Mark Dempsey, SC

Expertise

Mark is one of Australia’s leading barristers specialising in major construction, infrastructure and commercial disputes both before the Courts, at trial and appellate levels, and in international and domestic arbitration.

He practices throughout Australia and in Asia. He is based in Sydney at 7 Wentworth Selborne Chambers and has a presence in Singapore.

Mark’s pre-eminence in his fields of practice has been widely recognised in the legal profession as well as in legal directories.

He is highly respected for his wide-ranging knowledge of the law and experience across the full range of commercial disputes.

Practice Areas

  • Appellate
  • Arbitration – International and Domestic
  • Commercial Law and Equity
  • Construction and Infrastructure Law
  • Competition and Consumer Law
  • Corporations Law and Insolvency
  • Banking Law
  • Insurance Law
  • Mediation – International and Domestic
  • Professional Liability

Select cases

(* denotes acting for)

  • Gemcan Constructions Pty Ltd v * Westbourne Grammar School (Enforcement of Arbitral Award) [2022] VSC 6 an application to set aside an arbitral award on the basis of the public policy exemption arising from inconsistency with an issue estoppel arising in earlier proceedings in the Supreme Court on an application to quash a determination under the Security of Payment legislation
  • *John Holland Pty Ltd v Minister for Works [2021] WASC 312 applications for appropriate case management orders (including provision of critical path analyses and conferral between experts) in complex dispute concerning the Perth Children’s Hospital.
  • The Commissioner of the Australian Federal Police v Cranston (No 15) [2021] NSWSC 1332 (for * 58th Defendant) application for extension of time to proceed with orders excluding assets from restraining and forfeiture orders for owner developer of land.
  • Commonwealth Bank of Australia t/as Bankwest* v Mastronardo [2020] FCCA 2609 and [2020] FCCA 2614 – application of the test under s. 52(1) of the Bankruptcy Act 1966 whether cross claim likely to succeed on claims under a guarantee (issues of construction, discharge, affirmation) and alleged unconscionable conduct.
  • The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd* [2020] NSWSC 751 – the Court decided that while orthodox canons of construction apply to dispute resolution clauses, such clauses are to be construed liberally to give a coherent business purpose through an assumption that parties are unlikely to have intended to have multiple avenues for dispute determination.
  • White Constructions Pty Ltd* v PBS Holdings Pty Ltd [2019] NSWSC 1166 – an important and widely commented decision concerning the reception by the court of expert programming evidence and the requirements of proof of causation of delay in construction cases. Further, a novel application of the power of the Court to obtain assistance and act upon advice from an independent expert under UCPR r 31.54. [*Judgment of the Court of Appeal reserved]. Those questions not dealt with on appeal White Constructions Pty Ltd* v PBS Holdings Pty Ltd [2020] NSWCA 277.
  • Mastronardo v Commonwealth Bank of Australia Ltd* [2019] FCAFC 127, [2019] FCA 58 – enforcement proceedings – decisions at first instance and appeal upholding the validity of bankruptcy notices.
  • Mastronardo & anor v Commonwealth Bank of Australia Ltd* & ors [2018] NSWCA 136, [2017] NSWSC 1052 (Special Leave refused [2018] HCASL 361) – A claim by a Customer against its Banker on various grounds including, on appeal, the applicable principles in respect of the unconscionable conduct provisions under the ASIC Act.
  • Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd* [2017] NSWSC 203 – The Court rejected an application to restrain the conduct of an expert determination that dispute outside intended operation of clause. The expert proceeded to determine the claim in favour of Duffy Kennedy. A subsequent attempt to “appeal” the ED was rejected by the Court.
  • Ku-ring-gai Council v Chan* [2017] NSWCA 226 (2017) 224 LGERA 330 – A further development in the law on when a duty of care to avoid economic loss will be imposed, there in the context of a certifier and subsequent owner of a residential property.
  • Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd* [2017] NSWCA 27, [2017] 94 NSWLR 108 – A successful claim by the lessee of a container distribution facility for defective works considering the construction of an assignment of the relevant warranty in respect of existing and future rights, the application of the Bellgrove v. Eldridge test where the leasehold was assigned prior to trial, and numerous related issues including causation and betterment.
  • Re Felan’s Fisheries Pty Limited [2016] NSWSC 581 – Proceedings in the Corporations List concerning the plaintiff’s interest in land on which the Sydney Fish Markets operate arising under a shareholders’ agreement, and challenges to board appointments and decisions in the context of a wider dispute as to proposals for the redevelopment of the Fish Markets.
  • PT Thiess Contractors Indonesia v PT Arutmin Indonesia* [2015] QSC 123 – A claim for over $300m for moneys payable under a deed of settlement through a cash distribution agreement involving complex questions of contractual construction and the application of penalty principles in respect of interest.
  • Coshott v Prentice* [2014] FCAFC 88; (2014) 221 FCR 450; (2014) 311 ALR 428 – A successful appeal against an order for sale made by a trustee in bankruptcy under s. 66G of the Conveyancing Act NSW and related issues, and considerations in respect of sham transactions.
  • Avery v Saree Holdings Ltd*; Lava Ltd v Avery [2012] NSWSC 463 – Regarding Mortgages and Securities, and related issues.
  • Built Environs Pty Ltd v Saunders International Limited* [2012] SASC 111 – Regarding adoption of an award referred to arbitration under the South Australia in respect of the fabricating of mining process equipment.
  • Lipman Pty Ltd v Emergency Services Superannuation Board* [2011] NSWCA 163 – Consideration of the enforceability of a dispute resolution clause.
  • Bitannia Pty Ltd* v Parkline Constructions Pty Ltd [2009] NSWSC 1302 – Consideration of the principles on adoption of a referee’s report.
  • Manildra Laboratories v Campbell* [2009] NSWSC 987 – Successful defence of a claim for breach of fiduciary duties and related causes of action by an employer against former employee.
  • Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd & Ors* [2006] NSWCA 356, [2008] NSWCA 283 – Successful defence of a claim by the assignee of a building contract against a design consultant, including consideration of whether a purported assignment of a cause of action was effective and the liability of a non-party funder for costs of unsuccessful claimant.
  • Abigroup Contractors Pty Ltd v Sydney Catchment Authority* (No 3) [2006] NSWCA 282; (2006) 67 NSWLR 341 (and related cases) – An important decision on claims for misleading conduct: including recovery of damages under s. 236 of the ACL for additional costs rather than on a no-contract or difference contract basis, and the test of causation in respect of a negative misleading statement.
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