Australian Coptic Association v Habashy
[2017] FCA 1461
•7 December 2017
FEDERAL COURT OF AUSTRALIA
Australian Coptic Association v Habashy [2017] FCA 1461
File number: NSD 1174 of 2016 Judge: MARKOVIC J Date of judgment: 7 December 2017 Date of hearing: 24, 25 October 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 26 Solicitors for the Plaintiff: Mr S Hodges, Hodges Legal Counsel for the First Defendant: Mr S Cairns Solicitor for the First Defendant Harb Lawyers Counsel for the Second Defendant: The second defendant did not appear ORDERS
NSD 1174 of 2016 BETWEEN: THE AUSTRALIAN COPTIC ASSOCIATION
Plaintiff
AND: SAMIR HABASHY
First Defendant
BOUSHRA GADALLAH
Second Defendant
JUDGE:
MARKOVIC J
DATE OF ORDER:
7 DECEMBER 2017
THE COURT ORDERS THAT:
1.The plaintiff’s claim for relief in paragraph 17 of the first amended statement of claim be dismissed.
2.The plaintiff pay the first defendant’s costs of the claim for relief in paragraph 17 of the first amended statement of claim.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
The Australian Coptic Association (Association) commenced this proceeding seeking relief in relation to two issues. The first issue concerned the identity of the officeholders of the Association and the second issue concerned ownership of a Toyota bus with model number COMM98A and New South Wales registration plates WJV468 (Bus).
The first defendant, Samir Habashy, is a member of the Association and was a director and its president for a period of time, although the period in which he held office was the subject of the first issue in dispute. The second defendant, Boushra Gadallah, did not appear, although she filed a document titled “Defense”. Her involvement was limited to the first issue in dispute.
On the second day of the hearing the first issue was resolved between the parties and the Court made orders by consent giving effect to the parties’ agreement. The parties were unable to resolve the second issue, namely, ownership of the Bus. I address that issue below.
THE ASSOCIATION’S CLAIM AND MR HABASHY’S DEFENCE
The Association alleges that it purchased the Bus on 6 April 2011; that, when not in use, Mr Habashy stored the Bus at 77 Brisbane Street, St Marys; and that he or his agents have the keys to the Bus. The Association also alleges that Mr Habashy modified the Bus.
In his defence Mr Habashy alleges that, on or about 6 April 2011, he purchased the Bus in his own name for $9,000. Mr Habashy says that he retains possession of the Bus and that he pays for its operating costs, including maintenance, petrol, insurance and registration. He admits that he modified the Bus by changing the number of seats from 14 to 12 so that the driver does not require a special licence to drive the Bus.
THE EVIDENCE
According to Angel Bisada, a member of the Association and its president since 27 January 2013, the Association arranges excursions for community members and began to discuss the purchase of a vehicle to transport participants in 2010. Mrs Bisada says that the Association purchased the Bus on 6 April 2011. She says that the purchase price of $13,500 was drawn on the Association’s account held at the Mt Druitt branch of the Westpac Banking Corporation (Westpac) and styled as the “Touch of Mercy” account. A Westpac customer record for a bank cheque shows the Association as the purchaser of cheque number 432568 issued on 6 April 2011 in favour of Wael Nazer for the amount of $13,500.
Mrs Bisada says that she has access to the Association’s board minutes, that she has read them and that she has found the following references to the Bus:
(1)on 27 December 2010 the board decided to purchase a bus;
(2)on 4 July 2011 the board decided to “repay Touch of Mercy” by instalments comprising “50% of picnic income”;
(3)on 1 August 2011 the Bus was hired out and the treasurer was to deposit funds into the Touch of Mercy account. On the same date it was noted that Anis Attar would register the bus;
(4)on 6 October 2011 a decision was made to pay for the Association’s name to appear on the bus and a payment of $230 was approved for that purpose; and
(5)on 10 October 2012 the board noted that the Bus was purchased by the Association with money “borrowed from Touch of Mercy”, that it was agreed that the Bus be registered in the name of Mr Habashy and that the payment of $13,500 came from the Touch of Mercy account.
A document titled “To Whom It May Concern” which, according to Mrs Bisada, is a copy of the Association’s board minute dated 10 October 2012 was in evidence. It includes text in what appears to be Arabic and in English. The English text provides, as written:
To Whom It May Concern
We are member of the Board of “The Australian Coptic Association” – Affirm and acknowledge the following:
I – We all agreed to buy a small bus to be used in the activities of the association and as we have no resources, we had discussed this in a meeting and was approved to borrow from the account “Touch Of Mercy” to buy the bus and to reimbursed from the income of the “Elders Picnic Service” which is carried out by volunteers from the Association members.
II
– Minibus was purchased: Brand TOYOTA Model BUS Year 1999
Registration No. WJV468And to facilitate the purchasing process we agreed write the bus in the name of Mr Samir Habashy, the Chairman and to be registered on behalf of the Association later.
