Australasian Legal Business (OzLB) Issue 7.11 by Key Media

ISSUE 7.11

Listed firms How are they faring now?

ALB Guide: Real Estate Top firms and lawyers revealed

Mallesons: 20 years in Asia The story behind this firm’s offshore growth

HOT40 The hottest lawyers of 2009 Gilbert + Tobin: Why we’re top-tier

DEALS ROUNDUP

LATERAL MOVES

US, UK REPORTS

NEWS ANALYSIS

DEALS DATA

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NEWS | news >>

Australasian Legal Business ISSUE 7.10

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ISSUE 7.11

EDITORial >>

Listed firms How are they faring now?

ALB Guide: Real Estate Top firms and lawyers revealed

Mallesons: 20 years in Asia The story behind this firm’s offshore growth

The single life

HOT40 The hottest lawyers of 2009 Gilbert + Tobin: Why we’re top-tier

DEALS ROUNDUP

LATERAL MOVES

US, UK REPORTS

NEWS ANALYSIS

DEALS DATA

www.legalbusinessonline.com

hy get married if you can sleep with everyone? That was apparently the philosophy at Deacons Hong Kong when they decided that, in a market dominated by international-local firm mergers, they were better off being an independent firm. As one account of the separation goes, Deacons Australia was cut adrift and the rest became history. There are always two sides to any story, and we don’t claim to know the full details of the Deacons separation and the truth behind who dumped whom. But the theme of long-term relationships being an encumbrance rather than a market advantage is certainly one that resonates in Australia. The Australian market is settling into two distinct camps. On the one side is the group that favours globalisation via an international alliance or merger. DLA Phillips Fox and Deacons Australia are the founding members of this camp, and scurrilous rumours continue to circulate that they are about to be joined by Mallesons – sooner rather than later. In one version of this rumour, senior members of the Mallesons partnership were reportedly seen emerging, with thoughtful expressions, from the Clifford Chance offices in London last month. Again, we can offer no confirmation of the veracity of such gossip. The other camp is enjoying the single life a little too much to settle down in an international merger. As AAR chief Michael Rose recently pointed out, a merger with one firm has the potential to jeopardise existing relationships with other firms. Why take that risk? Firms like Minter Ellison are eschewing merger talks and steadily building their international capacities organically. This is a drama that will be played out over many years to come. But in this era where every second company seems to have incorporated a world map or a spinning globe into its logo, it is timely to remember that globalisation is not inevitable. There is more than one camp, more than one school of thought. The lemmings are moving in more than one direction.

IN THE FIRST PERSON “What is important is not necessarily the lawyer/partner ratio, but how effectively those lawyers are being used” Michael Rose, managing partner, Allens Arthur Robinson (p10)

“We are firmly in a cycle of disputes and this will continue until the economy recovers” Doron Rivlin, partner, Herbert Geer, (p45)

“Factors like globalisation, client cost pressures and the availability of legal information increase competition across the board” Theuns (TJ) Viljoen, CEO, LexisNexis AsiaPacific, on investing in technology to drive legal productivity (p49)

A merger with one firm has the potential to jeopardise existing relationships with other firms. Why take that risk?

Australasian Legal Business ISSUE 7.11

contents >>

contents

ALB issue 7.11

HOT40

Real Estate

COVER STORY 22 ALB Hot 40 The much-anticipated list of the hottest lawyers in Australia and New Zealand returns for 2009

10 Lawyer:partner ratios Have the financial crisis and redundancies caused ratios to drop dangerously low?

44 Litigation and alternative dispute resolution Counter-cyclical or not, there’s plenty of this work around to keep disputes lawyers busy at the moment

11 Listed firms How have Australia’s two listed law firms been performing since their landmark decision to go public in 2007?

48 Driving IT Stepping up IT investment could result in an improved bottom line for law firms in a very competitive legal market

ANALYSIS

12 Legal tendering Firms are spending an increasing amount of time on tender submissions – and this trend may now be here to stay

38 ALB Guide: Real Estate The top firms and lawyers in this field are revealed

• M+K called on to design Shariah-compliant fund • Law firm’s corporate social responsibility programs rewarded • Clayton Utz discounts heavily for energy work

COLUMNS 15 UK Report 17 US Report 19 Soapbox

52 ALB-Kensington Swan In-house Perspective: Michael Abbott, Woodside A look at one of the nation’s busiest and most diverse in-house legal teams

33 Legal traveller

REGULARS

20 Buddle Findlay 43 Lynch Meyer 56 Mallesons: 20 years in Asia

FEATURES 34 ALB-LexisNexis Managing Partner series: Danny Gilbert, Gilbert + Tobin How Danny Gilbert had the vision to build a modest two-partner legla operation into a premium Australian telecommunications and technology firm

DEALS

10 NEWS ANALYSIS 14 NEWS • Minter Ellison snubbed on fees • Lehman ruling to result in years of litigation • Mallesons tops Australasian M&A league tables • Asia’s CEOs confident of economic recovery

62 Capital Markets Deals Data 63 M&A Deals Data

COMMENTARY/ PROFILES

Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Australasian Legal Business can accept no responsibility for loss.

australasian legal business ISSUE 7.11

NEWS | deals >>

deals in brief

| M&A | ►► Graincorp – United Malt Holdings acquisition A$920m Firm: Gilbert + Tobin Lead lawyer: John Williamson-Noble Client: Graincorp Firm: Mallesons Stephen Jaques Lead lawyer: Michael Barker Client: Champ Private Equity Firm: Baker & McKenzie Client: Credit Suisse

Michael Barker Mallesons

• To help fund the acquisition, Graincorp will conduct a A$489m equity raising, which is being underwritten by Credit Suisse • The acquisition of UMH will boost Graincorp’s market capitalisation from A$805m to A$1.4bn • Likely to deter potential suitors such as Canadian agribusiness group Viterra, which recently announced the A$1.6bn takeover of ABB Grain

| M&A | ►► Viterra – ABB Grain acquisition A$1.6bn Firm: Freehills Lead lawyers: Philippa Stone, Nicola Yeomans Client: Viterra Firm: Torys Client: Viterra

Nicola Yeomans Freehills

• Acquisition makes Viterra the sixth largest grain exporter in the world • ABB shareholders were entitled to select cash or scrip with strong demand for Viterra scrip resulting in issue of the maximum from the consideration pool

“Viterra is the first in a series o Australian assets this year, inclu by CPPIB for Macquarie Commu and by Eldorado Gold for Sino G 6

Australasian Legal Business ISSUE 7.11

NEWS | deals >>

| Corporate | ►► China Everbright – Macquarie Bank JV A$2bn Firm: Mallesons Stephen Jaques Lead lawyers: Hayden Flinn, John Sullivan Client: Macquarie Bank Firm: Paul Hastings Lead lawyers: Raymond Li, Vivian Lam Client: China Everbright

►► Your month at a glance Firm

Jurisdiction

Deal name

Abetz Curtis

Australia

MyState Financial Credit Union of Tasmania and Tasmanian Perpetual Trustees merger

Arnold Bloch Leibler

Australia

Sinochem acquisition of Nufarm

Baker & McKenzie

Australia

Bio Sequestration project

N/A Energy & resources

Australia

Graincorp acquisition of United Malt Holdings

920 M&A

Australia

ANZ acquisition of ING divisions

1,600 M&A

Australia

Sinochem acquisition of Nufarm

2,400 M&A

Chang Pistilli & Simmons

Australia

Hallett 4 wind farm project acquisition

548 M&A

Clayton Utz

Australia

Canwest's sell-down of its Ten Network Holdings stake

680 M&A

Australia

ANZ acquisition of ING divisions

Australia

Bio Sequestration project

Blake Dawson • JV to establish two funds for Chinese infrastructure investments like toll roads, railways, airports, renewable energy, water projects • Both Macquarie and CEL have committed to jointly contributing funds of US$100m

Deacons

| M&A | ►► sinochem acquisition of nufarm

• China’s Sinochem Group is a state-owned enterprise with core businesses in energy, agriculture, chemicals, finance and real estate and annual revenues in excess of US$4bn • Nufarm is a world-leading crop protection company

of Canadian bidders for uding the scheme proposals unication Infrastructure Group Gold” Nicola Yeomans, freehills www.legalbusinessonline.com

2,400 M&A

1,600 M&A N/A Energy & resources

Australia

White Dam gold project JV

Australia

MyState Financial Credit Union of Tasmania and Tasmanian Perpetual Trustees – merger

200 M&A/Financial services

Freehills

Australia

AWB capital raising

459 Corporate

Australia

Lynas capital raising

536 Corporate

Australia

Hallett 4 wind farm project acquisition

548 M&A

Australia

CBA PERLS V capital raising

Australia

Canwest's sell-down of its Ten Network Holdings stake

Australia

Viterra acquisition of ABB Grain

Australia

Hallett 4 wind farm project acquisition

548 M&A

Australia

Graincorp acquisition of United Malt Holdings

920 M&A

Herbert Geer

Australia

Henley Homes sale

HopgoodGanim

Australia, Canada, Hong Kong, UK, US

Norton Gold Fields share placement

Lander & Rogers

Australia

Henley Homes sale

Mallesons Stephen Jaques

Australia

Campbell Bros capital raising

Australia

Lynas capital raising

536 Corporate

Australia

Hallett 4 wind farm project acquisition

548 M&A

Australia

CBA PERLS V capital raising

1,800 Banking & finance

Australia, China

China Everbright – Macquarie Bank JV

2,000 Corporate

Australia

Graincorp acquisition of United Malt Holdings

Australia, Canada, Hong Kong, UK, US

Norton Gold Fields share placement

40 Corporate

Australia

Brookfield Secured Bonds Series B

65 M&A/Banking

Firm: Arnold Bloch Leibler Lead lawyer: Jonathan Wenig Client: Nufarm Marie McDonald • Exclusivity Blake Dawson period ends on 3 December, which will allow Sinochem to conduct due diligence

200 M&A/Financial services

Dobson Mitchell & Allport

A$2.4bn Firm: Blake Dawson Lead lawyer: Marie McDonald Client: Sinochem

A$m Practice

Gilbert + Tobin

16 Project finance

1,800 Banking & finance 680 M&A 1,600 M&A

Undisc Property/M&A 40 Corporate Undisc Property/M&A 232 Corporate

920 M&A

NEWS | deals >>

►► Your month at a glance (CONT) Firm

Jurisdiction

Deal name

McCullough Robertson

Australia

Provet Holdings rights issue

A$m

Practice

Minter Ellison

Australia

MyState Financial Credit Union of Tasmania and Tasmanian Perpetual Trustees – merger

200 M&A/Financial services

Australia

Campbell Bros capital raising

232 Corporate

Australia

Provet Holdings rights issue

22 Corporate

Australia

Brookfield Secured Bonds Series B

65 M&A/Banking

Paul Hastings

Australia, China

China Everbright – Macquarie Bank JV

2,000 Corporate

Torys

Australia

Viterra acquisition of ABB Grain

1,600 M&A

Wright Legal

Australia

White Dam gold project joint venture

Undisc Energy & resources

20 Corporate

Does your firm’s deal information appear in this table? Please contact

| M&A | ►► ANZ acquisition – ING divisions A$1.6bn

• Mallesons acted for an unprecedented 13 lead managers in the hybrid issues – believed to be the largest number engaged on an Australian equity capital offering

long-term fixed-cost arrangements • The 132MW wind farm will commence operations in 2011

| Corporate | ►► Lynas Capital Raising A$536m

| M&A | Michael Parshall Clayton Utz

• ANZ will pick up 51% of ING’s wealth management and insurance businesses that it doesn’t own • Clayton Utz lead partners Jacqueline Christie and Michael Parshall also worked on the JV formation in 2005 • Blake Dawson also advised ANZ on its recent A$4.7bn capital raising and its foray into the Asian market

| Banking & Finance | ►► PERLS V – CBA capital raising A$1.8bn Firm: Freehills Lead lawyer: Philippa Stone Client: Commonwealth Bank of Australia Firm: Mallesons Stephen Jaques Lead lawyer: Tony Sparks Client: UB AG

61 2 8437 4700

• Originally the CBA was intending to raise A$900m but the offer was expanded due to high retail interest

Firm: Blake Dawson Lead lawyer: John Sartori Client: ANZ Firm: Clayton Utz Lead lawyers: Jacqueline Christie, Michael Parshall Client: ING

alb@keymedia.com.au

►► Hallett 4 wind farm project acquisition A$548m Firm: Chang Pistilli & Simmons Lead lawyer: Jason Mendens Client: APA Group Firm: Gilbert + Tobin Lead lawyer: Vincent Dwyer Client: AGL Energy Firm: Freehills Lead lawyer: Joanne Crew Client: Osaka Gas Firm: Mallesons Stephen Jaques Lead lawyer: Dominic Bortoluzzi Client: Energy Infrastructure Investments • Seller AGL will buy all of the electricity and renewable energy certificates produced, as well as operate and maintain the facility under

Firm: Freehills Lead lawyers: Philippa Stone, Tony Sparks Client: Lynas Firm: Mallesons Stephen Jacques Lead lawyers: John Sullivan, Shannon Finch Client: JP Morgan • China Nonferrous Metal had agreed to buy a 51.6% stake in Lynas but the FIRB ordered it to keep its stake below 50%, causing the deal to fall through • Raising was completed in less than one week to allow Lynas to keep its financial commitments made prior to collapse of China Nonferrous deal • Lynas owns the richest deposit of rare earths in the world, t Mt Weld in Western Australia

| Corporate | ►► AWB capital raising A$459m

Jason Mendens Chang Pistilli & Simmons

Firm: Freehills Lead lawyer: Tim McEwan Client: AWB

• Deal is underwritten by Deutsche Bank, Goldman Sachs JBWere and UBS AG • Raising to be used to pay down debt • AWB is one of Australia’s leading agribusinesses focusing on grain trading, rural and financial services, and providing competitive products and services to wheat growers

| Corporate | ►► Campbell Bros capital raising A$232m Firm: Minter Ellison Lead lawyers: Gary Goldman, Suzanne Sheridan Client: Campbell Brothers Firm: Mallesons Stephen Jaques Lead lawyers: Shannon Finch Client: JP Morgan, RBS Morgans • Unlike the recent trend towards accelerated nonrenounceable offers, this raising was

Gary Goldman Minter Ellison

Australasian Legal Business ISSUE 7.11

NEWS | deals >>

Firm: Abetz Curtis Client: MyState Financial • Minter Ellison represented MyState Financial on all aspects of the transaction and also represented Tasmanian Perpetual Trustees in relation to the numerous regulatory approvals required • Both MyState Financial and Tasmanian Perpetual Trustees engaged local counsel to represent them in the Tasmanian court proceedings to approve the dual schemes of arrangement • Transaction involved a demutualization, merger, share issue and ASX listing

| Project Finance | ►► Project financing – White Dam gold project joint venture A$16m

structured as a traditional style renounceable rights issues, with rights trading on the ASX • Structure was designed to ensure maximum value for shareholders regardless of whether they wish to take up their entitlement • Capital raising was accompanied by announcement of a proposed conditional cash offer by Campbell Brothers for all the issued ordinary shares in PearlStreet Ltd

| Financial Services /M&A | ►► MyState Financial Credit Union of Tasmania – Tasmanian Perpetual Trustees merger A$200m Firm: Minter Ellison Lead lawyers: Tony Dhar, Jeremy Blackshaw Client: MyState Financial/Tasmanian Perpetual Trustees Firm: Dobson Mitchell Allport Client: Tasmanian Perpetual Trustees

www.legalbusinessonline.com

Firm: Wright Legal Client: Exco Resources, Polymetals Group Firm: Deacons Lead lawyers: Alen Pazin, Jessica Huston, Nick Sinclair Client: Barclays Capital • Highly-structured transaction completed by way of a gold-linked pre-payment sale and purchase setup • Exco owns 75% of White Dam with Brisbane-based Polymetals Group holding the balance of the project, and managing the project

CORRECTIONS: In the ‘In-house 20’ feature which appeared in ALB issue 7.9, reference was made to Richard Willcock moving from the role of Westpac General Counsel to the role of president of the New Zealand Corporate Lawyers Association (CLANZ). This reference was incorrect – Richard Willcock is currently on sabbatical and pursuing a number of interests, including working in Timor Leste and on the development of the Lawyers Beyond Borders and Finance in Development partnership programs with Australian Volunteers International (AVI).

NEWS | analysis >>

Analysis >>

Finding the balance

espite widespread redundancies across the industry, law firms are not reporting any significant change in their lawyer:partner ratios. Yet perhaps this should not come as any great surprise, as it would take redundancies in far larger numbers than what have been reported to date, to make any kind of substantial impact on firm’s employment ratios. The focus on average ratio, at any rate, needs to be taken with a grain of salt. Lawyer and partner ratio varies widely from practice area to practice area, and a change in the mix of work can skew leverage figures. However, those law firms that have reported a modest drop are keen to redress the balance. “[A higher ratio] gives us a more profitable model, and profitability is an important component of attracting and retaining the best lawyers and best partners,” said Danny Gilbert, managing partner of Gilbert + Tobin. “It also enables you to train a more diverse and larger work force, allowing you to retain knowledge in an environment where we have inevitable staff churn.” Gilbert touches on a theme mentioned by many managing partners who spoke with ALB on the subject; the belief that the employment market for lawyers, while not quite set to return to the manic days of 2007 and early 2008, will tighten up in 2010. “We’ll come back to that eventually,” Gilbert says. “You’ll have younger lawyers who want to travel and work in London or the US – [a higher ratio] means that you’re not dependent upon a smaller cohort of lawyers.” Mallesons created some interest in July by announcing a redundancy program that was expected to reduce the firm’s overall staff base by 5%. While the firm provided information about the initial redundancy plans to the media, it has subsequently declined to comment on the exact numbers of lawyers involved and how this has affected ratios. ALB 10

Has the financial crisis been responsible for an industry-wide drop in lawyer:partner ratios at major firms in Australia? ALB investigates Herbert Geer Ratio description: “It was 2.12 in June 2007, 2.16 in June 2008 and 2.01 in June 2009” Comment: “There’s been a slight reduction in ratio, that’s attributable to a bit of slimming down but Bill Fazio also we have a different mix of work and law clerks doing more of the repetitive work. Considering the growth in partners we’ve had in that time, it’s a pretty good achievement to keep the ratio steady. We would ideally like it to be a bit higher – perhaps between 2.25 to 2.5, but there will be variations across practice areas”

Gilbert + Tobin Ratio description: “Currently a bit under 3 to 4 per partner” Comment: “Ratio would have gone down a bit but we’d like to get that back up to three to four per partner level. Firms haven’t Danny Gilbert done much recruiting over the last couple of years – some firms have had redundancies, we tend to manage that by not replacing people”

Allens Arthur Robinson Ratio description: “Consistently around 4 lawyers per partner” Comment: “There has been no change in ratio. What is important is not necessarily the lawyer/ partner ratio, but how effectively those lawyers are being used”

Michael Rose

Freehills Ratio description: “Current ratio is 3.2, up from 3.0 twelve months ago” Comment: “Our ratio hasn’t really changed. Our retention rates have improved: we didn’t have a redundancy plan and we’re Peter Butler glad we didn’t have one so we’re not now in the potential position of having to scurry round and hire people. Ultimately, an average leverage of about 3.6 would be right for us, but average figures are not very useful. Resourcing needs vary according to the type of work in question” Madgwicks

Clayton Utz Ratio description: “Our ratio has been fairly static – it was 3.0 in FY 08 and 3.2 in FY 09 and has remained at that level.” Comment: “2009 was quite a good year for us – we recruited in areas David Fagan such as litigation, energy & resources and construction. We had a very small amount of redundancies in shared service areas”

