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) Solicitors: Thurlow Fisher Lawyers (Plaintiff) Farah Lawyers (Defendants) File Number(s): 2014/175205 Judgment Introduction 1. This is a dispute about possession of land. That simple statement conceals the fact that resolving the dispute requires resolution by me of difficult questions of law and fact. 2. The plaintiff, Mr Elddin, is the registered proprietor of land located at South Granville in western Sydney (the property). His position in a nutshell is that he borrowed money through the first defendant, Mr Hamed, and the second defendant, Mrs Hamed, to buy the property from the trustees in bankruptcy of the first defendant. He borrowed that money in order to make up the shortfall in the difference between the purchase price and the amount of money that a bank was prepared to lend him towards the purchase; in other words, to provide the deposit. That loan was in the sum of $96,600, and its provision required, it seems, payment of a fee of $10,000. Separately, the position of the plaintiff revealed at the hearing was that he also owed the defendants $67,000, for reasons that I shall discuss later. 3. The position of the plaintiff was that he permitted the defendants to remain in the property for a time after settlement, and it was agreed that the defendants would pay rent of $550 per week and some outgoings. Eventually, he asked the defendants to leave but they did not do so. Things soured, and for quite some time he has had neither possession of the property nor rent for it. His position is that he is ready, willing and able to pay back all of the loans outstanding to the defendants. 4. The position of the defendants is in stark contrast. They assert that there was an agreement whereby they would become co-owners of the property with the plaintiff. For that reason, they provided him with the $96,600, not as a loan, but rather as part of the purchase funds. Thereafter, the weekly payments of $550 were repayments of the mortgage as co-owners, not rent as tenants. The contention of counsel for the defendants was that, by way of a constructive or resulting trust, the defendants are not only entitled to an equitable interest in the land, but also have a right to possession that excludes any such right vested in the plaintiff as registered proprietor. 5. Resolution of these competing contentions is not made any easier by the fact that no party submits that any agreement was committed to writing. Furthermore, it seems that all funds that changed hands did so in cash. Although some documents were placed before me, none of them shed much light on the true nature of the transfer. Finally, for reasons that I will expand upon later in this judgment, it is not easy to accept that every witness has been entirely candid about this matter, either in or out of court. 6. To conclude my review of the background, no party raised the question of whether the first defendant, a bankrupt, is entitled to engage in litigation without there being any evidence of the consent of his trustees in bankruptcy to that activity. Accordingly, I shall not determine it. A preliminary issue 1. On 5 February 2014, the plaintiff commenced proceedings in the New South Wales Civil and Administrative Tribunal (the Tribunal). That was on the understanding that that was the correct forum for the resolution of a dispute about a residential tenancy agreement. The position of the plaintiff has been at all stages that a residential tenancy agreement existed between himself and the defendants, pursuant to the definition of that concept in s 13 of the Residential Tenancies Act 2010 (NSW) (the Act). 2. As I have discussed, the position of the defendants is that there never was a residential tenancy agreement, and that the weekly payments were by owners towards a mortgage. But before me it was submitted by their counsel that, if I were to find that there was a residential tenancy agreement, then s 119 of the Act means that I cannot determine the matter. That section is as follows: 119 Prohibition on certain recovery proceedings in courts A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. 1. It was said by counsel for the defendants that, on the case for the plaintiff, that is exactly what has happened here. 2. In response, counsel for the plaintiff submitted that the defendants are estopped from relying on that provision. He relied upon the judgment of Ward J in Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 ("Kopas") at [15] - [24]. He also relied upon the pleadings of the defendants. I was first taken to the statement of claim of the plaintiff of 12 June 2014. Paragraph 25 of that document is as follows: On 10 April 2014 the Defendants notified the NCAT of their intentions to the transfer the proceedings to the Supreme Court. 