Sydney Jacobs

Sydney practises in the areas of commercial law and equity, real property including easements, covenants, strata and building and construction law. Sydney’s experience in easement matters includes:

• Applications to restrain the servient owner from obstructing the use of an easement
• Section 88K applications
• Applications for declaratory relief in respect of easement rights
• Whether easements have become obsolete through disuse or by reason of changes in the character of the neighbourhood
• Issues pertaining to both common law and Torrens title
• Whether a legal practitioner has been negligent by not giving advice in the context of the sale of land, that there was no easement securing the right of the purchaser to retain a particular utility service in place
• Whether there is an equitable easement, by estoppel, to maintain in situ the signage of a major CBD hotel

Sydney holds a Master of Laws from the University of Cambridge.

He is the sole author of two major loose-leaf services for Thomson Reuters: Commercial Damages and Injunctions: Law & Practice. He is a frequent presenter at CPD Seminars, some of which are linked below.

Sydney has appeared before tribunals, such as the Consumer Trade & Tenancy Tribunal, NCAT, Industrial Relations Commission, Crime Commission and the Independent Commission Against Corruption as well as at technical references, numerous mediations and arbitrations.

Sydney is an arbitrator and expert determiner approved by the NSW Bar Association and an NMAS certified mediator.

Prior to being called to the Bar, Sydney was a solicitor in the Construction Divisions of Minter Ellison Morris Fletcher (now Minter Ellison) and Deacon Graham & James (now Norton Rose Fulbright).

For any enquiries, or to brief Sydney, please contact our clerk Paul Walker at (02) 8915 5102.

Areas of Practice

• Appellate
• Building & Construction Law
• Commercial Law
• Corporations Law
• Easements and Covenants
• Equity & Trusts
• Inquests, Inquiries & Royal Commissions
• Intellectual Property
• Local Government, Planning & Environmental Law
• Mediation
• Mediators
• Real Property Law
• Retail and Commercial Leasing
• Trade Practices & Competition

Qualifications

• 1982 – Bachelor of Arts: University of Cape Town, South Africa
• 1984 – Bachelor of Laws: University of Cape Town, South Africa
• 1986 – Master of Laws: Cambridge University, UK
• 1990 – Higher Diploma in Company Law: University of Witwatersrand, South Africa
• 2017 – BarADR Approved Arbitrator & Expert Determiner
• 2019 – Mediator, Approved under the National Mediation Accreditation System (NMAS)

Professional experience

• 1995 – 1997 Senior Associate, Deacons Graham & James (now Norton Rose Fulbright) – Construction Department
• 1994 – 1995 Solicitor, Levingstons – Commercial Litigation and Maritime Law Department
• 1991 – 1994 Solicitor, Minter Ellison Morris Fletcher – Construction Department

Academia

• Sydney is a former part-time lecturer on the topic of Damages and Equitable Remedies, as part of the Master of Laws Program at the University of Technology, Sydney

Membership

NSW Bar Association

Australian Bar Association

Resolution Institute

Selected Cases

Sydney has extensive experience acting for clients in complex hearings and appeals in a wide variety of jurisdictions. Significant matters in which he has appeared are as follows

