Hamed v Elddin

Court of Appeal (NSW)|2016-02-02|Before: Meagher JA, Gleeson JA, Mr P, Button J

The Application for Leave to Appeal

Mr Lange, who appeared for Mrs Hamed on her application for leave to appeal, submitted that it was not necessary to join the trustees to that application. He contended that Mrs Hamed need only show that she had made some separate contribution to the purchase price in order to successfully defend Mr Elddin's claim for possession. Any such contribution would entitle Mrs Hamed to an equitable interest in the Premises as tenant in common (albeit holding an indeterminate share). This would be sufficient, so Mr Lange argued, to enable her to remain in (or resume) possession of the Premises and to defeat Mr Elddin's case against her.
This way of putting the case departed in fundamental respects from the case advance by the Hameds at the trial. Putting that difficulty to one side, it can be seen that the case now advanced by Mrs Hamed is adverse to the interests of the trustees. She now says that she alone contributed some or all of the funds that were provided to Mr Elddin. This claim is contrary to the case run on her behalf at trial, namely that she and Mr Hamed jointly contributed to the funds provided to Mr Elddin. The claim now made by Mrs Hamed is contrary to the interests of the trustees who, if joined, may have wished to contend that Mr Hamed contributed to funds provided to Mr Elddin.
In short, Mrs Hamed is asserting, albeit by way of defence rather than cross-claim, that she has a proprietary interest in the Premises to the exclusion of Mr Hamed and his trustees in bankruptcy. [19] In these circumstances it would seem that the trustees should have been joined as parties to the application for leave to appeal so that they had the opportunity, if so advised, to advance their claim to an interest in the Premises. If this is correct, the application for leave to appeal is not properly constituted as to parties.

A Fatal Obstacle

Independently of the question of parties, as was pointed out in oral argument on the leave application, Mrs Hamed's case faces an insuperable difficulty. The case presented by the Hameds to the primary Judge was that both had contributed to the purchase price paid to the trustees and thus both had acquired an equitable interest in the Premises. The argument advanced on the leave application was that Mrs Hamed made some (unspecified) contribution in her own right.
Mr Lange conceded that this case could not be maintained unless there was evidence before the primary Judge that Mrs Hamed had contributed to the purchase price of the Premises in her own right, independently of any contributions made by Mr Hamed. Not surprisingly, given the way in which the Hameds had put their case in the Common Law Proceedings, Mr Lange was not able to point to any such evidence. Mrs Hamed did not say in her evidence that she had provided funds to Mr Elddin independently of monies provided by or through the agency of Mr Hamed. Indeed Mrs Hamed readily accepted that she was not employed and had no income of her own. Mr Lange rather faintly suggested that a rather vague passage in an affidavit sworn by Mrs Hamed supported the claim now sought to be made, but that submission is unsustainable. There was simply no evidence before the primary Judge to support a contention that Mrs Hamed made contributions in her own right to the purchase price of the Premises.
Even if there was evidence before the primary Judge that Mrs Hamed had independently contributed to the purchase price, that would not necessarily mean that the primary Judge had erred in failing to make a finding to that effect. But the absence of any such evidence is fatal to the success of the application for leave to appeal.

A Further Issue

Mr Lange submitted that the primary Judge fell into error by failing to apply the presumption of a resulting trust in favour of Mrs Hamed. For the reasons already given, it is not necessary to address the argument. It is appropriate to record, however, that the submission cannot be accepted.
Mr Lange contended that the finding by the primary Judge that Mr Elddin received substantial amounts of cash from the Hameds was sufficient to attract the presumption of a resulting trust. As Gibbs CJ said in Calverley v Green [20] (and as the primary Judge pointed out [21] ), "[f]or the presumption to apply the money must have been provided by the purchaser in his character as such - not, e.g., as a loan". The party relying on the presumption must establish that factual precondition.
The mere fact that Mrs Hamed provided money to Mr Elddin (if it was a fact) would not of itself establish that she had provided funds in her capacity as a purchaser. Depending on the circumstances in a particular case, an inference to that effect might be drawn. But here the evidence, at best, was inconclusive. For that reason, the primary Judge was not satisfied on the balance of probabilities that the Hameds (much less Mrs Hamed) made any contribution to the purchase price paid for the Premises. Thus the Hameds had not satisfied the factual precondition required to invoke the presumption of a resulting trust.

Orders

Mrs Hamed's summons seeking leave to appeal should be dismissed. She should pay Mr Elddin's costs of the application for leave to appeal (including the costs of the appeal to be heard concurrently).
It is appropriate to direct that the solicitors for Mrs Hamed provide within fourteen days a copy of this judgment to Mr Hamed's trustees in bankruptcy.

Endnotes

Elddin v Hamed (No 2) [2015] NSWSC 654 (Primary Judgment).
Elddin v Hamed (No 3) [2015] NSWSC 1145.
Supreme Court Act 1970 (NSW), s 101(2)(r).
See Oertel v Crocker [1947] HCA 40; 75 CLR 261 at 266 (Latham CJ).
Primary Judgment at [2]-[3].
Primary Judgment at [45].
Bankruptcy Act 1966 (Cth), s 58(1)(b).
Primary Judgment at [4].
Primary Judgment at [6].
Primary Judgment at [5], [71]ff.
Primary Judgment at [80].
Primary Judgment at [82]-[83].
Primary Judgment at [84]-[86].
Primary Judgment at [89].
Primary Judgment at [90]-[91].
Bankruptcy Act 1966 (Cth), s 58(3)(b).
Bankruptcy Act 1966 (Cth), s 58(1)(b)
Civil Procedure Act 2005 (NSW), s 56(1), (2); Supreme Court Act 1970 (NSW), s 63.
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [132]-[133] per curiam.
[1984] HCA 81; 155 CLR 242 at 246.
Primary Judgment at [82]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2016

Solicitors: Farah Lawyers (Applicant) Thurlow Fisher Lawyers (Respondent) File Number(s): 2015/188668 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 654 Date of Decision: 29 May 2015 Before: Button J File Number(s): 2014/175205

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