction publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

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Construction & Major Projects Publications

  • Client Update: Disputes as to the validity of an agreement - a matter for arbitration or the courts?

    13 May 2019

    A recent decision of the High Court confirms the scope of arbitration clauses that refer disputes 'under' a deed or agreement can be broad enough to capture disputes about the validity of the agreement. Partners Nick Rudge, Andrea Martignoni and Peter O'Donahoo, and Senior Associate Alex Price, report.

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  • Client Update: ACCC 2019 Enforcement Priorities

    28 February 2019

    A number of industries and issues are in the spotlight following release of the ACCC's 2019 Enforcement and Compliance Priorities by Chairman Rod Sims on 26 February.

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  • Client Update: Certainty to return to Aboriginal cultural heritage in Queensland

    3 September 2018

    Project proponents and operators in Queensland can breathe a sigh of relief following the introduction of a Bill to restore certainty and validity to agreements for the management of Aboriginal cultural heritage in that state. The Bill proposes amending the 2003 Aboriginal Cultural Heritage Act to overcome the recent decision in Nuga Nuga and to reinstate the 'last claim standing' rule for identifying relevant Aboriginal parties. Partner Ben Zillmann and Senior Associate Giselle Kilvert consider the changes.

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  • Client Update: New reporting requirements for critical infrastructure

    4 June 2018

    New reporting requirements for critical infrastructure require the lodgement of information on the Register of Critical Infrastructure Assets before 11 January 2019. This is the time for owners and operators of Australian infrastructure to consider whether any of their assets qualify as 'critical infrastructure'. Partner Wendy Rae and Senior Associate Nick Kefalianos explain what critical infrastructure is and who will be affected by the new requirements.

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  • Client Update: Construction contracts and the new 'ipso facto' insolvency reforms

    1 June 2018

    New insolvency legislation that is designed to provide greater opportunities to restructure failing businesses, both before and during external administration, has recently been passed. The reforms restrict the enforcement of contractual rights triggered by voluntary administration, receivership or schemes of arrangement to avoid being wound up in insolvency (known as 'ipso facto' clauses). These changes will have significant ramifications for those involved in the construction sector. Partner Leighton O'Brien and Lawyer Daniel Abadee report.

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  • Client Update: Comments open for North East Link EES scoping requirements

    31 May 2018

    The draft scoping requirements for the proposed North East Link project's Environment Effects Statement have been released and are open for public comment until 12 June 2018. Partner Jillian Button and Lawyer Dale Straughen report.

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  • Client Update: Extensive recommendations on security of payment released

    24 May 2018

    The Federal Government has released John Murray AM's report into Australian security of payment regimes. The Review includes an extensive range of recommendations aimed at achieving legislative best practice and balancing the often competing interests of stakeholders. Importantly, it makes the case that security of payment is best dealt with at a national level, in a cohesive and co-operative manner. Partners Nick Rudge and David Donnelly and Associate Rami Marginean report.

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  • Client Update: ACCC's Enforcement and Compliance priorities for 2018

    22 February 2018

    A number of industries and issues are in the spotlight following release of the ACCC's 2018 Enforcement and Compliance Priorities by ACCC Chairman Rod Sims on 20 February 2018. The financial services, energy, commercial construction and agriculture sectors will be a focus in 2018, as well as the post-Harper misuse of market power and concerted practices provisions, digital platforms and large franchisors.

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  • Client Update: A new planning regime for Queensland

    3 July 2017

    The Planning Act 2016 commences today, together with the Planning Regulation 2017, various new planning documents and new forms. The Act replaces the Sustainable Planning Act 2009. While there is a lot that has changed under the new regime, the cornerstones of the planning system remain intact. Special Counsel Rosanne Meurling identifies those things that you need to know on day one of the new planning regime.

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  • Focus: Victoria's plan for value creation and capture

    6 April 2017

    The Victorian Government has released the Victorian Value Creation and Capture Framework which articulates its policy on value creation and value capture in the planning and delivery of public projects. The intention of the framework is to harness the potential of government investments to create additional value for the community and signal to the public, private and community sectors how the Victorian Government will go about doing so. Partner Paul Kenny and Lawyer Patrick Easton report.

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  • Client Update: Treasury consultation paper flags changes to stapled structures

    28 March 2017

    Stapled structures have been used as an investment platform in the property and infrastructure sectors for decades, and more recently have been deployed into renewable energy, agriculture and other areas. Through the issue of its Taxpayer Alert on stapled structures on 31 January 2017, the ATO indicated that it had serious tax integrity concerns with the proliferation of stapled structures. The Commonwealth Treasury has now revealed that it has also been concerned at the increasing impact of stapled structures on the corporate tax base by releasing a Consultation Paper calling for submissions on potential policy options in relation to stapled structures, the taxation of real property investments and the recharacterisation of trading income. Partner Martin Fry and Senior Associate Igor Golshtein report.

