Sydney Jacobs

Sydney specialises in the areas of commercial equity, including real property, conveyancing, easements, covenants, strata, building and construction law, partnership disputes, insolvency, and leasing.

Sydney appears before the Supreme and Federal Courts, NCAT and has represented clients in the Industrial Relations Commission, Crime Commission and the Independent Commission Against Corruption as well as at technical references, arbitrations and mediations.

Sydney’s experience in Easement matters includes:

  • Acting as mediator.
  • Applications to restrain servient owners from obstructing the use of an easement.
  • Applications to be granted easements e.g. access/carriageway/services under Sec 88k of the Conveyancing Act
  • Applications for declaratory relief in respect of easement rights.
  • Whether easements have become obsolete or have been abandoned.
  • Whether covenants have been overridden by planning instruments.
  • 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 purchase of land, that there was no easement securing the right of the purchaser to retain a particular utility in place.
  • Whether there is an equitable easement, or easement by estoppel, to maintain in situ valuable signage and services.
  • Construction of development consents which make provision for easements, including deferred commencement conditions.
  • Comparing strategies under Sec 88k Conveyancing Act / Access to Neighbouring Land Act /Encroachment of Buildings Act.

He is also a NMAS accredited mediator, and a BarADR accredited arbitrator and an expert determiner.

Complementing his practice as a barrister and mediator, Sydney authors two major loose-leaf services published by Thomson Reuters: Commercial Damages and Injunctions: Law & Practice; and part-authors two leading loose-leaf services, Commercial Arbitration: Law & Practice, and International Commercial Arbitration. Sydney is a frequent presenter at CPD Seminars, some of which are linked below.

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).

To brief Sydney, please contact him on (02) 9232 7658 or via email: sjacobsassistant@13wentworth.com.au

Qualifications

  • Accredited Mediator, National Mediation Accreditation System (NMAS), 2018
  • BarADR Approved Arbitrator & Expert Determiner, 2017
  • Higher Diploma in Company Law: University of Witwatersrand, South Africa, 1990
  • Master of Laws: University of Cambridge, UK, 1986
  • Bachelor of Laws: University of Cape Town, South Africa, 1984
  • Bachelor of Arts: University of Cape Town, South Africa, 1982

Professional experience

1997 – Present:  Barrister, 13 Wentworth Chambers

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

[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:

2021

• 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

• 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. **

• Advice as to the true construction of an easement for access benefitting substantial rural property. **

• Advice on whether an easement for access to a substantial estate could be removed on Sec 89 Conveyancing Act grounds e.g. obsolescence. **

• 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. **

• 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. **

• Advise owners of a shopping centre, in circumstances where an easement benefitting the land is to be resumed. **

• 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 Lttd [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.

Presentations

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 appeared for the homeowner, Littles v J & K Homes Pty Ltd [2017] NSWCATAP 84 21 April 2017).

The homeowners 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 feature in In re Ellenborough Park characteristic.

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

A discussion of 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
Ryan v Sutherland [2011] NSWSC 1397
City Developments v Registrar General of NT [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 as lead counsel and a colleague 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 e.g. 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 Available for Download

Not in my backyard: Picking your Easement Battle

04/03/2021

The Obligation of Good Faith in Commercial Contracts

19/02/2021

Can Neighbours be Good Friends? Where Planning Permission and Property Rights Collide (NSW) (Paper)

21/01/2021

Can Neighbours be Good Friends? Where Planning Permission and Property Rights Collide (NSW) (Powerpoint)

21/01/2021

Security of Payment: Challenges to Adjudications on the basis of Jurisdictional Error: Back to the future

01/12/2020

Restraining Calls on Bank Guarantees

24/11/2020

Deconstructing Construction Contracts
31/07/2020

A Troika of Major Issues: Damages, Appeals & Jurisdictional Error
05/03/2020

RUMOURS OF MY DEMISE ARE GREATLY OVERSTATED: The difficulties in seeking declarations that easements and covenants have been abandoned or are obsolete
04/03/2020

Can Neighbours be Good Friends? Where Planning Permission and Property Rights Collide
28/02/2020

Management, Administration & Operation of Owners Corporations
22/11/2019

Drafting Watertight Settlement Agreements
29/10/2019

What Happens when it all goes wrong: Default, Rescission & Repudiation
27/08/2019

Notice to Perform: Making the Clock Tick Louder
12/03/2019

Co-ownership Disputes: Navigating Section 66G Applications
12/03/2019

Easements: Knowing When to Fight & When to Surrender
1/03/2019

Advance Discretionary Rulings under Sec 192A of the Evidence Act
1/03/2019

When the Purchaser Doesn’t Complete: Rights of the Purchaser …
29/08/2018

Contracts of Sale, Leases and Electronic Communication: Bound before you know it.
19/06/2018

Recent Case Law and Legislative update on Business Law
13/05/2018

Advanced Strategies for Admissible and Persuasive Expert Evidence
28/02/2018

Assessing Compensation in Applications for Easements
26/07/2017

Easements: Development Hiccups and Neighbourhood Wars
16/03/2017

Three Recurring Drafting Issues for Property Lawyers
10/03/2017

Three Recurring Issues for Property Lawyers
3/03/2016

Assigning Contracts in Property Matters
2/02/2016

Reasonable Endeavours
26/11/2015

Structuring Mixed Use Development
18/11/2015

Structuring Mixed Use and Complex Development
9/09/2015

Ending a Business Relationship that has run its Course
27/08/2015

Easements
3/03/2015

Briefing Experts
8/10/2014

Making Dollars and Cents out of Damages in Commercial Litigation
26/06/2014

Expert Evidence
3/06/2013

Recent Cases and developments in Leases
26/03/2013

Calderbank Offers
25/03/2013

Liability of Councils in Tort and section 149 EP&A Certificates
5/03/2013

Preparing and Drafting applications for Easements under Conveyancin…
15/02/2013

Disputes in Commercial Leases
16/10/2012

Easements for Stormwater & Carriage
28/06/2012

Relief against failure to excercise an option to renew a lease
5/03/2012

Repudiation, Rescission and Termination
14/02/2012

Telephone

(02) 9232 7658

Called to the Bar

1997