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 75Cases 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 641Category: Principal judgment Parties: Moustafa Kamar Elddin (Plaintiff)
Mohamed Hamed (First Defendant)
Rina Hamed (Second Defendant)Representation: Counsel:
Solicitors:
C P O’Neill (Plaintiff)
P Lange (Defendants)
Thurlow Fisher Lawyers (Plaintiff)
Farah Lawyers (Defendants)
File Number(s): 2014/175205
Judgment
Introduction
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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.
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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.
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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…
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- AGLC
- Elddin v Hamed (No 2) [2015] NSWSC 654
- Case
- [2015] NSWSC 654
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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