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  • Focus: Key planning reforms for developers, miners and major projects in NSW

    19 January 2017

    The NSW Government has kicked off 2017 by releasing proposed reforms to the State's ageing planning legislation. Partner Bill McCredie, Planning Special Counsel Marcia Doheny and Senior Associate Michael Zissis outline the key proposed reforms for developers and major project proponents, including miners.

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  • Focus: Queensland security of payment regime: more change on the horizon

    16 January 2017

    The Queensland Government recently released a Queensland Building Plan discussion paper for public consideration that coincided with the enactment of the Federal Government's Building and Construction Industry (Improving Productivity) Bill 2013. Both developments have the potential to affect the existing security of payment regime in Queensland. Partner Nicholas Ng, Managing Associate Nikki O'Leary, Senior Associate Matt Thomas and Associate Brydon Wang consider the proposed changes to security payment regimes under the Queensland Building Plan and the ABCC legislation.

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  • Client Update: Value capture for major transport infrastructure projects discussion paper

    17 November 2016

    The Federal Government has released the discussion paper foreshadowed in its Smart Cities Plan about how to use value capture to fund infrastructure projects in Australia. Infrastructure & Transport Sector Leader Leighton O'Brien, Government Sector Leader Paul Kenny, Special Finance Counsel Phillip Cornwell together with Senior Associates Michael Zissis and Nick Beresford-Wylie take a look at the paper and highlight issues for stakeholders to consider when preparing their submissions.

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  • Focus: Impact of reforms to Construction Contracts Act 2004 (WA)

    25 October 2016

    Proposed amendments to the Construction Contracts Act 2004 (WA) will, if passed, result in significant changes to the adjudication process in Western Australia. Partner Jeremy Quan-Sing, Senior Associate Fiona Potter and Law Graduate Thanushar Sridaran report on the potential impacts of the changes.

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  • Focus: Bill to establish Cross River Rail Delivery Authority

    24 October 2016

    The Queensland Government introduced legislation to establish the Cross River Rail Delivery Authority, an independent statutory body charged with delivering the Cross River Rail project and the wider economic developments along the project's corridor. Partner Nicholas Ng, Senior Associate Matt Thomas and Associate Brydon Wang consider the legislation and its implications.

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  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

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  • Focus: Compliance with multi-tiered dispute resolution clauses

    28 July 2016

    The Queensland Supreme Court has stayed proceedings on the basis that the parties did not follow the agreed contractual provisions for the proper escalation of a dispute. Partner Leighton O'Brien, Senior Associate Julian Berenholtz and Law Graduate Flora Ma report on the decision that emphasises the importance of constructing appropriate dispute resolution clauses for each transaction.

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  • Focus: Supreme Court of WA sends EPC contractor back to arbitration

    13 July 2016

    In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

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  • Allens insights: Value capture and getting smart

    30 June 2016

    The Australian Government has identified value capture and innovative financing as key elements of its Smart Cities Plan. The move will have significant implications for traditional project finance. By Paul Kenny, Sector Leader, Government, and Phillip Cornwell, Project Finance, Consultant at Allens.

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  • Focus: Resolving and valuing disputed variation claims under BCIPA in Victoria

    2 June 2016

    The Victorian Court of Appeal has confirmed that a dispute resolution clause providing for mediation is insufficient to exclude variations claims from the statutory adjudication process under the Victorian Security of Payment regime. The decision also confirms that, when determining the value of a progress payment, an adjudicator is not required to adopt a valuation certified by the superintendent under the contract. Partner Nick Rudge and Senior Associate Luisa Uriarte look at the decision and the practical ramifications for drafting construction contracts in Victoria.

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  • Paper: The Public-Private Partnership Law Review

    18 May 2016

    Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

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  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

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  • Focus: World Bank compares public procurement globally

    12 January 2016

    The World Bank has released its Benchmarking Public Procurement 2016 report, which provides comparable data on regulatory environments that affect the ability of private companies to do business with governments in 77 countries. Partner Leighton O'Brien* (who contributed to the report's analysis of Australia's public procurement practices) and Lawyer Patrick Easton look at the report and the lessons it provides Australian procuring entities on global best practice in public procurement.

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  • Focus: UK Supreme Court counters High Court on penalties

    19 November 2015

    The highest appellate court in the UK has affirmed and restated the penalty rule as it applies in the UK in a recent decision that directly addresses, and counters, the High Court of Australia's approach to the rule in Andrews. Partner Nick Rudge and Lawyer Patrick Easton report.

