Selected Cases
[N.B. Easement/Covenant cases and advices are marked with **]
Some of the matters in which Sydney has appeared or advised are as follows. Those which are unnamed are either current or were subject to settlement and hence limited details can be provided:
2022
NSW District Court Proceedings No. 2021/297944 – Alleged trespass by television crew and consequent alleged publication of material filmed whilst on premises. Claim for damages for loss of reputation [ongoing proceedings].
Easements and Covenants – various advices including:**
(i) Advising a developer whose land is burdened by an easement for carriageway as to what construction they can carry out on their land, having regard to the easement.
(ii) Advising as to whether there can be a passing bay on a right of carriageway.
(iii) Considering whether there is an existing easement by virtue of adverse possession. Alternatively, whether an easement can be obtained under section 88K Conveyancing Act.
(iv) Advising as to whether a servient owner in respect of a right of carriageway has obstructed use by placing objects etc. across it.
(v) Advising in a number of matters where the full width of the easement is not available for practical use and considering whether the servient owner can be compelled to provide wider access.
(vi) Advising as to whether the overland flow of water constitutes an actionable nuisance and as to a notice of intention are to issue a Development Control Order in that regard.
2021
• NSW District Court Proceedings No. 2020/206191 – Mediation – Appointed as mediator in relation to professional negligence claim against mortgage broker etc.
• NSW Supreme Court Equity Division, Real Property List Proceedings No. 2021/268328 – Application for a statutory easement under section 88K Conveyancing Act.**
• NSW Supreme Court Equity Division Proceedings No. 2020/365402 – Ianni Family Pty Ltd v Bell and Dzubiel – Application for an easement under section 88K Conveyancing Act (NSW).**
• NSW Supreme Court Proceedings No. 2020/44220 – Johnstons v Page –concerned whether an easement for right of way ought to be extinguished or amended.**
• Land and Environment Court No. 2021/95074 – Korlevic and Ors v Tynan – Class 3 Proceedings, under the Encroachment of Buildings Act 1922, seeking an easement in respect of part of a building constructed on neighbouring land.**
• NSW District Court Proceedings No. 2020/208291 – Alliance Motor Auctions Pty Limited v Friendlee Autos Pty Ltd & Lee William Friend – Action for monies owing by reason of sale of chattels. Defence based on estoppel.
• G v L – Application to the Registrar General regarding the removal by him of an easement and seeking that he exercises his powers of review so that the easement may be reinstated (as the matter is not in the public domain, names of the parties are confidential).**
• NSWSC Proceedings No. 2021/108534 – Di Maria v Di Maria – Application for appointment of a trustee for sale pursuant to Sec 66G Conveyancing Act.
• NSW District Court Proceedings 2021/177896 – Claim for damages for trespass by crane swing; and associated application for an Access order under the Access to Neighbouring Land Act, in Local Court Proceedings 2021/159495.
• NSWDC Proceedings 2021/135191 – Claim by builder for variations alternatively upon a quantum meruit/restitution for unjust enrichment.
Easements and Covenants – various advices covering: **
(i) – the true construction of a covenant contained within an easement and whether the consent of the dominant owner can be capriciously withheld.
(ii) Sec 88 K Conveyancing Act – whether easement reasonably necessary.
(iii) Easement by long user / prescription & the differing principles relevant to Torrens and Old System / Common Law title.
(iv) where dominant land consolidated with other land
• NSWSC Proceedings No. 2020/321959 – Mediator – mediate multi-party dispute concerning an easement for carriage way, benefiting commercial premises. **
• NSWSC Proceedings No. 2020/44220 – ongoing matter as to whether a right of way ought be extinguished under Sec 89 Conveyancing Act. **
• Advice as to construction of easements for jetty access. **
• Settle application in NSWSC for easement for encroachment. **
• Advise developer about easement for passing bay. **
• Advice as to construction of a right of way allowing gates to be constructed. **
2020
• Development of new suburb in a capital city: advise developer as to the true construction of development consents stipulating for the provision of easements. **
• DCNSW Proceedings 2020/208291 – Dispute as to whether moneys owing for sale of certain chattels; defence based on estoppel.
• Proceedings in the SC of NSW and the ACT: Appeared at mediation of a NSW Supreme Court dispute between partners involved in a construction company; drafted pleadings that one party had become the agent for sale of the shares of the other, owed fiduciary duties and breached them. Claim by one party to an equitable interest in a property purchased by the other and used in the business – Successfully mediated before final hearing.
• NSWSC proceedings [No. 2019/316427] against a director of a company in liquidation. Settled pleadings and affidavits as to breaches of director’s duties including uncommercial transactions – successfully mediated before final hearing.
• Submissions to the Registrar General on behalf of dominant owner of property, which benefited from an easement for access over neighbour; Successfully opposing an application for removal of the easement by reason of abandonment. Neighbours / servient owner made administrative application that the easement be removed from the register on the basis of obsolescence/abandonment. **
Easements and Covenants – various advices covering: **
(i) Whether the owners of the servient land, over which there was an easement in gross for drainage of water, were entitled to develop their land above that drainage easement and if so, at what height.