Peter Kennedy

Ratio description: “Our ratio has been fairly consistent at around 2.5” Comment: “We hire against existing workflow and that has been fairly steady – the litigation, insolvency and property practices in particular are going well”

A higher ratio gives us a more profitable model Danny Gilbert, G+T Australasian Legal Business ISSUE 7.11

NEWS | analysis >>

Analysis >>

news in brief >>

To list or not to

McCullough Robertson beefs up Newcastle office McCullough Robertson has beefed up its Newcastle office in response to strong demand from clients in the resources and infrastructure industries. Lawyer Ross Mackay and senior associate Brendan Tobin have joined the firm less than a year after Queensland’s largest law firm opened its Newcastle office. Both are resources, planning and environment law experts. Partner and infrastructure law specialist Michael Rochester, who heads the Newcastle office, said these practice areas had seen substantial growth despite the impact of the GFC on the economy. “Our office is predominantly focused on the resources industry, and the growth we have seen since we opened in January has far exceeded our expectations,” Rochester said.

list

Slater & Gordon and Integrated Legal Holdings are the only two listed law firms in Australia, but their success may encourage others to follow

ersonal injury specialists Slater & Gordon became the first fully listed law firm in the world when it started trading shares on the ASX in May 2007. Three months later, Integrated Legal Holdings became the second. While Slater & Gordon has attracted a significant amount of market attention with analysts bullish on its growth prospects, ILH has been forced to shelter from the financial storm and plan its long-term strategy in the hope of turning around its fortunes. Since listing, Slater & Gordon has acquired 13 firms and beefed up its presence in the Sydney and Brisbane markets, as well as rural Victoria. Managing director Andrew Grech said that as well as responding to its clients’ needs for a strong regional presence, the firm was also bringing on other practice areas. “Over the last few years we’ve been working really hard to improve the service to our clients by expanding our geographic reach and by deepening the competencies that we have,” Grech said. “We’ve expanded from being a firm that’s pretty focused on commercial litigation and personal injury litigation, to a firm that provides family law services as well as a range www.legalbusinessonline.com

of services for small to medium-sized enterprises.” That growth has seen Slater & Gordon reach out from its Victorian base and build up a presence along the east coast, which is set to continue with Grech Andrew Grech, expecting a 50/50 split Slater & Gordon between organic growth and acquisitions of firms with A$1mA$10m in annual revenue. He said the strong growth is a direct result of the trailblazing path the firm took. “The growth couldn’t have come without the capital expansion that we’ve been able to undertake through the float,” Grech said. “We’ve been able to expand our management resources and in turn that allows our professional staff to focus on what they’re really here to do and that is to serve clients.” He described the experience of being a listed firm so far as “overwhelmingly positive.” Austock equities analyst David Grossman has a ‘buy’ recommendation on Slater & Gordon, saying the firm’s growth prospects look promising. “They have a growing market share which will

Minters partner elected president of WLG Ian Davis, a senior corporate partner and former chairman of Minter Ellison, has been elected as president of the World Law Group (WLG) at the group’s annual members’ conference held Ian Davis, in Zurich earlier this month. Davis Minters said these are challenging times for the legal profession worldwide. “Now, more than ever, networks are important – they help member firms leverage contacts and client referrals and utilise the wealth of experience and skills of all members,” he said. “The WLG network is underpinned by a ‘best-friends’ philosophy that emphasises collegiality, shared values and trust.” Previously chair of the WLG’s Membership Committee and a regional director with responsibility for the Asia-Pacific region, Davis brings more than 40 years of professional corporate and commercial law experience to the role. He is one of Minters’ key advisers to China and also advises Australian corporations and investors who are formulating business strategies for Asia.

Government plans bond market boost Lawyers in corporate practice areas are likely to be working on more bond issues like Brookfield Multiplex’s recent A$65m deal, after reports that the federal government is looking towards making life easier for companies to issue corporate bonds to retail investors. Both Federal Treasury and ASIC are examining options to simplify regulations for preparation of a retail bond prospectus. The aim is to encourage companies to refinance their borrowings via bond issues by eliminating some of the red tape. Brookfield Multiplex recently launched its second secured retail bond issue for 2009, with the help of lead managers Westpac Bank and Evans & Partners. Minter Ellison advised the lead arrangers, while Mallesons Stephen Jaques advised Brookfield on the transaction.

NEWS | analysis >>

Analysis >>

ensure they will have a reasonably good revenue growth profile and they’re consolidating the market,” he said. “From that perspective they can generate revenue growth of double digits, and because that type of legal work is relatively process-driven they can generate a reasonable margin.” ILHs has also looked at achieving strong growth, but Grossman said the firm has not been able to pull off the strategy. “[ILH] tried to go down the consolidation path and it hasn’t really worked out,” Grossman said. “They’ve tried to integrate firms on an ad hoc basis without any real strategy about how it’s going to add value.” However, ILH managing director Graeme Fowler said there is good reason for the firm to keep the brand of the larger acquired firms. “A lot of what you buy in these acquisitions is goodwill, if not most of it, and the brand in our view does have significant value as part of that goodwill,” he said. “Take Argyle for example, a well-known firm around Sydney, particularly in financial services legal work. To bring it in and to change the brand would just damage it in our view – it’s only the largest stand-alone firms that maintain their brands.” Since listing ILH has made two main acquisitions – Sydney’s Argyle Lawyers and MDA Lawyers, incorporated into Argyle. The micro-cap company is too small to have analysts follow its share price, but Fowler believes that the relative small size of the business

is the main reason it will thrive as a publicly traded company. “As a listed company you need to be able to provide growth,” Fowler said. “We think our target market of these medium-sized law firms provides an opportunity for us to achieve good growth over a consistent and continual period.” Fowler said that the long-term strategy is to take on 15-20 member firms (that will keep their brand) in the next decade, offering commercial, litigation, and other legal services to high-net-worth clients and SMEs. Other firms will more than likely wait to see what becomes of Australia’s two listed law firms before committing themselves to the scrutiny that goes hand-in-hand with being part of the ASX. “It’s very early days for listed legal practices and I think time will tell whether or not it’s a good thing,” said Stephen Roche, managing partner and executive director of personal injury firm Shine Lawyers. ALB

“The growth couldn’t have come without the capital expansion that we’ve been able to undertake through the float” Andrew Grech Slater & Gordon

►► YEARLY STOCK PERFORMANCE OF LISTED LAW FIRMS: SLATER & GORDON (SGH) AND INTEGRATED LEGAL HOLDINGS (IAW) 1.8 1.6 1.4 1.2 1.0 0.8 0.6 0.4

1.35

1.37

1.4

1.45

1.46

1.53

1.67

1.7

1.81

1.69

1.71

1.55

1.67

Close (SGH) Close (IAW) 0.165

0.17

0.15

0.18

0.15

0.145

0.16

0.165

0.145

0.15

0.16

0.14

0.135

Oct 08 Nov 08 Dec 08 Jan 09 Feb 09 Mar 09 Apr 09 May 09 Jun 09 Jul 09 Aug 09 Sep 09 Oct 09

That tender touch Is there a resurgence of legal work being put out to tender?

irms may pride themselves on good client relationships – but they’re also eyeing off what seems to be a trend towards tendering legal work. “In FY09 we undertook more [tenders] than we did in any previous year – we went through over 150 panel tenders and proposals,” said Clayton Utz’s chief executive partner, David Fagan. The majority were for existing clients and the level of unrecorded activity may have been higher. “It took a lot of resources to put the [proposals] together as they can be very time consuming – it’s great if you win the tender, not so great if you don’t,” Fagan said. Gilbert + Tobin managing partner Danny Gilbert has also seen this pattern. “There is a general trend towards more tendering and those kinds of procurement models. But I think the very best general counsels would look for value outside the procurement model, as it tends to follow a very rigid line and doesn’t always recognise the value of someone who is well informed about the market. Procurement doesn’t always get that right.” While it is inevitable that there is some link between the financial crisis and the increased prevalence of tendering, Fagan believes that the trend is permanent. “It’s here to stay and not just a feature of the GFC. It’s part of clients seeking greater value and competitive tension in pricing.” However, the alternative theory is that these trends are cyclical. “If you look at what happened in the UK in the mid-90s, there was a trend towards tendering which fell away because the firm that won the tender didn’t always perform satisfactorily,” said one source. “So the client might have saved a million on costs, but lost five million because the law firm blundered.” Australasian Legal Business ISSUE 7.11

Nov 08 Oct 08

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In-house perspective

Putting work or panel positions out to tender is often simply part of a company’s business culture. One example is Woodside Energy, where vice president of legal, Michael Abbott, said that the energy group has a broad commitment to using the tender process. “That is our process which we use for engaging services, whether we’re building a liquid-natural-gas plant or engaging a law firm,” he said. “Competitive tender seems to be the fairest way to get people to put their best foot forward and show us what they can do.” Woodside is currently revising its Australian panel. “The process will be that we’ll tender for people to go on the panel,” said Abbott. “The legal team will have the freedom to instruct the panel firms, but if they want to go outside the panel they will need to refer that back to myself.” Abbott says that tendering seems to be becoming more prevalent. “From what I can gather from conferences and from speaking to other lawyers, that seems to be the trend,” he said. But GCs remain mindful of the potential shortcomings of a tender process. “You can always get a cheaper cost somewhere else, there’s always a firm that’s going to be hungrier and willing to discount margins to get you in the door – but I’m looking at the longer term, so I haven’t consciously said: let’s got out to tender,” said Tim Wong, the group general counsel Asia Pacific for George Weston Foods. He noted the value of proven, successful existing relationship. Still, he keeps a close eye on costs and makes sure that his main advisors do not become complacent.

Internal pressures

Having survived the financial crisis largely without the wholesale redundancies which have occurred in past downturns, in-house lawyers can take some comfort from the enhanced respect which the profession seems to be enjoying. This does not diminish the pressure on in-house legal teams to prove their value to their organisation – and to retain the ability to make autonomous decisions about spending. Some think that the best people to make legal spend decisions are not lawyers but procurement experts, www.legalbusinessonline.com

who specialise in the buying of good and services. The premise is that lawyers are less able to make objective decisions about value; due to the relationships they have built with firms and the desire to retain a particular lawyer or firm out of loyalty. “Under the [procurement] model, the presumption is that lawyers are very good at doing the legal work, but instead of general counsel negotiating the buying of legal services, this should be done in conjunction with procurement experts, who have experience negotiating the buying of all sorts of goods and services,” Wong said. He is not sure how widespread this model is, but says that it poses an additional incentive for general counsel to demonstrate that they have a handle on costs. “You’ve got procurement people lurking in the wings and it’s implicit that if you don’t handle [expenses] yourself, experts can be brought in to help you,” he said.

Emily Peterson, Legal Tender Australia

Tendering for SMEs

Smaller companies have traditionally not put work out to tender but this is changing, with the advent of internetbased services linking law firms with those offering legal work. Emily Peterson, director of Legal Tender Australia, says that her business is most often used by companies which do not have in-house legal teams and previously did not use a tender system. These companies often have legal representation, but are shopping around as they are unhappy with the service they are receiving. “SMEs are frequently briefing firms on a transactional basis,” Peterson said. “They want a better deal.” Not to say that relationships are unimportant – companies will often return to the same firm when more work arises. Most firms submitting proposals provide a cost estimate, and about a third will offer a fixed-fee basis. ALB

news in brief >> Web stats point to imminent job recovery Statistics obtained from ALB Magazine’s Legal Jobs Centre website indicate a reversal in fortunes for the legal recruitment market, with more people spending more time looking for jobs in September. The month saw a 26% increase in the number of people searching for “legal jobs” on internet search engines. While it is difficult to draw conclusions from a single month’s statistics, the increase in search activity on the job website comes after another particularly strong month in August, showing that a trend might be occurring. At the moment the most widely-read advertisements on the website are for senior positions, including one for a Melbourne-based general counsel offered through boutique recruiter Burgess Paluch and one from niche legal recruiter David Talalla & Associates, offering partner positions in all areas of law.

Five firms appointed to tax advisory panel Senator Nick Sherry has appointed five law firms to the Tax Design Advisory Panel, which is mandated with delivering on the Rudd Government’s commitment to enhanced consultation with the business community in the Senator Nick development and design of new Sherry tax laws. Clayton Utz, Corrs Chambers Westgarth, DLA Phillips Fox, Greenwoods & Freehills, and Hall & Wilcox will join the 13-member panel that also includes five accounting firms, two economic research and modeling houses and one legal academic and research organisation. The organisations that make up the panel were selected by public tender. Carter Newell Lawyers dons the pink Carter Newell Lawyers staff have raised A$1,900 for the Cancer Council Queensland. With firm support, staff were able to make deductions directly through their pay as part of the firm’s workplace giving program. To support this fund raising initiative the firm has purchased pink shirts to be worn on Fridays for the month of October. Andrew Persijn, the Cancer Council Queensland representative of the Carter Newell Workplace Giving Committee, said it was one of the firm’s biggest fundraisers to date. “While the focus this year is breast cancer awareness in the month of October, next year we will continue working with Cancer Council Queensland and look to support Blue September which highlights awareness of men’s cancers”, he said.

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news in brief >> Chapman Tripp principal named as leading arbitrator Chapman Tripp principal Daniel Kalderimis has been selected as one of the world’s pre-eminent commercial arbitration specialists by Global Arbitration Review’s International Who’s Who of Commercial Arbitration 2010. He rejoined Chapman Tripp as a principal in March this year, and leads the firm’s international arbitration and trade law practice which focuses on the Asia-Pacific region. Kalderimis is a specialised advocate and has acted as counsel in several international arbitrations under major rules. Kalderimis also appears as a barrister and solicitor in commercial litigation before the New Zealand courts.

Commercial property business picks up for Curwoods Curwoods has recruited commercial property partner Natalie Ng from Carneys Lawyers to help with increased business in the sector, particularly involving the hospitality industry. Ng, who was with Carneys for 15 years, said she needed to move to a firm with more resources to help service her clients. Ng said that there had been a steady increase in work for the commercial property practice since July, with many Asian clients looking to invest in Australian property. She said that, while the dollar has surged in recent months, clients are mostly cashed-up and looking for an exposure to the Australian market.

new wa law society president named The new president of the Law Society of Western Australia is former Francis Burt Chambers barrister Hylton Quail. He has identified the proposed nationalisation of the legal profession as his number-one priority when he takes office next year. “Promoting better community understanding of the rule of law and separation of powers, and the justice system and the role of lawyers will be a focus.” Previously a criminal barrister and vice president of the WA Law Society, he has also pledged to improve access to justice by working to increase community legal centre funding and promoting pro bono work by all lawyers, and better serving the needs of younger members of the legal profession.

Industry >>

Minter Ellison snubbed on fees T

he director of cash-strapped biotech company Dia-B Tech has said the company will dispute a significant amount of money owed to Minter Ellison for its role in a failed takeover bid and a A$12.5m capital raising. A prospectus filed with the ASX in May showed that Minter Ellison was to be paid a minimum of A$150,000 for advice on the capital raising, which was to be used to fund the acquisition of the unlisted company Pallane Medical. The prospectus also showed

that Pallane Medical was advised by Minter Ellison. Winteray had agreed to underwrite the capital raising but pulled out, meaning the raising failed. Dia-B Tech director Peter Stafford said recently that the money owed to Minters was more than the amount filed with the ASX and that the firm should seek compensation from Winteray. “There’s a big amount of debt owing to Minters ... it’s higher than what was stated in the prospectus,” Stafford said.

Litigation >>

Lehman ruling to result in years A

ustralian litigators are gearing up for a long battle after the Federal Court recently ruled in favour of three councils, contesting a deed of company arrangement (DOCA) that limited the creditors’ recourse to the assets of Lehman Brothers Australia. The ruling paves the way for the councils and other creditors to sue the company’s parent entities, with the full Federal Court saying that the DOCA could not prohibit creditors from seeking damages from third parties. Subsequently, Justice Stephen Rares made a winding-up order in respect of Lehman Brothers Australia, with the previous administrators, PPB, becoming liquidators. The judge said in the judgment that the Corporations Act 2001 “does not contain either express words of unmistakable clarity of language to lead to such a draconian interference with the proprietary rights of creditors against third parties or other creditors of a company in administration.” Jones Day’s Sydney partner Philip Hoser said that the ruling will likely result in more work for litigators, as the councils look to recover millions of dollars they claimed were lost after they invested in collateralised debt obligations (CDOs). “In this particular case I think it will lead to more litigation, because we not only have the three councils who are

the plaintiffs with their claims, but behind them there are scores of other councils and other people who bought these CDOs and so on, who may also seek to assert claims,” Hoser said. “Each one of them will not only have to show there was a misrepresentation but will also need to establish what loss they’ve suffered.” If the DOCA had stayed in place, there was a formula laid down which would have valued the councils’ claims – but Hoser said now that the arrangement is not going to remain in place, all those claims will have to be litigated.“ There will probably be some sort of class action or representative action Philip Hoser, Jones Day but to the extent that they differ that will need to be a question of individual litigation,” he said. Hoser is working with Lehman Holdings on the case and said that many of the CDOs were still being held by the councils and were still paying dividends, so it would be difficult to determine what losses they have suffered. He expects litigation to take several years, by which time demand for the debt securities may have returned to the market. “If it takes three years for the litigation to come Australasian Legal Business ISSUE 7.11

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“A lot of it revolves around the deal with Winteray and the company does not believe that it should have to pay. We will be suggesting that Minter Ellison pursue Winteray, as we are going to,” he added. A newspaper report said that Pallane Medical was also considering legal action against Minter Ellison over the aborted deal, with chairman Peter King saying it had cost the company both money and time. A spokesperson for Winteray told ALB that it had not yet received demands from Minters, but refused to comment on any pending action between Dia-B Tech and itself. ALB

of litigation on, it’s not at all hard to imagine that in three years from now the market may have recovered very substantially.” This ruling differs from one handed down by a different full Federal Court bench in the Opes Prime case, which involved a scheme of arrangement (SOA). In that case, creditor Robert Fowler was denied the right to seek damages from ANZ Bank and Merrill Lynch under the scheme. The contrasting rulings could open the door for a High Court challenge. “One of the very interesting things is there is now quite an important difference between what you can do under a SOA and what you can do under a DOCA and they’re both subject to a full Federal Court decision,” Hoser said. “The full Federal Court in Opes Prime said that under a scheme of arrangement you can have these thirdparty non-debtor releases and then this full court – in a way that casts some doubt on the reasoning of that other full court – has said that under a DOCA you can’t.” Hoser said he has no doubt that if any party sought a High Court hearing on the matter, leave to appeal would be granted. Yet even if the Lehman entities were to succeed in an appeal, the DOCA would not be safe because the councils could argue that it is unfairly cumbersome. ALB www.legalbusinessonline.com

uk report Changes ahead for Slaughter and May Change is afoot at Slaughter and May, with the firm planning to close its Paris office in April next year, as solo Paris partner Andrew McClean prepares to return to London to join the City finance practice. Slaughters had decided to retain its singlepartner Paris practice after it allied with French firm Bredin Prat in 2006, but the office closure now will leave Slaughters with just one significant overseas office – the 11-partner branch in Hong Kong. (In Brussels the firm has only two partners; and the other overseas office, Beijing, only opened two months ago.) The firm is also reportedly considering a move into legal process outsourcing (LPO), following in the footsteps of other big firms, including Clifford Chance and Simmons & Simmons. The UK’s top firms have been being urged by clients for some time now to embrace the alternative models. Slaughters is now in talks with an LPO agency regarding the prospect of outsourcing low-level legal work, including document review and due diligence. Freshfields PE undergoes shake-up Freshfields has reshuffled management of its worldwide PE practice, following the appointment of Ed Braham as global head of corporate in July. The changes are as follows: Hamburg-based partner Nils Koffka – previously joint head of the global PE group alongside London-based partner Chris Bown – will now head up the infrastructure and transport group, working alongside the head of sector Nick Bliss. Chris Bown will now head the London PE team; and Cologne-based partner Ludwig Leyendecker will become sole leader of the global PE practice. Each of the appointments will last for four years.

