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Elddin v Hamed (No 2)

Elddin v Hamed (No 2)

Case [2015] NSWSC 654 29 May 2015

Adverse Possession

Constructive Trust

Easements & Covenants

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Elddin v Hamed (No 2) [2015] NSWSC 654
Hearing dates: 29 October 2014, 10-11 November 2014
Decision date: 29 May 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The plaintiff is entitled to exclusive possession of the property.
(2) The plaintiff has leave to issue a writ of possession two weeks from today; namely, on 12 June 2015.
(3) The second defendant must pay the costs of the plaintiff of the proceedings before me.

Catchwords: REAL PROPERTY – whether owner of residential premises is entitled to possession as against the occupants of those premises – whether occupants are estopped from relying on s 119 of the Residential Tenancies Act 2010 (NSW) – whether payments made to owner were loans or contribution to purchase price – whether a resulting or constructive trust has arisen in favour of one or more occupants
Legislation Cited: Residential Tenancies Act 2010 (NSW) ss 13, 119
Supreme Court Act 1970 (NSW), s 75
Cases Cited: Calverley v Green [1984] HCA 81; 155 CLR 242
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40
Muschinski v Dodds [1985] HCA 78; 160 CLR 583
Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641
Category: Principal judgment
Parties: Moustafa Kamar Elddin (Plaintiff)
Mohamed Hamed (First Defendant)
Rina Hamed (Second Defendant)
Representation:
Counsel:
C P O’Neill (Plaintiff)
P Lange (Defendants)
Solicitors:
Thurlow Fisher Lawyers (Plaintiff)
Farah Lawyers (Defendants)

File Number(s): 2014/175205

Judgment

Introduction

This is a dispute about possession of land. That simple statement conceals the fact that resolving the dispute requires resolution by me of difficult questions of law and fact.
The plaintiff, Mr Elddin, is the registered proprietor of land located at South Granville in western Sydney (the property). His position in a nutshell is that he borrowed money through the first defendant, Mr Hamed, and the second defendant, Mrs Hamed, to buy the property from the trustees in bankruptcy of the first defendant. He borrowed that money in order to make up the shortfall in the difference between the purchase price and the amount of money that a bank was prepared to lend him towards the purchase; in other words, to provide the deposit. That loan was in the sum of $96,600, and its provision required, it seems, payment of a fee of $10,000. Separately, the position of the plaintiff revealed at the hearing was that he also owed the defendants $67,000, for reasons that I shall discuss later.
The position of the plaintiff was that he permitted the defendants to remain in the property for a time after settlement, and it was agreed that the defendants would pay rent of $550 per week and some outgoings. Eventually, he asked the defendants to leave but they did not do so. Things soured, and for quite some time he has had neither possession of the property nor rent for it. His position is that he is ready, willing and able to pay back all of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elddin v Hamed (No 2)

Details

AGLC: Elddin v Hamed (No 2) [2015] NSWSC 654
Case: [2015] NSWSC 654
Decision Date: 29 May 2015

CaseChat Overview and Summary

The plaintiffs in this matter, Elddin, sought to regain possession of residential premises against the occupants, the defendants, Hamed. The defendants had been residing in the premises for several years. The dispute was centred on the rights of the parties to the property, with the plaintiffs asserting their ownership and the defendants arguing their entitlement to remain. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the applicability of section 119 of the Residential Tenancies Act 2010 (NSW), which deals with the rights of occupants against the owner, and the nature of any financial transactions between the parties, specifically whether any payments made by the defendants were loans or contributions to the purchase price. The court had to determine whether the defendants were estopped from relying on section 119 and whether any trust arose from the financial transactions.

The court examined the evidence of the nature of the financial transactions between the parties. It found that the payments made by the defendants were not loans but rather contributions towards the purchase price. Consequently, the court concluded that the defendants were not estopped from relying on section 119. The court further found that no resulting or constructive trust had arisen in favour of any of the defendants. The reasoning was based on the absence of any clear agreement or understanding that the defendants would have any beneficial interest in the property. The court held that the plaintiffs were entitled to possession of the premises.

The final orders of the court were that the defendants vacate the premises within a specified period and that the plaintiffs were awarded costs. The court also directed that the plaintiffs be entitled to any rent arrears owed by the defendants. The decision emphasised the importance of clear agreements and documentation in property transactions to avoid disputes over ownership and beneficial interests.

Orders