El-Cheikh v Miraki [2020] NSWSC 1781

El-Cheikh v Miraki [2020] NSWSC 1781

The plaintiffs failed because the Gladstone Rd Unit Trust was never constituted: neither El-Cheikh Group Pty Ltd nor Iconic Constructions Australia Pty Ltd paid the subscription amounts that were intended to be the initial trust property, so neither became a unitholder and the Property was not held by Sepideh Miraki as trustee of that trust. Although Omar El-Cheikh proved that he advanced $450,000 in cash, of which $430,000 was applied to settlement of the Property purchase, he did not prove on the balance of probabilities that the advance was made to Sepideh Miraki pursuant to the Loan Agreement; a separate oral agreement with Navid Ardestani-Miraki remained a credible alternative...

Jurisdiction
Australia
Judgment Date
09 December 2020
Procedural Posture
Equity Real Property List; Principal Judgment / Trial
Outcome
Plaintiffs' claims fail.
Legal Topics
['loan Agreement' 'performance of Loan Advance' 'equitable Mortgage or Charge' 'unit Trust Constitution' 'trust Property' 'purchase of Commercial Property' 'credit Findings']
['contracts' 'equity' 'trusts' 'real Property'] ['loan Agreement' 'performance of Loan Advance' 'equitable Mortgage or Charge' 'unit Trust Constitution' 'trust Property' 'purchase of Commercial Property' 'credit Findings']

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Procedural Posture

Equity Real Property List; Principal Judgment / Trial

Legal Issues

  1. 1 ['Whether Omar El-Cheikh and Navid Ardestani-Miraki agreed to purchase the Property together through a trust.' 'Whether the Property was purchased by Sepideh Miraki as trustee for the Gladstone Rd Unit Trust.' 'Whether Omar El-Cheikh advanced $450,000 as a loan under the Loan Agreement executed on 12 October 2016.' 'Whether Omar El-Cheikh was entitled to recover a debt with interest under the Loan Agreement.' 'Whether Omar El-Cheikh was entitled to an equitable mortgage or charge over the Property or other property owned by Sepideh Miraki under the Loan Agreement.' 'Costs.']

Ratio Decidendi

The plaintiffs failed because the Gladstone Rd Unit Trust was never constituted: neither El-Cheikh Group Pty Ltd nor Iconic Constructions Australia Pty Ltd paid the subscription amounts that were intended to be the initial trust property, so neither became a unitholder and the Property was not held by Sepideh Miraki as trustee of that trust. Although Omar El-Cheikh proved that he advanced $450,000 in cash, of which $430,000 was applied to settlement of the Property purchase, he did not prove on the balance of probabilities that the advance was made to Sepideh Miraki pursuant to the Loan Agreement; a separate oral agreement with Navid Ardestani-Miraki remained a credible alternative...

Court Disposition

Plaintiffs' claims fail.

Orders

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