Clifford Chance bosses may go Recent reports suggest that Clifford Chance could soon see the size of its management team decrease in a bid to streamline its management set-up. Currently CC’s day-to-day management rests with the firm’s 17-member management committee, headed by managing partner David Childs. It includes two executive partners, a finance director, director of global business services, and 12 members from across the firm’s main practice areas and offices. This news comes as the firm approaches a series of senior leadership elections, since Child’s and Perrin’s roles draw to a close (end of April 2010), and Jeremy Sandelson’s term as London managing partner nears completion at the end of this year. The firm is also set to vote on practice group head roles for real estate and tax, pensions and employment, with both terms set to end on 31 December UK firms still bearing the brunt of the GFC Despite news that the global economy is steadily strengthening, some UK firms are still feeling the blow of the GFC. Denton Wilde Sapte is a case in point, having recently launched its second redundancy consultation; 29 members of staff in the firm’s London and Milton Keynes offices are likely to be affected, but none of these will be fee-earners. The cull is expected to be complete by mid-November. Ashurst has also seen a series of staff departures in recent months. According to reports, 22 partners have left the firm since January. The top 10 City law firm, which had 235 partners at the beginning of May, has now lost approximately 10% of its partnership as it stood at the beginning of the current financial year. Several former Ashurst partners have taken positions at rival firms, including Barlow Lyde & Gilbert, Field Fisher Waterhouse, Milbank Tweed, Pinsent Masons and Simmons & Simmons

 ROUNDUP

• Clifford Chance recently split its Central and Eastern Europe and Russia managing partner role into two. Jan ter Haar, the recently appointed Moscow managing partner, will take over the Moscow and Kiev offices. Another partner will be elected to oversee Bucharest, Prague and Warsaw • UBS has revealed its new-look global panel, on which Herbert Smith and DLA Piper appear for the first time. The two firms join existing advisors Allen & Overy, Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters, Simmons & Simmons and White & Case. • Herbert Smith senior partner since 2005, David Gold, has confirmed that he will not stand for re-election. Nominations for the law firm’s top management role will take place in November

NEWS | news >>

Industry >>

Mallesons tops Australasian M&A league tables to date ►► Legal advisors to Australasian M&A – 2009 values Jan-Sep rank

Firm

►► Legal Advisors to Australasian M&A: 2009 volumes

Value

Deal count

Y/E 2008 rank

Jan-Sep rank

Firm

Value

Deal count

Y/E 2008 rank

Mallesons Stephen Jaques

24,412

Freehills

12,847

Linklaters

23,600

Blake Dawson

12,020

Allens Arthur Robinson

19,649

Mallesons Stephen Jaques

24,412

Johnson Winter & Slattery

13,591

Clayton Utz

4,225

Freehills

12,847

Minter Ellison

1,208

Wachtell, Lipton, Rosen & Katz

12,828

Baker & McKenzie

4,091

Clifford Chance

12,219

Deacons

666

Blake Dawson

12,020

Allens Arthur Robinson

19,649

Equal 9

Chiomenti Studio Legale

11,838

Gilbert + Tobin

8,666

Equal 9

Commerce & Finance

11,838

Corrs Chambers Westgarth

4,554

Equal 9

Fried Frank Harris Shriver & Jacobson

11,838

DLA Piper

799

Equal 9

Simpson Thacher & Bartlett

4,165

897

11,838

Simpson Grierson

Gilbert + Tobin

8,666

Steinepreis Paganin

Equal 14

Arthur Cox

5,768

Linklaters

23,600

Equal 14

Matheson Ormsby Prentice

5,768

Clifford Chance

12,219

allesons Stephen Jaques has topped the Mergermarket Australasian M&A league tables, advising on 30 deals valued at US$24.4bn between January and September this year. This result is just ahead of Linklaters’, with seven deals worth US$23.6bn, and Allens Arthur Robinson’s 19 deals valued at US$19.6bn. “I think this year we’re looking at more transactions going into execution,” said Mallesons Sydney M&A partner Brian Murphy. “Last year we spent time on transactions that actually didn’t proceed, and also

announced transactions that proceeded but weren’t completed.” Murphy added that more traditional M&A activity has been on the increase. “Speaking to investment banks, they are suggesting that their pipelines are very strong in the M&A area – certainly we’re starting to see that now,” he said. “I think the generally held view is that the bottom of the market has been met in most sectors. So there is a general optimism among our client base looking at either business restructuring internally or acquisition opportunities externally.”

Freehills came out on top in the volume of deals completed, with 36 M&A transactions valued at just under US$13bn. This was followed by Blake Dawson who worked on 31 M&A deals Brian Murphy, worth US$12bn in the Mallesons first nine months of this year. Together, Australia and New Zealand accounted for 14.5% of Asia-Pacific’s M&A activity by value – trailing China’s 31.8% and Japan’s 23.2% rates respectively. ALB

Industry >>

Clayton Utz “discounted heavily” for energy work

n-house counsel in the energy & resources sector have highlighted lower rates as a key factor in outsourcing legal work, with Clayton Utz and Brisbane’s HopgoodGanim receiving special mention. HopgoodGanim was lauded for its reasonable fee structure and personal service. “Working with HopgoodGanim was good, the firm charged reasonable rates and we had a good working relationship,” said the general counsel 16

of a leading mining company. “Clayton Utz charges more than anyone, but they discount heavily,” said the general counsel for an energy company, adding that specialist standout partners charge around A$650-A$700 while other partners’ rates are A$450-A$500. Another energy company said that it used a mix of top-tier and mid-tier firms depending on the type of legal work available, with top-tiers charging

between A$600-A$650 and mid-tiers costing A$500-A$600. “Financing and capital raising deals would require a national top-tier [firm],” the energy company’s general counsel said. This company was looking to agree on success bonuses and failure discounts with law firms. “We’ve proposed something along the lines of ‘if we are successful [the firm] gets 120% or if we fail then [the firm] gets 80%.’ If the deal is not successful we agree to a discount.” ALB Australasian Legal Business ISSUE 7.11

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Banking & Finance >>

M+K to design Shariah fund

he Muslim Community Co-operative Australia (MCCA) has called upon law firm Macpherson + Kelley to help design and establish an Australianbased Islamic financing vehicle that aims to attract offshore investors. M+K principals Peter Rawling and Gerard Kennedy have a long working relationship with MCCA, which has run as a co-operative to provide Islamic services to clients, particularly Islamic financial services. The organisation has grown over the last 15 years and has looked at various options, with the intent of ultimately becoming an Islamic bank. “In addition we have succeeded in having a managed investment scheme registered and have obtained an Australian Financial Services Licence from ASIC which will allow the organisation to raise funds and to provide mortgages to its Peter Rawling, M+K customers under Shariah principles,” he said. The products have been carefully prepared to permit structures and terminology that allow the organisation and its offerings to comply with Australian legislation and regulation, while remaining fully compliant with Shariah principles governing Islamic finance. Initial beneficiaries of the arrangement are likely to be Australian Muslims looking for Islamic finance products. M+K was also involved in the first Australian Shariah-compliant managed discretionary account, established by Intrinsic Investment Management at the behest of MCCA. “This is the first time that an Islamic mortgage-style investment product has been available in Australia,” he said, while acknowledging that structuring of the product had been challenging. According to Celent, a division of Oliver Wyman, Islamic banking is growing at a rate of 10-15%, with assets currently worth US$700-750bn globally. ALB www.legalbusinessonline.com

us report Billable hour moribund? Recent reports suggest that Mayer Brown is considering a move away from traditional hourly billing, in a bid to satisfy client demand for greater certainty during the downturn. The transition would see the firm offering fixed fees for all transactional work, as well as more regularly using abort agreements and success fees. Overhauling fee structures would affect core transactional practices including corporate, banking and real estate. The UK’s Reed Smith is said to be considering a similar switch for transactional work within its financial industry group and corporate and real estate practices. ‘Merit lockstep’ system trialled at BM Bingham McCutchen may soon move to adopt a ‘merit lockstep’ system, which will see base pay on lockstep but introduce a merit component into bonuses. Having discussed options with partners and associates – who preferred the predictability of an overall lockstep approach – the firm has decided not to abandon lockstep, but will work towards a system whereby bonuses are not solely determined by meeting a billable hours target. Although billable hours will continue to play a significant role in determining bonuses, less tangible factors such as teamwork and the overall market rates for bonuses will also be taken into account.

Bingham joins other US law firms who have recently made the move away from lockstep compensation, including Orrick and Howrey. Shearman turns focus onto Brussels office Shearman & Sterling recently turned a spotlight onto its Brussels office in a bid to rebuild the beleaguered branch, after a raft of defections last month left it without any partners. The New York-headquartered firm has relocated Düsseldorf partner Hans Meyer-Lindemann to Brussels, along with three other associates, who will attempt to beef up the office and repair the damage. Meyer-Lindemann has already begun dividing his time between the German and Belgium offices. King & Spalding launches Paris branch King & Spalding recently opened the doors to its new Paris branch, following receipt of the required regulatory approval from the Paris Bar Council. The Paris office is the firm’s ninth new outpost established since January 2007. It will be run by Eric Schwartz and James Castello, formerly of Dewey & LeBoeuf; arbitrator Kenneth Fleuriet, who has relocated from the firm’s London office, and a team of four associates, including another three lawyers hired from Dewey.

ROUNDUP

• Howrey is set to launch a Paris anti-trust practice following the hire of a six-lawyer team from Clifford Chance, led by Paris CC competition partner Claude Lazarus and counsel Audrey Amsellem. Both Lazarus and Amsellem will join the US firm as partners on 1 November, bringing with them a team of four associates • Corporate veteran Hugh Nineham replaced Doron Ezickson as new London office head for McDermott Will & Emery. Ezickson spent 18 months in the role after replacing David Dalgarno • Shearman & Sterling recently advised the underwriters on Brazil’s biggest IPO to date – the US$8bn (£5bn) listing of Banco Santander’s Brazilian subsidiary. Davis Polk & Wardwell were also involved • Dewey & LeBoeuf will join Slaughter and May to act as key advisers on insurance giant Aviva’s NYSE listing. The world’s fifth-largest insurance group, formerly known as Norwich Union in the UK, will make a secondary listing on the NYSE on 20 October and trade under the stock code AV • Steven Molo of Shearman & Sterling and Jeff Lamken of Baker Botts recently announced that they would be leaving their respective firms to start up MoloLamken – a new firm model litigation boutique with low overhead and a flexible billing structure. • Canadian firm Fasken Martineau recently opened an office in Paris following a local merger and the addition of a four-lawyer team from Dewey & LeBoeuf.

NEWS | news >>

Industry >>

Asia CEOs confident of economic recovery

he heads of some of Asia’s biggest corporations feel that economic recovery may be on the way and see improved investment potential in certain Asian countries. According to a survey by the Asian Business Council – an organisation of CEOs from Asia-Pacific multinationals with a combined market share of US$887bn-67% of members are confident that Asia’s economies will recover in 2010. This compares to last year, when only 6% felt that conditions would improve in 2009. Members of the council represent most East Asian countries and include the heads of companies such as China’s Alibaba, Hong Kong’s Orient Overseas, Japan’s Nomura, Taiwan’s Fubon Financial, India’s Infosys, Singapore’s DBS Bank, Australia’s ANZ Bank, and

South Korea’s Hana Financial. Topping the list of major concerns was the recession in Asia, as well as oil and gas prices, which 37% of members said had a major impact on their business. However, the recent deals announced or completed by some members illustrate the rise in confidence. China’s Alibaba is acquiring a US$79m stake in China Civilink, on which law firms Slaughter and May, Fangda and Jincheng, Tongda & Neal advised. ANZ has embarked on several deals in the last few months, including a A$4.7bn capital raising, a US$1.6bn acquisition of two ING divisions and a US$550m acquisition of Royal Bank of Scotland’s Asian assets. Korea’s Hana Financial is also currently considering a rights issue. ALB

Industry >>

Law firm’s corporate social responsibility

wo firms were recognised in Brisbane’s annual Lord Mayor’s Business Awards for their CSR programs. McCullough Robertson took home the Brisbane City Council Award for Corporate Citizenship, while Clayton Utz was voted as a finalist for the corporate citizenship award for its ‘Community Connect’ program. McCullough Robertson’s activities are grouped under the ‘Community Partnerships Program’, which brings together the firm’s pro bono work, staff engagement and the McCullough

Robertson Foundation. The program’s five priorities are access to justice, health and mental health, rural and remote issues, community cultural aspects, and indigenous education. The program’s director, Heather Watson, said the last one caught the attention of the awards panel and was a cause very important to the firm and its clients. The Brisbane-based firm financially supports the Yalari Foundation, which gives indigenous children from remote communities a first-class education through full

Australasian Legal Business ISSUE 7.11

NEWS | news >>

►► How do you feel about overall business conditions in the next 12 months? 100% 80% 60% 40%

SOA PBOX

19%

27%

40%

6% 75% 67%

20%

28% 32%

2009

2008

2007

Will remain/remained about the same Worsened /will worsen Improved/will improve

►► Biggest economic Problem facing asia 50% 40%

Which came first, the firm or the lawyer?

30% 20%

44% 38%

10%

18%

0% Recession

Other

Inflation

Source: Asian Business Council

programs rewarded boarding scholarships at some of the country’s most prestigious high schools. Clayton’s recognition was for the program incorporating the Clayton Utz Foundation and ‘Community Involvement’ program. The foundation provides financial contributions to various charities while the community involvement program encourages the firm’s staff to volunteer their time and skills, or provide financial support to individuals, charities and community partners in cities and regional and remote parts of Australia. Specific contributions that Claytons have made to the Brisbane community include a book drive in collaboration with the Brisbane Writers Festival which collected more than 600 books for the JEBB Women’s Hostel. The firm also provides a free advice and referral service in consumer and financial services matters, to assist low-income and disadvantaged people in the Brisbane community, through its Consumer Law Advice Clinic. ALB www.legalbusinessonline.com

Does the client engage the lawyer or the firm? And what does that mean for business growth? It’s time for a meritocratic view, argues John Nerurker, CEO of Mills Oakley

t has long been my opinion that the relationship your law firm has with each client is only as deep as the partner(s) who maintain the relationship. If, for the sake of argument, the partners were able to offer a better value proposition with another firm, few clients would not follow the team they have enjoyed working with – as distinct from the letterhead they represent. We need to take a new look at what we offer, both to our staff and to clients. Recruitment Firstly, every client wants to work with people who possess the experience and skills to deal with their issue. They may traditionally have looked to top-tier or large national firms to find these people. As, increasingly, do mid-tier firms. In fact several mid-tier firms have attracted top-tier lawyers with client relationships that go way beyond the connection the client shares with the previous firm. In a merit-based partnership it is these lawyers, with the ability to build and manage relationships while delivering outstanding levels of client service, whose careers should be rewarded and advanced as they shape the future of the firm they work with. Client service Client service is every bit as important as technical skill. As countries like China and India are now producing huge numbers of lawyers and accountants, it would be naive not to think that many of the functions performed by domestic professional service firms today won’t be outsourced in the future. It has happened to many local industries – manufacturing, software development and call centres, to name a few. The greatest mistake we can make is to ignore the lessons. We need to identify where we can add value for our clients and reflect this in an ethos of client service. After several years studying law at university followed by decades honing these talents in private practice, how much time are your lawyers taking to develop their client service skills? Rewards Rewards need to reflect the work that partners are doing to promote their own micro-brands. Discontented partners with profitable practices will find no shortage of suitors in the current landscape. Firms need to look at their paths to – and criteria for – equity as a potential carrot to dangle in front of high performers or potential recruits. For too long, tenure has been the primary factor. Surely what a partner brings to the table should be the greatest testament to any claim for equity? Cross-referral Relationships can be strengthened between the client and the firm through internal cross-referral. This not only grows your top line in the most readily accessible manner, it also ensures that while relationships may be held with individual partners, there are multiple contact points. The firm is not beholden to any individual for the entire servicing of a client. Your firm is your lawyers, and each lawyer is the firm. Don’t mistake your logo for a relationship.

Firm Profile NEWS | news >>

Buddle Findlay

NZ COMMENTARY

Reviewing New Zealand’s Overseas Investment Regime

any New Zealanders feel uneasy about unfettered international investment in New Zealand’s sensitive land and assets. Others see overseas investment as critical to New Zealand’s economic growth and stability. Lawyers have also expressed concern about drafting and technical anomalies in the Overseas Investment Act 2005 (OIA) and investors are frustrated with perceived inefficiencies and uncertainties under the present regime. The government is now reviewing the OIA to make foreign investment in New Zealand simpler and more attractive. In February Treasury prepared a report entitled Improving the Overseas Investment Act which included a number of recommendations for administrative, regulatory and policy review. A March press release from Finance Minister Bill English announced a review of the OIA. The stated aims of the review included: • Restating the purpose of the OIA to promote overseas investment and reflect its importance for economic growth • Altering screening thresholds and categories of sensitive land • Examining the criteria for determining the benefits of overseas investment to New Zealand • Minimising compliance costs for investors • Reducing or removing current regulation making powers • Minimising the administrative burden of the OIA.

Technical Reference Group One of the first steps completed under the review was the establishment of a technical reference group comprising lawyers with practical experience of the OIA. Subsequently, in July, the Minister of Finance announced a two stage review of the overseas investment regime.

The first stage of the review has seen greater delegation of the Ministers’ decision making powers to the Overseas Investment Office (OIO), some relatively minor additions to the exemptions from the OIA contained in the Overseas Investment Regulations 2005 and significant increases in application fees. With the exception of the fees increase, these amendments will generally be welcomed by overseas investors and their New Zealand advisors, but are hardly the sweeping or wide ranging review of the OIA which has been promised. To see this, we may have to wait until the second stage of the review. The additional possible amendments signalled by the February Treasury Report and the subsequent press releases by the Minister of Finance include: • A shift in focus from demonstrating benefit to demonstrating the absence of harm • Exemption of technical, minor or temporary transactions from the OIA (to some extent already addressed in the amendments to the Overseas Investment Regulations in July) • Increase in business acquisition consent thresholds • Limitation or removal of regulation making powers • Removal of the “strategically important infrastructure” criterion introduced at the time of the Canadian Pension Plan Investment Board’s bid to acquire a cornerstone shareholding in Auckland International Airport Limited • Limitation of the consent criteria in the OIA to economic considerations • Relaxation of the advertising requirements for farm land

Legal professionals recommend changes Legal professionals have also recommended a number changes of a more technical nature, including:

• Clarification of the “substantial and identifiable” benefits test so that it can be objectively applied in a manner proportionate to the scale and sensitivity of the application • Clarification of the relationship between the 25% ownership and control threshold and the $100 million threshold in the context of the acquisition of sensitive business assets • Reduction in the number and complexity of the consent criteria • Correction of some apparent drafting errors and inconsistencies in the definition of sensitive land The scope of reform contemplated is ambitious and will require a substantial rewrite of the OIA. At the time of writing, no formal announcement has been made as to when and how these changes will be introduced. No doubt, the necessary legislation will be introduced through the normal parliamentary procedure and there will be opportunities for interested parties to make submissions during the select committee stage. Overseas investors and potential New Zealand vendors will be eagerly anticipating the outcome of the review in the hope that it will make overseas investment in New Zealand more straightforward.