 Supreme Court of New South Wales

Easement Cases

• Turvey v Crotti (No. 2) [2019] NSWSC 399 – Costs – Costs on an indemnity basis – alleged wilful disregard of known facts or clearly established law – whether case unduly prolonged by groundless contentions – offers of compromise – whether maximum sum of costs should be specified
• Turvey v Crotti [2018] NSWSC 1959 – Easements – for right of way – old system sub-division – nuisance – defendant obstructed the plaintiff’s ability to excercise the right of way over an access road appurtenant to her property. There was a subdivision of a large estate in the 1800s where the transfers to the original purchasers included the rights to pass and repass on the roads shown in the original plan of subdivision. At least one of these easements was omitted to be registered in a transfer in the 1900s where the land was qualified title, and the Registrar General then used his powers under s 42 Real Property Act 1900 (NSW) to register the easement. Common ground that the defendant’s conduct constituted actionable nuisance – damages for inconvenience & distress
• C v T  NSWSC [2018] – Application for easement for stormwater for large sub-division, pursuant to s88k Conveyancing Act. Significant experts’ reports on issues of planning & zoning, engineering, valuation and environmental issues. Minister issued concept approval – reasonable necessity and other issues – after being case managed in the Real Property list the matter was successfully mediated
• C v G [2018] – Easement for access – blocked by gate – interim injunction for access obtained – matter case managed in Real Property List and settled by negotiation.
• M v R NSWSC [2018]- Application for easement for access & services pursuant to s88k Conveyancing Act – historic Pyrmont terraces – expert evidence by architect & electrical engineer – case managed in the Real Property list after evidence served, matter mediated successfully in 2018
• Kocagil v Chen [2012] NSWSC – Successful easement application pursuant to section 88K Conveyancing Act
• Tony Stepanoski v Zhimin Chen [2011] NSWSC 1573 – Order obtained under section 88K of the Conveyancing Act for an easement for stormwater. Expert evidence including engineering & architectural planning.
• Portolesi v Tsaloukas NSWSC Proceedings No. 2009/287619 – Order obtained under section 88K of the Conveyancing Act for an easement for stormwater. Expert Evidence.
• Gee v Burger [2009] NSWSC 149 – Consideration of whether one can one plead an actionable right to privacy where one has an easement for right of way
• Gee v Burger [No 2]; [2009] NSWSC 1152 – Easement and privacy issues
• Gee v Burger [No 3]; [2009] NSWSC 1153 – Easement, privacy issues and costs regarding amendment application
• Hilton Hotels (Australia) Pty. Ltd. v. Sunrise Resources (Australia) Pty Ltd [2000] NSWSC 46 – Consent by lessor of Hilton Hotel to placement of signs by lessee (the Hilton); equitable easements; conventional estoppel pursuant to Eslea v Butts

