Hamed v Elddin

Case [2016] NSWCA 9

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hamed v Elddin [2016] NSWCA 9
Hearing dates:2 February 2016
Decision date: 12 February 2016
Before: Meagher JA; Gleeson JA; Sackville AJA
Decision:

1. Dismiss the summons seeking leave to appeal.
2. Order that the applicant pay the respondent’s costs of the application (and concurrent hearing).
3. Direct that the applicant provide, within fourteen days, a copy of this judgment to Mark Damien Charles Roufeil and Andrew John Scott, as the trustees in bankruptcy for Mr Mohamed Hamed.

Catchwords: REAL PROPERTY – whether applicant has equitable interest in premises – whether applicant contributed to the purchase price of premises – whether presumption of resulting trust in favour of applicant – no evidence applicant contributed in own right to purchase price – no evidence that contributions were provided by applicant in character of purchaser – application for leave to appeal denied
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 58(1)(b), 60(1)(b), 60(3)(b)
Civil Procedure Act 2005 (NSW), s 56(1), (2)
Supreme Court Act 1970 (NSW), ss 63, 101(2)(r)
Cases Cited: Calverley v Green [1984] HCA 81; 155 CLR 242
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
Oertel v Crocker [1947] HCA 40; 75 CLR 261
Category:Principal judgment
Parties: Rina Hamed (Applicant)
Moustafa Elddin (Respondent)
Representation:

Counsel:
Mr P Lange (Applicant)
Mr CP O’Neill (Respondent)

  Solicitors:
Farah Lawyers (Applicant)
Thurlow Fisher Lawyers (Respondent)
File Number(s):2015/188668
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Citation:
[2015] NSWSC 654
Date of Decision:
29 May 2015
Before:
Button J
File Number(s):
2014/175205

Judgment

  1. THE COURT: This is an application for leave to appeal from a decision of a judge of the Common Law Division (Button J). [1] The primary Judge made a declaration that the respondent (Mr Elddin), the plaintiff in the proceedings, was entitled to exclusive possession of residential premises located at South Granville (Premises). His Honour granted Mr Elddin leave to issue a writ of possession in respect of the Premises.

    1. Elddin v Hamed (No 2) [2015] NSWSC 654 (Primary Judgment).

  2. The defendants to the proceedings instituted by Mr Elddin were the present applicant (Mrs Hamed) and her husband, Mr Hamed. Mr and Mrs Hamed were in possession of the Premises, both when the proceedings were commenced and when the Primary Judgment was delivered. However, following an unsuccessful stay application,[2] the Hameds vacated the Premises. They did so before Mrs Hamed’s application for leave to appeal was heard by this Court.

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

  3. At all material times, Mr Hamed has been an undischarged bankrupt. Despite being the first defendant in the Common Law proceedings, Mr Hamed is not a party to Mrs Hamed’s application for leave to appeal from the decision of the primary Judge. Mr Hamed’s trustees in bankruptcy have not been joined to…

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Hamed v Elddin [2016] NSWCA 9
Case
[2016] NSWCA 9
Decision Date

CaseChat Overview and Summary

The case of *Hamed v Elddin* concerned an application for leave to appeal to the Court of Appeal of the Supreme Court of New South Wales. The applicant, Mr Hamed, sought to establish an equitable interest in certain premises. The dispute centred on whether Mr Hamed had made contributions to the purchase price of these premises in a manner that would give rise to a resulting trust in his favour.

The primary legal issue before the Court was whether the applicant had demonstrated sufficient evidence to establish an equitable interest in the premises. Specifically, the Court had to determine if the applicant had contributed to the purchase price in his own right and in the character of a purchaser, which would ordinarily trigger the presumption of a resulting trust.

The Court of Appeal dismissed the application for leave to appeal. Their Honours found no evidence that the applicant had contributed to the purchase price in his own right or that any contributions were made in the character of a purchaser. Consequently, the presumption of a resulting trust in favour of the applicant was not engaged. The Court ordered that the applicant pay the respondent’s costs of the application and directed that the applicant provide a copy of the judgment to his trustees in bankruptcy.

Orders

Orders of the court

1. Dismiss the summons seeking leave to appeal.

2. Order that the applicant pay the respondent’s costs of the application (and concurrent hearing).

3. Direct that the applicant provide, within fourteen days, a copy of this judgment to Mark Damien Charles Roufeil and Andrew John Scott, as the trustees in bankruptcy for Mr Mohamed Hamed.

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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