This article was written by Mark Odlin, a partner in the Christchurch office of Buddle Findlay, one of New Zealand’s leading law firms. Mark is a member of Buddle Findlay’s company and commercial law team and Mark Odlin, Buddle Findlay advises on a range of financial, commercial and corporate law matters, including finance, company law and negotiating and preparing commercial agreements. Mark can be contacted by phone: +64 3 371 3525 or email: mark.odlin@buddlefindlay.com

Australasian Legal Business ISSUE 7.11

NEWS | news >>

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FEATURE | ALB Hot 40 >>

HOT 40 – 2009 LIST

HOT40 Welcome to ALB’s showcase of the hottest lawyers of 2009. Who has made the list this year?

he Hot 40 feature is ALB’s subjective guide to the lawyers, managing partners and CEPs who have kept us inspired and intrigued throughout the year. It is not intended to be a guide to the most meritorious professionals in the industry – the ALB Law Awards exist to fulfil that loftier purpose – but we hope that this guide will entertain you, acting as a reminder of some of the highlights – and lowlights – of the tumultuous year that is now drawing to a close. ALB

Name

Firm

Ewen Crouch

AAR

Peter Turner

ACLA

Jonathan Wenwig

Arnold Bloch Leibler

Bruce Hambrett

Baker & McKenzie

James Gibson

Bell Gully

David Williamson

Blake Dawson

James Marshall

Blake Dawson

David Fagan

Clayton Utz

Brendan Groves

Clayton Utz

David Cohen

Commonwealth Bank

Don Boyd

Deacons

Tony Crawford

DLA Phillips Fox

John Chrisman

Dorsey & Whitney

David Matthews

Fonterra

Philippa Stone

Freehills

Tony Damian

Freehills

Gary Lawler

Gilbert + Tobin

Tony Macvean

Hall & Wilcox

Kerry Gleeson

Incitec Pivot

Alex Baykitch

Holman Fenwick

John McLean

Jackson McDonald

Philip Hoser

Jones Day

Hayden Wilson

Kensington Swan

Damian Paul

M+K Lawyers

Jeff Clark

Mallesons

Peter Cook

Mallesons

Robert Milliner

Mallesons

Brett Heading

McCullough Robertson

John Nerurker

Mills Oakley

John Weber

Minter Ellison

Bill Papastergiadis

Moray & Agnew

Pat Bowler

Russell McVeagh

Rob Fisher

Simpson Grierson

Kevin Jaffe

Simpson Grierson

Will Irving

Telstra

Bryan Pape

UNE Armidale

Adrian Tembel

Thomson Playford Cutlers

Angus Henderson

Webb Henderson

Peter Horton

Woolworths

David Kearney

Wotton + Kearney

Australasian Legal Business ISSUE 7.11

FEATURE | ALB Hot 40 >>

THE BIG MOVES

Lateral movements, promotions, retirement – here are some of the big moves of 2009.

Name: John Weber Title: Chief executive partner Firm: Minter Ellison

Name: Rob Fisher Title: Former chairman Firm: Simpson Grierson

Name: Kevin Jaffe Title: Chairman Firm: Simpson Grierson

Why hot: Following the departure of Guy Templeton, John Weber stepped into the CEP role at Minter Ellison at the start of the year. An eventful year at the firm saw the appointment of chairman Russell Miller and an Australian top-three placing in the Corporate Social Responsibility index – an area in which the firm continues to be a market leader.

Why hot: This year Simpson Grierson farewelled one of the true gentlemen of the industry when Rob Fisher concluded his tenure as chairman and took up a new role at the Auckland Transition Agency. Fisher is also well known outside the legal fraternity for his work in the rugby scene, including serving as a director of the Rugby World Cup – and with the new Auckland super council proving a hot issue, this high profile is set to continue.

Why hot: Jaffe is the new man in the hot seat at Simpson Grierson following Fisher’s departure. Jaffe, who is a specialist corporate and securities lawyer, has said that the firm will continue to focus on growth in its corporate & commercial and banking & finance practices. Meanwhile it’s challenging times ahead for another traditional Simpson Grierson specialty – local government.

Name: Alex Baykitch Title: Partner Firm: Holman Fenwick

Name: Adrian Tembel Title: Chief executive partner Firm: Thomson Playford Cutlers

Why hot: It seems like 2009 was the year when international firms rekindled their interest in Australia. Maritime specialist Holman Fenwick, which already had a presence in Melbourne, announced the opening of a Sydney office, to be headed up by former Blake Dawson partner Alex Baykitch. The firm said that the Sydney expansion had always been part of its long-term strategy from the time it first entered the Australian market in 2006.

Why hot: Adrian Tembel was named as the new CEP of Thomson Playford Cutlers in April, succeeding Brett Goodridge in the role. Tembel takes charge of one of the rising stars of the profession, with the firm being named Adelaide Firm of the Year for the second consecutive time at the 2009 ALB Awards. Thomson Playford also entered the Melbourne market in January, absorbing the local operations of Dibbs Abbott Stillman.

Name: Bruce Hambrett Title: Chairman (Australia) Firm: Baker & McKenzie

Why hot: In August, Baker & McKenzie elected partner Bruce Hambrett to the position of chairman, succeeding Andrew Salgo, who had held the position for the last four years. But Hambrett won’t be giving up the insolvency and restructuring work just yet – the appointment as chairman is in a part-time capacity. Hambrett will continue in his role as head of the firm’s insolvency & corporate restructuring team.

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FEATURE | ALB Hot 40 >>

Name: Philip Hoser Title: Partner Firm: Jones Day

Why hot: Give the marketing people at Webb Henderson credit for pure cheek. When former Gilbert + Tobin partner Angus Henderson joined Auckland-based MGF Webb, the firm changed its name to Webb Henderson, and proclaimed its rebirth as a new “top-tier, next generation” firm in the telecommunications and media space. We welcome this new addition to the “big seven”. If Danny Gilbert has taught us anything, big things can evolve from modest – or perhaps not so modest – origins.

Why hot: Ex-Freehills partner Hoser has joined Jones Day to help the firm go where few international firms have dared to tread – taking on Australian firms in making a fullservice offering. Most international firms, with the notable exception of Baker & McKenzie, have avoided competing directly with local firms, but Hoser predicts that more US firms will begin to take an interest in the Australian market.

THE STRATEGISTS

Name: Angus Henderson Title: Partner Firm: Webb Henderson

Name: John Chrisman Title: Managing partner (Sydney) Firm: Dorsey & Whitney Why hot: Norton Rose isn’t the only firm eyeing Australia as a potential springboard for its Asian work. Dorsey & Whitney opened its doors in Sydney earlier this year, citing a desire to further develop its US capital markets practice and expand its focus on India and Greater China. The move speaks of vision and confidence and Chrisman, with his long experience in Asia-Pacific, is the right man to lead the firm in its latest foray.

Name: David Fagan Title: Chief executive partner Firm/Company: Clayton Utz

Name: Don Boyd Title: Chief executive partner Firm: Deacons, Sydney

Name: Robert Milliner Title: Chief executive partner Firm: Mallesons

Why hot: While most firm revenues took an inevitable slide during the GFC – some firms declined to release their 2009 figures at all – Clayton Utz has been something of a quiet achiever, maintaining growth at a rate in excess of its comparable rivals. Fagan is an astute commentator on the industry and a rare example of a law firm boss who is not afraid to speak his mind.

Why hot: Deacons’ courting of Norton Rose was one of the industry’s biggest stories of the year. Now the legacy of those best laid preparations will all come down to one question: will it work? All eyes will be on Boyd and his Norton Rose counterpart Peter Martyr as Deacons cuts ties with its Hong Kong namesake and becomes part of the global Norton Rose brand.

Why hot: It’s not just about the revenue. While Mallesons did clock up Australia’s highest law firm revenue (A$551m) last year, other aspects of Milliner’s leadership also command respect. His international vision for Mallesons; his stewardship of The Large Law Firm Group; and advocacy of a national legal profession all explain the esteem with which Milliner is held by the industry. He was named as ALB’s Managing Partner of the Year. Australasian Legal Business ISSUE 7.11

FEATURE | ALB Hot 40 >>

Name: Tony Crawford Title: Chief executive officer Firm: DLA Phillips Fox

Why hot: Amid all the Norton Rose hoopla, spare a thought for the other “global” Australian firm. Long-time stalwart Tony Crawford has announced that he will step down at the end of the year and leave the firm in early 2010. He’s overseen remarkable change at the firm, including the negotiation of the DLA Piper alliance and the defection of key insurance specialists to boutique firms. What does the future hold for DLA Phillips Fox?

Name: Damian Paul Title: Managing director (Melbourne) Firm: M+K Lawyers

Name: Tony Macvean Title: Managing partner Firm: Hall & Wilcox

Why hot: Macpherson+Kelley (M+K) Lawyers is the latest in a string of expansionist Melbourne firms and MD Damian Paul, an astute operator, is likely to achieve his ambitions. Ninety-seven per cent of the firm’s revenue was earned in Victoria last year, but Paul predicts that this will drop to 70% and ultimately 40% over the next five years. The firm has also developed an expertise in Islamiccompliant finance.

Why hot: Macvean’s strong strategic management and emphasis on collaborative culture has paid dividends for Hall & Wilcox. Strong revenue growth and growth in both fee-earners and support staff were among the factors which saw the firm win the Melbourne Firm of the Year Award at the 2009 ALB Awards. That’s not an easy category to win either – some of the industry’s biggest movers and shakers call Melbourne home.

Name: John McLean Title: Chief executive officer Firm: Jackson McDonald

Name: Brett Heading Title: Chairman of partners Firm: McCullough Robertson

Name: John Nerurker Title: Chief executive officer Firm: Mills Oakley, Melbourne

Why hot: Queensland firms have certainly distinguished themselves over the past year. Thynne & Macartney was crowned the fastestgrowing firm in Australia for 2008, but that wasn’t enough to secure the title of Brisbane Firm of the Year at the 2009 ALB Awards. Brett Heading’s McCullough Robertson won on the back of achievements such as the opening of a Newcastle office and advising on some landmark deals in the resources sector.

Why hot: Call him ‘Mr Organic Growth’. While Nerurker’s firm didn’t win last year’s ALB Fast 10 survey of the fastest growing firms, his results were notable for showing strong revenue growth with only modest growth in fee earners and no acquisitions, which is an endorsement of the effectiveness of the firm’s growth strategy. ALB will unveil the 2009 winners in the December issue.

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Why hot: Solid growth in a slowing market, a new green energy practice and a “best practice” parental leave policy are some of the reasons why McLean’s Jackson McDonald picked up the Perth Law Firm of the Year award at the 2009 ALB Awards – a category which it has dominated for several years. Partner Basil Georgiou was on hand to accept the award on behalf of the firm.

FEATURE | ALB Hot 40 >>

THE DEALMAKERS

So you think that this was a quiet year for deals? Try asking these lawyers for their opinion.

Name: Peter Cook Title: Partner Firm: Mallesons

Name: James Gibson Title: Partner Firm: Bell Gully

Why hot: Cook was a pivotal part of the Mallesons team which advised on the record-breaking but ultimately unsuccessful Chinalco investment into Rio Tinto. Cook is just one of the big names in the Mallesons galaxy of stars who went on to pick up the Australian Deal Team of the Year at the ALB Awards. Tim Bednall, who accepted the award on behalf of the team, has also had a noteworthy year, advising Challenger on its A$385m mortgage business sale to NAB.

Why hot: The New Zealand deal scene is a long way from the heady days of 2007, but Gibson and his Bell Gully team have had consistent involvement in the key deals which have occurred, including Danone Asia’s sale of its subsidiary drinks company Frucor to Suntory – one of many transactions in the AustraliaNew Zealand beverage sector of late. The team went on to win the gong for NZ Deal Team of the Year at the 2009 ALB Awards.

Name: Philippa Stone Title: Partner Firm: Freehills, Sydney

Why hot: Some lawyers appear on headline deals in any given year with such regularity that there are always fresh reasons for including them in the Hot 40. The reasons for Freehills’ partner appearing this year? Try Bupa’s A$2.4bn acquisition and demutualisation of MBF, CBA’s capital raising and A$2.1bn acquisition of BankWest and QBE’s A$8bn merger proposal for IAG. There’s also the small matter of Stone being named Australian Dealmaker of the Year at the 2009 ALB Awards.

Australasian Legal Business ISSUE 7.11

FEATURE | ALB Hot 40 >> Name: Tony Damian Title: Partner Firm: Freehills, Sydney

Why hot: When Philippa Stone won Australian Dealmaker of the Year at the ALB Awards, she had to beat some tough competition from within her own firm. Damian has an impressive list of headline deals to his name, including the US$2.5bn Santos-PETRONAS partnership to develop the Gladstone LNG project (which transformed the coal-seammethane gas sector) and CBA’s A$2.1bn acquisition of BankWest.

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Name: Ewen Crouch Title: Chairman of partners Firm: AAR, Sydney

Name: David Williamson Title: Partner Firm: Blake Dawson

Why hot: Evergreen M&A expert and perennial Hot 40 resident Ewen Crouch returns to the list for 2009. Since last year’s appearance in the Hot 40, Crouch has advised on Australia’s largest corporate merger (Westpac- St George), won the ALB award for Deal of the Year and taken on new responsibilities in his role as chairman of partners at AAR.

Why hot: The strategic manoeuvres of

BHP Billiton have kept the corporate world enthralled over the past 12 months and one lawyer who’s been closer than most to the action is Blake Dawson’s David Williamson. He was the lead advisor on BHP’s bid for Rio Tinto and more recently advised the mining giant on its US$100bn iron ore production joint venture with Rio Tinto. And it’s not all about mining: Williamson also advised ANZ on its US$550m acquisition of Royal Bank of Scotland’s retail, wealth and commercial businesses in Asia.

FEATURE | ALB Hot 40 >>

Name: Pat Bowler Title: Partner Firm: Russell McVeagh

Name: Brendan Groves Title: Partner Firm: Clayton Utz

Name: Jonathan Wenig Title: Partner Firm: Arnold Bloch Leibler

Name: Gary Lawler Title: Partner Firm: Gilbert + Tobin

Why hot: Russell McVeagh picked up seven nominations at the 2009 ALB Awards. One of the highlights of the night must have been partner Pat Bowler being named NZ Dealmaker of the Year. This continues the firm’s recent dominance of this category – colleague Pip Greenwood was the 2008 dealmaker of the year. Will another firm break the stranglehold in 2010?

Why hot: Are IPOs back in vogue? That was the question on everyone’s lips as the A$248m Carsales.com offering broke the GFC-induced IPO drought in August. Groves, who acted for underwriter Macquarie Group on the deal, will count this as one of the highlights of 2009 – but he’s also advised on Goodman Group’s $1.8bn raising, and Gunns A$145m accelerated entitlement offer.

Why hot: Advising Carsales.com Ltd on its IPO was ABL’ s Jonathan Wenig, who is no stranger to landmark IPOs – he advised on the listing of Slater & Gordon on the ASX in 2007. While Slater & Gordon didn’t exactly spark a rush of firms seeking to become listed, one suspects that the Carsales.com Ltd float will be a true marketing turning point.

Why hot: Gilbert + Tobin is the mid-size firm that keeps punching well above its weight. As joint head of G + T’s M&A group, Lawler must have taken particular satisfaction at the firm’s role as sole legal adviser to Westpac on its A$47bn merger with St. George Bank. The efforts of Lawler and his colleagues in the M&A and competition team, as well as their counterparts at Skadden Arps and AAR, were acknowledged at the 2009 ALB Awards.

Australasian Legal Business ISSUE 7.11

FEATURE | ALB Hot 40 >>

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FEATURE | ALB Hot 40 >>

LEADING LIGHTS

We acknowledge those who have shone in their particular field of expertise – whether it be advising in a particular area of law, steering a firm with a particular specialisation or, in one case, simply a dogged belief that defending one’s expert opinion is a question of principle.

Name: Jeff Clark Title: Partner Firm: Mallesons

Name: Bill Papastergiadis Title: Managing partner (Melbourne) Firm: Moray & Agnew

Name: David Kearney Title: Managing partner Firm: Wotton + Kearney

Why hot: PPPs have been an important part of the economic landscape in 2009. Clark advised on one of the largest PPPs of the year – the Victorian government’s desalination plant. Clark’s team acted for the senior financiers and mezzanine financiers to the AquaSure Consortium. AAR, led by partner Leighton O’Brien and Clayton Utz, led by partners Dan Fitts, Marcus Davenport and Naomi Kelly, were also heavily involved.

Why hot: Moray & Agnew prefer to focus on the national picture rather than on any one particular market, but the achievements of the firm’s Melbourne office under managing partner Papastergiadis are a clear stand out. The Melbourne operation, which had five partners in 2006, has since grown to 13 partners and increased its revenue by over 120%. Nationally, the firm has also recorded solid growth.

Why hot: Speaking of insurance, it was Wotton + Kearney who edged out Morays – and an equally worthy field of competitors – to take out the 2009 ALB Insurance Specialist Firm of the Year award. With an enviable client base and strong revenue growth, Kearney and his firm disprove the old adage that insurance work isn’t profitable. Ever the optimist, Kearney is also keen to disprove another insurance-related adage: that workflow drops when the economy improves. We’ll be watching with interest.

Australasian Legal Business ISSUE 7.11

Firm Profile FEATURE | ALB Hot 40 >>

Lit Support.

Insourcing: The Way of the Future?

he delivery of support services in top tier law firms is confronted by a daily dilemma in the current stormy economic climate. How is it possible to resolve the conflicting requirements of improving efficiency of support services while limiting investment and spending on additional staff or updated equipment? Efficiency and productivity of support services will decline if processes that are non-productive and non-billable are not kept in check. The examination of such processes that add no value to the business and its clients makes good business sense, and will : s Remove overhead from support functions of the business; s Improve the quality of service of internal business units; s Impact positively on the firm’s profit margin; s Remove geographical differences from processes. Staffing and infrastructure not only need to meet lawyers’ and clients’ expectations, they need to make good business sense. Photocopying and print services are a classic example. Client expectations are changing; they are placing pressure on firms to absorb the costs of matterrelated photocopying. With fewer opportunities to recover print costs and in the face of other pressures on operating budgets, firms need to explore more innovative strategies to continue to deliver these essential services while containing costs. Outsourcing has traditionally provided the answer and has been the

► ALIGN INSOURCING WITH SUSTAINABILITY GOALS LitSupport has taken the initiative in the legal copying industry to establish a carbon offset program. We recently commissioned an audit by the Carbon Reduction Institute (CRI - see www. noco2.com.au) who have measured all inputs into our production process and have built a “carbon calculator” that determines the amount of carbon produced from a single photocopy / print. This calculator has been integrated into LitSupport’s JOTA to enable a firm to calculate its total carbon footprint from photocopying over a period of time. www.legalbusinessonline.com

solution embraced by middle tier law firms that use third party suppliers to make cost recovery easier. For larger law firms however, a fully outsourced arrangement is not practical. An onsite copy centre is essential in an environment where responsiveness and confidentiality are key requirements. For these firms “insourcing” provides a more appropriate solution. LitSupport’s insourcing model provides law firms with staff, equipment and consumables to deliver specialist legal copying and printing services inhouse.