1. Paragraph 17 of the amended defence of the defendants of 7 August 2014 responds to that paragraph. It is as follows: In answer to paragraph 25, the First and Second Defendants say that they did not notify the Tribunal to transfer the proceedings to the Supreme Court and further say that their solicitor notified the court that this matter involved a constructive trust issue and should be dealt with in the Supreme Court and that our solicitor has instructions to proceed in the Supreme Court. [emphasis added] 1. Furthermore, a portion of the affidavit of the first defendant read before me is as follows: The plaintiff started the matter at the Administrative Tribunal CC Division claiming that there was a tenancy agreement between us, however after we filed our documents, I explained to the member that this matter should be dealt with by the Supreme Court as it is not a matter of tenancy, we have a claim under a trust and we will be filing in the Supreme Court in about two weeks. 1. It should be noted that I was not provided with copies of the documents that had been filed in the Tribunal, or a transcript of what had been said by the parties in that forum. 2. In short, it can be seen that counsel for the defendants submitted before me that he could rely upon a section of the Act to say that the plaintiff must return to the Tribunal and cannot obtain relief in this Court, in circumstances where the pleadings of his clients asserted the opposite. 3. I accept the submission of the plaintiff on this preliminary point. The amended defence of many months ago shows that the defendants themselves (through their lawyers) were submitting that the dispute should be resolved in this Court and not in the Tribunal, where the plaintiff had begun. In those circumstances, to adopt the language of her Honour, it hardly behoves the defendants to insist now that the only forum in which this dispute can be concluded is the Tribunal. 4. In coming to that view, I reject the submission of counsel for the defendants that Kopas can be distinguished on the basis that in that matter there had been a formal transfer from the Tribunal, as opposed to the more informal procedure that was adopted here. I do so because, if there had been a formal transfer from the analogous tribunal in Kopas (which meant that there had been no commencement of proceedings in this Court), then s 119 of the Act would have had no application. In those circumstances, her Honour would have had no occasion to discuss concepts of estoppel by way of forensic decisions. In any event, I do not consider that the question of whether the defendants should be estopped from relying on this defence turns on the question of whether or not there has been a formal transfer. 5. The foregoing analysis means that there is no need for me to consider the contingent position of counsel for the plaintiff that, in any event, the section has no application, founded as it is on the commencement of proceedings, because there was in truth a "de facto transfer". 6. In short, I consider that the defendants are estopped, by the position adopted by their own solicitors as described in para 17 of their amended defence, from relying on s 119 of the Act. 7. As against the possibility that I am wrong in that legal determination, I shall provide a brief ancillary determination later in this judgment as to the orders I would have made, if in truth I have no power to determine this dispute said to arise from a residential tenancy between a landlord and tenant. 8. Having determined that preliminary issue, I turn to the facts derived from the evidence placed before me. Chronological background 1. Because of the issues of credibility that exist, and the fact that there were many matters of fact in dispute between the parties, I shall only set out here those facts that are incontrovertible or agreed. 2. The plaintiff, Moustafa Kamar Elddin, is the registered proprietor of the property. 3. The first defendant, Mohamed Ahmed Hamed, and the second defendant, Rina Hamed, are husband and wife. 4. In 2012, the first defendant was declared bankrupt. 5. On or about 31 January 2013, the trustees in bankruptcy of the first defendant issued both defendants with a notice to vacate the property. 6. On or about 5 February 2013, the plaintiff entered into a contract for the sale of the property with the trustees in bankruptcy of the first defendant. It was a term of the contract for sale that the property would be transferred to the plaintiff with vacant possession. 7. On 25 February 2013, the plaintiff obtained home and contents insurance from Westpac Banking Corporation. 8. On 27 March 2013, the plaintiff became the registered proprietor of the property. The defendants remained in the property. They commenced to pay him $550 per week. 9. On 4 April 2013, the plaintiff received a letter from Westpac regarding his home loan account. The minimum amount to be repaid by the plaintiff was $494.31 per week. 10. On or about 18 August 2013, the defendants ceased making the payments of $550 per week. 11. On 18 October 2013, the solicitors of the plaintiff sent a letter to the defendants informing them that the plaintiff intended to take possession of the property after 28 October 2013. The first and second defendants refused to vacate on that date. 12. On 5 February 2014, the plaintiff issued a notice to terminate a tenancy agreement, requiring the defendants to vacate the property by 21 February 2014. The first and second defendants again refused to vacate on that date. 13. On 5 February 2014, the plaintiff commenced proceedings in the Tribunal. 