Other Cases

• Australian Commercial Marketing v Gold [2018] NSWSC 1701 – Land Law – Occupation of commercial premises – lease / licence – option in licence excercised orally for part of premises, so as to allow the Defendant to remain for a further three years; and other related issues including severance of part of agreement relating to determining rental in the option period that is void for vagueness
• S v I – Restraint of Trade – dispute between doctors. Sale of business. Was restraint part of the sale agreement? If so, was it reasonable or was it liable to be struck down?
• Spark Property Pty Ltd v Mammone & Cristofaro – SC proceedings 2017/64574 – Successful application to declare Vendor’s Notice to complete & Notice of termination of a contract for sale of land, invalid. True construction/rectification of contract. Order for specific performance and costs granted
• S v A [2018] – Ex Parte Freezing order for close to $900,000 for real estate agent’s commission
• Taste of Tuscany Restaurant v Papantoniou [2017] NSWSC 932 – Lease – existence of agreement – no concluded agreement – no intention that parties be bound prior to a formal lease being duly exectuted – unjust enrichment
• Crawford v Crawford & Morris NSWSC Equity Division Proceedings, 2016/71897 – Freezing/Mareva Orders, worldwide freezing orders regarding properties in Australia and Malta
• Wang & Ors v Kaymet Pty Ltd [2015] NSWSC 1058 – Admissibility of an expert’s report on the basis of whether the opinion shown to be based on the expert’s specialised knowledge
• Pisano v Williams [2014] NSWSC 1070 – Building and construction dispute; sale of a residence and a claim for damages for misleading or deceptive conduct and breach of duty of care
• Aussteel v Marcon [2014] NSWSC – Preliminary discovery application
• Barangaroo Development [2013] NSWSC – Urgent application for order under section 88K of the Conveyancing Act to allow temporary easement for access to erect scaffolding
• Wang & Ors v Kaymet Pty Ltd [2015] NSWSC – Proceedings involving purchasers of units “off the plan” and  whether builder/developer used reasonable efforts to register the strata plan by the “sunset date”, whether rescission lawful.
• Zahos v Michael [2012] NSWSC 1110 – Successfully resist strike out in claim for alienation of assets with intention to defeat creditors (section 37A of the Conveyancing Act)
• McGrath v Beumer [2010] NSWSC 892 – Construction of Settlement agreement – whether settlement effected in light of subsequent events
• Peisley v Maddrell Management Pty Ltd [2010] NSWSC 1477 – Appeal on point of law against decision of magistrate; denial of natural justice
• Bank of Western Australia v Love [2009] NSWSC 1421 – Procedure & judgement/orders – amending, varying and setting aside orders
• Randi Wixs Pty Ltd v Kennedy [2009] NSWSC 933 – Lease prepared which did not reflect determination of ADT – rent erroneously stated in lease – transfer of property to third party – successful defence that plaintiff has no personal equity against defendant third party and any personal equity plaintiff may have cannot be enforced against registered proprietor
• George Maurice Norman Farkas v Northcity Financial Services Pty Ltd [2004] NSWSC 206 – Whether an insurer was liable to pay terminal illness benefits to the Plaintiff – application for setting aside of default judgement for possession – doctrine of benefits and burdens – unconscionable conduct
• G & E Avakoumides Pty Ltd v Commonwealth Funds Management [2004] NSWSC 711 – Commercial leases; negotiations to lease different premises; where series of offer documents “subject to …approval…contract and availability”; whether alleged oral acceptance of written offer sufficient to create contract; section 54A of the Conveyancing Act
• Adler Mallach Holdings Pty Ltd v Robertson [2001] NSWSC 692; [2002] NSWSC 1176 – Defendants using fake names, establish a business in competition with business sold to the Plaintiff. Election as to remedies. Damages – basis for assessment
• Tsaprazis v Goldcrest Properties Pty Lttd [2000] NSWSC 765 – Practice – costs – proceedings terminated because supervening event rendered them moot – Landlord & Tenant – termination of tenancy. Notice by landlord where landlord  forms opinion that repair of damage impracticable or undesirable –  Not authorised where opinion based on the economics of dealing with the problems of building generally, including design faults

 District Court of New South Wales

• Dionys v National Australia Bank, 12 June 2015 – Successful claim against bank regarding the transfer of funds without authority. Proceedings involved question of whether bank had contractual defences (upheld on appeal [2016] NSWCA 242)
• Tilment Pty Ltd t/as Architects Edmiston Jones v Graham & Batmac Constructions Pty Ltd [2007] – Substantially successful defence on behalf of builder of claims for defective workmanship (flooring, ceiling timbers & paving). Referred to Rudge SC as Referee, whose report was dated 21 June 2007

 Local Court of New South Wales

• Snowy River Shire Council v Adaminaby Craft Group Inc [2014] NSWLC – Successful claim for return of a valuable decorative curtain involving the doctrine of accession as a basis for asserting ownership
• Marcon v Lombardo [2013] NSWLC – Application pursuant to Access to Neighbouring Land Act 2000 (NSW) by developer to insert rock anchors and scaffolding. Settled pre-hearing
• Alan & Kerrie Pearlman v Bresman Pty Ltd (t/as Viaduct Tennis Centre) – 25 June 2002 – Mag. IJ Gray – successful claim up to (then) maximum jurisdiction of the Local court, for damages in contract and tort for defective design & construction of a tennis court & associated negligent advice

Administrative Decisions Tribunal (ADT) / NSW Civil and Administrative Tribunal (NCAT)

