David Starkoff is a partner in our International Dispute Resolution Practice, focussing on the construction, infrastructure, energy and projects sectors, as well as competition and regulatory issues.

    David has almost two decades’ experience with construction, infrastructure and energy projects, including negotiations, contract administration, mediation, expert determination, security of payment adjudication, dispute resolution boards, Supreme Court litigation, and domestic and international commercial arbitration.

    David has acted for the ACCC in enforcement proceedings in the Federal Court of Australia and regulatory proceedings in the Australian Competition Tribunal, acted for the AER in enforcement matters, and acted for ASIC in substantial civil penalty proceedings. David has also acted for those subject to enforcement action, as well as giving transactional and structural advice.

    With a reputation for legal excellence, problem-solving and quickly understanding legal and commercial issues, as well as a background in mathematics and computer science, David stands out in large, complex and high-value matters.

    David teaches in the Masters programs at both the University of Melbourne and Sydney Law School.

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    Key Recent Experience

    • Acting for a construction contractor in an international commercial arbitration under ICC rules arising out of the design and construction of four cryogenic tanks.
    • Acting for a principal in an ICC arbitration against a head contractor for a gas pipeline, principally responsible for coordinating the defence to delay and disruption claims (of over AU$500 million), computer forensic issues and coordinating electronic hearing arrangements.
    • Acting for the Australian Securities and Investments Commission in substantial Supreme Court proceedings alleging dishonest misuse of over AU$120 million from a managed investment scheme. After a 15-week trial, ASIC proved every contravention it pressed, significant penalties were awarded and an appeal was almost entirely dismissed.

    Construction and Project Experience

    • Advising and acting for parties in both East Coast Model and West Coast Model security of payment processes, including preparing payment claims, payment schedules, adjudication applications, adjudication responses and applications to set aside adjudicators’ determinations.
    • Drafting submissions on behalf of the principal in a confidential dispute resolution board hearing on disputed variations, particularly focussed on the application of time bars and the law of penalties.
    • Acting in Supreme Court of New South Wales proceedings about a disputed entitlement to call on unconditional performance bonds.
    • Acting in Supreme Court of Queensland proceedings about the design of alumina calciners.
    • Advising a principal on significant variation and delay claims made by the builder of a power station and negotiating a commercial settlement that protected the principal’s interests when the builder became insolvent.
    • Acting for a developer in Supreme Court of New South Wales proceedings relating to the non-performance of air conditioning in an office building.
    • Acting for a principal in Supreme Court of New South Wales proceedings about defective wall panelling at a conference centre.
    • Acting for a contractor in Federal Court of Australia proceedings commenced by a subcontractor’s liquidator to recover a refunded mistaken overpayment.
    • Acting for a mine operator in Supreme Court of Queensland proceedings about the price to be paid for the extended term under a contract mining agreement.
    • Acting for principals and head contractors subject to subcontractors’ charges.

    Regulatory Experience

    • Acting as lead regulatory lawyer for the CopperString consortium, the proponent for a proposed new electricity transmission line. Advised on all regulatory aspects, including potential derogations to the National Electricity Rules and amending legislation.
    • Advising a European institutional investor about electricity regulatory issues in the NSW government’s privatisation of TransGrid.
    • Acting for an infrastructure owner in successfully resisting declaration of rail infrastructure under Part IIIA of the Trade Practices Act 1974 (Cth).
    • Acting for the ACCC in merits review proceedings in the Australian Competition Tribunal, which upheld the ACCC’s decision about proposed terms of access to the mobile terminating access service. The proceedings involved analysing economic issues regarding the pricing of telecommunications services, two-sided markets, consideration of efficiently incurred costs, methodologies for allocation of fixed and common costs, methodologies for approximating long-run marginal cost and externality surcharges.
    • Acting for the ACCC in judicial review proceedings about a telecommunications pricing methodology, involving expert econometric evidence about index numbers.
    • Advising on access to water and water planning under Queensland water legislation and application of pricing regimes for certain irrigation water uses.
    • Advising customers about electricity regulatory issues.
    • Advising infrastructure owners about obligations to offer access and permissible terms of access to infrastructure.

    Enforcement Experience

    • Acting for the ACCC in numerous enforcement proceedings, including proceedings in the Federal Court of Australia for civil penalties (for resale price maintenance) and other relief (for misleading conduct, unconscionable conduct, pyramid selling and breaches of the Franchising Code of Conduct), including proceedings that were settled by way of section 87B undertakings.
    • Advising the AER about alleged breaches of the National Electricity Rules, which led to the issue of infringement notices.
    • Acting for commercial clients subject to enforcement action.
    • Advising commercial clients about transactional and structuring issues, including assisting clients to lodge notifications with the ACCC and obtain authorisations and clearances from the ACCC.

    Education

    • The University of Queensland, LL.B., 2001
    • The University of Queensland, B.Sc. and University Medal, 2001

    Admissions

    • New South Wales, 2012
    • Queensland, 2003
    • High Court of Australia, 2003

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    • “Setting the ground rules: Alternative approaches to governing law for transnational construction projects”, paper presented to SoCLA National Conference, 2019.
    • “Australia’s High Court provides guidance about when provisions will be penal”, Construction Law International, 2016.
    • Co-author, “The doctrine of penalties survives in England – but what is its future in Australia?” Australian Construction Law Newsletter, 2016.
    • Co-author, “The effect of Andrews v ANZ: Going beyond bank fees − it’s about performance too!” International Construction Law Review, 2013.
    • Co-author, Key contract clause precedents and notes, CCH Australian Contract Law Commentary.

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