14. On 1 May 2014, the solicitors for the plaintiff sent a letter to the defendants informing them of the withdrawal of the application before the Tribunal and the commencement of proceedings in this Court. 15. On 6 May 2014, Mr Youbert Sarkees, an associate of the defendants, placed a caveat over the property. The estate or interest claimed by Mr Sarkees was a "legal, equitable and caveatable interest in the land held by the proprietor [the plaintiff]" by virtue of the fact that he had "contributed to the purchase price of the property". Summary of evidence that is in dispute 1. I turn to summarise the versions of events of the various witnesses in their affidavits that were read before me and in the witness box. Evidence of the plaintiff 1. The plaintiff gave evidence by way of affidavit. He was also cross-examined in the witness box. 2. In his affidavit of 17 September 2014, he stated that he was unable to obtain the necessary finance to purchase the property and thereafter entered into a finance agreement with the first defendant. The terms of that agreement were that the first defendant would arrange, through a friend, to provide the plaintiff with $96,600, that being 20 per cent of the purchase price. In return, the plaintiff was to pay the first defendant a fee in the sum of $10,000. According to the plaintiff, he attended the property and paid that latter sum in cash to the first defendant in late February 2013. 3. The plaintiff deposed that, after the purchase had been finalised, he had a conversation with the first defendant regarding occupancy of the property. At the request of the first defendant, the plaintiff agreed to allow the first defendant and his family to remain in the property for a further six months. According to the plaintiff, the first defendant agreed to pay him $550 per week in rent for the duration of the agreement. 4. The plaintiff deposed in his affidavit that, in or about August 2013, he gave the second defendant $35,000 in cash. That sum was obtained from the proceeds he received from the sale of his fruit shop in Granville. In or about September 2013, a further $36,000 in cash was given by the plaintiff to the second defendant. Those two sums were repayments of the $96,600 that he had been loaned. According to the plaintiff, the defendants have repeatedly declined his offer to repay the $15,600 outstanding under the agreement. 5. During cross-examination, the plaintiff gave evidence that the agreement was that at first he would pay back the $10,000, and when the defendants vacated the property he would pay back the remaining $86,000. 6. He conceded that the defendants were paying water bills and other outgoings, but maintained the position that they were tenants, not co-owners. 7. He also conceded that part of the background of the offer was a general plan to construct new dwellings on the property. However, he denied that the profits of the sale of the property were to be divided equally between himself and the first defendant. 8. He agreed that in March 2013 he and the first defendant went to see a solicitor to discuss things. According to the plaintiff, the first defendant wanted the plaintiff to sign some papers to the effect that the first defendant had some sort of co-ownership with the plaintiff in the property. However, the plaintiff did not agree to that proposition, and did not sign the papers. 9. The plaintiff gave evidence that, quite apart from the $483,000 that he paid for the transfer of the property to the trustees in bankruptcy, he agreed with the first defendant that he would pay a total purchase price of $550,000. The basis upon which the plaintiff understood that he could or should pay money to the bankrupt first defendant, above and beyond the sum that was to be paid to the trustees in bankruptcy, was by no means clear. The position of the plaintiff was that he did indeed owe the first defendant that $67,000, and it had not yet been paid. 10. The position of the plaintiff in a nutshell was that he owed $15,600 (that being the residue of the repayment of the $96,600) along with the $67,000 that was unpaid in its entirety. 