Russell has 24 years’ experience in construction disputes typically arising from delay, disruption, prolongation, acceleration, global or total cost claims. He has also been involved in various disputes involving liquidated damages, the doctrine of penalties, extension of time, scope changes, force majeure, frustration, repudiation, termination, waiver, estoppel, quantum meruit, limitation and exclusion of liability, payment claims, security clauses, health and safety clauses, payment milestones, practical completion, substantial completion, final completion, bank guarantees, retention clauses, bonds, rail, roads, bridges, shipping ports, buildings, high rises, body corporates, office buildings, service stations, tower cranes, holiday resorts, shopping centres, pavements, engineering, geotechnical, subcontractors, suppliers, EPC contracts, EPCM contracts, FIDIC contracts, NEC contracts, mining infrastructure, renewables infrastructure, pipelines, piling, corrosion, structural engineering, geotechnical engineering, soil spring stiffness, electrical engineering, chemical engineering, civil contractors, building contractors, tunnels, pavements and defects.
Experience consists of off-take, JV, royalty, sale and supply agreements, EPC, solar, windfarm and hydro contracts, renewables, coal mine development and infrastructure, oil and gas projects, iron ore mines, copper and gold mines, drilling and blast, oil refinery and pipeline contracts, put option deeds, climate change and environmental matters, valuation disputes, deeds of guarantee and indemnities. Russell also has expertise in matters including limitation and exclusion of liability, letters of credit, security clauses, intellectual property clauses, health and safety clauses, force majeure, frustration, commercial impracticability, termination, repudiation, breach of warranty, forfeiture, design, defects, prolongation, delay, disruption, pricing disputes, variations, practical and mechanical completion, liquidated damages and payment milestone disputes.
- Sole Arbitrator appointed by SIAC in a dispute between German, Korean and Malaysian parties arising out of contracts for the supply of motor vehicles. The quantum of the claim is SGD$5 million and the appointment was made in 2022.
- Sole Arbitrator in a $10million defects case arising out of the design and construction of a zinc refinery. Appointed by Resolution Institute in 2022.
- Sole Arbitrator in an ad hoc arbitration in relation to a dispute pertaining to rectification of construction defects and liability arising out of a lease agreement. Appointed by the parties jointly in 2022.
- Appointed by the President of the Queensland Law Society in April 2022 to resolve a royalty deed dispute between an Indian commodity trading entity and a mining company. The matter also includes the interpretation of various priority deeds arising out of a potential finance arrangement involving a state-owned bank and is in value of over AUD $100 million.
- Sole arbitrator in ad hoc international arbitration involving various claims of a combined value of $80 million arising out of a rubber tyre gantry shipping port. Matter involved structural and geotechnical engineering analysis of the structural integrity of various pavements and the interpretation of a design and construct contract. The governing law was that of Papua New Guinea. Appointed jointly by the parties. Awards delivered in 2021 and 2022.
- Appointed by the President of the Queensland Law Society to resolve various disputes arising out of the Building Management Statement for a 37-story building comprising residential apartments and various retail lots. The determination was made in 2021.
- Sole arbitrator in ad hoc international arbitration involving $50 million in defects claims to a rubber tyre gantry shipping port. Matter involved structural and geotechnical engineering analysis of structural integrity of various pavements and the interpretation of a design and construct contract. The governing law was that of Papua New Guinea. Appointed jointly by the parties. Award delivered in December 2021.
- Sole arbitrator in ICC expedited proceedings seated in Singapore between Malaysian and Indonesian parties. The matter involved the purchase of commodities from the UAE and the application of the principle of force majeure arising out of the global coronavirus pandemic. The governing law was that of Singapore. Award delivered in June 2021.
- Sole arbitrator in ACICA expedited proceedings involving extension or time, delay and disruption, variation and liquidated damages claims arising out of a zinc-copper mining project. Matter involved consideration of electrical engineering and programming expert evidence. Awards delivered in March 2021.
