| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 8070 of 2008
| JEAN MICHEL ABI GHOSN | Plaintiff |
| v | |
| PRINCIPLE FOCUS PTY LTD & ORS | Defendants |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23, 27, 30 and 31 October | |
DATE OF JUDGMENT: | 19 December 2008 | |
CASE MAY BE CITED AS: | Ghosn v Principle Focus Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 574 (No.2 ) | |
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INSTRUMENTS – Foreign Power of Attorney – Declaration sought as to validity pursuant to Victorian law – Capacity of donor of Power of Attorney – Onus of proof - Trust property – Donor’s failure to give evidence – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Panna SC | Starnet Legal Pty Ltd |
| For the First and Second Defendants | Mr S. McNab | Coulter Roache |
| For the Third Defendant | Mr W. Houghton QC with Mr S. Anger | Alfred P Mayuka |
| For the Fourth Defendant | Mrs S. Marks | Lander & Rogers |
HIS HONOUR:
Introduction
In August and September 2008, Antoine Moussi, who is now 76 years old, executed three Powers of Attorney in Lebanon in favour of his nephew, the plaintiff Jean Michel Abi Ghosn. Mr Abi Ghosn now seeks a declaration in this Court that the Powers of Attorney are valid. He also seeks delivery up of a range of documents from his uncle’s former solicitors and accountants, Principle Focus Pty Ltd and Coulter Roache respectively.
Mr James Nott is a director of Principle Focus and he, along with Kevin Roache, a partner of Coulter Roache, both oppose the relief sought by Mr Abi Ghosn. They are joined in that opposition by Ms Sophie Moussi, Antoine Moussi’s daughter, who, on her application, was joined to the proceeding as a party.
I also ordered at a previous hearing that Mr Moussi be joined as a party and served with the relevant documents. He, through his counsel, supports Mr Abi Ghosn’s applications.
Although there are a number of side issues which need to be resolved, the central issue is that of Mr Moussi’s capacity to execute the Powers of Attorney, two in Arabic which were signed on 7 August 2008 in a Beirut hospital where Mr Moussi was a patient, the third in English signed on 18 September 2008 at the Australian Embassy in Beirut.
It might be thought that where the donor and the Attorney both contend that the Power of Attorney is valid, the resolution of the application would be relatively straightforward. This is not such a case. Mr Moussi, although represented, did not give evidence either in person or by video link. Mr Abi Ghosn, for reasons which I will set out later, is not a witness of credit and I propose to make recommendations to relevant regulatory bodies in relation to his conduct.
Factual background
Much, if not all, of the evidence that I am about to set out was not in dispute between the parties.
Antoine Moussi…
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- Case
- [2008] VSC 574
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the donor of the power of attorney had the requisite mental capacity to execute the document. Additionally, the court had to determine the onus of proof in relation to the validity of the power of attorney, particularly given the donor’s failure to provide evidence. The court examined whether the onus of proof shifted to the party asserting the validity of the power of attorney when the donor did not provide evidence.
The court found that the donor's failure to give evidence regarding their capacity to execute the power of attorney placed the onus of proof on Ghosn to establish the validity of the instrument. Given the absence of such evidence, the court could not be satisfied that the donor had the necessary mental capacity to execute the power of attorney. Consequently, the court refused Ghosn's application for a declaration of validity. The court concluded that without evidence from the donor, the onus of proof remained unsatisfied, and the application could not be granted. The court’s decision was based on the principle that the burden of proof lies with the party seeking to enforce the power of attorney when the donor does not provide the requisite evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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