11. The plaintiff accepted in cross-examination that the affidavit to which he had sworn in the proceedings and that formed his examination-in-chief made no mention whatsoever of the secondary agreement with regard to the $67,000 that was to pass to the first defendant on the transfer of the property. Evidence of the first defendant 1. The first defendant gave evidence by way of affidavit. He was also cross-examined in the witness box. 2. In his affidavit, he spoke of having been introduced to the plaintiff by the brother of the second defendant, in circumstances in which the defendants were desperate to keep their home. He also deposed to the plaintiff entering into the arrangement whereby the property would not only be purchased by the plaintiff but also the property would be developed by the plaintiff and the first defendant. 3. He deposed that a written agreement with regard to all of that was prepared by a solicitor, but because things moved quickly it was never signed by the parties. He claimed that, at a subsequent meeting, the plaintiff verbally agreed to prepare papers to implement the agreement. 4. In cross-examination, the first defendant accepted that the affidavits of himself and his wife were prepared together. 5. The first defendant also accepted that, although he was a concrete form worker, and had a licence as an owner/builder, he did not have a construction certificate. He had never developed a property before, and his position was that the development of the property in which he was a co-owner would be his "first development as an owner builder". 6. He accepted that, as a bankrupt, he was hardly in a position to contribute financially to any joint venture. He also accepted that he had not kept his trustees in bankruptcy informed about any of the financial transactions that underpinned the case for the defendants. Evidence of the second defendant 1. The second defendant gave evidence by way of affidavit. She was also cross-examined in the witness box. 2. In her affidavit of 16 October 2014, she stated that she and her husband had sought to pursue avenues to retain possession of their home after he had been declared bankrupt. A number of family friends, including Mr Youbert Sarkees and Mr John Waheed Obeid, offered to assist the defendants to transfer their home to a "non-related person". The brother of the second defendant, Mr Mohamed Khaled Hamed (to whom I shall refer for differentiation from the first defendant as Khaled Hamed), suggested that the house be transferred to the plaintiff, whom he knew socially. 3. Shortly thereafter, a meeting was arranged between the plaintiff and the defendants to discuss the matter. According to the second defendant, it was made clear at that meeting that the title to the property would be transferred to the plaintiff, and that friends of the defendants would provide the deposit. So long as the defendants were able to retain possession of the property, the plaintiff would be given "the mortgage payment every week". 4. During cross-examination, the second defendant stated that the $96,600 she and the first defendant provided to the plaintiff was not a loan but rather money "for the house". In other words, the provision of the money was contingent upon the understanding that the defendants would eventually reclaim title to the property, once the difficulty with the bankruptcy had passed. 5. Whilst she accepted that she and the first defendant had stopped making payments of $550 per week after a time, even despite the fact that they remained in possession, she noted that they continued to pay any council rates and water bills charged to the property. 6. As well as that, the second defendant stated that she had received two cash payments from the plaintiff totalling $71,000. That money was, to her mind, intended to pay out the interest of the defendants in the house. She expected to receive $155,000 in total from the plaintiff. Only then would she and the first defendant willingly vacate the property. Other witnesses 1. A number of other witnesses gave evidence in the case for the defendants. 2. In an affidavit of 15 October 2014, John Obeid stated that he had lent the defendants $90,000 to assist in the purchase of the property from the trustees in bankruptcy of the first defendant. 3. In the witness box, Mr Obeid stated that the first defendant had informed him that he and his wife had come to an arrangement with the plaintiff whereby they would buy the property and pay $90,000 as a deposit. According to Mr Obeid, the provision of that money was contingent upon the understanding that the defendants were "able to live in the house until they were to either build the property or sell it together". 4. In an affidavit of 16 October 2014, Khaled Hamed stated that he had introduced the plaintiff to the first defendant, his brother-in-law, in early 2013. According to Khaled Hamed, there existed some sort of an agreement between the parties whereby they would build two homes on the property before selling it and dividing the profit. At a meeting held to discuss the particulars of the agreement, the plaintiff was offered $100,000 to sell the house back to the second defendant or her nominees. According to Mr Hamed, the plaintiff agreed to this offer. Nothing was signed to that effect. 