(ii) Advice as to the true construction of an easement for access benefitting substantial rural property. **
(iii) Advice on whether an easement for access to a substantial estate could be removed on Sec 89 Conveyancing Act grounds e.g. obsolescence. **
(iv) Draft pleadings in a NSWSC claiming that there is an easement by estoppel in respect of substantial adjoining properties, alternatively, a claim for an easement for carriageway pursuant to Sec 88 K Conveyancing Act. **
(v) Advise owner of servient property, over which runs an easement for access, canvassing whether the easement could be removed pursuant to Sec 89 Conveyancing Act by reason of abandonment; and if not, what rights the dominant and servient owners enjoy e.g. as to re-forming its surface; its daily use and what would constitute actionable interference/ nuisance. **
(vi) Advise owners of a shopping centre, in circumstances where an easement benefitting the land is to be resumed. **
Prior to 2020
• Turvey v Crotti (No. 2) [2019] NSWSC 399 – As lead counsel for Turvey- Costs – Costs on an indemnity basis – whether case unduly prolonged by groundless contentions – offers of compromise – whether maximum sum of costs should be specified. – Successful – Significant Costs ordered. **
• Maphaven Pty Ltd Pty Ltd v The Owners –Strata Plan No 48887 [2019] NSWNCAT – 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 under Sec 241 of the SSMA –costs awarded to applicant – no part of the costs incurred by the respondent to be levied against the Applicant.
• Australian Commercial Marketing v Gold [2018] NSWSC 1701 – Land Law – Occupation of commercial premises – lease / licence – option in licence exercised 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 A [2018] – Ex Parte Freezing order for close to $900,000 for real estate agent’s commission.
• Turvey v Crotti [2018] NSWSC 1959 – As lead counsel for Turvey-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. **
• C v T NSWSC [2018] – Application for easement for stormwater to benefit a very large sub-division in Tweed Heads, pursuant to s88k Conveyancing Act. Significant experts’ reports on planning & zoning, civil & hydraulic 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 mediated by Mason QC; as such, party names redacted. **
• 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 inter alia architect, heritage architect & electrical engineer – case managed in the Real Property list after evidence served. Mediated successfully in 2018 by Mason QC. **
• McGrath v Mestousis [2017] NSWSC 995: counsel for Mestousis up to but not including trial. Sec 88 K application by McGrath for an easement for stormwater, for purposes of development of residential land – whether easement reasonably necessary for effective use or development of the land – effect of easement upon servient tenement – risk of damage caused by easement works – difficulty in carrying out easement works in compliance with conditions of consent – easement imposed. **
• 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.
• 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.
• 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 executed – unjust enrichment
.
• 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).
• 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.
• 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.
• Independent Commission Against Corruption (ICAC): Operation Spicer [2014] – Represented the Free Enterprise Foundation, an entity which received donations for the Liberal Party.
• 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. Defence I raised rejected by the learned trial judge but upheld on appeal by the NSWCA.
• Aussteel v Marcon [2014] NSWSC – Preliminary discovery application.
• 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.
• Barangaroo Development [2013] NSWSC – Urgent application for order under section 88K of the Conveyancing Act to allow temporary easement for access to erect scaffolding. **
• Well Garnished Pty Ltd v Chaos Investments Pty Ltd [2013] NSWADT 256 – Retail Lease – Successful application to strike-out based on accord and satisfaction (i.e. prior “settlement” of the issues).
• Kocagil v Chen [2012] NSWSC – Successful easement application pursuant to section 88K Conveyancing Act for stormwater. **
• 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.
• 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).
• 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. Included a voire dire on whether evidence as to affectation of the feng shui of the land (should the easement be ordered), ought be admitted. **
• 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 – Successful appeal on point of law against decision of magistrate; denial of natural justice.
• 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 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. **
• Bank of Western Australia v Love [2009] NSWSC 1421 – Procedure & judgement/orders – amending, varying and setting aside orders – doctrine of benefits and burdens – unconscionable conduct.
• 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.
• Boules v Lily Homes Pty Ltd [2009] NSWCTTT 321 – Home building dispute – resolution in earlier Tribunal proceedings – further application – Successful defence on bases of Sec 18E Home Building Act and Anshun estoppel to prevent action in tort on same facts as those formerly litigated in contract.
• Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150 – Consumer Credit Code; prerogative relief; whether provision of credit for personal, domestic or household purposes.
• 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.
• 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?
• Salim v Loh [2005] FCA 372 – Pleadings; strike out; security.
• 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.
• Parliamentary Inquiry [2004] – Represented Gazcorp’s Solicitor into the approval of the Designer Outlet Centre in Liverpool.
• 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.
• 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.
• 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.
• Adler Mallach Holdings Pty Ltd v Robertson [2001] NSWSC 692; [2002] NSWSC 1176 – Successful Claim against Defendants using fake names, who established a business in competition with business sold to the Plaintiff. Election as to remedies. Damages – basis for assessment.
• 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.
• Hilton Hotels (Australia) Pty. Ltd. v. Sunrise Resources (Australia) Pty Ltd [2000] NSWSC 46 (as junior to Campbell QC). Consent by lessor of Hilton Hotel to placement of signs by lessee (the Hilton); equitable easements; conventional estoppel pursuant to Eslea v Butts. Prevailed on the estoppel point. **
• Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765 – Practice – Successful claim for costs – proceedings terminated because supervening event rendered proceedings 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.
• Malifa v Sapolu and Tolau Eti Alesana [1999] WSSC 47 (as Junior before Moran J) – Action on behalf of former Prime Minister of Western Samoa, 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 Tolau 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 of Western Samoa; 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 former 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.
• Makie v The State (1989) South African Court of Appeal Proceedings 414/89 – Successful appeal against the death sentence; consequent upon successful application to the trial judge for leave to adduce further evidence after judgement at first instance.
