El-Cheikh v Miraki (No 2) [2022] NSWCA 6

El-Cheikh v Miraki (No 2) [2022] NSWCA 6

There is no need to vary Order 3 because the orders and judgment already leave the trustee’s indemnity rights and other outstanding issues open to be resolved by the parties or determined by a judge in the Equity Division; therefore, the motion should be dismissed.

Parties
First Appellant: Omar El-Cheikh; Second Appellant: El-Cheikh Group Pty Ltd (CAN 614 664 158); First Respondent: Sepideh Miraki; Second Respondent: Iconic Constructions Australia Pty Ltd (CAN 168 104 649)
Jurisdiction
Australia
Judgment Date
07 February 2022
Procedural Posture
Motion to Vary Final Orders / Court of Appeal – Post Judgment Motion
Outcome
Motion dismissed with costs
Legal Topics
Variation of Judgment, Trustee Indemnity, Court Orders
Equity Real Property Civil Procedure Variation of Judgment Trustee Indemnity Court Orders

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Parties

Omar El-Cheikh

First Appellant

El-Cheikh Group Pty Ltd (CAN 614 664 158)

Second Appellant

Sepideh Miraki

First Respondent

Iconic Constructions Australia Pty Ltd (CAN 168 104 649)

Second Respondent

Procedural Posture

Motion to Vary Final Orders / Court of Appeal – Post Judgment Motion

Legal Issues

  1. 1 Whether Order 3 of the judgment should be varied to reflect entitlement to profits rather than proceeds
  2. 2 Whether the trustee (Ms Miraki) is entitled to rights of recoupment or indemnity for payments made from personal funds
  3. 3 Whether outstanding issues should be determined by a judge of the Equity Division

Ratio Decidendi

There is no need to vary Order 3 because the orders and judgment already leave the trustee’s indemnity rights and other outstanding issues open to be resolved by the parties or determined by a judge in the Equity Division; therefore, the motion should be dismissed.

Court Disposition

Motion dismissed with costs

Orders

  • Motion dismissed
  • Applicant to pay the costs of the motion