• Maphaven Pty Ltd Pty Ltd v The Owners –Strata Plan No 48887 [2019] NSWCAT – Strata schemes –strata levies –what is the obligation (if any) of a lot holder to make contribution to insurance premiums over and above ordinary levies – change to the use of the leased premises (carpet shop to bespoke tattoo artist) –what impact (if any) did this have on insurance premiums  of the strata schemes ? –meaning of consent in Sec 82 (2) Strata Schemes Management Act 2015 –Orders made unser Sec 241 of the SSMA –costs awarded to applicant –no part of the costs incurred by the respondent to be levied against the Applicant
• Littles v J&K Homes Pty Ltd [2017] NCATAP 84 – NCAT Appeals Panel – Home Building contract – contract not terminated at time of hearing – successful appeal against finding that claim for Breach of Warranties could not be maintained. Error of law demonstrated
• Well Garnished Pty Ltd v Chaos Investments Pty Ltd [2013] NSWADT 256 – Successful application to strike-out based on accord and satisfaction (i.e. prior “settlement” of the issues)
• Boules v Lily Homes Pty Ltd [2009] NSWCTTT 321 – Home bulding dispute – resolution in earlier Tribunal proceedings – further application – successful defence on basis of Sec 18E Home Bulding Act and also on the basis of Anshun estoppel to prevent action in tort on same facts as those formerly litigated in contract
• Randi Wixs Restaurant Pty Ltd v Kennedy [2006] NSWADT 177 – Retail Lease – Sec 8 Retail Leases Act. When can a lease be implied from “entering into possession” of premises?
  
• Greg Doyle v Serreddin Samimi & Bahiyeh Samimi t/as Dean Painting & Decorating – CTTT, 15 November 2001 – Home Building – successful claim against painting contractor for defective services requiring rectification and for relief from payment of the painters’ invoice

New South Wales Court of Appeal

•  Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 – Consumer Credit Code; prerogative relief; whether provision of credit for personal, domestic or household purposes
•  Zahos v Industrial Relations Commission of NSW & Ors [2005] NSWCA 427 – Restaurant partnership dispute concerning jurisdictional limits of IRC’s remedial power under s106 (5) Industrial Relations Act

 South African Court of Appeal

•  Makie v The State [Proceedings 414/89] – Successful appeal against the death sentence

Federal Court of Australia

•  Trend Imports Pty Ltd v PW Inventory Pty Ltd [2012] FCA – Trademark dispute concerning the importation by Paul’s Warehouse of clothing with labels affixed with a trademark asserted to be owned by Trend Imports. Injunctions granted
•  Salim v Loh [2005] FCA 372 – Pleadings; strike out; security

Parliamentary Inquiries and Commissions of Inquiry

•  ICAC: Operation Spicer [2014] – Represented the Free Enterprise Foundation, an entity which received donations for the Liberal Party
• Parliamentary Inquiry [2004] – Represented Gazcorp’s Solicitor into the approval of the Designer Outlet Centre in Liverpool

Western Samoa

Sydney’s international experience extends to appearances in actions for defamation on behalf of the former Prime Minister of Samoa and an allied action for criminal libel. These related matters raised significant considerations of the limits of free speech in the context of legitimate political discourse, including constitutional challenges on that ground. Also, consideration of the use of Hansard reports in defamation actions

•  Malifa v Sapolu and Tofilau Eti Alesana [1999] WSSC 47 (as Junior before Moran J) – Action on behalf of former Prime Minister, who was subject to an alleged campaign of vilification in the press; criminal libel; common law defences; right to freedom of speech and expression; political statements
• Malifa v Sapolu and Tofilau Eti Alesana [1998] WSCA 5, 6 March1998 (as Junior before Lord Cooke of Thorndon, Sir Casey, and Sir Ian Barke) – Criminal libel action for (then) Prime Minister; whether matters specified by the information, reasonably capable of being regarded as so serious as to warrant the application of the law of criminal libel
• Alesana v Samoa Observer Company Ltd [1998] WSSC 6, 21 April 1998 (as Junior before Sir Gordon Bisson) – Defamation; ruling as to who should go into evidence first at final hearing
• Alesana v Samoa Observer Company Ltd [1998] WSSC 7, 6 July 1998 (as Junior before Sir Gordon Bisson) – Action for defamation on behalf of Prime Minister of Western Samoa, against newspaper and its editor-in-chief. Prime Minister claimed inter alia that he had been defamed by article imputing large-scale corruption to him; malice; plea in mitigation; whether in itself aggravating. Credit of witness. Parliamentary Privilege; scope of defences of qualified privilege and constitutional right to free speech in relation to political affairs. Limits of the defence of free speech; good faith. Aggravated damages