- Arbitrator in USD$10 million repudiation claim involving iron ore mine and Chinese steel mill concerning an off-take agreement and letter of credit. The matter involved allegations of breach, repudiation, termination, waiver, estoppel, affirmation, and the application or consideration of Sale of Goods Act, loss of bargain damages, limitation of liability clause, exclusion of liability clause and mitigation of losses. Award dated April 2020.
- Arbitrator appointed in a dispute involving the terms of a sugar contract between approximately 250 growers and the relevant sugar mill. The value of the contract (and arbitration award) is estimated to be $300 million. The matter involved Chinese parties. Award delivered in February 2020 (within 60 days of appointment).
- Arbitrator in $10 million claim against the defence force of a Pacific Island nation in relation to a catering services contract. The governing law was that of Papua New Guinea. Three awards delivered in 2019.
- Arbitrator in dispute between government entity in its capacity as lessor and lessee regarding valuation of lease assets.
- Arbitrator in construction dispute relating to variations, extension of time and liquidated damages claims.
- Arbitrator in construction dispute between contractor and subcontractor relating to various variations, extension of time, delay, liquidated damages and defects claims.
- Arbitrator in dispute between seller and purchaser of shopping centre regarding warranties and various defective works including the drainage system.
- Sole arbitrator in restraint of trade dispute involving the sale of a cleaning and facilities management business.
- Sole arbitrator in shareholders’ dispute relating to the dissolution of a global professional services business.
- Workplace dispute between senior officers of government.
- Commercial dispute regarding the termination of a maintenance contract.
- Shareholder dispute involving a Chinese property developer and allegations of misleading and deceptive conduct arising out of construction subcontracts.
- Construction dispute between the owner of a shopping centre and shop fitting contractor in relation to defective construction works.
- Commercial dispute between ASX listed financier and owner of a shopping centre in relation to the supply and financing of equipment.
As Counsel, Arbitration
For over 20 years, Russell Thirgood has acted for clients as counsel in complex and high value commercial matters before international and domestic arbitral tribunals, in superior courts in Australia and internationally, including to enforce international arbitral awards.
- Strategic advice in relation to Bilateral Investment Treaty arbitration in relation to $6 billion coal project. The matter involved Indian parties.
- Advising US oil and gas company in relation to enforcement of arbitration awards arising out of proceedings seated in Houston, Texas in the Supreme Court. The matter involved Texan law and a claim in the order of $1 billion in royalty payments.
- ICC arbitration acting for drilling company against Dutch dredging company in relation to dredging project. The hearing took place in Hong Kong and evidence was gathered in London.
- Series of 7 arbitration hearings and related Supreme Court proceedings over a 9 year period involving an Indian company and a Chinese company relating to $1.8 billion coal terminal.
- Enforcing London Court of International Arbitration award for a Singapore based shipping company (including obtaining freezing orders and an anti-suit injunction). The governing law was that of Singapore.
- ICC arbitration in Mexico concerning construction of oil refinery and pipeline.
- Resisting enforcement of ICC award against a Kolkata based Indian coking coal company.
- ICC arbitration seated in Malaysia regarding provision of services to an oil refinery project. The governing law was that of Malaysia.
- JCAA arbitration concerning oil refinery project in the Middle East. The matter involved Japanese law.
- Setting aside arbitral award of the International Cotton Association regarding cotton supply contracts between American and Chinese companies. The matter involved Californian law.
- Domestic arbitration in relation to design and construction defects for a government owned water treatment plant.
- Domestic arbitration concerning defective construction work claim relating to a 5 star prestigious resort complex.
As Counsel, Construction & Commercial litigation
- Shareholder dispute involving Supreme Court litigation and a $60 million claim against a PRC and Hong Kong based fashion clothing retail group for unpaid consultancy and development fees. The matter involved Hong Kong law.
- Supreme Court litigation involving an Indian and Swiss company regarding strategic control in respect to the operation of a coal terminal. The matter involved allegations in respect to breach of contract, intellectual property rights, workplace health and safety obligations and confidentiality obligations.
