Ben Kagan can’t talk about the lawsuit he and business partner Archie Saliba are facing from In-N-Out Burger, but he can say the suit isn’t the reason the hugely popular Down N’ Out burger pop-up has moved from the Sir John Young Hotel into its own space. (In-N-Out Burger Inc has brought a case against the parent company of Down N’ Out, Hashtag Burgers, claiming the Sydney brand infringed its trademark and mislead customers by mimicking its name, logo and menu items.)

“We did the pop-up thing for two years and now the pub is renovating, we saw this as an opportunity to open our own place,” says Kagan. “We’re excited to do our own thing, play our own music and run a fully stocked bar.”

The duo didn’t have to go far to find a new home – the new Down N’ Out has been reinvented a couple doors from the hotel. The group’s second permanent spot (the first opened in Ryde in 2017) is in a second-floor space above one of the original Spanish restaurants in the almost-extinct Spanish quarter, a cluster of mainly tapas joints that once dotted Liverpool and Pitt Streets in the CBD.

The menu is largely the same. There’s a double Wagyu beef burger with cheese, jumbo American pickles, onions and a tangy secret sauce. And a juicy, perfectly seasoned fried-chicken burger with house ranch dressing. You can also get the wild, piled-high burger specials that got Down N’ Out its cult status and queues that often snaked around the block.

When this venue opened it also offered a special, a nod to one of the Down N’ Out originals: the Ape Style. The towering burger is made with a deep-fried cheese patty and fries on top of the usual Wagyu beef patty and accoutrements.

When asked whether he thinks it’s a clever decision to open a new burger joint in an already over-saturated market, Kagan says: “I think the burger trend kind of peaked last year. Some are sticking around, some are dropping off, [but] I think part of the reason we’re doing well is because we use the best-quality ingredients you can get.”

And now the permanent space also means Down N’ Out can hone its drinks offering (rather than having to rely on what was available at the Sir John Young Hotel). Craft beers are on tap and there’s a plan for exclusive brews. A cocktail menu will also be launched later this month featuring burger-inspired options such as house-made bacon-infused whisky and jalapeno tequila.

The new Down N’ Out entrance is unassuming – you might even say hidden – with nothing to signpost it except for a neon “Bar” sign and an arrow at the top of the stairs. Inside there are pinball machines and an arcade machine loaded with ’90s classics such as Street Fighter. Ren & Stimpy and Thunder Cats play on TV screens, and an illustrator was commissioned to paint cartoons on the bar.

“It’s all about nostalgia for our childhoods in the ’90s,” says Kagan. “We really miss the aesthetic of hand-drawn cartoons and all the stuff we grew up on.”

Kagan says the lawsuit hasn’t hurt the brand; in fact it had the opposite effect. “I’m not going to lie – we got a lot of business when the lawsuit story came out. That part has been really good for us.” Hashtag Burgers is in talks with In-N-Out Burger and a court date is set for July 2019.

Down N’ Out
77/A Liverpool Street, Sydney

Mon to Thu 12pm–9pm
Fri 11.30am–10pm
Sat 12pm–10pm

This article first appeared on Broadsheet on August 6, 2018. Menu items may have changed since publication.