Sydney Jacobs

Contact Details

  • Called to the Bar

    1997

  • Sydney is the author of two major loose-leaf services for Thomson Reuters: Commercial Damages; Injunctions: Law & Practice

    He is a regular presenter at CPD seminars, the links to some of which are below.

    For any enquiries, or to brief Sydney, please contact the clerk, Paul Walker.

    With over 20 years’ experience as a barrister, Sydney possesses specialist knowledge and expertise in the areas of commercial law and equity, real property and building and construction law. He has acquired considerable experience in the area of easements and covenants and regularly appears in proceedings where urgent interlocutory relief is sought.

    His experience in large-scale litigation extends to providing complex advice and appearing at trial and appellate level in various Australian jurisdictions, including the Federal Court of Australia, New South Wales Court of Appeal, Supreme Court of New South Wales, District Court of New South Wales and other inferior courts. Sydney has also appeared before tribunals, such as the Consumer Trader & Tenancy Tribunal, NCAT and before the Industrial Relations Commission, Crime Commission and Independent Commission Against Corruption. With the broad spectrum of forums in which disputes can be resolved, Sydney also has appeared in technical references, mediations and arbitrations.

    Sydney holds a Master of Laws from University of Cambridge and a Bachelor of Laws and Bachelor of Arts from the University of Cape Town, South Africa. He also completed a Higher Diploma in Company Law and is an expert determiner approved by the NSW Bar Association. Prior to being called to the Bar, Sydney gained considerable experience as a solicitor in the Construction Departments of top-tier firms Minter Ellison Morris Fletcher (now MinterEllison) and Deacon Graham & James (now Norton Rose Fullbright), during which time he acted for clients in complex and high profile matters. Such experience has served to give Sydney an understanding as to the needs and expectations of solicitors and their clients and to this end, he is committed to working as a team player with his instructing solicitors to develop the best strategies to achieve the best results for his clients.

  • 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 (now Minter Ellison) – 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

  • 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

    •  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 regarding an easement dispute.
    • 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 regarding 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 proprieter.
    • 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 construction of a tennis court & associated negligent advice.

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

    •  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.
    • 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.
    • 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.

    Publications

    Please note that the publications below are provided to indicate topics on which I have 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.

  • Publications Available for Download

  • 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)