Elddin v Hamed (No 2) [2015] NSWSC 654

Supreme Court New South Wales

Medium Neutral Citation: Elddin v Hamed (No 2) [2015] NSWSC 654 Hearing dates: 29 October 2014, 10-11 November 2014 Decision date: 29 May 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The plaintiff is entitled to exclusive possession of the property. (2) The plaintiff has leave to issue a writ of possession two weeks from today; namely, on 12 June 2015. (3) The second defendant must pay the costs of the plaintiff of the proceedings before me. Catchwords: REAL PROPERTY – whether owner of residential premises is entitled to possession as against the occupants of those premises – whether occupants are estopped from relying on s 119 of the Residential Tenancies Act 2010 (NSW) – whether payments made to owner were loans or contribution to purchase price – whether a resulting or constructive trust has arisen in favour of one or more occupants Legislation Cited: Residential Tenancies Act 2010 (NSW) ss 13, 119 Supreme Court Act 1970 (NSW), s 75 Cases Cited: Calverley v Green [1984] HCA 81; 155 CLR 242 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641 Category: Principal judgment Parties: Moustafa Kamar Elddin (Plaintiff) Mohamed Hamed (First Defendant) Rina Hamed (Second Defendant) Representation: Counsel: C P O'Neill (Plaintiff) P Lange (Defendants)