Improved Service Delivery Of all the benefits of insourcing, improving the quality of services is the most compelling to any law firm. Specialist providers whose core business is printing, copying and scanning invest in the people, processes and systems to deliver these services better than a law firm has the time, expertise or inclination to internally. Insourcing provides firms with a solution that brings this expertise inhouse and delivers all the benefits of an offsite bureau “onsite”. By engaging a specialist service provider to deliver print and copy functions inhouse, a firm frees its staff to focus on its core business – which is delivering legal services to clients.

Cost recovery The tools to enable BPM change are as important as the procedural changes. To obtain savings and best results from preferential rates and agreed terms of service, firms must enforce standardisation and avoid leakage by channelling all printing and copying requests through the centralised copy centre. A sophisticated solution is required to place, track and manage the job requests generated across the firm. LitSupport’s proprietary Job Ordering & Tracking Application– JOTA – ensures that every request is captured and that nothing slips through the cracks. It allows job orders to be placed online, tracked, invoices generated and costs flowed through to the firm’s practice management system. JOTA can be configured so that all job requests are

Brad Gabriel

placed to the copy centre in the first instance to provide a seamless onsite / offsite solution. The bottom line advantage of insourcing is that it constantly exceeds and adjusts performance and budgetary expectations to reflect new realities. ALB Magazine readers can contact LitSupport for a fee-free Expense Reduction Analysis to determine their firms’ cost of operation / true cost per copy, and receive recommendations for an improved solution to suit their company’s individual requirements.

LitSupport +61 2 9222 1771 brad_gabriel@litsupport.com.au http://www.litsupport.com.au

FEATURE | ALB Hot 40 >>

Name: Bryan Pape Title: Barrister and lecturer Firm: UNE, Armidale

Name: James Marshall Title: Partner Firm: Blake Dawson

Name: Hayden Wilson Title: Partner Firm: Kensington Swan

Why hot: When there’s a principle at stake, you gotta do what you gotta do. That seemed to be Bryan Pape’s philosophy in April when he unsuccessfully mounted a High Court challenge to the Rudd Government’s economic stimulus plan which would see payments of A$900 apiece made to Australian taxpayers. Amid the howls of outrage and increasingly vindictive abuse, Pape maintained that the principle – the protection of State rights and the prevention of the abuse of Commonwealth powers – was worth the price.

Why hot: No surprise to find this man busy during a downturn. The rising tide of corporate distress has had liquidators and administrators ‘hollering for a Marshall’, and he is currently acting for the liquidators of Babcock & Brown Limited, the liquidators of Lehman Brothers Australia and the administrators of the Allco HIT Group. All in a day’s work for Marshall, who continues to be rated highly by commentators in the insolvency and restructuring space.

Why hot: With the NZ Commerce Commission stepping up its enforcement activity, regulatory compliance work can only get busier. Just ask Hayden Wilson, who advised the Commission in its recent settlement with several financial institutions over alleged breaches of the Commerce Act relating to credit card offerings. Wilson is also advising on a notable High Court action which will establish the legality of the University of Otago’s code of student conduct – and whether students can be disciplined for off-campus indiscretions.

INSPIRATIONAL IN-HOUSE

ALB’s showcase of inspirational in-house lawyers in the September issue certainly created a buzz, with both private practice and in-house lawyers commenting on the diversity of the lawyers featured. Here is just a small selection of lawyers we featured.

Name: David Cohen Title: General counsel Firm: Commonwealth Bank

Name: Will Irving Title: General counsel Firm: Telstra

Name: Peter Horton Title: general counsel and company secretary Firm: Woolworths

Why hot: This man will need no introduction to ALB readers. The acquisition of BankWest, a stake acquisition in Aussie Home Loans and the lightning fast A$2bn Wizard Home Loans loan portfolio acquisition and a A$2bn capital raising are just some of the projects Cohen has worked on over the past 12 months. Cohen’s team also won the award for Australian In-house Team of the Year at this year’s ALB Awards

Why hot: When we predicted in August that Will Irving was in for a big 2010, the Rudd government had not yet dropped its Telstra structural separation bombshell. What lies in store for Irving’s team of lawyers and the Telstra panel of heavyweights, which includes among others Gilbert + Tobin and Mallesons?

Why hot: Woolworths’ business optimism has been an ideal foil to the conservatism of the economic downturn. In the past 12 months, Horton has added seven new lawyers to his team to keep up with the legal work generated by the company’s expansion activities, which include the acquisition of organic supermarket chain Macro, a stake in Western Australian brewery Gage Roads, and alliances with Qantas and Vodafone.

Australasian Legal Business ISSUE 7.11

FEATURE | ALB Hot 40 >>

Legal Traveller >>

Name: Kerry Gleeson Title: General counsel and company secretary Firm: Incitec Pivot Why hot: Gleeson won the title of In-House Lawyer of the Year at the 2009 ALB Awards, the culmination of a huge year which saw her and her team take a lead role in the A$3.3bn Dyno Nobel acquisition and a A$1.17bn entitlement offer. This was all part of the broader transformation of Incitec Pivot, from an Australian fertiliser business to a leading international chemicals enterprise, which is now a S&P/ASX 50 listed company.

Name: David Matthews Title: General counsel Firm: Fonterra Why hot: Matthews and his team were recently named the New Zealand In-house Team of the Year at the 2009 ALB Law Awards. Despite the fact that Fonterra is a NZ$15bn business which accounts for more than 7% of New Zealand’s GDP and 25% of its exports, Matthews’ team comprises only eight lawyers and has been cited as the model for a tight, efficient and highly experienced corporate team.

Name: Peter Martyr Firm: Norton Rose Title: CEO

Name: Peter Turner Title: Chief executive officer Firm: Australian Corporate Lawyers Association

Office: London

Why hot: Few would disagree with the proposition that Turner deserves acknowledgment for his tireless advocacy of the interests of the in-house profession. Along with his NZ counterpart Rebecca Holbrook, Turner is the voice for a segment of the legal profession. And his maintaining an admirably international perspective has resulted in much stronger ties between ACLA and its counterparts overseas.

Worst business travel experience: A taxi from Cairo to Alexandria

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Favourite city to visit on business: Sydney, New York or Madrid Best restaurant for business lunch: Min Jiang, at the Goodwood Park Hotel in Singapore

Least favourite destination: None Number of domestic flights taken per year: 25 Number of international flights taken per year: 25 Most exotic leisure destination ever visited: There’s precious little time for holidays, I’m afraid! Most dangerous travel experience: That Cairo to Alexandria taxi!

profile | managing partner >>

alb 2009 managing partnerS series

Danny Gilbert, Gilbert + Tobin

The Danny State ALB’s Renu Prasad goes behind the scenes at Australia’s most envied mid-sized firm

anny Gilbert needs to invest in a trophy cabinet. The visitor entering Gilbert + Tobin’s Sydney offices is confronted with the sight of all the industry awards the firm has won in recent years arrayed along the reception desk, threatening to engulf the entire area as the collection grows, year by year. In this glittering forest of crystal, two of the firm’s more recent awards (ALB’s Sydney ‘Firm of the Year’ and the ALB 2008 ‘Managing Partner of the Year’ award, for Gilbert) stand out. They are a reminder that this is one of the few law firms in the Australian market to seriously challenge the hegemony of the “big six”. It is one thing to speak in general terms of the resurgence of mid-sized firms, but the real test is the quality of clients and work which the firm is able to attract. Gilbert + Tobin is one of the few firms to break into this rarefied space. How did they do it?

Greenfields

One of the more fortuitous circumstances surrounding Gilbert + Tobin’s inception was the growth in demand for legal services in the relatively new telecommunications www.legalbusinessonline.com

space. “We started to develop, within the first two years, an expertise in telecommunications. It was a greenfields site – you had deregulation, pay television, Internet and so on,” Gilbert says. “Our rise would not have been at the same pace had we not focused on a completely new and developing market which had not existed prior to that. We were lucky in that respect – but then the harder you work, the luckier you get.” One of the first major clients the firm attracted was Optus, which drew the attention of other top corporations to the Gilbert + Tobin brand. “They started to take notice, although they weren’t necessarily persuaded; they wanted to see a bit of a track record,” he explains. What advice can Gilbert give for those ambitious mid-tier firms looking to move into top-tier territory? “It’s tougher than it was when we started, but this game is all about talent,” he says. “If you want to move into any area of practice, you have to make sure you have the right partners who can attract the work. That doesn’t mean good, solid, middle-ranking partners – it means partners at the top of their field.”

Eat what you kill

Gilbert + Tobin’s capacity to attract top clients is intimately linked with the firm’s ability to attract top partners. “Our culture allows partners to get on with building the practice they want to build and presents the optimum conditions. We’re not a bureaucratic culture; it’s a very egalitarian culture,” Gilbert says. But that doesn’t mean partners take home an equal slice of the pie. The firm doesn’t use a ‘lock-step’ partnership model, preferring instead to use what Gilbert describes as a ‘guided meritocracy’. “Lock-step would not be consistent with our current dynamic or culture,” he says. “One of the reasons we’ve been able to build the firm is that people felt that they were able to come here and be rewarded consistently with the results that they produced, and not be constrained by the obstacles of lock-step.” Instead, Gilbert + Tobin has a points system where points are allocated according to merit. Those points can be increased or reduced depending on overall performance –and not necessarily just financial performance – and a substantial proportion of 35

profile | managing partner >>

“We will continue to grow consistent with opportunities which are presented to us. We will be driven by reference to new areas of practice and the need to add to existing offerings ”

profits are set aside for partner bonuses. Gilbert acknowledges the dangers of meritocracies. “They may cause more internal competition and you have to have capacity to manage that. People understand the rules when they join the firm, and you have to have a lot of trust from the partners that the correct decisions are being made. You have to have fairly strong and effective leadership.”

Top-tier

‘Top-tier’, ‘mid-tier’ or ‘boutique’ are the three most common categories applied to Australian law firms. As top-tier is often equated with the “big six”, traditional parlance does not seem to accommodate firms such as Gilbert + Tobin, which have premium clients but are not within the “six”. Not that Danny Gilbert has any difficulty with the terminology. “We’re top-tier,” he says promptly when asked to describe his firm. “We’re top-tier in terms of what we do, the capacity of our partners, 36

the kind of clients that seek work from us and the leading work [we do], which competes with the other leading firms in Australia. And I reject any description which suggests we are second-tier – by reference to our relative smaller size and Sydneycentric presence.” Gilbert has a healthy respect, however, for Mallesons, Freehills and Allens Arthur Robinson, and describes the Australian top tier as being comprised of at least four firms. “Possibly there are others,” he says thoughtfully and grins. “I’ll get into trouble for that answer. People will think ‘the hide of Gilbert – just like him to say that.’”

Future directions

The Deacons-Norton Rose merger announcement has caused speculation about the future direction of the Australian legal industry. Yet Gilbert is not convinced that more international mergers are on the cards. “I was surprised by that [Norton

Rose] merger – but there it is, it’s happened, so we might expect to see some more,” he says. “That said, I think that the major global firms would not be rushing to do a merger in Australia. They don’t particularly need Australian law firms, and [for] some of the Australian firms, the high-quality law firms are probably a little too large for them. Then the high-quality Australian firms may not want to be – in effect – gobbled up by large firms from London, Europe and the US.” But Gilbert is keeping an open mind about merger prospects for his own firm. “I never say no to anything but we don’t have any such engagement at the moment. But if one of the world’s leading law firms came to us with a proposition, we’d certainly have a look at it,” he says. In the absence of a merger, Gilbert + Tobin is a firm not averse to pursuing independent expansion strategies. The firm does not see its single-city status as an inherent part of firm culture. “We’re not committed in any absolute sense to just remaining in Sydney,” Gilbert explains. “We will continue to grow consistent with opportunities which are presented to us. We will be driven by reference to new areas of practice and the need to add to existing offerings.” What about specific plans – has Gilbert + Tobin got anything on the boil at the moment? “I’ve always got something on the boil,” says Gilbert dryly. “But I’m not going to talk about that now. When it happens, I’ll let you know.” ALB Australasian Legal Business ISSUE 7.11

ALB 2009 real estate practice area guide

Real Estate state of the market INTRODUCTION ALB Guide: Real Estate 2009 is the latest in an exciting series of detailed insights into specific practice areas and the leading firms and lawyers operating within them. By combining specific new research (among peers, barristers and client companies) with third-party market information, ALB Guides arrive at lists of ‘leading firms’ and ‘recommended firms’ as well as ‘leading lawyers’ in each practice area covered.

METHODOLOGY In the preparation of this report, ALB conducted independent telephone interviews with Australian and New Zealand companies. These results were crosschecked with opinions from Australian and New Zealand partners, and third-party market information. Local firms were listed first followed by national firms, arranged according to feedback received. Interviews were mainly conducted in the two-week period from 3 to 14 August 2009.

CONTENTS 38.

State of the market

39.

Leading and recommended firms

40.

Leading lawyers

43.

Featured firm

For the past 12-18 months property practices have been quieter at most Australian and New Zealand law firms. The continuing difficulty faced by property industry players in obtaining finance, or gaining debt on “acceptable” terms, has resulted in construction of many developments to be stalled. In Brisbane, for example, there have been virtually no major property developments for the last six months, with most major projects shelved or downsized. “Queensland property group Trinity had purchased four Brisbane CBD properties for A$76.6m, to demolish and rebuild into an A$900m tower. However, the development fell through and they had to sell the properties for just A$60m,” says Herbert Geer partner Paul Deschamps. In Perth, the property practice at Lavan Legal reported strong growth during the boom times, but work flows turned for the worse in October, and didn’t improve until April. “When Lehman Brothers collapsed everybody sat on their hands. Residential property has bottomedout, commercial property prices are down, while the top-end of the market (A$2m or more) is still suffering,” says partner Peter Beekink. Across the Tasman Sea, Kiwi firms have observed up to a 30% drop in property work over the past twelve months. Australian funds that had previously driven Kiwi developments and acquisitions have almost completely “dropped off”. However, it has not been all bad news, claims Bell Gully partner Andrew Petersen. “We have had a relatively strong corporate, institutional and property trust client base that has kept workflows up in sell-offs, restructuring, insolvency and leasing,” he says. Australia-based valuers have suggested there may be considerable

asset assessment work available for lawyers, with the commercial, retail and industrial positions having bottomed-out or are close to bottoming out. Herbert Geer estimates that about A$20bn of commercial and tourism-related property is currently on the market, for either public or private sale. “One example is the sale of Colonial First State’s stake in Sydney’s Aurora Place (A$700m). Major divestments by property trusts, involved in two-fold capital raisings have also brought work,” says Deschamps. Mallesons Stephen Jaques partner Andrew Erikson notes that in Australia there are many high-net-worth individuals and family trusts that have engaged more actively in the market. The Chris Monaham-led syndicate’s acquisition of Inglefarm (A$75m) was a noteworthy deal. There is also significant activity in South-East Queensland. “Although the Brisbane market is largely depressed, the southern Gold Coast is observing a construction surge with an A$4.5bn pipeline of residential developments and transport projects,” Herbert Geer’s Deschamps says. There has been a similar rise in Kiwi property activity, and Kiwi corporate clients are now looking to sell their headquarter offices with a long-term lease back. “Some examples include Fletcher Building’s sale of its Auckland headquarters, and Fisher & Paykel Appliances’ 15 hectare site sale,” Bell Gully’s Petersen says. The Western Australian property market has seen a 50% increase in private investment, and some Chinese investors appear to be interested in retail, ports and plants. However, Singapore- and Indonesia-based investors seem to be bigger players in the WA market. “Singapore-based investors like the Perth CBD, and are mostly looking for investment in

property that is leasing to long-term tenants, such as government,” says Lavan Legal’s Beekink.

SYDNEY Watson Mangioni had just the right mix of staff to handle debt financing, conveyancing, and just about any aspect of property law. ALB leading lawyer John Murray was able to assess all legal requirements from commencement through to completion, had long-standing clients who were impressed by his work . Lynne Phillips and Robert Mangioni were also commended. National firm Corrs Chambers Westgarth was highly praised, as a firm with “people who you can trust to provide the right advice you can rely on.” ALB leading lawyer Peter Calov was highly commended for high-end matters and his commercial approach. Christine Covington and Andrew Flannery were also commended. Herbert Geer was the cream of the crop for construction-related property disputes, front- and back-end work. ALB leading lawyer Paul Deschamps gave practical advice, and was attentive and able to consider matters from different perspectives. Tony D’Agostino was recommended for property and developments. Deacons was chosen for its staff availability, obliging approach, and punctuality with deadlines, particularly when it came to builder-related negotiations and soliciting. ALB leading lawyer Keith Redenbach had was quickly able to grasp building issues and known for his major project contracts. Peter Trevaskis and Felicity Rourke were also recommended. Baker & McKenzie never disappointed when it came to property, planning, leasing or trusts. Lawyers David Jones and Roy Melick were also recommended by clients. Tresscox Lawyers was said to

Australasian Legal Business ISSUE 7.11

20 09

leading firms NB: Firms are listed in alphabetical order under each subheading

be the “best” specialist firm in Sydney. Torquil Murray’s industry and legislative knowledge was “outstanding” and second to none, because he kept all parties fully informed. Property specialist firm DibbsBarker was a top pick for developments, contracts and other general matters. David Sharpe excelled at property developments, shareholder agreements, and development management agreements. Other key partners were Ian Taylor, Philip Stevens, Andrew Buchanan and Bill Burrough. Johnson Winter & Slattery was a prominent and “serious” specialist firm. Ivor Kaplan continuously impressed clients with his intuitive knowledge about what “sinks and floats”, and his ability to think “outside the square”. Holding Redlich’s Richard Abbott had a “special touch” and practical approach in his work. Major clients followed him because of the longstanding relationships he forged. Gilbert + Tobin provided a high level of “prompt service”. Amanda Hempel, Christine Burke and Diane Skapinker were skilled at complex, high-value and strategic issues. Marsdens was good for property and conveyancing, with a local focus. Peter Crittenden was great at estate planning and stamp duty, David Stott was good for leasing, Jim Marsden was the one for developments, and Grant Butterfield was good for industrial property. Holman Webb was one of the most competitively priced firms for general property, with clients commending John Stammers. Maddocks’ Martyn Tier and Christopher Conolly handled government-related property work, while Nick Holuigue was good for deals of “mid-range” value.