- Acting for the owner of a port in relation to a suite of disputes from a range of contractors in respect to the expansion of a coal terminal. The combined value of these construction claims was circa $500 million. The matter involved Indian investment and claims in respect to delay, disruption, prolongation, acceleration, global or total cost claims, liquidated damages, the doctrine of penalties, extension of time, scope changes, force majeure, frustration, repudiation, termination, waiver, estoppel, quantum meruit, limitation and exclusion of liability, payment claims, practical completion, substantial completion, final completion, bank guarantees and construction defects.
- Acting for a public hospital in relation to $80 million operation and maintenance contract and various disputes involving a Canadian based facilities management contractor which were resolved through adjudication.
- Acting for government in relation to its design and construction of a cultural centre and multimillion dollar claims arising out of the precinct bridge.
- Acting for a balance of plant contractor in relation to the construction of two wind farms with a combined contract value of circa $150 million. The matter involved investment from Mainland China.
- Various disputes involving Chinese joint venture parties in relation to variations and extensions of time that were resolved through expert determination.
- Various disputes involving Chinese developer and building contractor regarding a high-rise development.
- Acting for a construction contractor and its senior officers in respect of Supreme Court proceedings arising out of the development and construction of an office building.
- Acting for a government owned corporation in multi-party Supreme Court litigation concerning the design and construction of a rail levee bank.
- Acting for a Chinese company in relation to a series of cases regarding the construction and operation of a coal mine.
- Acting for American coal mining company in relation to $500 million claim concerning the construction and operation of a coal mine.
- Acting for a contractor in $100 million case in Supreme Court (including Court of Appeal) regarding wrongful termination of an infrastructure and construction contract at a gold and copper mine.
- Acting for a large home builder in relation to regulatory and licensing issues arising out of construction activities.
- Acting for property development group in relation to regulatory issues pertaining to their business activities.
- Acting for a health fund in Administrative Appeals Tribunal hearing arising out of decision of national regulator in respect to corporate governance issues.
- Acting for prominent building contractor in Royal Commission proceedings into trade union corruption.
- Acting for international time share holiday group in relation to investigation brought by Securities and Investment Commission for misleading and deceptive conduct.
- Acting in Federal Court proceedings for Asia Pacific construction group in relation to appealing decisions made by Tax Office.
- Acting for government in construction dispute concerning delay and variation claims for a water treatment plant.
- Acting in joint venture and shareholder dispute between State Owned Chinese and Australian construction companies.
- Acting for a major international airport in an expert determination with multi-national oil company concerning the imposition of a fuel levy.
- Acting for a coal mine defending adjudication and litigation proceedings in relation to mining infrastructure including the largest private rail loop.
- Acting for an ASX listed mining company in relation to claims arising out of the $500 million construction of a coal mine and coal handling preparation plant.
- Acting for a construction contractor in relation to Supreme Court review of Security for Payment legislation claims for various construction works.
- Acting for a travel agent company in multi-party action brought by former employees in the Supreme Court for misleading and deceptive conduct.
- Acting for a global supplier of mining equipment in relation to the protection of its intellectual property.
- Acting for the Body Corporate of a Holiday Resort in Supreme Court proceedings against a prominent developer and glass supplier regarding alleged construction defects to residential tower.
- Acting for a crane company in proceedings arising out of a multiple fatality at a Holiday Resort. The matter involved the consideration of complex structural engineering evidence.
- Acting for a Japanese contractor, in relation to various construction claims in Supreme Court against electrical contractor.
- Acting in a dispute between a Dutch contractor and a drilling and blast subcontractor in Supreme Court in relation to defective drilling rigs.
- Litigation in Supreme Court of Indonesia involving expert evidence and lay witnesses located in Nigeria, Thailand, USA, Pakistan and Australia.
- Amicus brief (co-counsel with Weil, Gotshal & Manges) in matter in the Supreme Court of the USA.
As Expert Determiner
- Expert determiner of dispute between retail lots and residential lot of 37-storey building located in CBD.
- Expert determiner of dispute between owner of shopping centre and contractor pertaining to construction defects.
- Expert determiner of dispute arising out of dissolving a shareholders agreement and related trust deeds.