Australia 2018: three case studies in legal expertise

First finding, and then buying, a new home is a protracted and arduous experience. Australia’s REA Group has set out to remedy this by enabling online buyers to obtain approval for a mortgage directly through its platform. The digital property marketplace launched the joint property search and mortgage broking service with National Australia Bank (NAB) in September. REA, which operates in Australia, the US and Asia, believes it is a world first.

Because the scheme involved handling detailed information, the mortgage approval tool had to be carefully built to comply with Australia’s Privacy Act and financial regulations. REA’s in-house counsel and lawyers at law firm Corrs Chambers Westgarth were therefore vital to its development.

“There’s a bunch of financial regulation that was drafted for banking a very long time ago,” says Sarah Turner, REA’s general counsel. “You need to be able to work within those parameters and you need to be able to work in a way that’s best for the consumers and not for you or the bank.”

At both REA and Corrs, the lawyers’ innovations were led by tech, which increasingly underpins legal expertise in Australia, one of the world’s most competitive legal markets.

Usually, REA and NAB use and treat data differently. “We needed to mesh those ideas together to bring the experience to life,” says Ms Turner. “But the end result is that we can provide a clear indication of what someone can afford as they search.” REA believes the new tool will disrupt traditional loans for residential property in Australia. As chief executive Tracey Fellows put it in November, “that decision of how much money you can borrow is so inextricably linked to finding your place [to live]”.

Led by partner Justin Fox, Melbourne-based Corrs advised on and negotiated the relationship terms between REA and NAB. Corrs suggested a process-driven approach, whereby REA and NAB undertook the development work together and checked in at scheduled intervals.

The project pivoted and changed as the engineers, developers and user experience team worked together. “We didn’t draft an agreement and fit the work to it. Rather, as the work flexed, we followed iteratively,” says Ms Turner.

Construction conflict resolution

At MinterEllison, the Sydney-based law firm, an analytical tool helped to resolve a highly complex, very public dispute — in which claims totalled A$1.1bn — between the consortium behind the Wiggins Island Coal Export Terminal (Wicet) development in Queensland and engineering firms Monadelphous Engineering and Muhibbah Construction. The conflict, under way for years before MinterEllison stepped in on behalf of Wicet, related to many and varied disputes connected with the costs of a 1.8km approach jetty and ship berth.

A$1.1bnTotal claims in Wicet dispute

MinterEllison tasked a team of consultants — including forensic accountants, quantity surveyors, data analytics specialists, time experts and legal process outsource providers — to build a tool that lawyers could use to assess contractor claims against its documents and data, coupled with Wicet’s own information. It gave MinterEllison insight into where a contractor’s 1,200 staff were at any single point in time along with information about what job they were doing. Queries could be used at a detailed level to detect duplicate claims over resources including workers, plant and equipment, or for example if a particular worker was said to be present in two places at once.

“The disputes were able to be settled on acceptable financial terms to Wicet in a short time period after sharing the tool and some of its outputs with the contractor,” says Andrew Orford, a partner at MinterEllison.

Stock exchange’s blockchain plans

New technologies such as blockchain, a distributed ledger used to track and record certain transactions, are being explored by some firms, as businesses start to harness the tech for use other than cryptocurrencies. such as bitcoin and ether.

Gilbert + Tobin worked with the Australian Securities Exchange (ASX) on a blockchain project that will allow settlement and clearing transactions to be logged and recorded on a digital, decentralised, public ledger.

G+T advised on the legal and regulatory framework for the platform, which will replace ASX’s Clearing House Electronic Sub-register System (Chess) with distributed ledger tech built by Digital Asset Holdings. G+T partner Simon Burns says his firm sees an opportunity to become one of the go-to law firms for blockchain. To develop its expertise, it has formed relationships with experts such as Taylor Gerring, co-founder of the Ethereum Foundation, which developed the ether cryptocurrency, as well as blockchain vendors such as IBM and R3.

“We set out trying to develop our understanding of [blockchain] and then, on the back of that, develop our understanding of the potential legal implications and [related] things which flow from it,” says Mr Burns.