2023 Cases

[NB easement and covenant cases are marked with **]


NSW Supreme Court Proceedings (General Equity List) 2023/231043 – Action for a declaration that parties were in a partnership involving import from an overseas supplier of car accessories and that defendant is obliged to provide financial records and to give an account. Interim relief sought by various parties includes security for costs, production of documents and leave to issue interrogatories.

NSW Supreme Court Equity Division Proceedings (Real Property List) 2022/229451 – Claim in nuisance for unreasonable interference with an easement for parking and contention that rights ancillary to the parking easement permitted the maintenance of a pedestrian ramp. Further, arguments as to the presence of a licence revocable only on reasonable notice.

NSW Supreme Court Equity Division Proceedings (Real Property List) 2022/99206 – Action for specific performance of a contract for the sale of land. Various defences raised. Notice of Motion as to whether the proceedings have been settled. Being case managed to hearing.

NSW District Court Proceedings 2021/297944 – Alleged trespass by television crew and consequent alleged publication of material filmed on premises. Listed for hearing. Successful application for security for costs and various costs orders obtained against the plaintiff.

NSW Supreme Court Equity Division Proceedings (Real Property List) 2021/75630 – Proceedings for the specific enforcement of a contract to convey valuable farming property. Defence raised that signature on document not genuine. 7 days hearing finalised including evidence of expert document examiner. Awaiting judgment.

Various NSW Supreme Court Real Property List matters all involving easements:

** Action under s88K Conveyancing Act for imposition of a stormwater easement.

** Claim under s88K Conveyancing Act for imposition of a right of carriageway easement.

** Claim for an obstruction amounting to a ‘substantial interference’ with a right of carriageway

** Claim for relief under s89 Conveyancing Act for modification of an easement for carriageway in a rural setting.

** Claim for relief under s89 Conveyancing Act for modification of an easement for carriageway in a residential area.

District Court Proceedings No. 2023/00307398 – Represented the plaintiff/vendor seeking liquidated damages for failure of purchaser to complete. Purchaser raised defence of various shades of misrepresentation associated with Redgrave v Hurd and also failure to mitigate.

NCAT Proceedings 2023/0045162 – Orders sought that Owner’s Corp has no power under bylaws to direct its contractors to attend upon lot property. Interim injunction listed for hearing mid-Jan 2024.

In 2023, Sydney has also appeared as Advocate for clients at mediations for property/easement/commercial equity disputes.


Major Advices

** Whether an easement for footway has been obtained by long user / prescription.

** Whether a caveat to protect an encroaching structure can be sustained pursuant to a historic agreement.

** Whether an easement for use of a particular space provided such a wide range of rights to the dominant owner that it could be challenged on the basis that, in truth and substance, and pursuant to the doctrine in Clos Farming, it amounted to a joint right of occupation.

Contract to purchase a property off the plan – developer failed to have strata plan registered by sunset date – right to rescind.

Commercial lease dispute – large premises in shopping centre – true construction of provisions of the lease.

Commercial lease dispute – large waterfront property – who bears the obligations as to maintenance and repair.

Prepared court papers to support a caveat claiming an interest in a large development site based on the grant of an option.

Advised as to when a receiver appointed under a mortgage is personally liable for repudiating pre-receivership contracts. Considered circumstances in which the principle associated with Said v Butt can extend to receivers so as to render them personally liable. Also considered whether and receivers at risk of a claim under s 18 of the Australian Consumer Law.


Mediation – as Mediator

Sydney has acted as a mediator in commercial disputes in 2023 as follows:

  1. Supreme Court of NSW Case No. 2021/00226754Proceedings brought by a liquidator in the Supreme Court of NSW. This is a complicated commercial equity dispute. The matter involved a loan of significant amount secured over real property and by a registered General Security Agreement. Issues included what component of the interest accrued prior to liquidation of the borrower and what component accrued after its liquidation. There was also a claim of breach of fiduciary duty in relation to the sale of the property and in particular whether it was an undervalue.
  2. District Court of NSW Case No. 2022/00387672 – this was a substantial commercial dispute between parties in the wine industry. One party supplied significant quantities of wine to the other which provided services including bottling, corking and logistics relating to international distribution.
  3. Supreme Court of NSW Case No. 2022/206943 – Claim and cross-claim involving essentially specific performance of an agreement for the sale of land containing a quarry; and ancillary claim including for trespass.
  4. District Court of NSW Case No. 2023 – Mediation of a District Court claim for ~$750,000 damages from vendor of a prestige property by the purchaser who claimed he was misled into entering the contract for sale.