Court of Appeal Supreme Court New South Wales Medium Neutral Citation: El-Cheikh v Miraki (No 2) [2022] NSWCA 6 Hearing dates: On the papers Decision date: 07 February 2022 Before: Bathurst CJ; Basten JA; Emmett AJA Decision: Motion dismissed with costs. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – motion seeking variation of final orders – where judgment left open a number of outstanding issues – whether outstanding issues need to be determined by a judge of the Equity Division Cases Cited: El-Cheikh v Miraki [2021] NSWCA 271 Category: Procedural rulings Parties: Omar El-Cheikh (First Appellant) El-Cheikh Group Pty Ltd (CAN 614 664 158) (Second Appellant) Sepideh Miraki (First Respondent) Iconic Constructions Australia Pty Ltd (CAN 168 104 649) (Second Respondent) Representation: Counsel: M Condon SC (Appellants) Solicitors: Cornwalls (Appellants) William Roberts Lawyers (Respondents) File Number(s): 2021/9403 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity – Real Property List Citation: [2020] NSWSC 1781 Date of Decision: 9 December 2020 Before: Kunc J File Number(s): 2017/156392 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: Judgment in this matter was delivered on 8 November 2021: El-Cheikh v Miraki [2021] NSWCA 271. 2. Order 3 declared that the appellant, Mr Omar El-Cheikh was entitled to 50 per cent of the amount payable to the respondent, Ms Sepideh Miraki, on the sale of a commercial office unit located at Gladstone Road, Castle Hill (the property). This was on the basis that Ms Miraki held half of her interest in the property on trust for Mr El-Cheikh and that he should be entitled to 50 per cent of the proceeds of sale with Ms Miraki bearing any liability for capital gains tax arising from any profit made on the sale. 3. Ms Miraki now seeks to set aside Order 3 made on 8 November 2021 and to substitute a declaration that Mr El-Cheikh is entitled to 50 per cent of the profits arising from the sale of the property in accordance with Special Condition 1(e) of the Loan Agreement dated 12 October 2016. 4. The basis for such an application, as disclosed in Ms Miraki's affidavit of 22 November 2021, is that as trustee she is entitled to a right of recoupment, having discharged liabilities in the trust from her personal funds. If Ms Miraki has paid out money in respect of the trust property, then prima facie she would be entitled to claim an indemnity as trustee. 5. If Ms Miraki does have such an entitlement, the orders made by the Court do not have the effect of taking away this right. As was pointed out by each member of the Court, the judgment left open a number of outstanding issues which, unless resolved by the parties, would need to be determined by a judge of the Equity Division: see El-Cheikh v Miraki at [8] (Bathurst CJ), [20] (Basten JA), [101] (Emmett AJA). Order 5 of the orders made on 8 November 2021 granted the parties liberty to apply to a judge of the Equity Division in respect of any matter arising out of the orders made. This would include any claim by Ms Miraki for indemnity or recoupment as a trustee. 6. In those circumstances there is no need to make any variation to the order. The motion should be dismissed with costs. ********** 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: 07 February 2022