Elddin v Hamed (No 2) [2015] NSWSC 654

Elddin v Hamed (No 2) [2015] NSWSC 654

The defendants were estopped by their pleaded position and conduct from relying on s 119 of the Residential Tenancies Act 2010 (NSW). The defendants, who asserted a resulting or constructive trust, failed to prove on the balance of probabilities that the money provided to the plaintiff was a contribution to the purchase price rather than loans. No equitable interest was established, and nothing displaced the plaintiff's entitlement as registered proprietor to immediate and exclusive possession of the property.

Jurisdiction
Australia
Judgment Date
29 May 2015
Procedural Posture
Common Law Proceeding for Possession of Land / Principal Judgment After Hearing
Outcome
The plaintiff was held entitled to exclusive possession of the property, with leave to issue a writ of possession on 12 June 2015; the second defendant was ordered to pay the plaintiff's costs.
Legal Topics
['possession of Residential Premises' 'residential Tenancies Act 2010 (nsw) S 119' 'estoppel by Forensic Conduct' 'resulting Trust' 'constructive Trust' 'registered Proprietor' 'clean Hands' 'costs']
['real Property' 'residential Tenancies' 'equity' 'bankruptcy'] ['possession of Residential Premises' 'residential Tenancies Act 2010 (nsw) S 119' 'estoppel by Forensic Conduct' 'resulting Trust' 'constructive Trust' 'registered Proprietor' 'clean Hands' 'costs']

Case Brief

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Procedural Posture

Common Law Proceeding for Possession of Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendants were estopped from relying on s 119 of the Residential Tenancies Act 2010 (NSW) to deny the Supreme Court's ability to determine the possession dispute." 'Whether money provided to the plaintiff was a loan or a contribution to the purchase price of the property.' 'Whether a resulting or constructive trust arose in favour of either defendant.' 'Whether any equitable interest could entitle the defendants to possession to the exclusion of the registered proprietor.' 'Whether rent, interest, damages or costs should be ordered.']

Ratio Decidendi

The defendants were estopped by their pleaded position and conduct from relying on s 119 of the Residential Tenancies Act 2010 (NSW). The defendants, who asserted a resulting or constructive trust, failed to prove on the balance of probabilities that the money provided to the plaintiff was a contribution to the purchase price rather than loans. No equitable interest was established, and nothing displaced the plaintiff's entitlement as registered proprietor to immediate and exclusive possession of the property.

Court Disposition

The plaintiff was held entitled to exclusive possession of the property, with leave to issue a writ of possession on 12 June 2015; the second defendant was ordered to pay the plaintiff's costs.

Orders

  • ['The plaintiff is entitled to exclusive possession of the property.' 'The plaintiff has leave to issue a writ of possession two weeks from today; namely, on 12 June 2015.' 'The second defendant must pay the costs of the plaintiff of the proceedings before me.']