Sydney Jacobs

Contact Details

  • Called to the Bar

    1997

  • Sydney practises in the areas of commercial law and equity, real property and building and construction law. His experience in easement matters includes:

    o   Applications to restrain the servient owner from obstructing the use of an easement

    o   Section 88K applications

    o   Applications for declaratory relief in respect of easement rights

    o   Whether an easement has become obsolete through disuse or by reason in change in character of the neighbourhood

    o   Issues pertaining to both common law and Torrens title

    o   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

    Easement matters litigated to finality, in the list of cases below, are asterisked.

    He is the author of two major loose-leaf services for Thomson Reuters: Commercial Damages and Injunctions: Law & Practice and is the current co-author of another major loose-leaf service on Arbitration. 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 technical references, mediations and arbitrations.

    Sydney holds a Master of Laws from the University of Cambridge and a Bachelor of Laws and Bachelor of Arts from the University of Cape Town, South Africa. He is a former director of a listed company on the JSE and has also completed a Higher Diploma in Company Law at the University of the Witwatersrand.

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

    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

  • Qualifications

    • 1990 – Higher Diploma in Company Law: University of Witwatersrand, South Africa
    • 1986 – Master of Laws: Cambridge University, UK
    • 1984 – Bachelor of Laws: University of Cape Town, South Africa
    • 1982 – Bachelor of Arts: University of Cape Town, South Africa

     

     

     

     

  • 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

    BarADR Approved Arbitrator and Expert Determiner – New South Wales Bar Association

     

     

     

     

  • 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

    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

     Supreme Court of New South Wales

    • * S v A [2018] Ex Parte Freezing order for close to $900,000 for real estate agent’s commission
    • * C v T [2018] – Application for easement for stormwater for large sub-division, pursuant to s88k Conveyancing Act. Minister issued concept approval – reasonable necessity and other issues – being case managed in the Real Property list to final hearing
    • * C v G [2018] Easement for access – blocked by gate – interim injunction for access obtained – matter being case managedin Real Property List to final hearing on various issues
    • 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?
    • 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
    • *M v R – Application for easement for access pursuant to s88k Conveyancing Act – historic Pyrmont terraces – after all evidence served, matter mediated successfully in 2018
    • 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
    •  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 question of whether builder/developer used reasonable efforts to register the strata plan
    • * Kocagil v Chen [2012] NSWSC – Successful easement application pursuant to section 88K Conveyancing Act
    • 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 sought under section 88K of the Conveyancing Act for an easement for stormwater
    • 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
    • * Portolesi v Tsaloukas NSWSC Proceedings No. 2009/287619 – Order sought under section 88K of the Conveyancing Act for an easement for stormwater
    • * 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
    • Bank of Western Australia v Love [2009] NSWSC 1421 – Procedure & Judgement orders – amending, varying and setting aside
    • 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
    • * 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

     District Court of New South Wales

    • Dionys v National Australia Bank, 12 June 2015Successful 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)

    • S v SB – Retail lease application – purported termination of lease – application pursuant to s72 Retail Leases Act for vacant possession – opposition on various grounds
    • 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

    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

     Supreme Court of Western Samoa and Court of Appeal

    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 news paper 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

    EASEMENT AND OTHER PROPERTY CASES OF SYDNEY’S CURRENTLY or recently IN THE REAL PROPERTY LIST OF THE SUPREME COURT, NSW, and also other LISTS & courts

    • Case 1 There was a subdivision of a large estate in the 1800s and 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. Controversies have arisen out of these facts invcluding whether the erection of gates was an actionable nuisance and the matter has been listed for hearing in December 2018.
    • Case 2 Certain cottages are in close proximity in an inner-city suburb of Sydney . One of the neighbours sought an order for an easement of right of way and also for services under 88K of the Conveyancing Act 1919 (NSW). This matter was resolved at mediation in 2018
    • Case 3 : A developer wishes to obtain consent from a Council for the sub division of land into residential lots. An easement for stormwater is required, and an application is on foot for the grant of an easement under Sec 88 K of the Conveyancing Act . Significant expert reports have been served regarding engineering, town planning & valuation.
    • Case 4 : One neighbour in a  Sydney suburb has erected an electronically controlled gate across an easement. An action in nuisance is on foot to prevent that neighbour denying access. One question for construction is whether the eassement permits parking
    • Case 5 : A solicitor did not advise in the conveyancing process, that a home was not benefitted by a certain type of easement . There is an action for negligence on foot in that regard, with the matter listed for hearing in early 2019

    NSW SUPREME COURT CASES RELATING TO IMPUGNING NOTICES TO COMPLETE and NOTICES OF TERMINATION

    • Case 6 being case managed in the RPL involves a sale “off the plan”, where the property which was constructed did not have the characteristics represented in the sales process. An interim regime has been agreed and noted by the Court putting a restraint on the vendor serving a Notice of Termination. The matter proceeds through directions hearings.

    NSW SUPREME COURT CASES RELATING TO LEASES

    • Case 7  being  managed in the RPL involves a tenant who obtained interim relief to access premises to uplift goods, the case now proceeds through the pleadings phase to define the issues; one of which is whether the landlord repudiated the lease.

    NCAT CASES INVOLVING PROPERTY / STRATA MATTERS

    • Case 8 awaits judgment . The trial is complete. The issue related to the power of a Strata Plan to recover levies to cover certain outgoings allegedly incurred by the SP by reason of certain activities .

    Advice Work

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

    • Commercial Lease – when does a tenant have an equity for rectification against a new landlord?
    • Sale of Land – notices to complete & to perform intermediate steps, to make time of the essence
    • Easement – Torrens land – true construction/interpretation
    • Conditions in Development Consents: do they “run with the land” ?
    • Covenant & Easements: have they become “obsolete” ?

    Presentations

    Please note that the publications and hyperlinked video presentations below are provided to indicate topics on which Sydney has delivered CPD papers. Some are out of date. No warranty is given that the summaries are up to date or correct. Cases may have gone on appeal. No reliance may be placed on these papers for any particular issue that has arisen. They are 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 earlier this year in the Supreme Court of NSW 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

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  • Publications Available for Download

  • 29/08/2018
  • 19/06/2018
  • 13/05/2018
  • 28/02/2018
  • 26/07/2017
  • 16/03/2017
  • 10/03/2017
  • 3/03/2016
  • 2/02/2016
  • 26/11/2015
  • 18/11/2015
  • 9/09/2015
  • 27/08/2015
  • 3/03/2015
  • 8/10/2014
  • 26/06/2014
  • 3/06/2013
  • 26/03/2013
  • 25/03/2013
  • 5/03/2013
  • 15/02/2013
  • 16/10/2012
  • 28/06/2012
  • 5/03/2012
  • 14/02/2012
  • 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)