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

1. 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.

2. 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.

3. On 5 February 2014, the plaintiff commenced proceedings in NCAT.

4. On 12 June 2014, a statement of claim seeking possession and other orders was filed in this Court by the plaintiff.

5. The last day of a resultant hearing before me was 11 November 2014.

6. 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.

7. On 26 June 2015, a writ issued calling upon the defendants to vacate the premises by 12 August 2015.

8. On the same date, 26 June 2015, appeal mechanisms were commenced by the defendants.

9. 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.

10. Turning to the grounds of appeal that have been notified, it can be seen that my judgment is impugned on three bases.

11. First, it is said that I misapplied the principles about presumptions attaching to constructive trusts.

12. Secondly, it is said that I was wrong to determine that, even if one or other of the defendants had an equitable interest in the property, that would not entitle him or her to possession as against the registered proprietor.

13. Thirdly, it is said that I was wrong to deny the defendants equitable relief on the basis of the conduct of the first defendant.

14. It can be seen from the way that my judgment is structured (and so much has been accepted by counsel for the defendants today) that the defendants would need to succeed with regard to all three grounds in order to have my decision reversed, due to the nature of the primary and contingent determinations that I made.

15. Counsel for the defendants has pointed to the broad discretion that I have to stay Court processes, pursuant to s 135 Civil Procedure Act 2005 (NSW). There is also no doubt that I am entitled to stay proceedings that are the subject of an appeal pursuant to the Rules. And there is no dispute that it was appropriate for counsel for the defendants to come before me as the trial judge seeking that remedy in the first instance.

16. But to my mind there are a number of matters that argue firmly against the granting of a stay by me.

17. First, the extended history of this litigation.

18. Secondly, the fact that the defendants would need to succeed on appeal on all three bases, not merely one.

19. Thirdly, I accept the written submission of counsel for the plaintiff that, whatever other criticism may validly be made of the analysis in my judgment, it cannot be said that I was incorrect in refusing to equate a purported equitable interest, said to have arisen from a constructive trust, with a right of possession as against a registered proprietor.

20. Fourthly, whilst it is true that counsel for the defendant has proposed a condition of the stay being payment of rent, that cannot be equated with possession.    

21. Fifthly, if my judgment at first instance is entirely wrong and the defendants are indeed entitled to possession, there is nothing preventing them from returning into possession, pursuant to an order of the Court of Appeal. In other words, there is no question of the subject matter of the appeal (that is, real property) being dissipated or destroyed if a stay is not granted pending the determination of the appeal.

22. Sixthly, it remains logistically possible for the defendants urgently to "review" this decision by making an identical application to a judge of the Court of Appeal.

23. I was helpfully taken to the analysis of the proper approach to the question of a stay pending an appeal contained in Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121 at [12] to [15] of the judgment of the learned President of the Court of Appeal.

24. Applying all of those principles, I decline to order a stay of the writ of execution.

25. In the circumstances I make the following orders:

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.

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