III – The pay for the bus was by a Bank Cheque ($13,500.00) – from “Touch of Mercy” account – Westpac Bank – Mt. Druitt branch on 05/04/2011.
The document was signed by seven people who were identified as Mrs Bisada, Dalal Morcos, Dr Adel Abd-El Messeih, Anis Matter, Fayez Morgan, Karam Farag and Rushdy Gadalla.
Mrs Bisada says that the board agreed that the Bus would be registered in Mr Habashy’s name, who at the time was the president of the Association, on the proviso that the registration would be changed later. Mrs Bisada also says that the Association paid for the Bus’s insurance, registration, repairs and maintenance until January 2013. She says that the bus originally had 14 seats, requiring a driver with a special licence, and that a member of the Association had the necessary licence and volunteered to drive the Bus as required.
Dalal Morcos is the widow of Makin Morcos, now deceased, who was a former president of the Association. Mrs Morcos was the vice president of the Association for about two years from in or about 2011. She says that the Bus was purchased while she was vice president of the Association, that $13,500 was paid from the Touch of Mercy account and that the Bus was not purchased for Mr Habashy’s personal use. Mrs Morcos says that, at the time, no one connected with the Association could drive the Bus because it required a special licence. Mrs Morcos took lessons and passed tests to obtain such a licence so that she could drive the Bus.
Mrs Morcos says that, since its purchase, the Bus has been parked at her home when not in use. The Bus originally had 14 seats, Mrs Morcos had the keys to it and she regularly drove it for Association activities. In or about 2015 Mr Habashy arranged for two seats to be removed from the Bus so that it could be driven by a person with a normal licence. Since the removal of the seats others have driven the Bus.
Karam Farag became a member of the Association in about 2007. He recalls that the Association decided to purchase a minibus in 2011 for $13,500 and that that amount was paid from the Touch of Mercy account.
Mr Habashy says that the Association did not buy the Bus but that he purchased it in his personal capacity for $8,000 from Wael Nazer and for that reason it was registered in his name. Mr Habashy says that after he purchased the Bus he was happy and proud to help the Association by allowing the Bus to be used by the Association for its activities, with it being collected from his home in the morning by a person nominated by the Association and brought back to him at the end of the day.
According to Mr Habashy, the Westpac bank cheque drawn on the Association’s account was given to Mr Nazer, who was a friend of Mr Habashy and who was going to Egypt that week, to deposit into his personal account. The money was to be paid to the Association’s representative in Cairo for distribution to the needy in accordance with a list of names provided to Mr Nazer.
Mr Habashy agrees that the Association had a discussion in relation to purchasing a bus but says that, in light of his offer to continue to provide his bus for the Association’s use, it never proceeded to do so. He also agrees that there was a decision by the Association to pay for a sign to go on the Bus and that he agreed to have the Association’s sign put on the Bus because he was proud that his bus carried the name of the Association of which he was president.
Mr Habashy denies that there was meeting of the Association’s board on 10 October 2012 as alleged by Mrs Bisada; says that there was never any agreement that the Bus be registered in his name, as the president at the time, on the proviso that the registration be changed later; and says that the Association did not pay any costs towards the maintenance of the Bus but that he attended to all payments associated with the Bus. Mr Habashy says that the Association borrowed the Bus and that he had his son and his son-in-law drive the Bus because they had the necessary licence.
A number of documents were tendered in evidence. They included:
(1)an RTA certificate of registration for a 1999 Toyota bus, model COMM98A and plate number WJV468, in the name of Madline Nazer with an expiry date of 28 August 2011;
(2)a Roads & Maritime Services (RMS) certificate issued in accordance with s 257 of the Road Transport Act 2013 (NSW) which certifies that, between 5 April 2011 and 6 April 2011, Ms Nazer was the recorded operator of a white Toyota bus, model COMM98A, with a recorded year of manufacture of 1999 and New South Wales registration plates WJV468 issued on 15 December 1999. The certificate also records that Ms Nazer acquired the vehicle on 9 July 2010 and disposed of it on 8 April 2011;
(3)a document titled “Registration transfer details” dated 28 April 2011, showing a sale date of 8 April 2011 at a “Sale price/market value” of $8,000 and the “Buyer’s full name” as Samir Istafanoos Habashy which is signed by the buyer and seller;
(4)a document titled “Notice of Disposal” showing, among other things, a sale date of 8 April 2011, a “Sale price/market value” of $8,000, the “Buyer’s full name” as Samir Istafanoos Habashy and the “Seller’s full name” as Madline Nazer;
(5)an RTA document titled “Application for Transfer of Registration” dated 4 May 2011 for registration plate number WJV468 in the name of Mr Habashy which records, among other things, the date of acquisition as 8 April 2011 at a sale price or market value of $8,000 with the intended type of use as “Private”;
