Property Series Part 1: Introduction to the Series

Barrister, Sydney Jacobs, provides an overview on what to expect in his upcoming articles on his experiences and insights into the property law sector. He will be speaking at our upcoming Strata Title Update: New Laws, New Regimes, New Cases, where his presentation will focus on owners corporations. 

This is my inaugural article on topical issues in property law. The area positively bristles with important issues being decided in new cases all the time, for example:

1. In an easement case where I was lead counsel for the plaintiff, Turvey v Crotti [2018] NSWSC 1958 and later on costs [2019] NSSC 399, the issue devolved, in light of an undertaking proffered at hearing by the defendant to not seek to re-erect gates across a private sub divisional road, to this, the following questions were raised. What was the measure of damages for nuisance? Could aggravated damages be awarded where conduct was high handed?
2. In NWA Realty Pty Ltd v Christou [2019] NSWSC 1364, where I was counsel for some of the defendants, the issues included whether an offer to sell a property under colour of a right of first refusal in a lease, had been rejected; and if rejected, had been revived.
3. There are more and more easement cases coming out the of the Equity Division as to whether rights granted by one neighbour to another, and said to be easements, are valid as easements: e.g. for parking (Stolyar [2018] NSWCA ) , for vineyard (Clos Farming [2018] NSWCA) and for rock anchors (Twelve Walker Str [2017] NSWSC 1807); and also clarifying what the integers for decision are in seeking a statutory easement under Sec 88K of the Conveyancing Act 1919 (NSW) e.g. Gordon v Lever [2018] NSWCA 43;
4. Rights of rescission of contracts for the sale of land, pursuant to Sec 66ZL of the Conveyancing Act, where property is purchased “off the plan” and the contractual milestone (usually registration of the plan of sub division) has not occurred by the sunset date. Sec 66ZL was introduced into the Conveyancing Act 1919(NSW) on 24 November 2015 by the Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) (following hot on the heels of an October 2015 NSWSC case, Wang v Kaymet).There is a fast developing jurisprudence on Sec 66ZL, including Silver Star Fashions Pty Ltd v Dal Broi (No 2) [2018] NSWSC 1697 and Scott v Ennis-Oakes [2019] NSWSC 1257 (loss of bargain damages where 66ZL rights exercised);
5. The perennially vexed question as to whether a unit holder in a strata plan is owed an actionable duty of care by the owners corporation of a SP and if so, in respect of what. Sec 61 of the Strata Schemes Management Act in NSW, requires the Owner’s Corporation to i.a. maintain and repair the common property. Sec 62 of the SSMA i.a. obliges the owners corporation to properly maintain common property.
   The question grappled with by the cases had been whether Sec 62 conferred a private right of action on a unit holder.Owners Strata Plan 50276 v Thoo [2013] NSWCA followed Ridis v Strata Plan 10308, in holding that the answer to the above question was No. That of course, left open another question: Did the statutory scheme, as a matter of construction of the relevant legislation, and by necessary implication, exclude any common law remedy, say in nuisance?Indicating how experienced legal minds can differ on these questions, the learned judge at first instance in McElwaine’s case (below), answered this question Yes; however, their honours on appeal in McElwaine v The Owners Strata Plan Number 75975 [2017] NSWCA 239 answered the same question No. The ratio was that a lot owner has the right to claim damages against an owners corporation in nuisance.
   See further Kirk, a 2017 ACAT decision dealing with the ACT legislation.The NSW SSMA has been amended, and the relevant sections are now gathered into Sec 106 (i.e. no longer Sec 62). Sec 106 (5) provides as follows :

   “An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.”

   However, Sec 106 (6) says that the owner may not bring an action for breach of statutory duty more than 2 years after becoming aware of the loss.

Having reached the end of my allotted space for my inaugural article, all that is left to me, is to say that the above issues will be revisited and fleshed out in future article.

Suggestions as to topics, general feedback and positive criticism is welcomed on sjacobs@13wentworth.com.au

With over 20 years’ experience as a barrister, Sydney Jacobs practices in the areas of commercial law and equity, real property and building and construction law. He has acquired experience in the area of easements: he has obtained easements for applicants and otherwise appeared in the cases listed below, has a number of current matters in the NSW Equity Division Real Property List being case -managed to final hearing 2018 and is briefed in certain easement matters being worked up for filing in Court. Prior to being called to the Bar, Sydney was a solicitor in the well -known firms listed below, as a commercial litigator with a construction law focus. Sydney has experience in acting for clients seeking or opposing easements and clients whose rights of way have been impeded by neighbours. You may connect with Sydney via email sjacobs@13wentworth.com.au or LinkedIn

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