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James Berg

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About

James Berg has extensive experience in commercial and insurance disputes, both litigated and unlitigated. The main focus of his practice is defending professionals including valuers, financial planners, architects and real estate agents. These disputes invariably require detailed advice on difficult and complex policy issues and thereafter advice on to both insurer and professional organisation as to how best defend claims.

In addition, his work covers a very broad range of subject matter, from economic loss claims consequent upon fires or damage to livestock, to property damage. His practice involves litigated matters in the Federal Court of Australia but primarily in state courts from the Supreme Court to the Local Court.

James also advises clients on risk management issues including the implications of insurance and indemnity clauses in commercial contracts, as well as disclaimer clauses and qualifications in expert opinions.

EXPERIENCE

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
Education

    Insight Overview

    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.

    Publications

    • 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.
    • James has 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.

    Seminars

    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.

    Prior Experience

    Prior to joining the firm, James worked for a number of years in a smaller insurance-based firm and spent a period of time in London, working for a medium sized firm, focusing on insurance litigation.

    Lecturer

    James has lectured students in the School of Economics and Finance at the University of Western Sydney in relation to compulsory acquisition and litigation.

    Memberships And Affiliations

    • Australian Insurance Law Association
    • Law Society of New South Wales

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