(6)an RMS document titled “Drives View Transaction” dated 31 May 2017 for Samir Istafanoos Habashy including, among other things, the following details:
(a)“Type: R TFT Rego Transfer”;
(b)“Reference: WJV468”;
(c)“Date/time: 04-05-2011/15.30”; and
(d)“Status: PD”;
(7)an RMS document titled “Drives Registration Details” dated 31 May 2017 recording the registration of a Toyota Commuter with plate number WJV468 from 29 August 2016 to 28 August 2017. It records, among other things, the registered operator to be Samir Istafanoos Habashy, a transfer date of 4 May 2011, an acquisition date of 8 April 2011 and a seller’s and buyer’s market value of $8,000;
(8)a renewal for insurance policy 20-0285452-DVC issued by Allianz Australia Insurance Limited for a “1999 TOYO HIACE COMMUTER BUS D4 4A” with registration number WJV468 and an annual premium of $847.15 due for payment by 8 April 2013. Also in evidence was a cheque drawn on the account of Egypt News and payable to “Allianz” dated 22 April 2013 for $847.15 and an Australia Post receipt for a cheque in the amount of $847.15;
(9)a renewal letter for insurance policy 20-0285452-DVC issued by Allianz Australia Insurance Limited for vehicle registration number WJV468 with an amount of $830.90 due for payment by 8 April 2016;
(10)a document titled “AAMI Compulsory Third Party Personal Injury Insurance” addressed to Samir Istafanoos Habashy which stated, among other things, that it enclosed an AAMI green slip renewal for vehicle registration number WJV468; and
(11)a GIO compulsory third party personal injury insurance green slip certificate addressed to Mr Habashy for vehicle registration number WJV468 acknowledging payment of $1,232.09 on 25 August 2016.
WHO OWNS THE BUS?
The witnesses relied on by the Association, Mrs Bisada, Mrs Morcos and Mr Farag, assert that the Association purchased and owns the Bus while Mr Habashy asserts that he purchased and owns the Bus. None of the witnesses relied on by the Association or Mr Habashy were cross-examined. Their evidence was not challenged and, beyond the opposing versions given by the witnesses in their respective affidavits, I was not given an opportunity to assess the witnesses.
The Association bears the onus of proof in establishing its assertion that it is the owner of the Bus. In my opinion it has failed to discharge that burden. Despite there being three witnesses who say that the Association purchased the Bus, that evidence does not rise further than an assertion of ownership. The cheque payable to Mr Nazer for $13,500 does not prove that the Association purchased the Bus. It does no more than establish that a payment was made to Mr Nazer, who was not the registered owner of the Bus.
The Association has not provided any explanation or indicia of its claimed ownership beyond the evidence of Mrs Bisada that there was an agreement that the Bus would be registered in Mr Habashy’s name, who at the time was the president of the Association, and later transferred to the Association. Mr Habashy denies that that is the case.
The document dated 12 October 2010, which is described as a board minute of the Association, is not a record that was made at the time of the purchase of the Bus. It records, after the fact, the Association’s version of events. Mrs Bisada also gives evidence that there is a board minute dated 1 August 2011, some four months after the date on which the Association asserts that it purchased the Bus, recording that Anis Attar would register the Bus. There was no evidence of that occurring or of any registration in the Association’s name.
Further, no evidence was provided of:
(1)monies received from the hiring out of the Bus as described by Mrs Bisada;
(2)repayment to the Touch of Mercy account of the moneys said to have been paid for acquisition of the Bus; or
(3)the Association paying for the cost of insurance, registration, repairs and maintenance of the Bus until January 2013 as asserted by Mrs Bisada.
Against that, the objective evidence establishes that:
(1)the registered owner of the Bus until 8 April 2011 was Ms Nazer;
(2)on 8 April 2011 Ms Nazer signed a notice of disposal nominating Mr Habashy as the buyer and the sale price or market value as $8,000;
(3)on 4 May 2011 the registration of the Bus was transferred to Mr Habashy;
(4)the sale price or market value of the Bus is recorded as $8,000, not $13,500; and
(5)Mr Habashy has maintained insurance on the Bus, at least in the periods ending 8 April 2013, 8 April 2014 and 8 April 2016, and compulsory third party personal injury insurance on the Bus paid on 25 August 2016.
The Association submitted that the Court would not accept Mr Habashy’s explanation for the provision by the Association of a bank cheque in the sum of $13,500 to Mr Nazer, describing it as a “bizarre counter-allegation” and not something that an organisation engaged in community assistance would do. But Mr Habashy’s evidence was read without objection and, as I have already observed, he was not cross-examined about this or any other aspect of his evidence. In those circumstances I would not reject Mr Habashy’s explanation.
CONCLUSION
It follows that the Association’s claim for relief in relation to the Bus should be dismissed with costs. I will make orders accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 7 December 2017
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