www.legalbusinessonline.com

DLA Phillips Fox’s Laresa Koscharsky and Tim L’Orange; and Middletons’ Jodie Masson, Hunt & Hunt and Gadens were considered highly. Mallesons Stephen Jaques was highly praised by clients ALB interviewed, notably for its strength in construction. Frank Zipfinger was the “top legal adviser for high-end property” matters. Adam Wallwork was strong at front-end commercial property negotiations; Sue Kench was the “best for the big ticket items”; Michael Allen was good for major property projects work; William Whitaker produced a good commercial and legal product; and Peter Pether was both an “excellent lawyer” and a “top strategist” for construction-related property and litigation. Clayton Utz’s property team was also recognised as a market leader. David Wilkie, formerly of G+T, was praised for his “quality work”, Peter McMahon was ‘impressive’, while Gary Best stood out as one of Australia’s “top three”. Allens Arthur Robinson also received high acclaim, with Noel Hemmings considered to be at the “forefront” with his wealth of experience; Mark Stubbings was “unmatched” when it came to drafting state and local planning agreements; ALB leading lawyer Paul Lalich had a commercial acumen in his advice, with a “comprehensive understanding” of planning and development related matters; while Anna Lenahan and Stuart McCullough gave no less than “top-tier advice”. Freehills’ ALB leading lawyer Murray Dearberg was considered to be one of the best legal advisers for his ability to see and achieve the “bigger picture”. Greg Hing was a “safe pair of hands” and clients thought he always had his clients’ best

f l

sydney

ADELAIDE

• BAKER & MCKENZIE • CORRS CHAMBERS WESTGARTH • DEACONS • HERBERT GEER • TRESSCOX LAWYERS • WATSON MANGIONI

• FINLAYSONS • Lynch Meyer • THOMSON PLAYFORD CUTLERS

MELBOURNE • ARNOLD BLOCH LEIBLER • BRAND PARTNERS • CORRS CHAMBERS WESTGARTH • DEACONS

BRISBANE • CORRS CHAMBERS WESTGARTH • HOPGOODGANIM • MCCULLOUGH ROBERTSON • NICHOLSONS SOLICITORS • TOBIN KING LATEEF

PERTH • CORRS CHAMBERS WESTGARTH • JACKSON MCDONALD • LAVAN LEGAL

NATIONAL TOP-TIER FIRMS • ALLENS ARTHUR ROBINSON • BLAKE DAWSON • FREEHILLS • MALLESONS STEPHEN JAQUES • MINTER ELLISON

NEW ZEALAND • BELL GULLY • CHAPMAN TRIPP • GREENWOOD ROCHE CHISNALL • RUSSELL MCVEAGH • SIMPSON GRIERSON

other recommended firms

NB: Firms are listed in alphabetical order under each subheading

f r

SYDNEY

PERTH

• DIBBSBARKER • GILBERT + TOBIN • HOLDING REDLICH • MARSDENS • JOHNSON WINTER & SLATTERY

• PYE & QUARTERMAINE • YOUNG & CONNELL

NATIONAL TOP-TIER FIRMS • CLAYTON UTZ

MELBOURNE • AUSTRALIAN GOVERNMENT SOLICITOR • MADDOCKS • RIGBY COOKE

BRISBANE • DIBBSBARKER • DLA PHILLIPS FOX • SPARKE HELMORE

NEW ZEALAND • BUDDLE FINDLAY • DLA PHILLIPS FOX • KENSINGTON SWAN • MEREDITH CONNELL • MINTER ELLISON RUDD WATTS

ADELAIDE • KELLY & CO • RYAN LAWYERS

ALB 2009 real estate practice area guide interests in mind. Blake Dawson generally left clients with an impression of good turnaround, communication, service, value for money and expertise. ALB leading lawyer Les Koltai was commercial in his legal advice, practical, “knew his stuff” and possessed industry knowledge, while Cameron Thomson was also commended. Virginia Briggs and David Crane of Minter Ellison were highly regarded.

leading lawyers JO APPLEYARD Firm: Chapman Tripp

MELBOURNE

Location: Christchurch • Practice areas: planning, environment, infrastructure, energy & resources, dispute resolution • Acted on consenting and planning issues for Christchurch International Airport, rights and consents to take water for power generation, major irrigation schemes, range legal disputes • Clients are mostly based in Christchurch or other parts of NZ South Island

PETER BEEKINK Firm: Lavan Legal Location: Perth • Practice areas: property, leasing, project, manufacturing, tax • Acted on Australasian Property Investments-Floreat Forum acquisition (A$100m), developments, assets acquisition and disposal, project finance • Memberships: Law Council of Australia Business Law Section, Property Council of Australia, Australian Institute of Company Directors

JOHN BUCHAN Firm: Buddle Findlay Location: Christchurch • Practice areas: property, real estate, building, project, infrastructure, local government • Acted for Christchurch International Airport and private developers on commercial property transactions, subdivisions, leases, financing, security arrangements • Advised Christchurch City Council and other local governments on transactions and other issues

PETER CALOV Firm: Corrs Chambers Westgarth Location: Sydney • Practice areas: property, infrastructure, project finance • Acted for major developers on all aspects of property development and finance, including titles structuring • Acted on residential title structuring of Sydney Olympic Village and development of major sites in Sydney’s business districts

ANDREW DEANE Firm: Blake Dawson Location: Melbourne • Practice areas: commercial property, developments, JV • Experienced in acting on transactions involving property zoned as industrial, commercial, government, tourism • Extensive experience in advising on property aspects of major infrastructure developments, PPP projects

cont. ► 40

Arnold Bloch Leibler gave premium advice and was often favoured for its ability to assert “aggression”. ALB leading lawyer Ken Gray was the “best property lawyer” that one client had seen after working for 40 years in the property market. Kevin Frawley gave property and dispute resolution advice on complex, strategic and high value matters, while both Ben Mahoney and Lily Tell acted on “sizeable” property acquisitions and developments. Deacons was “head and shoulders above the rest”, proactive, and had good barrister contacts. ALB leading lawyer Sally Macindoe had excellent coordination skills. Elisa de Wit impressed with her capacity to close matters in a timely matter. Corrs’ Randall Gerkens and Ben Davidson were chosen for complex, strategic and high-value property and dispute resolution work. Nathaniel Popelianski was recommended for property matters. Brand Partners has been increasingly preferred for its professional, reasonably priced, friendly staff. ALB leading lawyer Jane Good was commercial in her legal advice and “clever” at all-size matters. Chris Wilson was professional in his approach. Rigby Cooke was a mature firm for regular transactions, with Michael Markowitz and Scott Stewart the first points of call. Maddocks’ Michael McDonald was chosen for government- or tourismrelated property matters, while Middletons’ Justin Lethlean was the one for property acquisitions. The Australian Government Solicitor received high praise. Josephine Ziino acted on high volume leasing and divestment work. Similarly Owen Dixon West Chambers’ Stuart Morris QC was

respected for his handling of expert witness cases and lengthy panel matters. Mallesons topped the Melbourne national top tier ladder, with its long client relationship and project histories. ALB leading lawyer Andrew Erikson’s relationship knowledge was “invaluable” and he was always able to swiftly complete deals without wasting time on unimportant details. Simone Menze and Andrew Norman were commercial in their legal advice and produced a good end-product. Blake Dawson was highly regarded in Melbourne for both high-end and low-end matters, which was rare among the national top tiers. ALB leading lawyer Andrew Deane was available whenever required, and generally responsive, detailed, thorough, and able to think commercially. Richard Brooks was highly regarded for his council, government, and tourism clients. Clients thought that Minters was good as other top-tier firms in Melbourne, with a more competitive price. Max Cameron was strong at leasing, Anthony Poynton produced a good end-product, while Lloyd Baggott and Angela Schooneman continue to be ‘top picks’ for developments. Allens’ David McLeish was highly recommended as a ‘first-class’ lawyer; the property team at Freehills was chosen for large and high-end matters; and Clayton Utz was a quality legal services provider.

BRISBANE McCullough Robertson was arguably the most well-recognised and prominent Queensland property practice, whose staff provided quality service and provided the right level of “scale, budgeting and complexity”. ALB leading lawyer Stephen Jones stood out because he was a trusted legal adviser who clients had no hesitation in counting on. HopgoodGanim has increasingly been chosen for tenancy, leasing, general property, and acquisitions in tourist destinations. Bruce Humphrys was always available, able to crossrefer the right advisers to help clients address all aspects of property matters. Corrs’ property partners were trusted and provided the right advice, regardless of the job, complexity or Australasian Legal Business ISSUE 7.11

budget. Henry Prokuda was reliable and had good people skills. DibbsBarker’s Brisbane office had quite a significant property practice, with Keith Carl, Scott Guthrie, Lex Orange and Matthew Rollason regarded as the top experts. Boutique firm Tobin King Lateef was seen acting on central business district property matters. Bede King, the ‘king’ of leasing work, left his clients with an impression that boutique firms have as good a chance at getting the work as larger firms do. Nicholsons Solicitors was increasingly seen acting in the property space. Paul Baynes provided the right advice and completed quality work on whatever he came across. Specialist firm Stubbs Barbeler’s Freeda Stevenson was easy to work with and gave quality advice on various complex matters. Sparke Helmore’s Mark Downie, and DLA Phillips Fox’s Chris O’Shea and Ron Eames were well regarded. Among the national top tiers Minters dominated the Brisbane market. The firm’s national scope, but strong Queensland presence made it the client’s choice, even for panel work. ALB leading lawyer Robin Lyons was diligent, practical, sensible, and not afraid to tell clients when they were not being commercial enough. David Stevens was able to meet “tough” deadlines and was very knowledgeable. Cameron Charlton was seen acting on major projects. Mallesons’ David Bell pleased clients with his property, leasing, divestment and project work. He had a very hands-on, practical, logical, and commercial approach. Freehills was frequently chosen because it had a good history with clients. Luke Simpson had his fair share of leasing matters, Michael Back was chosen for his ‘strong reputation’ in the Queensland market, while Kerry Heilbronn was seen acting on property acquisitions. Clients say the property team at Blakes never disappoints. Jonathan Shaw was commended as “fantastic, knowledgeable and useful” for any property matter. Clayton Utz was recognised as another top tier player.

ADELAIDE At the top of the order was Thomson Playford Cutlers, which clients www.legalbusinessonline.com

recognised for its national capability and equally “valuable local focus”. ALB leading lawyer Tony Saint was generally picked because he was effective, knowledgeable, offered “high-level service”, and “cut to the chase”. Clients thought that Finlaysons was on par with most national top tier firms, in terms of expertise and offering. ALB leading lawyer Anthony Floreani was widely recognised for his hands-on industry experience in construction and property development. David Martin was responsive, knowledgeable, and provided a high level of service. Kelly & Co’s Lachlan Andrews was noted for land matters and due diligence, while boutique firm Ryan Lawyers acted for real estate and tourism clients. Minters’ Kristina McGeehanHall was praised for never failing to produce a good and commercial end-product. Alf Macolino of Lynch Meyer was also recommended.

PERTH Jackson McDonald was Perth’s pre-eminent firm for general property and acquisition matters. ALB leading lawyer Graham Goerke was favoured the most by clients for his thorough approach, commercial legal knowledge, and cost-competitive pricing. Corrs Chambers Westgarth was popular among major national-level clients, and had a knack for general property and considerably sized deals. Alan Churley and Philip Wilson were favourites, among government clients. The property team at Lavan Legal has rapidly been recognised for its “second-to-none service” and support for complex issues, including acquisitions. ALB leading lawyer Peter Beekink was increasingly chosen because he was analytical, focused, time-conscious and deadline-driven. Paul McQueen was “pre-eminent” in acting for developers on planning issues, while Sol Majteles drew on his 30 years-plus experience, as both an in-house and private practice lawyer, when he advised on all types of real estate matters. Pye & Quartermaine’s Graham Quartermaine was seen acting for some of the biggest property groups in Perth, while Young & Connell’s

leading lawyers MURRAY DEARBERG Firm: Freehills Location: Sydney • Practice areas: property, leasing, property development, property fund, infrastructure, project, M&A • Acted for property developers, institutions, trusts on developments, leasing, M&A, CBD major property issues • Previous deals acted on: development and sale of Darling Park Sydney that included one of Australia’s largest ever commercial leases; redevelopment of Aurora Place Sydney; JV development of Fox Studios Australia; JV developments with ComLand, Lensworth and General Property Trust

PAUL DESCHAMPS Firm: Herbert Geer Location: Sydney • Practice areas: property development, construction, project, dispute resolution • Acted for government, statutory corporations, principals, contractors, consultants, suppliers and subcontractors on documentation, procurement and tender processes, project administration, claims • Prepared project documents for high-profile construction projects, including airport infrastructure, railways, recycling facilities, commercial, residential developments

ANDREW ERIKSON Firm: Mallesons Stephen Jaques Location: Melbourne • Practice areas: commercial property, structured real property finance • Acted on Chatswood Chase Shopping Centre acquisition (A$472m), the acquisition and Melbourne redevelopment of Myer property holdings (A$1bn+), Gandel Retail Trust-Colonial First State retail trusts merger • Clients: Record Realty, Grollo Group, DB RREEF Funds Management, APN Development and Delivery, Walker Corporation, Silverton, Rodamco N.V., Carlton Hotel Group, Gandel Group, Christie Group, CFS Retail Trust

ANTHONY FLOREANI Firm: Finlaysons Location: Adelaide • Practice areas: property, construction, infrastructure • More than 25 years’ experience in development and construction industries, more recently as former corporate counsel of Urban Construct, and 15 years’ experience as a lawyer • Memberships: Law Society of South Australia, Urban Development Institute of Australia, Property Council of Australia, Real Estate Institute of South Australia

GRAHAM GOERKE Firm: Jackson McDonald Location: Perth • Chairman of partners since 2001 • Practice areas: property, transactions, development, leasing, planning, environment • Substantial experience in commercial office/retail/industrial developments, obtaining land tenure for mining & resources projects, contamination, Aboriginal heritage & native title matters

cont. ► 41

ALB 2009 real estate practice area guide Peter Young was good for practical and commercial advice on property finance and regulatory issues. Of all the national top-tier firms in Perth, Freehills stood out because it had a sizeable property team and arguably the most significant national practice. Ted Sharpe and Frank Poeta were seen advising major ports and master-planned communities.

leading lawyers

NEW ZEALAND

KEN GRAY Firm: Arnold Bloch Leibler Location: Melbourne • Head of property & development practice • Practice areas: property development, M&A, leasing, title structuring • Acted on development of Melbourne Docklands’ Yarra’s Edge Tower 5; acquisition and development of Laverton’s Wyndham Industrial Estate; acquisition and development of St Kilda’s Esplanade Hotel • Memberships: Law Institute of Victoria, Law Council of Australia Property Law Group

JANE HOLLAND Firm: Bell Gully Location: Auckland • Head of property practice • Practice areas: property, construction, development, infrastructure, projects, forestry, energy, telco • Extensive experience in advising developers, forestry companies and retailers on leasing, design and build projects, transactions

STEPHEN JONES Firm: McCullough Robertson Location: Brisbane • Practice areas: property, leasing, projects, dispute resolution • Extensive experience in leasing, tenancy, dispute resolution, agreements enforcement, conveyancing, transactions • Well known in Queensland property industry as an experienced practitioner and authority on property law, acting on high level CBD acquisitions, development products, shopping centres

LES KOLTAI Firm: Blake Dawson Location: Sydney • Practice areas: property, finance, REIT, infrastructure, project • More than 20 years’ experience in real estate investment trusts, acting on real estate matters for investors, advisers and corporate end users • Clients: Coca Cola Amatil, Jones Lang LaSalle, Costco, Macquarie, ING Real Estate, AMP, Allianz, Rio Tinto, Valad Property Group

PAUL LALICH Firm: Allens Arthur Robinson Location: Sydney • Practice areas: planning, local government, environment, litigation • Advised on development consent and approvals for Sydney CBD office towers; redevelopment of former industrial sites for commercial and residential purposes • Extensive knowledge of Land and Environment Court procedures, litigated matters related to Environmental Planning and Assessment Act, Local Government Act, Protection of the Environment Operations Act, Contaminated Land Management Act, Threatened Species Conservation Act

cont. ► 42

New Zealand clients often commented that most partners billed between NZ$350-550 per hour, and they felt that some large Kiwi firms fell short because they faced challenges in sticking with alternative billing options. Bell Gully was the most highly regarded Kiwi firm among clients who ALB interviewed. The firm was picked for its history with clients, quality service and ability to completely integrate with the client’s business. ALB leading lawyer Jane Holland was respected for her work on leasing, purchases, design and build. Tom Bennett was the first point of call for regional matters. Andrew Petersen was seen acting on developments in Auckland, while both David McGregor and Andrew Beatson were key partners. Chapman Tripp was a premier firm, particularly for developments. ALB leading lawyer Jo Appleyard was praised as the firm’s finest planning and environment partner, because she was efficient, technically sound and a “great” communicator. Robert Parker was a specialist talented at building aspects of major projects. Bill Sandston and Matt Carroll were also highly regarded. Russell McVeagh was also a prominent firm, with Greg Thompson leading major property sales and Ed Crook noted for his work on commercial property issues. Chris Bargery is one of the newer additions to the firm. Simpson Grierson was often the first point of call among local government clients, and singled out for its commendable work on property and resource management. Michael Weatherall, Greg Towers and Graeme Christie were key partners. Specialist property firm Greenwood Roche Chisnall impressed clients with their quality property arrangements work, targeted approach, and significantly cheaper fees. The firm was commended for its fixed pricing

and “tariff rates”. John Greenwood, Rob Roche and David Chisnall were all originally from Chapman Tripp, and regarded as pro-active, understood client needs, and were able to provide value-added service. Meredith Connell mainly acts as the Kiwi Office of the Crown Solicitor, but had quite a reputation among private clients when it came to leasing, general property and dispute resolution. It was common for larger firms to refer work to them, and clients generally preferred the firm because of its low rates. John Stephens was efficient and commercial, while both Chris Moore and Anna Moodie were key partners. Kensington Swan was chosen for its “strong” front- and back-end of the practice. Andrew Skelton, Hayden Wilson and Paul Buetow were favourites for strategic asset matters, and sale-andleaseback arrangements. John Meads was also recommended. Buddle Findlay’s ALB leading lawyer John Buchan was efficient, technically sound, a “great” communicator, and provided “excellent” service, while Michael Tinkler was seen acting on development leases and property finance. DLA Phillips Fox’s Sharon Skinner typically working on freehold and leasehold “reconfigurations”, while Brian Bray and Susan Hesp generally handled property construction matters. Minter Ellison Rudd Watts’ Andrew Monteith, Paul Radich, and Rachel Devine were generally the first point of call. Ross Pickmere and Stephen Price were seen acting on property and construction matters. Peterson Law’s Fiona Horne was mentioned for her expertise and involvement in on property acquisitions, some of which were among the biggest commercial and industrial property sales. Anthony Harper’s Hamish Grant has acted on cornerstone developments, while Tim Barclay advised on various property acquisitions. Other lawyers mentioned for their expertise in this area include Dawson Harford & Partners’ Simon Stokes, Gregory Simon’s sole practitioner Gregory Simon, and the property teams at both Burton & Co and Hesketh Henry. Australasian Legal Business ISSUE 7.11

leading lawyers ROBIN LYONS Firm: Minter Ellison Location: Brisbane • Practice areas: real estate, commercial property, REIT, retirement villages, health • More than 12 years’ experience in the commercial property industry, advising investors, AMP, ING, QIC, Coles Myer and Deutsche; completed two year secondment to AMP, managing and overseeing its national property transactions • Clients: FKP Australian Retirement Homes, Primelife, Retirement by Design, TriCare

SALLY MACINDOE Firm: Deacons Location: Melbourne • National head of planning practice • Practice areas: planning, development, project • Acted on some of Victoria’s largest development projects, including Dandenong sale yards redevelopment (A$250m) for Vic Urban, redevelopment of former AFL Waverly Park site (A$500m) for Mirvac

featured firm LYNCH MEYER For 40 years, Adelaide’s leading property developers have looked to Lynch Meyer for advice on some of Adelaide’s icon developments. From Golden Grove to West Lakes, from the green development of Lochiel Park to the development of the Cheltenham Racecourse, Lynch Meyer has been at the forefront. We apply our diverse property, planning, environmental, building and commercial skills for the benefit of our clients on a range of developments:

Categories of Work – Property and Real Estate • apartments • masterplanned residential developments • shopping centre developments • retirement villages

• aged care developments • office developments • industrial and warehouse developments

Lynch Meyer is part of the Kennedy Strang Legal Group, with offices in Sydney, Melbourne and Brisbane.