5. In the witness box, Khaled Hamed gave evidence that the plaintiff had agreed to pay the defendants $155,000 in cash. Upon receipt of that sum, the defendants were to vacate the property and abandon the earlier agreement. 6. It is noteworthy that, on 26 February 2014, Khaled Hamed signed a statutory declaration with regard to the purchase of the property. He stated that: I have knowledge of an agreement between Rina [the second defendant] and Moustafa [the plaintiff] whereby Rina loaned to Moustafa approximately $96,600.00 representing 20% of the purchase price of $483,000.00 to assist Moustafa in purchasing the property so that Moustafa could obtain finance. [emphasis added] 1. In cross-examination, Khaled Hamed claimed that he had signed the statutory declaration without it having been translated to him. 2. In an affidavit of 16 October 2014, Youbert Sarkees deposed that he was asked by the first defendant for a loan of $24,000 to enable the second defendant to purchase the property. He agreed to that course, although the agreement was never documented. It was the case for the defendants that an extract from the ledger of a solicitor evidenced the receipt on trust of the amount of $24,000 for that purpose. With regard to the eventual purchase of the property, Mr Sarkees stated that "Mohamed [the first defendant] and Rina [the second defendant] were going to reside in the property, later build and subdivide the land and share a part of the profit with Moustafa [the plaintiff] as a token of appreciation". 3. In the witness box, Mr Sarkees gave evidence that he had been informed by the first defendant that a "very close friend" of his was assisting with the purchase of the property. According to Mr Sarkees, the first defendant desperately wanted to remain in possession of the property, and was willing to locate a purchaser "at any cost". Accordingly, the first defendant entered into an agreement with the plaintiff whereby the plaintiff would purchase the property "in good faith" and later on "share it" with the defendants. Whilst Mr Sarkees deposed that it was a term of the agreement that the defendants would remain in possession of the property following the sale, he was unsure whether the payments made by the defendants were mortgage payments or rent. 4. Finally, the case for the defendants also featured a number of documents, including file notes and draft written agreements, that were said to support the proposition that an agreement as to co-ownership and property development was entered into by the plaintiff with one or more of the defendants. But it can be seen that the file notes are equivocal as to whether there were merely discussions as opposed to a firm agreement, and none of the documents were signed by the parties. Resolution of disputed facts 1. As I have said, the paucity of documents makes it difficult to come to firm findings of fact. So does the fact that witnesses have given starkly contrasting evidence on oath of things allegedly said by each other. 2. I turn now to explain my earlier comment that I consider that some persons have not been completely candid in and out of court. 3. It is noteworthy that the plaintiff did not say a word in his affidavit about the other sums that he accepted in cross-examination he owed to the defendants. I do not accept that that was some sort of accidental omission, in light of the fact that the whole of this dispute is about the sums of money that passed from the defendants to the plaintiff. Nor do I think that that omission can be explained by the fact that it is lawyers who draw affidavits, not witnesses. Although I suspect that the plaintiff made no mention of those other sums in order to conceal that the defendants had put other sums towards the property, I am unable to come to a firm finding on the balance of probabilities about the motivation for that omission. 4. Furthermore, I consider that I can readily take judicial notice that a home loan lender such as the bank would not have lent the plaintiff the sum that it did in order to purchase the property if it had known that the vast bulk (if not all) of the deposit was actually sourced through a bankrupt and his wife, who were the owners and occupiers of the property. I do not believe that the plaintiff was frank with the bank that was lending him a large sum of money about the machinations that were surrounding the transaction. 5. The result of those two findings is that I have concerns about the credibility of the plaintiff. 6. The same must be said about the credibility of the first defendant. I do not accept that, having been declared bankrupt, he believed that he was entitled to engage in financial transactions without informing his trustees in bankruptcy. And that is especially so with regard to transactions that his trustees were entering into to sell his own assets in order to maximise the returns to his creditors. I consider that the trustees would have been surprised and concerned to learn that the first defendant and his wife were somehow involved in the provision of sums without documentation to the purchaser of the property. That is so whether those sums were part of the purchase price, as they claim, or were loans, as the plaintiff claims; indeed, if the former, I think that the trustees would have been very concerned to learn that the defendants were seeking secretly to purchase the asset that the trustees were selling. 