Success Stories
Successfully Restraining Unconditional Financial Guarantee in Mining Dispute
Recently, our Principal Lawyer, John Merlo, prevented a mine from converting an unconditional financial guarantee for an alleged failure to hand over a sewerage treatment plant in working order. Restraining an unconditional financial guarantee and security is a very difficult task.
In this case, Mr. Merlo was able to examine the mine's conduct and collect forensic evidence of misleading and deceptive conduct. The mine's staff were deliberately destroying the sewerage treatment plant's ability to process sewage in the biozone by pouring chlorine into the biozone.
Forensic evidence was strategically collected and analysed, and an expert report was produced. The mine was put on notice that open correspondence would be produced and relied upon regarding the question of costs.
This matter serves as an example of Mr. Merlo's use of strategy and evidence gathering to achieve commercial results in a surprisingly short period.
Navigating Complex Mining Dispute to Secure Client's Interests
The matter was an au fait accompli; the mine giant was caught red-handed, its workers having sabotaged the client's expensive equipment in a wash down facility built by the client. Back-to-base remote reporting was streaming data and footage detailing the sabotage.
On the day the adjudication response was due, the Queensland Supreme Court handed down the decision in Agripower Australia Ltd v J & D Rigging Pty Ltd & Ors [2013] QSC 164. This decision effectively stated that all construction work carried out on a mine site could not be adjudicated. Wilson J, in her reasons, indicated that a mine lease was an artifice over the actual land, and construction work attached to the lease, not the land, meant that BCIPA and adjudication did not apply.
The decision undermined a month of carefully drafted submissions and evidence that were certain to succeed.
Deprived of income, the only option for the client appeared to be litigation. All options and likely outcomes were analysed and considered.
Mr. Merlo advised the client to suspend work under the contract, knowing that the mine would then purport to terminate the contract and take control of the wash down facility.
The wash down facility was critical to the mine's operations, as heavy plant could not be moved from one area to another without wash down and clearance. It was understood that an issue arose concerning the Environmental Protection Act, as fire ants were known to be on the mine site, and various other pollutants were produced by the mine. It was clear that the Environmental Protection Act would be breached if the mine took control of the wash down facility.
The mine did indeed purport to terminate and take control of the facility, and Mr. Merlo was briefed to seek an injunction restraining the mine giant from operating, as operations without a properly functioning wash down facility would certainly breach the Environmental Protection Act.
Immediate injunctive relief was threatened, and the consequences of shutting down the mine were made clear; economically, the mine stood to lose tens of millions of dollars.
In light of this situation, sensibility prevailed: the mine paid the client, and the wash down facility was completed and handed over.
This matter serves as an example of Mr. Merlo's expert legal and strategic thinking in protecting his clients' interests.
Securing a Permanent Injunction in a Complex Defamation Case
In this particular matter, Mr. Merlo acted for an interstate client, a national company that had lost $40 million in contracts due to defamation. The case was complicated and involved a subtle and extensive campaign by an activist.
The client's QC in that state had advised that an injunction was not possible. After analysing the matter and advising the client, Mr. Merlo engaged Walter Sofronoff QC, arguably Australia’s foremost barrister, and secured an urgent ex parte injunction restraining the conduct complained of. He then drafted proceedings, briefing another senior QC, Tim Mathews QC, who instituted those proceedings in relation to several arcane breaches under tort law. A permanent injunction was obtained. Mr. Merlo went on to draft a voluminous criminal brief in excess of $300,000 for the client's submission to the relevant curial authority. He is particularly proud of this matter because it highlights his forensic attention to detail and tenacity.
Rapid Fund Recovery in Complex Construction Dispute
In this particular matter, Mr. Merlo was engaged by a contractor and paid by a national financier to secure funds that were the subject of a major construction dispute for completed construction work. He was engaged due to his specialist knowledge of the law and the industry, which surpassed that of banking and finance specialists, to secure the funds and obtain them to satisfy the national financier's interest in the matter. Mr. Merlo secured the funds in a remarkably fast manner. This matter stands out because of the complex arrangements that had to be made between the financier and the contractor to recover the funds.
Successful Defense of National Builder Against Insurance Giant's Claims
In this matter, Mr. Merlo acted for a major national builder in relation to a claim by a major insurance company that the builder had breached its contract and was terminated. The matter involved damages including the alleged breach of contract and termination. Of significance, the case involved the application of ancient iterations of building codes and regulations from the time the heritage building was originally constructed. Mr. Merlo engaged Australia's foremost expert in the area and successfully defended the client and reported the insurance giant's claims. He also prevented his client from being sued and obtained payments for his client in relation to outstanding construction work. Mr. Merlo is particularly proud of this matter because of the complexities of the issues concerning codes and regulations, and the expert evidence utilised.
Victory for National Demolition Contractor Against Major Builder
In this matter, Mr. Merlo acted for a national demolition contractor against a tier one national builder who was drastically behind time in its contract and refused to pay the client. The builder alleged set off and liquidated damages in circumstances of principal caused delay. The builder also alleged Mr. Merlo's client caused significant damage to a heritage building. Mr. Merlo assisted his client in drafting all of the necessary notices and brought a claim in his client's favor. He successfully defended his client and protected it from being sued, and recovered the outstanding payments for the client. Mr. Merlo is particularly proud of this matter because he defeated a tier one national builder and its legal representatives and preserved his client's interests.
Navigating Complex Environmental Compliance for International Client
In this matter, Mr. Merlo acted proactively for a contractor in relation to its client, a truly major international company that had failed to put into place the necessary approvals and procedures and was at risk of enormous fines from the Environmental Protection Agency. He worked with both the contractor and its client to develop and implement the necessary policies and procedures to bring its permits into line. This matter involved complex planning and environmental issues.
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