Event and Time
Event Description
In 2020, the NSW Trustee and Guardian initiated proceedings for possession of a forfeited property at Heckenberg, originally owned by Mr. Ali Elskaf, following a restraining order under the Criminal Assets Recovery Act 1990 (NSW) due to Mr. Ali Elskaf's unexplained wealth. As a result of the proceedings, the property was forfeited to the Crown on 28 May 2017, with Mr. Khaled Elskaf filing a cross-claim asserting an equitable interest in the property.
Application and Claims
- Plaintiff (NSW Trustee and Guardian): Filed proceedings seeking possession of the property after Mr. Ali Elskaf did not contest forfeiture.
- Defendant (Mr. Khaled Elskaf): Claimed an equitable interest in the property and sought:
1. Declaration of equitable proprietorship. 2. Construction of a trust for the property in favor of him. 3. An injunction against the Trustee from disposing of the property. 4. Transfer of legal title or damages for breach of trust.
Judicial Decisions
The court dismissed Mr. Khaled Elskaf’s cross-claim, ruling that he failed to establish any equitable interest in the property and upheld the Trustee's indefeasible title.
Dispute Points and Legal Basis
Dispute Points
- Mr. Khaled Elskaf's position:
- Claimed he paid for the property and maintained that a resulting trust arose. - Argued that the Trustee, as a "volunteer," should hold the property on trust for him after being put on notice of his claimed interest.
- NSW Trustee’s Position:
- Argued that it acquired the property without notice of Mr. Khaled Elskaf’s claim and that its title was indefeasible under s 42 of the Real Property Act 1900 (NSW). - Asserted that the absence of Mr. Khaled Elskaf’s contributory evidence to the purchase undermined his claims.