7. The result is that I have concerns about the credibility of the first defendant as well. 8. Thirdly, the constant changing of position of Mr Khaled Hamed leads me to put his evidence to one side. 9. As for the second defendant, I generally accept that her evidence was truthful. But that acceptance includes her evidence that in truth her husband was the moving party in their financial transactions. I do not consider that she can shed much light on what was really happening between the plaintiff and the first defendant. 10. As for the other witnesses called in the defence case, I found them generally to be witnesses of truth. But they were not in a position to shed much light on what was really occurring either. That is because their evidence largely consisted of prior consistent statements of the first defendant. To the extent that they spoke of meetings that were not evidenced by signed documents, and the plaintiff denied the spoken contents of those meetings, it is impossible to come to a firm finding. 11. For those reasons, I am satisfied on the balance of probabilities that, before he purchased the property from the trustees in bankruptcy of the first defendant, the plaintiff received substantial sums of cash from the first and second defendant. It is difficult to go far beyond that bare factual finding. Trusts 1. Turning to legal principle for a moment, it is true that, if a person contributes towards the purchase price of real property but does not become a registered owner of it, he or she may nevertheless receive an equitable interest in the property by way of a resulting trust: see Calverley v Green [1984] HCA 81; 155 CLR 242, 246 (Gibbs CJ); Muschinski v Dodds [1985] HCA 78; 160 CLR 583, 612-614 (Deane J). Indeed, where two or more persons together purchase property, the purchase price having been contributed in unequal amounts, there is a presumption that the purchasers intended to hold beneficially as tenants in common in shares proportionate to their contributions: see Calverley v Green at 258 (Mason and Brennan JJ). To the extent that counsel for the defendants spoke of a constructive trust whilst pointing me to the leading authority with regard to a resulting trust in these circumstances, I have taken him to be referring to the latter, perhaps as a subset of the former. 2. But the presumption in favour of a resulting trust does not arise unless the contribution was indeed towards the purchase price: see Calverley v Green at 246 (Gibbs CJ). That raises the anterior question of which party in these proceedings bears the onus of proof: the plaintiff, who disputes that the $96,600 was a contribution to the purchase price of the property? Or the defendants, who assert that it was? 3. I reject the submission of counsel for the defendants that the mere fact that it is asserted by the defendants that the moneys provided to the plaintiff were a contribution towards the purchase price means that the plaintiff bears an onus of rebutting that proposition of fact. To the contrary, I consider that, before the presumption in favour of a resulting trust can arise, the moving party in support of that proposition (here, the defendants) must establish the relevant factual pre-condition on the balance of probabilities. 4. To return to findings of fact, the picture is unclear as to how and why sums of money were provided to the plaintiff. I regret to say that I suspect that I have not been given the complete picture of what was actually going on with regard to the property. I suspect that the $96,600, and perhaps other sums, were provided to the plaintiff as some sort of way for the defendants surreptitiously to own the real property that was being sold by the trustees in bankruptcy of the first defendant. But on the evidence placed before me I am not satisfied on the balance of probabilities that the defendants were providing a contribution to the purchase price. 5. Nor am I satisfied that there was a firm agreement between the plaintiff and the first defendant to develop the property and share the proceeds that could somehow give rise to a constructive trust between joint venturers, even leaving aside for a moment the obvious conceptual difficulty arising from the fact that the first defendant was bankrupt at the time. 6. For those reasons, I do not consider that any resulting or other trust causes the defendants to have an equitable interest in the property. It follows that there is nothing standing in the way of the registered proprietor having possession of the real property that he owns. 7. As against the possibility that I am wrong in that determination, I provide a second brief ancillary analysis below. Rent 1. It will be recalled that the defendants were living in the property for a time and paying the plaintiff $550 per week. The position of the plaintiff was that those payments were rent; the position of the defendants was that those payments were mortgage repayments. And yet it can be seen that that weekly sum was greater than the weekly mortgage repayment. That fact argues powerfully that the payments were not towards the mortgage, but rather were for the occupation of the property. 