James Berg

James acts for a variety of insurers, London based and locally based, as well as large commercial corporations on a direct referral basis. The industry sectors include:

• Property profession – valuers and real estate agents
• Financial lines – financial planners
• Construction – architects and project managers
• General – building suppliers, farming sector

Key experience

• James is part of a team at DLA Piper that advises the Australian Property Institute on initiatives relevant to setting practice standards for its members, advising on potential alternate dispute resolution options and advising in respect of the professional indemnity insurance market and what impacts on the ability of professionals within the Institute to obtain satisfactory insurance
• James successfully litigated a matter to the High Court of Australia on issues involving a finding by a jury and contributory negligence. His application to the High Court of Australia was successful as it overturned the decision of the New South Wales Court of Appeal
• Acting for a financial planner sued by multiple clients in respect of losses sustained by reason of the collapse of the Basis Yield Fund and Centro. Complex matters requiring detailed analysis of the advice given by the financial planner over a number of years together with an analysis of concurrent wrongdoing by the relevant lending body and ratings agencies. Most matters proceeded to mediation with the insurer agreeing to resolve claims in conjunction with the bank involved. Also acted for the financial planner in subsequent action taken by ASIC regarding banning orders
• Acting in an accountant’s professional indemnity matter relating to alleged liability arising out of a failure to adequately assess a tax liability based on clean energy rebates. The matter is in its relatively early stages but involves complex issues surrounding the application of GST and government rebates, together with an assessment of the accountant’s conduct in the circumstances
• Acting for one of the major valuation firms in defence of proceedings brought by the Bendigo & Adelaide Bank in the Federal Court of Australia. The loss alleged exceeds $4.5 million. The proceedings involve multiple issues surrounding the valuation, in particular a contest on expert evidence which may result on the Bank’s expert evidence being given very little weight. This contest will be based on a significant amount of case law. In addition, contributory negligence is alleged by reason of the Bank’s failure to act as a prudent lender and it will be alleged that if the client is liable, any loss should be reduced by the extent to which the unforeseen credit crises, or global financial crisis, contributed to that loss
• Acted for an architect in respect of a catastrophic injury sustained to a child in-utero when the mother fell on a building site. It was alleged that as a consequence of the fall the child suffered hydrocephalus and consequent brain damage, resulting in cerebral palsy with its consequent disabilities. Negotiated an early release from the proceedings for the architect based on a contractual indemnity, however this was after a range of medical experts had been retained to provide expert opinions on in-utero injuries
• Acting on instructions from a professional indemnity insurer of a stockbroking facility in relation to a fraud claim involving identity theft and losses flowing therefrom
• Acting for London insurers in respect of claims against geotechnical engineers who provided advice in respect of building developments, both residential and commercial

James prepared a case note on a judgment of the Supreme Court of New South Wales in Shepherd's Producers Co-operative Limited v Lamont [2009] NSWSC 294 which was included in Construction Law International, the quarterly of the International Bar Association's International Construction Projects Committee.

He has also co-authored articles for the Property magazine, including an article reporting on his successful defence of a valuers claim in the Supreme Court of New South Wales in Provident Capital v John Virtue Valuers.

On the other hand, James delivers the Risk Management Module to members of the Australian Property Institute – a four-hour seminar covering relevant issues for the property profession.

He has also presented in-house seminars to both insurer and insured clients ranging from an analysis of provision of the Insurance Contracts Act, changes in civil procedure rules, proportionate liability legislation, the Retail Leases Act 1994 (NSW) and in respect of general issues arising in litigated claims.