NSW Trustee and Guardian v Obeid (No 2) [2022] NSWSC 1117

NSW Trustee and Guardian v Obeid (No 2) [2022] NSWSC 1117

Mr Khaled Elskaf did not establish, on the balance of probabilities, that he paid for the property or that he and Mr Ali Elskaf intended the creation of a resulting or constructive trust. The Trustee, having become the registered proprietor without notice of any equitable interest, took indefeasible title free of the claimed interest per s 42 Real Property Act. Accordingly, the cross claim must be dismissed.

Jurisdiction
Australia
Judgment Date
23 August 2022
Procedural Posture
Civil / Principal Judgment, Post Cross Claim
Outcome
Cross claim dismissed; costs order in favour of Trustee.
Legal Topics
['indefeasibility of Title' 'resulting Trust' 'constructive Trust' 'disgorgement of Proceeds' 'in Personam Remedies']
['civil Procedure' 'equity'] ['indefeasibility of Title' 'resulting Trust' 'constructive Trust' 'disgorgement of Proceeds' 'in Personam Remedies']

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Procedural Posture

Civil / Principal Judgment, Post Cross Claim

Legal Issues

  1. 1 ['Whether the Trustee obtained title free from the claimed equitable interest pursuant to s 42 of the Real Property Act 1900 (NSW)' 'Whether an equitable interest (resulting or constructive trust) in the property was established by Mr Khaled Elskaf' 'Whether a constructive trust arose after the Trustee became aware of the claimed equitable interest' 'Whether a remedy of disgorgement of proceeds or equitable compensation is available under the facts']

Ratio Decidendi

Mr Khaled Elskaf did not establish, on the balance of probabilities, that he paid for the property or that he and Mr Ali Elskaf intended the creation of a resulting or constructive trust. The Trustee, having become the registered proprietor without notice of any equitable interest, took indefeasible title free of the claimed interest per s 42 Real Property Act. Accordingly, the cross claim must be dismissed.

Court Disposition

Cross claim dismissed; costs order in favour of Trustee.

Orders

  • ['The cross claim is dismissed.' "The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. Khaled Elskaf bears the Trustee's costs as agreed or assessed unless parties approach to be heard within seven days."]