El-Cheikh v Miraki (No 2)

[2022] NSWCA 6

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	El-Cheikh v Miraki (No 2) [2022] NSWCA 6
Hearing dates:	On the papers
Decision date:	07 February 2022
Before:	Bathurst CJ; Basten JA; Emmett AJA
Decision:	Motion dismissed with costs.
Catchwords:	JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – motion seeking variation of final orders – where judgment left open a number of outstanding issues – whether outstanding issues need to be determined by a judge of the Equity Division
Cases Cited:	El-Cheikh v Miraki [2021] NSWCA 271
Category:	Procedural rulings
Parties:	Omar El-Cheikh (First Appellant) El-Cheikh Group Pty Ltd (CAN 614 664 158) (Second Appellant) Sepideh Miraki (First Respondent) Iconic Constructions Australia Pty Ltd (CAN 168 104 649) (Second Respondent)
Representation:	Counsel: M Condon SC (Appellants) Solicitors: Cornwalls (Appellants) William Roberts Lawyers (Respondents)
File Number(s):	2021/9403
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Real Property List Citation: [2020] NSWSC 1781 Date of Decision: 9 December 2020 Before: Kunc J File Number(s): 2017/156392

Judgment

1. THE COURT: Judgment in this matter was delivered on 8 November 2021: El-Cheikh v Miraki [2021] NSWCA 271.

2. Order 3 declared that the appellant, Mr Omar El-Cheikh was entitled to 50 per cent of the amount payable to the respondent, Ms Sepideh Miraki, on the sale of a commercial office unit located at Gladstone Road, Castle Hill (the property). This was on the basis that Ms Miraki held half of her interest in the property on trust for Mr El-Cheikh and that he should be entitled to 50 per cent of the proceeds of sale with Ms Miraki bearing any liability for capital gains tax arising from any profit made on the sale.

3. Ms Miraki now seeks to set aside Order 3 made on 8 November 2021 and to substitute a declaration that Mr El-Cheikh is entitled to 50 per cent of the profits arising from the sale of the property in accordance with Special Condition 1(e) of the Loan Agreement dated 12 October 2016.

4. The basis for such an application, as disclosed in Ms Miraki’s affidavit of 22 November 2021, is that as trustee she is entitled to a right of recoupment, having discharged liabilities in the trust from her personal funds. If Ms Miraki has paid out money in respect of the trust property, then prima facie she would be entitled to claim an indemnity as trustee.

5. If Ms Miraki does have such an entitlement, the orders made by the Court do not have the effect of taking away this right. As was pointed out by each member of the Court, the judgment left open a number of outstanding issues which, unless resolved by the parties, would need to be determined by a judge of the Equity Division: see El-Cheikh v Miraki at [8] (Bathurst CJ), [20] (Basten JA), [101] (Emmett AJA). Order 5 of the orders made on 8 November 2021 granted the parties liberty to apply to a judge of the Equity Division in respect of any matter arising out of the orders made. This would include any claim by Ms Miraki for indemnity or recoupment as a trustee.

6. In those circumstances there is no need to make any variation to the order. The motion should be dismissed with costs.

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Decision last updated: 07 February 2022