Background

Franco Corsaro is a specialist construction lawyer, but has wide-ranging knowledge and experience in various areas.

He is a recognised leader in construction law, with a long history of successful outcomes in various courts and tribunals at all levels. He is currently listed as a Leading Senior Counsel in the 2017 Doyles Guide. The listing maintains Franco’s ranking as a pre-eminent or leading construction law practitioner in the Doyles Guide over several years.

Franco began his legal career with Henry Davis York in 1980 as a commercial litigation lawyer. He was appointed to the position of Senior Associate of that firm in 1982. He was called to the Bar in 1985 and took Silk in 2000.

Franco shifted emphasis into construction litigation in his early years as a junior counsel, but still maintains his interest in general commercial and equity litigation.

Franco is results driven, and is always concerned with implementing the most advantageous approach to resolve each case in the best and most cost-effective way for the client. His emphasis is to extract the significant factual and legal principles on which each case will turn, and to give these the highest priority. He is a diligent and committed advocate, with an excellent reputation for the development of excellent forensic strategy, effective all-round advocacy, and well-honed and incisive cross-examination skills.

Franco particularly enjoys the factual and legal foundation on which every case is built. He builds from these intellectual underpinnings, to develop the best forensic strategy to maximise the prospects of a successful outcome. He works closely with his solicitors and clients in a collegiate approach, to ensure all concerned have a well-developed understanding of the legal and factual issues on which a case will turn, and to ensure the client has the information required to make the commercial decisions which must be made in every case. Franco provides certainty and peace of mind for his solicitors, and an enriching experience as they explore the matter's inherent legal principles together.

Franco has a keen interest and involvement in alternate dispute resolution. From 2002-2005, Franco was a part-time lecturer in Commercial Arbitration at the University of Technology, Sydney, and has appeared for both claimants and respondents in a variety of domestic and international arbitrations, as well as expert and neutral evaluations.



Focus Areas + Select Cases

Sugar Australia v Lend Lease [2015] VSCA 98. Appearing for the principal of a sugar refinery which sought to call on banker’s undertakings provided as security for performance of the builder’s obligations under a construction contract. In overturning the decision of the primary judge, the Victorian Court of Appeal confirmed and reinforced the accepted principles governing the grant of interlocutory injunctions and the ordinary practice adopted in cases concerning calls on performance bonds. The case is significant for the construction principles adopted by the Court.

Condensing Vaporisers Aust Pty Ltd v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360 – At first instance and then on appeal. On appeal appearing for the respondent striking out an appeal by a sub-contractor as incompetent.

Owners – Strata Plan 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513 – Appearing for an owners’ corporation on appeal to appeal the striking out of a claim for failure to comply with section 80D of the Strata Schemes Management Act, 1996. This case established the issue of an owners’ corporation’s failure to comply with section 80D did not invalidate legal proceedings commenced in breach of the Act.

Baron Corporation Pty Ltd v Owners of Strata Plan 69567 [2013] NSWCA 238 - Appearing at first instance and on appeal for the proprietor of residential property sued for breach of the statutory warranties under Part 2C of the Home Building Act, 1989. In overturning the trial judge, the NSW Court of Appeal re-affirmed that the owners’ corporation under strata scheme was not entitled to statutory warranties as against the non-contracting developer.

Laing O’Rourke Australia Construction v H&M Engineering & Construction [2010] NSWSC 818.

The Owners - Strata Plan No. 51077 v Meriton Apartments Pty Ltd [2014] NSWSC 129. Appearing for the owners’ corporation on a claim for defective work against a developer and builder. This case concerned whether a builder owes a non-delegable duty of care to the owners’ corporation for the negligent design of windows in a high rise building.

Allianz v Waterbrook (2009) 15 ANZ Insurance Cases 224. Appearing for the home owner warranty insurer at trial and on appeal. The insurer contested the right of the owner of a residential development from enforcing its entitlement under home warranty insurance, in circumstances where the owner acquired the development with knowledge of the defective works. This case is important because the Court of Appeal’s consideration of the issue of causation, and the determination that loss occasioned by the acquisition of defective property is caused by the failure to properly allow for defective works in the purchase price, not breach of statutory warranty by the builder.

Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 – acting for litigant in person on appeal in connection with residential defects claim and requirements as to rights of litigants in person. This case is significant for the Court of Appeal’s determination of the principles that should guide a trial judge in a case where the litigant appears in person.

 

Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1058. Appearing for the purchaser of a former service station who successfully claimed damages for breach of a warranty to provide a site suitable for development and the vendor’s involvement in providing environmental reports as to the property’s condition.

Camellia Properties Pty Ltd and Others v Golder Associates Pty Ltd [1996] FCA 1836 – defence of claim for damages for contaminated land leased to Duracell batteries and remediation plan.

Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd - at first instance and at full court level ([2005] FCAFC 371). Misrepresentation and negligence claim relating to the purchase of a contaminated service station site.

Domestic arbitration involving multi-million-dollar claim for ‘clean up’ of contamination on a site within Sydney Harbour.

Appearing for the vendor of land contaminated by asbestos to force specific performance of the contractual obligations.

Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459. Appearing in the Supreme Court of NSW for the developers who sold units ‘off the plan’ and sought to terminate contracts after the sunset date for registration of the strata plan. The developers successfully resisted a claim by 34 purchasers seeking to obtain orders for specific performance of the sale. In that same case appearing for the developers who were able to recover more than $1m compensation for the undertaking as to damages.

Horne v James[2015] NSWSC 465. Appearing in the Supreme Court of NSW for the vendors of a rural property successfully resisting a claim for specific performance by purchasers claiming to have entered into a binding agreement for the sale of the land.

 

Commissioner of Taxation v De Martin and Gasparini Pty Ltd [2011] FCA 286. Appearing for the recipient of a notice issued by Commissioner pursuant to Taxation Administration Act 1953 (Cth) s 260-5. The Applicant was able to successfully argue that the ATO’s standard wording was invalid.

 

Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590. Appearing for the compulsory strata manager to resist claims by an individual owner of an apartment block.

Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Export Services Inc (No 2) [2011] NSWCA 294. Appearing at trial and on appeal for the American company claiming multi-million dollars in damages for breach of an agreement relating to the establishment of the Gloria Jean’s coffee franchise.

Nutectime International Pty Limited v Timentel Pty Limited [2011] NSWCA 257. Appearing at trial and successfully on appeal resisting a claim for damages by a joint venturer claiming an entitlement on a patented wrist watch.

 

Italform Pty Ltd & Anor v Sangain Pty Ltd [2009] NSWCA 427. Successfully appearing at first instance in the NSW Court of Appeal, and on appeal in the NSW Court of Appeal, for the purchaser of two tower cranes claiming damages for misleading and deceptive conduct on the sale of the cranes.

Greentree v FAI (1998) 44 NSWLR 706 (special leave refused). Appearing for the insurer to High Court level. This case established that a failure by a third party to make a claim on the insured is not ‘an omission…of some other person’ within the terms of section 54(1) of the Insurance Contracts Act, 1984 in a ‘claims made and notified’ policy.

CSR Limited v Amaca Pty Ltd [2008] NSWCA 329 – at first instance and on appeal – defence of a claim for indemnity in respect of asbestos related liability under previous partnership agreement. The court determined the construction of a partnership agreement and its application to future asbestos claims.

Jetopay Pty Ltd v Ocean Marine Mutual Insurance Association [1999] FCA 1773. Successfully defending marine insurance broker on insurance claim for damage to vessel not paid by insurer.

Vero Insurance Limited v Owners of Strata Plan No 69352 & Ors [2011] NSWCA - Appearing for the insurer under a home owner warranty policy in respect of claim by Owners Corporation in respect of common property. The case is significant because it established whether claim made on behalf of all lot proprietors was a single claim resulting in a single excess or multiple excesses.

The Owners – Strata Plan No 5290 v CGS & Co Pty Ltd (2011) 81 NSWLR 285. Appearing at first instance and on appeal for the owners’ corporation of a residential strata scheme on a claim made under a construction contract that had been assigned to a third party by the builder’s liquidator. This case examined the concept of an assignable and non-assignable choses in action and held that a non-assignable chose in action remained unassignable despite the powers of a liquidator under s 477 of the Corporations Act, 2001.

GM Amalgamated Investments (Dulwich Hill) Pty Ltd v Mills [2014] NSWCA 202. Appearing at first instance and on appeal for the owners of a residential property successfully seeking damages to their property from work done on a sewerage easement. This case is important for the way the NSW Court of Appeal regarded the obligations and rights attaching to an easement.

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA. Appearing at trial and on appeal to successfully enforce an agreement arising out of an undertaking and consequential orders. The Court of Appeal overturned the primary Judge’s finding as to the construction and operation the parole evidence rule to partly written and partly oral contracts. This case is significant for the way the NSW Court of Appeal deal with the construction and interpretation of contracts and equitable remedies.


Notable Cases

Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185. Appearing for the owners corporation of a residential strata scheme to High Court level. This is the seminal case in which the Full Bench of the High Court of Australia determined that the builder of a strata scheme did not owe a duty of care to an owners’ corporation in connection with defective building work, and re-assessed the concept of ‘vulnerability’ in that context.

Owners of Strata Plan 43551 v Walter Construction Group (2004) 62 NSWLR 169. Appearing at first instance and on appeal for the owners’ corporation of a residential scheme in circumstances where the trial judge had rejected the owners’ corporation had standing to sue the builder for defective work in the common property. In overturning that decision, the NSW Court of Appeal re-examined the right of the owners’ corporation as registered owner of the common property to sue for defects.

Scott Carver Pty Ltd v SAS Trustee Corporation [2005] NSWCA 462 (special leave refused). Appearing for the owner of a multi-storey office building which successfully recovered damages for defective design and construction. The owner sold without diminution in the value of the building. The central issue is whether the owner could recover where there was no loss in value. The significance of this case is in the consideration of Bellgrove v Eldridge in these circumstances.

Ohn v Walton (1995) 36 NSWLR 77. Appearing in Medical Tribunal and on Appeal. The significance of this case is that the NSW Court of Appeal established as a principal that costs should follow the event in all Courts and Tribunals, where the rules do not otherwise provide.



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