PROPERTY AND REAL ESTATE SPECIALISTS

JOHN MURRAY Firm: Watson Mangioni Location: Sydney • Head of finance & commercial property practice, private clients group • Practice areas: property development, finance, project finance, securities • More than 25 years’ experience in acting for property developers, banks, financiers, investors on commercial property transactions, acquisition structuring, JV, development agreements, project finance, leasing

TONY SAINT Firm: Thomson Playford Cutlers Location: Adelaide • Practice areas: property, development, construction, infrastructure, government • Significant experience in acting for government, property developers, builders, defence on major residential and commercial developments, PPP infrastructure transactions, projects, JV • Memberships: Law Council of Australia, Australian Corporate Lawyers Association, Australian Institute of Company Directors

Alf Macolino Firm: Lynch Meyer Location: Adelaide • practice areas include property development, commercial leasing and commercial agreements • noted expertise in the use of plain English and is resident lecturer in plain English drafting and wills and estates for the Practical Legal Training Courses for junior lawyers in South Australia.

JANE GOOD Firm: Brand Partners Location: Melbourne • Practice areas: property, litigation, commercial • Highly experienced litigator with in-house and private practice experience • Acted on Pyramid Building Societies liquidation, coordinated more than 300 legal actions at High Court, Federal Court, all Australia-based jurisdictions www.legalbusinessonline.com

Alf Macolino, Partner, Head of Property, Retirement Villages and Aged Care T: (08) 8236 7683 E: amacolino@lynchmeyer.com.au

Rest of Team Joe Subic, Partner, Property and Commercial T: (08) 8236 7610 E: jsubic@lynchmeyer.com.au Simon Mortimer, Partner, Property and Leasing T: (08) 8236 7608 E: smortimer@lynchmeyer.com.au Sam Appleyard, Consultant, Property and Community Titles T: (08) 8236 7681 E: sappleyard@lynchmeyer.com.au Kathryn Walker, Senior Associate, Planning and Construction T: (08) 8236 7632 E: kwalker@lynchmeyer.com.au Jody Grant, Senior Associate, Planning and Environmental T: (08) 8236 7603 E: jgrant@lynchmeyer.com.au Betina Clifford, Associate, Property and Retirement Villages T: (08) 8236 76628 E: bclifford@lynchmeyer.com.au Richard Jackson, Associate, Property T: (08) 8236 7693 E: rjackson@lynchmeyer.com.au Daniel Roach, Associate, Property T: (08) 8236 7625 E: droach@lynchmeyer.com.au Lynch Meyer, 190 Flinders Street, Adelaide, SA, 5000 T: (08) 8223 7600 • f: (08) 8223 2722 • W: www.lynchmeyer.com.au

Feature | litigation >>

Disputed territory

Australasian Legal Business ISSUE 7.11

Feature | litigation >>

Are litigation and disputes workflows in the current market environment actually living up to their countercyclical reputation?

f all the clichés that the global financial crisis has spawned, one of the most enduring has been the theme of the counter-cyclical legal practice. Litigation and disputes work are the oft-cited saviours of the law firm deprived of its traditional M&A and transactional fare. It's a stereotype which is not universally accepted. Sharon Cook, managing partner of what is widely considered to be one of the most successful counter-cyclical practices – that of Henry Davis York – stated earlier this year that litigation was better described as a “generally steady” practice area, pointing out that corporate regulatory litigation did not follow the economic cycle. Disputes are also largely the product of commercial activity – if this is down, it follows that takeovers, joint ventures and other contract disputes will also drop. It’s the reason why Andrew Christopher, head of disputes at Baker & McKenzie, does not embrace the theory that disputes work is counter-cyclical. “When [legal] work is down, all work is down and that includes litigation,” he says. “A lot of areas of litigation have been subdued. It’s less Andrew Christopher, affected by the downturn, Baker & McKenzie but still affected.” Yet disputes practices are reporting an increase in activity. Doron Rivlin, a partner at Herbert Geer, says that his team has seen a “significant” increase in litigation. “The broad trend seems to be a rise in the number of clients seeking urgent applications such as injunctive relief.” Rivlin estimates that he has seen about a 30% increase in disputes work. He has no doubt that the rise in litigation is GFC-led. “At the crux of it www.legalbusinessonline.com

all is the presence of financial difficulty somewhere in the transaction, and as a knock-on effect, parties are trying to restructure or terminate deals,” he says. Rivlin predicts the disputes work will continue until there is a broader economic recovery. “We Doron Rivlin, Herbert Geer are firmly in a cycle of disputes and this will continue until the economy recovers.” Mallesons Stephens Jaques is another firm to report a spike in disputes work, with Sydney partner Moira Saville attributing this partly to fallout from the financial crisis and partly to other trends. However, whether other firms are seeing an increase in work is unclear – and the indicators are ambiguous. For example, a spokesperson for the Federal Court of Australia told ALB that the court had observed no “discernible” rise in commercial litigation over the past twelve months. Whether hot or simply lukewarm, it is at least clear that disputes workflows are performing better than most and the practice area has attracted the attention of firms that are going through a lean patch. Baker & McKenzie’s Sydney partner Andrew Christopher warns of a tendency for lawyers from other areas to rebrand themselves as disputes experts. “Some areas of practice have been hit harder than disputes, which they have seen as a bright beacon in the gloom,” he

says, “Clients need to be sure that their lawyer really does have the right expertise and is not simply dabbling in disputes work because there’s no work in their usual area of expertise.”

Particular sectors It is axiomatic that parties will pursue trade debts more quickly and vigorously in a downturn, and it comes as no surprise that these kinds of disputes are on the rise. But B&M's Christopher says that the overall growth in disputes work has been uneven, with some areas busier than others. “There has been a lot of work arising from disputes involving the trustees and custodians of listed and unlisted property trusts.” Christopher says that back-end claims from business acquisitions, where buyers have been disappointed with the profitability of the target company, are also on the rise. “Shareholders are also putting companies under pressure to be more aggressive in managing the company’s rights,” he adds. Malleson’s Saville says that there has been an increase in the number of class actions mooted, although it remains to be seen whether all of these will progress to litigation. One of the Moira Saville, more novel developments Mallesons seen recently was the settlement of a class action by Opes Prime creditors by means of a scheme of arrangement (SOA) – believed to be the first such settlement of its kind. But not all litigation is GFC-related. An interesting emerging area is climate-change related disputes work and coastal protection issues. Mallesons is acting for a group of landowners at

“It's not a case of arbitration versus litigation – rather, you'll see parties using arbitration where particular circumstances warrant it” Andrew Christopher, Baker & McKenzie 45

Feature | litigation >>

Byron Bay who are in dispute with the local council, which is seeking to prevent private property owners from protecting their properties against coastal erosion. “There are other examples of climatechange related disputes – flooding of mines and the Victorian bushfires have implications for insurers and clients,” Saville says.

What is "alternative?" Alternative dispute resolution is a phrase often applied to any resolution mechanism other than court litigation, such as arbitration, expert determination, mediation or conciliation. Herbert Geer's Rivlin says that arbitration has more in common with litigation than it does with mechanisms such as expert determination, mediation or conciliation. “Arbitration and court litigation are binding processes, in contrast to non-binding processes such as mediation and conciliation,” he says. “In that sense, arbitration and litigation are one and

the same. But expert determination can be binding or non-binding depending on the agreement of the parties.” Alternative dispute resolution may be in decline. “A few years ago, ADR was fashionable and people thought that litigation was in decline,” says B&M’s Christopher. “But the more recent trend is certainly back to litigation, and it is uncommon for parties to pursue alternative dispute resolution as an end in itself.” Non-binding processes are less popular with those who have a sense of urgency in the current economic conditions. “Parties are subject to financial pressure and they can’t risk a failed mediation – so they’ll go straight to litigation,” says Rivlin. “There

is often enough emotional history between the parties for them to know that mediation won’t work, so they’ll go straight to the dispute resolution clause.” Yet there is not necessarily a consensus that non-binding dispute resolution mechanisms are out of vogue. Mallesons’ Saville says that in her experience, parties are keen to avoid protracted litigation or the court process altogether, and remain open to alternative mechanisms. “Disputes are shorter and sharper, and the focus is on reaching a resolution quickly,’ she says.

Arbitration and litigation In some cases, the benefits of choosing arbitration over litigation are self

“Clients need to be sure that their lawyer really does have the right expertise and is not simply dabbling in disputes work because there's no work in their usual area of expertise” Andrew Christopher, Baker & McKenzie

Australasian Legal Business ISSUE 7.11

Feature | litigation >>

evident. The advantages of arbitrating a cross-border dispute, for example, have been well documented. While arbitration was initially attractive to parties because of its privacy and efficiency, Rivlin has noticed a trend back towards the court system over the past five years. “There was a perception that the courts were becoming more adept at case management than the arbitrators,” he says. “So parties began to remove arbitration clauses.” He says that arbitrators have begun to claw back the gap over the past 18 months, but the majority of cases still go through the courts. Baker’s Christopher says that the question comes down to the appropriate course of action for the appropriate situation. “It’s not a case of arbitration versus litigation – rather, you’ll see parties using arbitration where particular circumstances warrant it. For example, big civil projects or large scale multi-jurisdiction projects which are long-term and where the bridges can’t be burnt.” Expert determination is also

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prevalent. “This is common for leasing agreements and in primary industry, property and construction,” says Rivlin. “But the idea of a binding, non-appealable determination can be a concern for parties.” Adjudication is one means by which parties can get a fast interim result, which may avert the need for to proceed to litigation or arbitration. “Construction litigation in the UK has slowed down because a number of cases are resolved at the adjudication stage,” Rivlin says. But it remains to be seen whether the same trend will emerge in Australia. He says the tendency for parties to seek alternate remedies, particularly under the Trade Practices Act 1974, may defeat this trend.

New Zealand perspective The New Zealand litigation scene has been dominated by a series of major cases initiated by regulatory agencies, with nearly all of the larger law firms involved in one capacity or another. The Inland Revenue Department has alleged that major banks have been

engaging in unlawful tax avoidance activities, while the Commerce Commission has also taken banks to task over credit card schemes which are said to breach competition legislation. The New Zealand Securities Commission is also likely to be active in litigation in the coming months. “There has been more litigation work this year than last year,” says Kensington Swan partner Hayden Wilson, noting that a key driver Hayden Wilson, has been litigation by Kensington Swan regulators. However, Wilson says that the firm’s Auckland litigation team has been busy with a different mix of work, particularly in the insolvency and restructuring space. He has noted an increasing prevalence towards dispute resolution in recent years. “Complex litigation is expensive, and we've seen more and more focus on ADR. Government clients have certainly been more willing to deal with disputes on that basis.” ALB

Feature | driving IT >>

Driving

Sometimes it’s difficult to see the dividends from investing in technology infrastructure, yet this is an area where major advances translate directly into a fatter bottom-line for firms. ALB looks at the companies that are now driving IT development

he financial crisis has had an impact on different-sized firms in different ways. The crunch has forced practice managers to concentrate on improving efficiency and streamlining their processes, achieved as a way to cut costs or to provide a competitive advantage when it comes to winning over work. LexisNexis Pacific CEO, Theuns (TJ) Viljoen, says the increased pace of doing business means that desktop tools need to deliver efficiency and accuracy. “Smaller firms operating in 48

the transactional legal services space require low-cost IT solutions – effectively a ‘one-stop shop’ is the key to their productivity,” he says. “Solid matter TJ Viljoen, management and LexisNexis Pacific workflow management tools that include accounting, matter management and document production can minimise overheads such as support people. One example is Bonura

Legal, a small Sydney law firm that has implemented practice management software for massive cost and time savings,” Viljoen explains. He says his company has integrated its online legal research with practice management software, which is an example of a new-age workflow tool for lawyers. “It is essentially backoffice and front-office technology integrated with online legal research solutions,” Viljoen says. “Factors like globalisation, client cost pressures and the availability of legal information Australasian Legal Business ISSUE 7.11

Feature | driving IT >>

increase competition across the board. Law firms are looking to develop their practices to present the best options to prospective clients, be it via improved IT infrastructure and practices, new billing models or practice areas.” One of the problems facing law firms is the proliferation of freely available legal information via the Internet, which tempts clients into thinking is both reliable and complete. Viljoen says that this availability of information is also commoditising traditional legal revenue models like arbitraging, driving down the value of selling access to legal information. “Some organisations are also seeing high volumes of cases or applications for grants, for example,” he says. “Legacy paper-based processes are unable to deal with the inflow accurately, reliably and efficiently. Meanwhile, clients receive an abundance of information and alerts from various sources. It can be timeconsuming to sift through the detail, as information is often repetitive and, at times, irrelevant.” Viljoen says that LexisNexis practice management solutions will enable streamlined processes and swift access to reliable information for firms. He cites research solutions such as

of all sizes now as the technology available runs seamlessly across document production, marketing, email management, time recording, workflow and billing.”

Refocus your business Developers are returning focus back to the actual business needs and seeing how their areas of expertise with information development can assist, according to industry sources. “The commercial IT industry was born of a need by business to do more work cheaper, faster and more accurately,” says Caseflow director of technology and development, Brian Smith. “For a period, the industry was – to a certain level – hijacked by purists who were inventing the perfect ‘platform for business.’ The only issue was that the platform wasn’t as big as everyone needed, certainly not scalable Brian Smith, enough and rarely Caseflow delivered the panacea that was promised,” he says. This resulted in companies having to change how they did their business in order to fit in with the platform –

“Factors like globalisation, client cost pressures and the availability of legal information increase competition across the board” Theuns (TJ) Viljoen, LexisNexis Pacific CaseBase, Halsbury’s and LawNow Legislation as products that allow lawyers to keep up-to-date with the most recent case law and analysis on local and international legal developments. “These sources are not new to the Australian legal market but with significant ongoing enhancement investment now provide the only true seamless legal research experience,” he says. “IT is the driving force behind the expansion of Australian legal firms over state boundaries and through the world. Business development is becoming second nature in law firms www.legalbusinessonline.com

rather than the other way round. Smith says that evaluating products has been getting progressively harder. It is difficult for law firms’ IT decisionmakers to keep up with all of the developments in software design. The age-old problem also arises; whether to go to a ‘one-stop shop’ for all the firms’ IT needs or try and cherry-pick the best out of a number of providers. Smith knows which camp he fits in. “At Caseflow, we have made our choice and have never deviated from that proven business theory – stick to what you do well. We are firmly in the ‘best

Feature | driving IT >>

of breed’ camp and we live or die on integration,” Smith says. “Our single focus on case management allows us to leverage from other single-focus organisations and tell our prospects and customers that not only should they choose a document management system from another supplier but that they can choose from the leading players in the field.” He says that Caseflow’s decisions as to who and what to integrate with are driven by the market trends, rather than by alliances that may one day end up in a merger or acquisition, where every product you buy comes from the same stable.

“The commercial IT industry was born of a need by business to do more work, cheaper, faster and more accurately” Brian Smith, Caseflow But what is the impact of these IT developments on running a law firm? To Smith, the answer is simple: speed, accuracy, productivity and risk mitigation. He says that research tools have enabled even the smallest law firm to access and analyse significantly more information than ever before. “The IT systems in law firms allow them to automate the mundane (but vitally necessary) aspects of vast amounts of legal work which frees up the professional staff to do what they can do far better than a computer – think,” he says.

Security issues Cloud computing is a concept that has the IT industry abuzz, but the overall idea of a centralised internet cloud offering ‘Software as a Service’ (SaaS) brings up issues around trust and reliability. According to virtual data room specialist Ansarada’s CEO Samuel Riley, the most significant trend in IT development is certification.

“There is a trend for clients to want proof around the availability, confidentiality, integrity and usability of the service,” he says, adding that his company was recently been independently certified as being compliant with the international standard for an information security management system (ISO 27001). “These initiatives and certifications allow our clients not just to leverage from Ansarada’s product capabilities and technical infrastructure, but also to leverage from our certifications to increase their own level of security controls and compliance,” he says. “Marketing this benefit to their clients can also provide a competitive advantage.” Riley says that other trends driving IT development include utilising the latest web technologies to facilitate increased speed and ease of use. A good example is Ajax Sam Riley, Ansaranda technology, which can retrieve data from the server in the background without interfering with the display and behavior of the existing web page. “Also, complimenting this trend are new browsers such as Google Chrome, which are heavily optimised to process Ajax super efficiently so that pages load much faster and allow greater interactivity and flexibility,” Riley says. “This all leads to a more ‘desktop-like’ experience for users of web applications utilising these technologies.” Law firms that develop and maintain their own in-house virtual data rooms face a multitude of problems, ranging from the cost of continually developing features and functionality to the problem that mid-size and smaller firms face; managing due diligence of projects effectively and efficiently while also providing their clients with the best tools available to suit their needs. Technology companies hope to make those problems disappear. “Ansarada is a virtual data room specialist solely focused on developing and maintaining services that allow even the most sophisticated of due diligence processes to be undertaken with ease,” Riley says. “Fees are structured on a perproject basis, which can then be passed

on disbursement. This allows clients to utilise all the benefits provided by Ansarada without any capital investment or ongoing commitment of internal resources.”

IT upgrades pay Upgrades might be necessary – but they are not necessarily cheap. Top-tier law firms may have bulging technology budgets but, for many smaller firms, an unexpected IT expense can come as a bit of a nasty shock. This is where business financer Global Rental & Leasing steps in to provide low-cost, unsecured finance. Australia is in the midst of an unprecedented global liquidity crisis, with mounds of debt that has to be refinanced in the next three years, all of which will cost more and in most cases be more difficult to settle, says Global’s strategic accounts and channels manager, Guy Barnes. “This is creating problems for our clients who need to buy IT from time to time, or perhaps a fitout for their offices. In some cases the banks are saying they won’t finance intangible assets or are charging a premium,” he explains. “Our clients are increasingly looking for alternative sources of finance than their traditional banks, to help them buy the equipment and fitouts required to support their business.” Global’s business works by investing a portion of the trade-in value of the equipment it finances into the deal, so the customer pays interest on less than 100% of the principal over the term. As finance is unsecured the balance sheet of its law firm clients remains unencumbered. “This can be useful where banking covenants are in place that might be impact by any more on-balance sheet debt,” Barnes says. ALB

“This all leads to a more ‘desktop-like experience for users of web applications utilising these technologies” Sam Riley, Ansarada Australasian Legal Business ISSUE 7.11

| driving IT >> FeatureFirm Profile

Caseflow

What is Driving IT in the legal industry for 2010 and beyond? Is it the software developers and vendors, the needs and wants of the end users or Management wanting efficiencies and cost savings? Is it about doing more with less, growing revenue or satisfying the ever increasing client demands?

aybe it is as simple as; getting home earlier, making more money and just keeping the client

happy. However like any type of solution or innovation in the broader market place, it is often the simple ideas that take hold. Sometimes they are that simple, people often comment “why didn’t I think of that”. Sometimes the product is not necessarily new. Sometimes the product, just does things better, or redefines how it should be done. Lets take the Safety Pin. Seems strange to talk about Safety Pins in a piece on Driving IT, however let me explain. The Safety Pin is seemingly simple and I presume pinning nappies was done some other way prior to its invention. I do not even know what people used before this invention, does it matter? The fact is, the Safety Pin redefined the way we did things. A new product solving an old problem, a new and better way. Software is not necessarily simple, however if the software product is simple to use and operate, solves some old problems and redefines how people approach and complete tasks then this has to be a good thing. We have been looking at some new product offerings from Caseflow and one product in particular seems to fit in with

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that notion of “A product that is simple to use and operate that solves some old problems”. Firstly to explain, Caseflow software has been available since 1991. It is currently used in 50% of the top law firms in Australia and now consists of a multi tiered product range. Even if you have heard of Caseflow or seen it previously you owe it to yourself and your firm to have a look at it now. However the product we are looking at today is their entry level product known as ShowClause. ShowClause is a clause library solution with some interesting features and benefits: • It is a solution that has application firm wide. • It is simple to install and easy to centrally manage. • It integrates with your Document Management system. • It eliminates the age old problem of “cutting and pasting”, mitigates risk. • It is inexpensive to purchase, paying for itself within weeks if not days. • It is scalable to both large and small firms. • It is a base for Caseflow technology that can grow into a fully featured Case Management system

Maybe comparing Caseflow’s ShowClause with the Safety Pin is not a good analogy, however ShowClause is an innovative product that does go a long way to solving some age old problems. If you don’t have a clause library solution then ShowClause may be your answer. Even if you do have a clause library, but feel that your current product is no longer keeping pace, doesn’t grow with the firm or is suffering from a lack of support contact Caseflow info@caseflow.com.au or go to www.caseflow.com.au Maybe ShowClause is the pin that will hold your clause library solution together.