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  • Focus: Painting the full picture: certifiers and financiers in projects

    20 October 2015

    A recent decision of the UK High Court provides valuable instructions to both financiers and consultants regarding their obligations in monitoring project developments. Partners Nick Rudge (view CV) and David Donnelly (view CV) and Lawyer Patrick Easton report on the decision in Lloyds Bank plc v McBains Cooper Consulting and its relevance to parties to Australian projects.

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  • Focus: Judicial review of adjudication determinations - a new expansive approach?

    28 July 2015

    In a recent decision, the Supreme Court of Western Australia quashed two adjudication determinations on the basis of jurisdictional error. At the core of the decision was a finding that the adjudicator had misapplied the terms of the relevant construction contract. The decision suggests that an expansive approach will be taken to the judicial review of adjudications under the Construction Contracts Act 2004. Partner Jeremy Quan-Sing and Law Graduate James Illich report.

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  • Focus: There's no such thing as a free lunch (or road): user charges and road pricing

    26 June 2015

    Whether or not to more broadly adopt a 'user-pays' model for road infrastructure is a contentious debate within Australia. A number of industry participants and bodies have shown leadership in framing and enriching the debate, while others have sought to politicise or inflame the core issues. Partner David Donnelly considers the current state of the debate on user charges for road infrastructure in Australia.

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  • Focus: Support for principals with bank guarantees

    25 June 2015

    A principal has successfully challenged a decision to grant an interlocutory injunction restraining it from calling on performance bonds. The Victorian Court of Appeal's decision reaffirmed the court's general approach in favour of rejecting such applications where, as in many cases, the purpose of the bond is to provide security and allocate cash flow risk. Partner Nick Rudge and Senior Associate Julian Berenholtz report on the Victorian Court of Appeal decision in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd and its implications.

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  • Focus: WA Supreme Court provides further guidance on challenging adjudication determinations made under the Construction Contracts Act

    21 May 2015

    The Western Australian Supreme Court has provided additional guidance on the types of errors that can lead to an adjudicator's determination being quashed by the court. The Delmere Holdings Pty Ltd v Green decision is of interest to anyone who deals with security of payment adjudications under the Construction Contracts Act 2004 (WA). Partner-elect Jeremy Quan-Sing and Law Graduate James Illich report.

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  • Focus: When are LDs a penalty?

    8 May 2015

    The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in Andrews and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal. Partners Nick Rudge and David Donnelly and Lawyer James Waters report.

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  • Focus: Insolvent contractors beware: principals can rely upon set-off rights when resisting claims

    29 April 2015

    The Victorian Supreme Court has provided guidance on set-off rights in the context of insolvency, particularly in relation to inconsistency between provisions of the Corporations Act and security of payment legislation. Partner Nick Rudge and Lawyer James Waters report.

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  • Paper: The Public-Private Partnership Law Review

    21 April 2015

    Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

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  • Focus: Social benefit bonds - their role in the funding challenge for social infrastructure and services

    20 March 2015

    With the recent Intergenerational Report having further highlighted the need to deliver social outcomes in an efficient way, Partners David Donnelly and James Darcy report on the potential role of social benefit bonds in providing social infrastructure and services.

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  • Focus: The Inverted Bid Model - five key questions in solving it

    18 March 2015

    Industry Super Australia's proposed Inverted Bid Model has generated a lot of interest and discussion. At a recent industry symposium, participants were invited to explore the model, with a view to further refining it for application in the Australian infrastructure market. Partner David Donnelly poses some key questions.

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  • Client Update: First Asset Recycling Initiative agreement signed

    24 February 2015

    The Federal Government announced late last week that the first agreement under its $5 billion Asset Recycling Initiative has been signed with the ACT Government, demonstrating the Federal Government's commitment to the Initiative despite the underlying legislation remaining stalled by the Senate. Government sector leader and Partner Paul Kenny, Managing Associate Emin Altiparmak and Lawyer Ellie Mulholland report.

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  • Construction Law Year in Review 2014

    20 February 2015

    Our Construction Law Year in Review 2014 provides an overview of important construction law decisions and legislative developments in the past 12 months and considers how this may impact on your business.

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  • Paper: Getting the deal through - Australia PPP chapter

    5 November 2014

    Partners Leighton O'Brien and Nicholas Ng provide an overview on public-private partnerships (PPPs) in Australia, examining the general PPP framework, trends in the industry, the procurement process, operation and maintenance, default and termination and financing.