2. I have already stated that I am not satisfied on the balance of probabilities that the large sum or sums of cash provided by the defendants to the plaintiff was a contribution to the purchase price. I am satisfied on the balance of probabilities that it was agreed between the plaintiff and the defendants that they would pay the plaintiff rent for so long as they remained in possession of the property. But the contingent position of counsel for the defendants was that any such agreement was merely between the plaintiff and the first defendant, and that, as the latter is bankrupt, there could be no order made against either him or the second defendant. 3. Counsel for the plaintiff did not seek an order for rent against the bankrupt first defendant, in light of his status. But he submitted that the evidence establishes that the second defendant was also a tenant as defined by the Act, or at least had entered into a licence with the plaintiff. I reject that submission. I do so because, without descending into a detailed analysis of the evidence on this aspect, it can be seen that the position of the plaintiff has consistently been that he entered into the agreement with regard to occupation of the property with the first defendant alone. 4. In short, I consider that the first defendant is liable for rent and the second defendant is not. But because of the status of the former, I do not enter a judgment against him to reflect the amount of rent that I consider he owes. Interest 1. Because no sum will be entered as a judgment to reflect rent owing, there can be no claim for interest on any such sum. Damages 1. Although damages were claimed in the final iteration of the amended statement of claim, counsel for the plaintiff did not explain the basis upon which such a claim was to be calculated. That was in the context of the real issue at the trial being who was entitled to exclusive possession. Indeed, the final written submissions of counsel for the plaintiff pressed only the claim for possession and rent. 2. I have already determined that the plaintiff is not to have a sum against either defendant for rent: the first defendant because of his status and the second defendant because there is no evidence that she was a party to a lease or analogous agreement. The same analysis, combined with the absence of written or oral submissions in support of damages, leads me to the view that I should not order them. Ancillary analysis of section 119 of the Act 1. As against the possibility that I am wrong on any basis in my finding that the defendant should be estopped from relying on s 119 of the Act, I turn to provide a brief contingent analysis. That analysis proceeds on the assumption that s 119 of the Act indeed prohibits me from determining the question of who is entitled to possession, in light of my finding that there was a residential tenancy as defined, and that it was therefore incumbent on me to refuse to make the order for possession of the plaintiff and presumably remit the matter to the Tribunal. 2. Counsel for the plaintiff submitted that it could not be that a full hearing in this Court featuring cross-examination and detailed oral and written submissions about fact and law could or should be set at nought, if I came to the view that the section mandates that the proceedings needed to return to the Tribunal. He submitted that I should make a declaration about rights pursuant to s 75 of the Supreme Court Act 1970 (NSW), founded upon my determinations and for the assistance of the Tribunal. Counsel for the defendants did not seek to resist that submission strongly. 3. If it is indeed the case that I was not entitled to determine this dispute about a residential tenancy, I accept the proposition of counsel for the plaintiff without difficulty. 4. In other words, if I had found that I was not entitled to make orders with regard to possession, and that the matter should return to the Tribunal in that regard, I certainly would have made a declaration to the effect that I am not satisfied that either defendant has an interest in the property that should deny the plaintiff immediate and exclusive possession. Ancillary analysis about trusts and possession 1. I turn briefly to provide a further contingent analysis, as against the possibility that my findings above at [84], or my approach to the onus of proof, are incorrect. 