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

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

A stay of execution of the writ for possession is refused because the defendants, to succeed on appeal, would need to overturn the entirety of the earlier decision on all three raised grounds, which is unlikely. The law correctly distinguishes between equitable interests under a constructive trust and possessory rights against a registered proprietor. Practical and discretionary grounds also weigh against a stay.

Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Application for Stay of Execution / Post Judgment Application Pending Appeal
Outcome
Application for stay of execution refused; costs ordered against the second defendant.
Legal Topics
['possession of Land' 'stay of Execution' 'pending Appeal' 'constructive Trusts' 'equitable Interest']
['real Property' 'civil Procedure'] ['possession of Land' 'stay of Execution' 'pending Appeal' 'constructive Trusts' 'equitable Interest']

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Procedural Posture

Application for Stay of Execution / Post Judgment Application Pending Appeal

Legal Issues

  1. 1 ['Whether a stay of execution of a writ for possession should be granted pending appeal' 'Whether a purported equitable interest under a constructive trust entitles a defendant to possession as against a registered proprietor']

Ratio Decidendi

A stay of execution of the writ for possession is refused because the defendants, to succeed on appeal, would need to overturn the entirety of the earlier decision on all three raised grounds, which is unlikely. The law correctly distinguishes between equitable interests under a constructive trust and possessory rights against a registered proprietor. Practical and discretionary grounds also weigh against a stay.

Court Disposition

Application for stay of execution refused; costs ordered against the second defendant.

Orders

  • ['The application for stay of the execution of the writ for possession is refused.' 'The second defendant must pay the costs of the plaintiff of the proceedings before me today.']