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  • Focus: The hotel window closes - no vulnerability where a contract exists

    20 October 2014

    The High Court recently overturned a NSW Court of Appeal decision that stated a building contractor owed a duty of care for pure economic loss for defective work to a successor in title to the developer of commercial premises. Partner Leighton O'Brien and Lawyer William Coote assess the decision and its consequences.

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  • Focus: Amendments to BCIPA regime passed in Queensland

    18 September 2014

    The Queensland Parliament has passed amendments to the state's security of payment legislation that aim to address concerns raised by the construction industry about unfairness in the payment claim and adjudication process. Managing Associate Nicholas Ng, Associate Laura Nagy and Lawyer Timothy Leschke report on the key changes and the implications for the industry.

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  • Focus: Make informal payment arrangements for construction work at your own peril

    5 September 2014

    A recent decision of the New South Wales Supreme Court serves as a timely reminder that a 'construction contract' under security of payment legislation can include an arrangement to carry out construction work that is not legally enforceable. Managing Associate Nicholas Ng, Associate Matt Thomas and Lawyer Timothy Leschke report on this decision and its implications for the construction industry.

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  • Focus: SOPA adjudications in Western Australia - only the applicant can win!

    3 July 2014

    The Supreme Court of Western Australia has held that under that state's security of payment legislation, an adjudicator does not have the power to make a determination that requires an applicant to pay the respondent money by reason of any counterclaim raised in the adjudication. An adjudicator may consider the counterclaim, but only in the context of whether any amount is payable to the applicant. A respondent who seeks to recover money by reason of a counterclaim must initiate a separate adjudication. Partner Michael Hollingdale, Managing Associate Jeremy Quan-Sing and Associate Helen Dolling report.

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  • Focus: School chaplaincy program remains out of bounds of federal power

    26 June 2014

    In a decision that has potential implications for a raft of Federal Government programs, the High Court held that legislation, passed to authorise hundreds of government funding arrangements, is invalid insofar as it relates to the national schools chaplaincy program. The decision once again confirms that the Federal executive cannot enter into contracts or authorise spending on a subject matter that it does not have power to legislate for. Partner Paul Kenny and Lawyer Danielle Atkin report.

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  • Focus: Adjudications under WA's SOPA legislation - enforcement by statutory demands clarified

    24 June 2014

    The WA Supreme Court has provided important clarification on the enforcement of adjudication determinations by the use of statutory demands under that State's security of payment legislation. It has confirmed that leave to enforce an adjudication determination as a judgment must be obtained before the issue of a statutory demand, and that failing to do so will mean the statutory demand is liable to be set aside. Partner Michael Hollingdale, Senior Associate Jeremy Quan-Sing and Lawyer Brittney Nash report.

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  • Focus: National Partnership Agreement on Asset Recycling

    14 May 2014

    The National Partnership Agreement on Asset Recycling between the Commonwealth and each of the states and territories firmly entrenches asset recycling for the next five years (at least). In last night's Budget, the Federal Budget announced $5 billion will be made available to fund payments to the states and territories. This could see existing state-owned infrastructure assets sold off to invest in significant major new works. Partner John Greig looks at the Agreement's implications.

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  • Focus: Using 'reasonable endeavours' - the importance of internal contractual standards

    28 April 2014

    The High Court has recently highlighted the significance of internal contractual standards when interpreting an obligation to use 'reasonable endeavours'. Partner Nick Rudge and Lawyers Goran Gelic and Timothy Leschke report on this development and its implications.

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  • Client Update: Security of payment laws to come into force in NSW

    11 April 2014

    New amending security of payment legislation will soon come into force in NSW that will provide greater protection and certainty for subcontractors in the contracting chain. Partner Leighton O'Brien and Lawyers Will Coote and Jerome Entwisle look at what will change and the implications.

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  • Focus: Important changes to BCIPA in Queensland

    11 April 2014

    Queensland's Department for Housing and Public Works has released details of fundamental amendments to the Building and Construction Industry Payments Act, proposed to come into effect this year. Partner Dan Young and Overseas Practitioner Andrew Middleton report on the key reforms proposed and their implications should they be enacted in their current form.

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  • Focus: Significant changes to Victorian Civil and Administrative Tribunal powers

    26 March 2014

    New legislation will implement significant changes to the administration of the Victorian Civil and Administrative Tribunal in a bid to improve efficiencies. Special Counsel Meg Lee and Lawyer Katherine Kirby discuss the key changes to VCAT's powers in the context of its planning jurisdiction.

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  • Client Update: Adjudication during the festive season - are you prepared?

    16 December 2013

    Principals and head contractors need to act now, to avoid being caught short by an application for adjudication made just before, or on any day during, the festive season. Partner Stephen McComish and Lawyer Kristian Maley report.

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