AB Developments (Australia) Pty Ltd v El-Sayed [2016] NSWSC 1613

AB Developments (Australia) Pty Ltd v El-Sayed [2016] NSWSC 1613

The second plaintiff's claim failed because the Court found that Gazwan Hamdan, not Abdul Hamdan, lent the $100,000, and that Khaled El-Sayed, not Ahmed El-Sayed, borrowed it in his own right and applied it to discharge the NAB security over the Antwerp Street property. Abdul Hamdan at most guaranteed the loan and had not paid it out. Those findings meant the pleaded debt claim and the subrogation claim were not established; in any event, an action in debt against Khaled El-Sayed was sufficient to avoid an unconscionable result.

Jurisdiction
Australia
Judgment Date
17 November 2016
Procedural Posture
Common Law Proceedings Concerning Alleged Loan Recovery and Equitable Subrogation / Principal Judgment After Hearing
Outcome
Judgment for the Defendant against both Plaintiffs; proceedings stood over for mention on costs.
Legal Topics
['loan Advance' 'subrogation' 'mortgage Discharge' 'unauthorised Borrowing' 'witness Credibility']
['equity' 'loans and Securities' 'restitution'] ['loan Advance' 'subrogation' 'mortgage Discharge' 'unauthorised Borrowing' 'witness Credibility']

Case Brief

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Procedural Posture

Common Law Proceedings Concerning Alleged Loan Recovery and Equitable Subrogation / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Abdul Hamdan lent $100,000 to Ahmed El-Sayed in January 2011.' 'Whether Abdul Hamdan was entitled by subrogation to the rights of the National Australia Bank under the NAB mortgage over the Antwerp Street property.' 'Whether the $100,000 was borrowed by Ahmed El-Sayed or by Khaled El-Sayed, and whether it was lent by Abdul Hamdan or Gazwan Hamdan.']

Ratio Decidendi

The second plaintiff's claim failed because the Court found that Gazwan Hamdan, not Abdul Hamdan, lent the $100,000, and that Khaled El-Sayed, not Ahmed El-Sayed, borrowed it in his own right and applied it to discharge the NAB security over the Antwerp Street property. Abdul Hamdan at most guaranteed the loan and had not paid it out. Those findings meant the pleaded debt claim and the subrogation claim were not established; in any event, an action in debt against Khaled El-Sayed was sufficient to avoid an unconscionable result.

Court Disposition

Judgment for the Defendant against both Plaintiffs; proceedings stood over for mention on costs.

Orders

  • ['Judgment for the Defendant against the First Plaintiff.' 'Judgment for the Defendant against the Second Plaintiff.' 'The proceedings stand over to 9.30am on 29 November 2016 before Beech-Jones J for mention.']