Ghosn v Principle Focus Pty Ltd (No 2) - [2008] VSC 574

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

---

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 )

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ghosn v Principle Focus Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSC 574
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of Ghosn v Principle Focus Pty Ltd (No 2), the case was heard in the Supreme Court of Victoria. The plaintiff, Ghosn, sought a declaration of validity in relation to a foreign power of attorney executed by the defendant, Principle Focus Pty Ltd, under the provisions of Victorian law. The dispute centred on the capacity of the donor of the power of attorney and the onus of proof in relation to the validity of the instrument. Ghosn sought a declaration that the power of attorney was valid, while Principle Focus Pty Ltd argued that the donor lacked the necessary capacity to execute the power of attorney.

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