Advice Work

For every matter that proceeds to litigation there are many others in which advices are provided. In 2018 and 2019 significant advices have included:

• Sales “off the plan”; after being involved in Wang v Kaymet and Chan v Arc, Sydney is regularly reatined to advise in relation to sales of units “off the plan”. eg. where there is a divergence between what is presented in pre-contract plans and what is actually built.
• Sale of Land – notices to complete & to perform intermediate steps, to make time of the essence
• Commercial Leases – when does a tenant have an equity for rectification against a new landlord?
• Commercial Leases – tenant’s obligations to “make good” at termination of lease – landmark building
• Easements – Torrens land – true construction/interpretation
• Easements – whether obsolete within the meaning of Sec 89 Conveyancing Act
• Covenant & Easements: have they become “obsolete” ? (various advices)
• Conditions in Development Consents: do they “run with the land” ?
• Partnership dispute

Presentations

Please note that the publications and hyperlinked video presentations below are provided to indicate topics on which Sydney has delivered CPD papers. Summaries may not be up to date. Cases may have gone on appeal. They are for general information only and no replacement for considered legal advice.

Seeking Remedies for Breach of Statutory Warranties: Home Building –

This seminar is based on a  case which went to the Appeal Panel of NCAT, and in which Sydney Jacobs appeared for the home owner, Littles v J & K Homes Pty Ltd  [2017] NSWCATAP 84 21 April 2017)

The home owners alleged defective and incomplete work; and one defence of the Builder was that the building contract had not been terminated, and thus remained on foot

This, contended the builder, gave it a complete defence , by reason of what fell from the NSWCA in Brewarrina Shire Council v Beckhaus

The facts of the case set the scene for  seminar on the tactics of running a defects / incomplete work case, working up an appeal on a point of law , and a consideration of what significance there is, regarding remedy, to the contract still being on foot as at the date of hearing

Easements –

This is a series of 3 lectures on easements, presented by Sydney and a colleague via Benchmark, covering how to make an application for an easement in New South Wales under Sec 88 K Conveyancing Act ;  & then considering applications for novel easements : general principles and some recent examples in the cases . Topics include:

The statutory recognition of easements

Avenues to the recognition of new easements

The four essential features of an easement, with specific emphasis on the fourth In re Ellenborough Park characteristic?

Can novel easements can be recognised as society changes and What new easements have been recognised  by the Courts?

A discussion of recent cases regarding the recognition of novel easements such as:

• Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587
• White v Betalli [2007] NSWCA 243; (2007) 71 NSWLR 381,
• Ryan v Sutherland [2011] NSWSC 1397
• City Developments v Registrar General of NT & Ors [2001] NTCA 7

Unjust Enrichment and Termination of Contracts for the Purchase of Land –

This seminar for Benchmark is based on a case which Sydney and colleagues ran in the Supreme Court of NSW in 2017 for a property developer. It covers off the following topics:

1. Requirements for a valid Notice to Complete and ways to attack such Notices, so as to attack any consequential Notice to Terminate
2. The heads of relief against forfeiture as discussed in the High Court cases of Tanwar and Pentagold (fraud, accident, mistake, surprise).
3. Action for return of deposit under Section 55(2A) Conveyancing Act 1919 (NSW)
4. Unjust enrichment cases where a purchaser (including a developer) adds value to the land by obtaining a development consent for the land or does work to improve the value of the land eg the civil work (putting in services)
5. A discussion of a recent case in the Supreme Court of NSW in which the above areas of law were pleaded

Publications

• 2008 – present Commercial Damages: Thomson Reuters, loose-leaf Service
• 2005 – present Injunctions: Law & Practice: Thomson Reuters, loose-leaf Service
• 2000 – Damages in a Commercial Context (Law Book Co)