Feature | interview >>

Australasian Legal Business ISSUE 7.11

Feature | interview >>

In-house perspective

Woodside’s Michael Abbott

Resourceful leadership As the demand for Australian oil and gas hots up, Woodside Energy’s vice president Michael Abbott shares the story behind one of the nation’s busiest – and most diverse – in-house teams

fter 15 years spent in private practice and several in-house secondments, Michael Abbott decided that the corporate lawyer life was the right choice for him. “I enjoyed the opportunity to get the deep and early involvement with the client's business and engagement in the business process – as opposed to being called in at the last moment or after the key decisions had already been taken,” he says. At Woodside, executive vice president Rob Cole is the company’s official general counsel, yet this is only one of many roles Cole fulfils in the organisation. The job of running the legal team and managing relationships with law firms is performed by Abbott. The Woodside legal team handles a highly diverse workload which includes environmental approvals, fund raising activities, procurement work, joint ventures, equity deals, sales contracts and operational issues, just to name a few areas. What is particularly daunting about this workload is the sheer scale of Woodside’s operations – for example, the North West Shelf Venture in Western Australia, which produces about 40% of Australia’s oil and gas, represents a historic investment of

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approximately A$27bn and considerably more in today’s terms. The Pluto LNG Project, set to be completed next year, is worth A$12bn with further expansion on the cards and the Browse LNG development, north west of Broome, is estimated to be in the realm of A$30bn. “That’s the advantage of working at Woodside – we’ve got projects under development, projects under construction, operating assets and international portfolio development opportunities as well – a huge range of work,” he says. But as has occurred in so many other in-house legal teams, a certain amount of belt-tightening has occurred at Woodside “A few years back we had a significantly larger number of lawyers, but now we’ve got less lawyers doing a lot more work. Four years ago, the team numbered in the high 20s – that’s now down to 19. People haven’t been given their marching orders or anything like that – the reduction has been through natural attrition," says Abbott. This reduction in headcount has not meant an increase in the work being outsourced to firms. “Our legal spend has gone up a bit, but the level of work has gone up significantly more than the level of external spend. A lot of that external spend was in areas like litigation and 53

Feature | interview >>

non-core areas which we normally wouldn’t handle anyway,” Abbott says. He contracts out work which involves specialist skills “which aren’t core to the business”. This includes tax work, large fundraisings, litigation and work involving jurisdictions where the team does not have expertise, and large transactional work. But he dislikes the use of the word “outsourcing” to describe the process. “Outsource is the wrong word – we always have an internal lawyer running the legal side of things and acting as the interface between the law firm and the business. We don’t just hand across whole packages of work to law firms and leave the businesss to flounder with the firm,” he says.

Practice structures

While dire predictions are being made about the demise of the billable hour – mostly by firms which have adopted alternative models – Abbott is of the view that the concept will survive in one form or another. “It will have to remain an important part of the costmanagement process, so that firms can work out what it costs them to do work so they can effectively estimate and price work they’re going to tender for.” He is currently in the process of revising Woodside’s panel, and expects to call for tenders shortly for firms interested in joining up. “We hope that the tendering process will cause firms to focus on the value they’re delivering so they don’t see what’s on the timesheet as the 'be all and end all' – we hope they will look at the value they provided, and whether the time they put on the sheet is justified in the

and Abbott approaches the matter as a question of both form and substance. “We don’t sit as an internal law firm all on one floor – most of the lawyers are out in the business itself – that way they’ve got proper relationships with people who are actually doing the business, so they can get involved early, pick up risks at an early stage rather than when it’s too late and be part of the decision-making process and structure their legal advice accordingly,” he explains. However, Abbott does acknowledge the disadvantages of such an arrangement. “We still need to provide that forum for lawyers to come together

“The most effective marketing opportunity for any law firm is simply how well they did their last job. If they execute the work well, they’ll continue to get instructions from us” circumstances," he explains. "So we’re not going to get away from it entirely, but it should be just one of the things that firms look at in determining what they should be billing us for services provided.” Integration with the business is a key priority for an in-house legal team 54

and so they do keep in mind that they’re lawyers and they keep the job of looking at the legal risks foremost in their mind. We do that by regular meetings of the whole legal team – thex downside of having people spread out is that you’re not being collegiate, but you can find ways around that by setting

up appropriate forums and reporting structures.”

Relationships with firms

Client golf days, cocktail parties and surveys are the stock in trade of the average law firm marketing consultant, but Abbott says that a simpler approach will suffice. “The most effective marketing opportunity for any law firm is simply how well they did their last job. If they execute the work well, they’ll continue to get instructions from us – that’s far more important than dragging people off to lunch or cocktail parties or those “how are we going” meetings,” he says. Not surprisingly, efficiency is high on the list of Abbott’s priorities. “What we hate is when we get a bill and there is this massive pyramid where you’ve got one partner who has talked to two senior associates, who have in turn talked to three lawyers who have talked to five junior lawyers. Sometimes that might be justified, but we want to see it justified because of our business need, not because of the law firm’s leverage needs,” he says. His number-one priority brings up a familiar theme for in-house counsel. “Know our business – firms should take the time to train their people to the level that we need and make sure they put the people on that actually understand our business.” ALB Australasian Legal Business ISSUE 7.11

NEWS | news >> SPECIAL FOCUS | Mallesons >>

Mallesons:

20 years in Asia 56

Australasian Legal Business ISSUE 7.11

(left to right) Paul Starr, Nicola Wakefield Evans, David Bateson

Itâ&#x20AC;&#x2122;s been 20 years since Mallesons opened its first Asia office and fired the first shot in the battle for regional supremacy. Some of the key players from that first foray into Asia share their memories of the journey thus far.

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NEWS | news >> SPECIAL FOCUS | Mallesons >>

urn back the clock twenty years. Do you remember the days when Allens was still Allen Allen & Hemsley, when Freehills had not yet dropped the “Hollingdale & Page” from its brand and Tony Crawford had not yet put the “DLA” into DLA Phillips Fox? Back in 1989, Mallesons was a solid Australian firm. A well respected firm with offices in London and New York, but not necessarily known as an international player. The ensuing two decades have seen the firm emerge with a new Asia focus and a new Asia network – and international credibility. It has been an eventful twenty years for those at the forefront of the Mallesons transformation – from humble beginnings to very satisfying success.

Modest origins It is never easy for a law firm to take that first tentative step in a new market. Blake Dawson’s venture in Singapore and Kensington Swan’s new Abu Dhabi office are examples of projects which have come to fruition only through months of painstaking planning – and acceptance of a degree of risk. These firms might take inspiration from the Mallesons story. When the firm first opened its doors in Hong Kong in 1989, it had a grand total of four staff. David Walsh and Ian James were the founding partners, and were soon joined by construction lawyers David Bateson and Paul Starr, who joined from HK firm Denton Hall & Burgin in 1990. Bateson and Starr brought lawyers with them from Denton Hall, bringing the fledgling office to a total of 10 lawyers and four partners.

Still, it was certainly a modest beginning. David Bateson remembers the first Hong Kong office as being so “small and cosy” that when Australian partners and shared services staff visited, they would outnumber all the lawyers in the office. Bateson and Starr bought their clients with them to Mallesons, providing what Bateson describes as a “ready-fit construction practice.” It was, quite literally, a portable practice. “We just picked up our client files and moved,” says Bateson of the move. Having a construction practice was a good start, but the challenge was to extend the brand recognition to other practice areas: “We came across to Mallesons with an established construction practice - we were up there with the well-known firms - but the Mallesons brand name didn’t register in the region so it was particularly difficult to compete on the corporate, M&A and banking side early on,” says Paul Starr. “Mallesons wasn’t really on the radar, other than for construction and dispute resolution work.” And there was an additional incentive to grow the Hong Kong office. While the Asian economy was travelling well at the time, the Australian economy was entering a deep recession. “The Chief Executive Partner at the time had to come out to Hong Kong to make some cuts,” recalls David Bateson. “The first thing he did was remove the company junk and the driver. The leisure boat, which was used for beach trips and seafood meals, was seen to be an extravagant luxury. After that, however, things progressively improved. We had a strong construction practice so the recession in Australia didn’t really affect us.”

On a roll Mallesons was the first Australian law firm to get a license in Beijing, opening an office there in 1993, and the first Australian firm to have offices in both China and Hong Kong. But for Bateson, Mallesons’ true coming of age in the North Asia market occurred when international banks began to take note of the firm and began sending it an increasing amount of work – something which he credits substantially to the arrival of Adrienne Showering and Richard Mazzochi from the Sydney office seven years ago. But Showering and Mazzochi weren’t the only rising stars to relocate to North Asia. Current Chief Executive Robert Milliner was also part of that northbound migration and the story of his first night ‘out on the town’ still circulates today. “We took him to a well known live music emporium in Wanchai,” recalls Paul Starr. “Robert walked briskly in, circled the dance floor, and walked out equally briskly before the band had managed to utter a note!” Perhaps Milliner was pacing himself for what would prove to be heady days to come. A number of lateral hires and internal appointments in the following years saw the firm’s Asia practice gain a more prominent presence in the region for finance and regulatory work, areas not traditionally associated with Australian expertise in Asia. Banking and finance was given a significant boost with Steven Christopher’s migration to the Mallesons Hong Kong office from Linklaters in 2005 and David Olsson’s internal relocation from Melbourne to Beijing in early 2008. Mallesons further augmented its Australasian Legal Business ISSUE 7.11

M&A practice with a 2004 merger with Kwok & Yih, the admission of Stuart Valentine from Clifford Chance in 2005 and the transfer of senior M&A partners, Simon Milne and Nicola Wakefield Evans (Managing Partner, International) in 2007. The Kwok & Yih merger saw the firm establishing an associated office in Shanghai, which was brought under the Mallesons name in 2007, and marked the culmination of years of organic expansion of Mallesons’ Hong Kong office, says Nicola Wakefield Evans. “It was a natural progression for our Asia practice and gave us a big leg up. We started seeing a substantial increase in the amount of work we did for non-Australian clients in the region. We were growing our own client base rather than relying on our existing connections.” The firm now had a presence in Hong Kong, Beijing and Shanghai and the pace of corporate and M&A work from blue chip clients began to quicken. Mallesons’ future in the region was assured. There was just one problem. “David Bateson and I used to make frequent trips to Australia,” explains Paul Starr. “Initially, all Board and other key meetings were held Down Under, so we could happily stock up on our wines. These days, we tend to travel there only once or twice per year, as our Board members, Chief Executive and fellow partners visit us.”

Beyond expectations When the original players behind Mallesons’ Asia expansion pause to reflect over the past 20 years, there is a sense of elation at the

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firm’s achievements, which have far surpassed initial expectations. “We expected we would double in size with the growth of our corporate practice to about eight to 10 partners, 20 to 25 lawyers in total,” says David Bateson. “We never imagined the growth that we’ve experienced. The firm now has nearly 130 lawyers across Asia, covering all the usual practice areas, and is recognised as a top ten firm in Hong Kong.” And it’s not only in the “usual practice areas” that the firm has built a reputation, Wakefield Evans says. Mallesons’ work has included some landmark climate change related matters, such as the HKEx’s feasibility study on trading of emissions derivatives and Asia’s first carbon offset program for Cathay Pacific. “We’re experiencing some solid growth of newer areas of legal expertise in the region,” Wakefield Evans says. “It’s certainly a big leap from the early days when the firm was known only for its dispute resolution and property and construction work.” Mallesons’ depth of expertise across Asia, and its ‘hub and spoke’ centralised model, has given the firm the advantage of receiving instructions in Japan, India and South-East Asian jurisdictions. According to Wakefield Evans, “it’s not the bulk” of Mallesons’ work in Asia, but has been a value add to the firm’s expanding offering. “The number of lawyers we have on the ground means we have been able to send them out to work with our clients.” Expansion in Asia was always on the cards for Mallesons, a point emphasised by Milliner over the years. China in particular has been fruitful, with

the firm acting on major energy and resources deals coming out of the PRC. Outbound China investment has been the hot topic of the last two years and will no doubt continue as the Asian market booms. “In particular, China’s vast consumption of energy and natural resources has created a diverse marketplace. We’ve advised major industry participants on mining and manufacturing projects in China and throughout the Asia Pacific Region,” Wakefield Evan says. One such transaction was Hunan Valin Iron’s successful A$1.2bn acquisition of a stake in Fortescue Metals, announced earlier this year. When it comes to China, in Wakefield Evan’s view, there is still room for competition. “It’s one of the few places you have firms from all over the world and where Australian firms can compete with the very best international and local firms on an even plane,” she explains. “The burning question over the last decade has been, if it is possible for Australian firms to be successful overseas. We believe our firm’s success in Asia is testament to that.”

‘When the firm first opened its doors in Hong Kong in 1989, it had a grand total of four staff.’

Australasian Legal Business ISSUE 7.11

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market data | capital markets >>

Equity Capital Markets TRANSACTIONS List Australia, New Zealand Sep 30-Oct 27 NB: Does not include transactions valued at less than than USD10m, best efforts transactions and private placements Issuer

Proceeds (USDm)

Issue date

Currency

Bookrunner(s)

Sector

Australia Commonwealth Bank of Australia

1830.6

14/10/2009

AUD

Macquarie Capital Partners, Commonwealth Securities, ANZ Banking Group, Citibank, Credit Suisse, Deutsche Bank, Goldman Sachs JBWere, JP Morgan, Morgan Stanley, National Australia Bank, RBS, UBS, Westpac Banking

Financials

Oil Search Ltd

825.9

20/10/2009

AUD

Morgan Stanley, Macquarie Equity Capital Mkts

Energy and Power

AWB Ltd

503.2

21/10/2009

AUD

Deutsche Bank, Goldman Sachs JBWere, UBS

Consumer Staples

Lynas Corp Ltd

344.6

23/10/2009

AUD

JP Morgan

Materials

CSR Ltd

343.6

27/10/2009

AUD

UBS, RBS

Materials

317.1

23/10/2009

AUD

JP Morgan

Financials

295.6

6/10/2009

AUD

Credit Suisse

Consumer Staples

Australian Pharm Inds Ltd

81.0

22/10/2009

AUD

RBS

Retail

Servcorp Ltd

68.3

12/10/2009

AUD

UBS

Consumer Products and Services

Galaxy Resources Ltd

59.8

14/10/2009

AUD

State One Stockbroking, Helmsec Global Capital

Materials

Valad Property Group

57.5

20/10/2009

AUD

Goldman Sachs JBWere

Real Estate

Nexus Energy Ltd

39.6

13/10/2009

AUD

Southern Cross Equities

Energy and Power

Forest Entrp Australia Ltd

32.0

14/10/2009

AUD

Southern Cross Equities

Materials

Service Stream Ltd

29.9

13/10/2009

AUD

Austock Brokers

Telecommunications

Platinum Australia Ltd

26.4

1/10/2009

AUD

RBC Capital Markets, UBS

Materials

177.6

20/10/2009

NZD

First NZ Capital Securities

Consumer Products and Services

15.4

1/10/2009

NZD

ABN Amro Craigs

Industrials

Macquarie Infrastructure Group GrainCorp Ltd

NEW ZEALAND Pyne Gould Corp Ltd Skellerup Holdings Ltd Source: Thomson Reuters

DEBT CAPITAL MARKETS TRANSACTIONS LIST Australia, New Zealand Sep 30-Oct 27 Issuer

Proceeds (USDm)

Issue date

Currency

Bookrunner(s)

Sector

Australia Commonwealth Bank of Australia

3985.5

8/10/2009

USD

Goldman Sachs, JP Morgan, Morgan Stanley

Financials

New South Wales Treasury

1396.7

22/10/2009

AUD

ANZ, UBS

Government and Agencies

Westpac Banking Corp

1250.0

9/10/2009

USD

Goldman Sachs

Financials

Bank of Scotland (AU) Govt Gtd

1132.6

8/10/2009

AUD

JP Morgan, Westpac Banking

Financials

Westpac Banking Corp

1031.5

13/10/2009

GBP

Barclays Capital Group, JP Morgan

Financials

ANZ Banking Group Ltd

1000.0

21/10/2009

USD

Bank of America Merrill Lynch

Financials

Westpac Banking Corp

1000.0

21/10/2009

USD

Deutsche Bank Securities Corp

Financials

Suncorp-Metway Ltd Govt Gtd

750.0

7/10/2009

USD

RBS, UBS

Government and Agencies

ING Bank(Australia) Govt Gtd

528.8

30/09/2009

AUD

UBS

Financials

Optus Finance Pty Ltd

498.7

8/10/2009

USD

Citi, HSBC, JP Morgan

Telecommunications

Commonwealth Bank of Australia

490.3

12/10/2009

CHF

Credit Suisse

Financials

Suncorp-Metway Ltd

487.3

15/10/2009

GBP

RBS, UBS Investment Bank

Financials

ANZ Banking Group Ltd

300.0

15/10/2009

USD

Morgan Stanley

Financials

Commonwealth Bank of Australia

277.4

2/10/2009

CAD

TD Securities Inc

Financials

Downer Group Finance

138.8

22/10/2009

AUD

National Australia Bank, UBS, Westpac Banking

Financials

Liberty Prime Series 2009-2

115.3

14/10/2009

AUD

Deutsche Bank

Financials

Westpac Banking Corp Govt Gtd

100.0

9/10/2009

USD

Daiwa Securities SMBC Europe

Government and Agencies

Westpac Banking Corp

100.0

16/10/2009

USD

Morgan Stanley

Financials

Westpac Banking Corp

45.3

13/10/2009

AUD

UBS

Financials

National Australia Bank Ltd

19.4

22/10/2009

HKD

Hongkong & Shanghai Bank

Financials

ANZ Banking Group Ltd

12.9

6/10/2009

HKD

BNP Paribas SA

Financials

Commonwealth Bank of Australia

12.9

6/10/2009

HKD

Standard Chartered Bank

Financials

ANZ Banking Group Ltd

12.9

7/10/2009

HKD

Hongkong & Shanghai Bank

Financials

ANZ Banking Group Ltd

12.9

8/10/2009

HKD

Hongkong & Shanghai Bank

Financials

Westpac Banking Corp

12.9

15/10/2009

HKD

Credit Suisse

Financials

Kiwibank Ltd

229.0

14/10/2009

AUD

HSBC

Financials

Waitakere City Council

107.3

2/10/2009

NZD

ANZ Banking Group

Government and Agencies

Manukau City Council

24.5

30/09/2009

NZD

BNZ Capital

Government and Agencies

New Zealand

Source: Thomson Reuters

Australasian Legal Business ISSUE 7.11

market data | M&A >>

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NEWS | news >>

Australasian Legal Business ISSUE 7.10

NEWS | news >>

Australasian Legal Business ISSUE 7.10

NEWS | news >>

Australasian Legal Business ISSUE 7.10