El-Cheikh v Miraki [2021] NSWCA 271

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: El-Cheikh v Miraki [2021] NSWCA 271 Hearing dates: 14 July 2021 Date of orders: 8 November 2021 Decision date: 08 November 2021 Before: Bathurst CJ at [1]; Basten JA at [9]; Emmett AJA at [22] Decision: (1) Allow the appeal and set aside orders 1 and 3 made in the Equity Division and entered on 17 December 2020. (2) Give judgment for Mr El-Cheikh as against Ms Miraki in the sum of $450,000. (3) Declare that Mr El-Cheikh is entitled to 50% of the amount payable to Ms Miraki on sale of the Castle Hill property. (4) Declare that in calculating that amount, Ms Miraki should bear all liability for capital gains tax arising from any profit on the sale of the property. (5) Grant the parties liberty to apply to a judge of the Equity Division in respect of any matters arising out of these orders. (6) Order that the defendants pay the plaintiffs' costs of the proceedings in the Division. (7) Order that the respondents pay the appellants' costs in this Court. Catchwords: APPEALS — Contracts — Whether loan advance paid pursuant to loan agreement — Error of primary judge — Where loan advance never repaid EQUITY — Trusts and trustees — Express trusts — Unit trusts — Where trust documents not correctly executed — Where no unit holders had subscribed for units — Whether trust constituted — Whether unit holders had a right to trust property if trust constituted — error of primary judge — Where trust constituted and unit holders acquired beneficial interest in trust property Legislation Cited: Real Property Act 1900 (NSW), Pt 7A, s 74O Cases Cited: Nil Category: Principal judgment Parties: Omar El-Cheikh (First Appellant) El-Cheikh Group Pty Ltd (ACN 614 664 158) (Second Appellant) Sepideh Miraki (First Respondent) Iconic Constructions Australia Pty Ltd (ACN 168 104 649) (Second Respondent) Representation: Counsel: M Condon SC (Appellants) B Coles QC with D Allen (Respondents)