2. In other words, I turn to consider, if it be the case that the moneys provided to the plaintiff were indeed a contribution to the purchase price, and if as a result it be the case that one or both of the defendants have an equitable interest in the property, whether that could somehow entitle them to possession to the exclusion of the plaintiff, as counsel for the defendants contended. 3. I reject that submission of counsel for the defendants. Even if it be the case that the defendants are the beneficiaries of a trust over that portion of the property to which they contributed part of the purchase price, I cannot accept that establishment of that fact would mean that they can exclude the plaintiff (who is, after all, the sole registered proprietor) from possession of the property. At most I would have thought that that would entitle them to have the property sold, and have a proper account to them from the proceeds that is reflective of their contribution to the purchase price of the property. And yet it can be seen that this dispute is about possession, not about sale of real property and equitable accounting of the proceeds. 4. In short, even if my approach to the onus of proof and findings of fact with regard to the asserted resulting trust are quite wrong, nevertheless I would not find that the defendants are entitled to possession as against the registered proprietor. Ancillary discussion of fundamental aspects of equitable relief 1. Finally, quite apart from that, it can be seen that, on the case for the defendants, what was really occurring was an effort to "go behind the backs" of the trustees in bankruptcy of the first defendants, and secretly to retain ownership of the real property. It is a basal principle of being granted equitable relief that one must come to equity with clean hands: see generally Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641. 2. Even if the entirety of my foregoing analysis of matters of fact and law is erroneous, I would nevertheless find that the conduct of the first defendant disentitles him and his wife from the relief with regard to possession that they seek. Conclusion 1. I proceed to summarise my findings for convenience. I shall do so in the order that I have discussed them in this judgment. 2. The defendants are estopped by their pleadings and their pleaded conduct from relying upon s 119 of the Act in order to deny jurisdiction to this Court. 3. I am not satisfied on the balance of probabilities that either defendant contributed towards the purchase price of the property, as opposed to providing loans towards the purchase by the plaintiff. As a result, I do not find that, by way of a resulting trust, they have an equitable interest in the property. 4. Nor am I satisfied of any other facts that could give rise to an equitable interest in the property. 5. I am satisfied that the bankrupt first defendant agreed to pay rent to the plaintiff for so long as he and his wife remained in possession. I am not satisfied that the second defendant was a party to any such agreement. I do not propose to enter a judgment for a monetary sum to reflect rent or interest upon rent. The plaintiff should have his unpaid rent from the second defendant, along with interest upon it in a sum to be calculated by counsel for the plaintiff. 6. The plaintiff should not have any damages. 7. If I am wrong in my approach to s 119 of the Act, and the matter should indeed be transferred to the Tribunal, I would make a declaration that the defendants have no interest in the property that can be relied upon to deny the plaintiff immediate possession to it. 8. If I am wrong in my approach to any resulting or constructive trust, I do not consider that any equitable interest in the property could entitle the defendants to possession to the exclusion of the registered proprietor. 9. If I am wrong in the entirety of my factual and legal analysis, I would deny the defendants equitable relief, on the basis that the first defendant has not come to equity with clean hands because of his lack of candour with his trustees in bankruptcy. 10. In short, I consider that the plaintiff should have immediate and exclusive possession of the property of which he is the registered proprietor. Costs 1. As I have said, the first defendant is bankrupt, and neither party raised with me, or relied upon any aspect of, the question of whether he is entitled to engage in litigation at all, in light of his status. But counsel for the plaintiff accepted that he was not entitled to have rent from the first defendant, in light of that status. By analogy with that position, I do not propose to order costs against the first defendant, in accordance with the approach of opposing counsel. 2. But there is no reason why the second defendant should not pay the costs of the plaintiff. Orders 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. ********** 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: 29 May 2015