Elddin v Hamed (No 3) - [2015] NSWSC 1145

Supreme Court

New South Wales

Medium Neutral Citation: Elddin v Hamed (No 3) [2015] NSWSC 1145
Hearing dates: 7 August 2015
Decision date: 07 August 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The application for stay of the execution of the writ for possession is refused.
(2) The second defendant must pay the costs of the plaintiff of the proceedings before me today.

Catchwords: REAL PROPERTY – possession of land – application to stay execution of writ for possession – pending appeal to the New South Wales Court of Appeal – stay refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 135
Cases Cited: Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121
Category: Procedural and other rulings
Parties: Moustafa Kamar Elddin (Plaintiff)
Mohamed Hamed (First Defendant)
Rina Hamed (Second Defendant)
Representation:
Counsel:
S J Philips (Plaintiff)
C P O’Neill (Plaintiff)
P Lange (Defendants)
Solicitors:
Thurlow Fisher Lawyers (Plaintiff)
Farah Lawyers (Defendants)

File Number(s): 2014/175205

ex tempore Judgment

This is an application that came before me as duty judge for a stay of the execution of a writ for possession that is due to be executed on 12 August 2015. The basis of the stay is a pending appeal to the Court of Appeal against a judgment of mine delivered earlier this year. I shall refer to the parties by way of their status in the substantive proceedings at first instance.
A very brief chronological background is as follows. A dispute developed between the plaintiff and the defendants about possession of land at South Granville. For over two years, the defendants have had possession of that land, of which the plaintiff is the registered proprietor. For many months, they have not been paying any rent whatsoever.
On 5 February 2014, the plaintiff commenced proceedings in NCAT.
On 12 June 2014, a statement of claim seeking possession and other orders was filed in this Court by the plaintiff.
The last day of a resultant hearing before me was 11 November 2014.
Due to the complexity and multitude of issues of fact and law requiring determination by me, I regret to say that my judgment was not delivered until 29 May 2015. On that day I declared that the plaintiff was entitled to exclusive possession of the premises; granted leave to the plaintiff to issue a writ of possession on 12 June 2015; and made an order as to costs.
On 26 June 2015, a writ issued calling upon the defendants to vacate the premises by 12 August 2015.
On the same date, 26 June 2015, appeal mechanisms were commenced by the defendants.
The matter came before me today, 7 August 2015 (that is, four working days inclusive before the execution of the writ) seeking to have it stayed.
Turning to the grounds of appeal that have been notified, it can be seen that my judgment is impugned on three bases.
First, it is said that I misapplied the principles about presumptions attaching to constructive trusts.
Secondly, it is…

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 3)

Details

AGLC: Elddin v Hamed (No 3) [2015] NSWSC 1145
Case: [2015] NSWSC 1145
Decision Date: 07 August 2015

CaseChat Overview and Summary

In the matter of Elddin v Hamed (No 3), the parties involved were Elddin, the appellant, and Hamed, the respondent. The dispute centred on the possession of a parcel of land, with Elddin seeking a stay of execution of a writ for possession while an appeal was being pursued in the New South Wales Court of Appeal. The case was heard in the Supreme Court of New South Wales, where the Court was required to decide whether to grant a stay of execution of the writ for possession of the land. This decision was pivotal as it would determine whether the respondent could immediately enforce the possession of the land or if the appellant could continue to occupy the land pending the outcome of the appeal.

The primary legal issue before the Court was whether the appellant had demonstrated grounds sufficient to justify a stay of the writ for possession. The Court needed to consider the merits of the appeal, the likelihood of success on appeal, and whether there would be significant hardship to the appellant if the stay was not granted. The Court also needed to weigh the balance of convenience and whether the respondent would suffer significant prejudice if the stay was granted. This involved a thorough examination of the facts, the arguments presented by both parties, and the potential implications of granting or refusing the stay.

In its reasoning, the Court found that the appellant had not provided sufficient grounds to warrant a stay of the writ for possession. The Court concluded that the appeal did not present a compelling case likely to succeed, and there was no significant hardship that would result from the execution of the writ. The Court also determined that the balance of convenience favoured the respondent, as denying the stay would cause significant prejudice to the respondent's rights to possess the land. As a result, the Court refused the application for a stay of execution. This decision was based on the evidence and arguments presented, and the Court's assessment of the overall circumstances of the case. The final outcome was that the stay of execution was refused, allowing the respondent to proceed with the possession of the land as per the writ.

Orders