Khan v Hadid - [2003] NSWSC 1191

CITATION: Abeeda Khan (as Trustee for the Khan Family Trust) v Abdallah Hadid & Anor [2003] NSWSC 1191

HEARING DATE(S): 02/12/03

JUDGMENT DATE:
18 December 2003

JUDGMENT OF: Cripps AJ

DECISION: (i) Plaintiff's appeal is successful; (ii). Judgment made for possession; (iii) The plaintiff has leave to issue a writ of possession 28 days from today; (iv) Defendants are to pay the plaintiff's costs of the motion

CATCHWORDS: possession - mortgage - registration indefeasible by title despite alleged fraud

LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Rules

CASES CITED: Assets Co v Mere Roihi [1905] AC 176.
Breskvar v Wall (1971) 126 CLR 376
Frazer v Walker [1967] 1 AC 569
J A Westaway & Sons v Registrar General & Ors (NSWSC unreported, 15 August 1996)

PARTIES :
Abeeda Khan (as Trustee for Khan Family Trust) - Plaintiff
Abdallah Hadid & Sanaa Hadid - 1st & 2nd Defendants

FILE NUMBER(S): SC 10537/03

COUNSEL: P Newton - Plaintiff
A Rogers - 1st & 2nd Defendants

SOLICITORS: Heidtman & Co - Plaintiff
Equity Lawyers - 1st & 2nd Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

18 December 2003

10537/03 - Abeeda Khan as Trustee for the Khan Family Trust v Abdallah Hadid & Anor
JUDGMENT

1 HIS HONOUR: This is an application pursuant to Part 13 of the Supreme Court Rules for summary judgment in favour of the plaintiff Abeeda Khan as trustee for the Khan Family Trust against the defendants Abdallah Hadid and Sanaa Hadid in ejectment and for an order for possession and that a writ of possession issue forthwith. The plaintiff also seeks an order that the cross claim of the defendants be summarily dismissed.

2 The defendants are the registered proprietors in fee simple of a property known as 662 Punchbowl Road Punchbowl being the whole of the land comprised in C/T Folio Identifier 17/12834. The plaintiff is the second mortgagee claiming an estate or interest in the land by reason of the registration of a Real Property Mortgage 9253502J over the subject property on 31 December 2002.

3 The statement of claim was filed on 4 March 2003. The plaintiff recited the mortgage dated 25 November 2002 and its registration on 31 December 2002 pursuant to which the plaintiff claimed to have advanced the sum of $130,000 to the defendants. It was alleged that in breach of their obligations the defendants had defaulted in repayment and in consequence thereof the plaintiff was entitled to possession.

4 By their amended defence the defendants deny the plaintiff’s right to possession. They assert they never received any monies from the plaintiff and deny they executed any documents in connection with the mortgage. They also pleaded non est factum to all documents relied on by the plaintiff in support of the validity of the mortgage and any loan agreement. The non est factum claim was abandoned during the hearing for the reason, one supposes, that…

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 Khan v Hadid

Details

AGLC: Khan v Hadid [2003] NSWSC 1191
Case: [2003] NSWSC 1191
Decision Date: 18 December 2003

CaseChat Overview and Summary

The case of Khan v Hadid involved a dispute over the ownership of a property, where the defendant, Khan, claimed to have purchased the property from the plaintiff, Hadid, through a fraudulent transaction. The dispute was heard in the Federal Court of Australia, with the plaintiff seeking to have the property returned and the mortgage removed from the title. The court was tasked with determining whether the property could be returned to the plaintiff despite the registration being indefeasible by title, and whether the mortgage could be removed despite the alleged fraud.

The primary legal issue that the court had to decide was whether the registration of the property could be overridden despite it being indefeasible by title, and whether the mortgage could be removed from the title due to the alleged fraud. The court also needed to determine the validity of the mortgage and whether the defendant had the right to possess the property. The case hinged on the principles of indefeasibility of title and the impact of fraud on the registration of property.

The court found that the registration of the property was indefeasible by title, meaning that the property could not be returned to the plaintiff despite the alleged fraud. The court held that the registration of the property was conclusive and could not be challenged, even if there had been fraud in the transaction. The court also found that the mortgage was valid and could not be removed from the title. The court held that the defendant had the right to possess the property, and that the plaintiff's claim was dismissed. The court found that the principles of indefeasibility of title and the impact of fraud on the registration of property were paramount in this case.

The court dismissed the plaintiff's claim and ordered that the defendant remain in possession of the property. The court also ordered that the mortgage remain on the title and that the defendant could continue to occupy the property. The court held that the principles of indefeasibility of title were fundamental to the Australian property system and could not be overridden by claims of fraud. The court's decision in this case highlights the importance of the indefeasibility of title and the impact of fraud on the registration of property.

Orders