Hamed v Elddin [2016] NSWCA 9

Hamed v Elddin [2016] NSWCA 9

Leave to appeal was refused because there was no evidence before the primary Judge that Mrs Hamed contributed in her own right to the purchase price of the Premises, and the evidence did not establish that any money provided to Mr Elddin was provided in the character of purchaser rather than as a loan. The factual precondition for a presumption of resulting trust was therefore not made out.

Jurisdiction
Australia
Judgment Date
12 February 2016
Procedural Posture
Application for Leave to Appeal / Court of Appeal From a Decision of Button J in the Common Law Division of the Supreme Court of New South Wales, Heard Concurrently With the Proposed Appeal
Outcome
The summons seeking leave to appeal was dismissed.
Legal Topics
['equitable Interest in Residential Premises' 'presumption of Resulting Trust' 'contribution to Purchase Price' 'writ of Possession' 'joinder of Trustees in Bankruptcy' 'leave to Appeal']
['real Property' 'equity' 'bankruptcy' 'civil Procedure'] ['equitable Interest in Residential Premises' 'presumption of Resulting Trust' 'contribution to Purchase Price' 'writ of Possession' 'joinder of Trustees in Bankruptcy' 'leave to Appeal']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal From a Decision of Button J in the Common Law Division of the Supreme Court of New South Wales, Heard Concurrently With the Proposed Appeal

Legal Issues

  1. 1 ["Whether Mrs Hamed had an equitable interest in the Premises sufficient to defeat Mr Elddin's claim to possession" 'Whether there was evidence that Mrs Hamed contributed to the purchase price in her own right' 'Whether the presumption of resulting trust was available because money was provided to Mr Elddin' "Whether Mr Hamed's trustees in bankruptcy should have been joined to the leave application"]

Ratio Decidendi

Leave to appeal was refused because there was no evidence before the primary Judge that Mrs Hamed contributed in her own right to the purchase price of the Premises, and the evidence did not establish that any money provided to Mr Elddin was provided in the character of purchaser rather than as a loan. The factual precondition for a presumption of resulting trust was therefore not made out.

Court Disposition

The summons seeking leave to appeal was dismissed.

Orders

  • ['Dismiss the summons seeking leave to appeal.' "Order that the applicant pay the respondent's costs of the application (and concurrent hearing)." 'Direct that the applicant provide, within fourteen days, a copy of this judgment to Mark Damien Charles Roufeil and Andrew John Scott, as the trustees in bankruptcy for...