Grege v Grege & Ors (Ruling)
[2024] VSC 475
•24 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2021 00890
IN THE MATTER of the Will and Estate of NABIL GREGE deceased
- and -
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
| ROULA GREGE | Plaintiff |
| v | |
| JAMES NABIL GREGE & ORS (according to the attached Schedule) (who are sued as the Executors of NABIL GREGE, deceased) | Defendants |
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JUDGE: | Gobbo AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 August 2024, with further material filed on 16 and 22 August 2024 and 18 September 2024 |
DATE OF RULING: | 24 September 2024 |
CASE MAY BE CITED AS: | Grege v Grege & Ors (Ruling) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 475 |
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WITNESSES — Application to take evidence by video link from two witnesses in Lebanon — Requirement to make out a case for such an order to be made — What the interests of justice require in a particular case — Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E — ASIC v Rich (2004) 49 ACSR 578 — Wilson v Bauer Media (Ruling No 3) [2017] VSC 311 — Kirby v Centro Properties (2012) 288 ALR 601 — Ghosn v Principle Focus Pty Ltd & Ors (Ruling) [2008] VSC 454 — Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213.
DISCOVERY — Whether defendants entitled to discovery concerning plaintiff’s financial position in Part IV litigation — Whether special circumstances required to be shown — Court’s independent power to ascertain full value of estates — Administration and Probate Act 1958, s 94 — Harris v Bennett (2004) 8 VR 425 — Re Thompson; Thompson v Chen [2022] VSC 400, [43] — Waters v Belza & Anor [2024] VSC 157.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Matters, solicitor | KCL Law |
| For the Defendants | Dr K P Hanscombe KC, with Mr A P Dickenson of counsel | Rockman & Rockman Lawyers Pty Ltd |
HER HONOUR:
Application for Audio-Visual Link or Audio Link
The plaintiff seeks a direction pursuant to s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘Act’) that Dr Aimee Karam (‘Dr Karam’) and Judge Arlette Tabet (‘Judge Tabet’) may give evidence in this proceeding via video link (‘Application’). Judge Tabet was not included in the original Application filed on 20 October 2023, however, was raised in the affidavit of Simon Peter Matters affirmed 24 July 2024 (‘First Matters Affidavit’) and orally at the hearing on 12 August 2024. To the extent leave is required to amend the Application, leave is granted.
The plaintiff relies upon the First Matters Affidavit and the further affidavits of Simon Peter Matters affirmed on 16 August 2024 and 18 September 2024. No material was filed in opposition to the Application. In an email dated 18 July 2024, exhibited to the First Matters Affidavit, the defendants stated that they opposed the Application without giving a basis for that opposition.
On 12 August 2024, the Application came before the Court. At that hearing, Mr Matters confirmed that the plaintiff wished to press the Application in respect of Dr Karam and Judge Tabet, but not Mr Paul Dumbravanu, who was previously identified as a witness in respect of whom a video link would be sought. Senior Counsel for the defendants indicated that the defendants did not oppose the Application in respect of Dr Karam but they reserved their position in respect of Judge Tabet subject to the scope of Judge Tabet’s evidence, specifically in the event that Judge Tabet was to opine on matters beyond the scope of the expert report dated 24 October 2023 filed on her behalf with the Court.
The Court raised with Mr Matters a concern that there was no evidence before the Court that adequately addressed the issue of whether the law of a foreign state, here Lebanon, prohibits a person within its borders from participating in the giving of evidence in this proceeding via video link. Whilst Mr Matters initially indicated that it was his client’s intention to seek this evidence from Judge Tabet, after discission with the bench, Mr Matters indicated that this evidence would be obtained independently. Subsequently, on 12 August 2024, orders were made directing the plaintiff to file and serve further affidavit material in support of the Application. On 16 August 2024, the plaintiff filed an expert report of Maître Abdel Ghani Hamdan, of Hamdan Law Firm in Beirut, Lebanon (‘Expert Report’). The Expert Report was directed at the issue of whether there were any restrictions under Lebanese law on a Lebanese citizen giving evidence from Lebanon in a proceeding in the State of Victoria. There was no challenge to the Expert Report and I accept Mr Hamdan’s evidence.
The relevant provision of the Act is in the following terms:
Appearance, etc. by audio-visual link or audio link
(1)Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio-visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.
(2)A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.
(3)The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.
(4)Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.
(5)Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).
This is one of three related proceedings concerning the estate of Nabil Grege (‘Deceased’). This proceeding is brought by the Deceased’s widow, Roula Grege; proceeding S ECI 2021 01105 is brought by Jones Grege, son of the Deceased and Roula Grege; and proceeding S ECI 2021 00932 is brought by Spencer Csapo-Grege, son of the Deceased (together the ‘Related Proceedings’). Each of the Related Proceedings is defended by the children of the Deceased’s first relationship who are the executors of the Deceased’s estate. Each of the Related Proceedings concern the distribution of the Deceased’s estate. The Inventory accompanying the application for a grant of probate disclosed a net estate valued at $52,230,976.00.
The Related Proceedings are to be heard together and have been listed for trial commencing on 12 November 2024.
The plaintiff currently lives in Lebanon but intends to return to live in Sydney, Australia subject to the Court ordering further provision for maintenance and support from the estate in the sum of approximately AUD$18,100,000.00.[1]
[1]Affidavit of Roula Grege sworn 4 June 2023, [30].
Dr Karam is the plaintiff’s clinical psychologist in Lebanon. Dr Karam is the Head of Clinical Psychology at the Medical Institute for Neuropsychological Disorders in the Department of Psychiatry and Clinical Psychology at St George Hospital University Medical Centre in Beirut, Lebanon. Mr Matters has deposed that at the trial of the proceeding, the plaintiff intends to adduce expert evidence from Dr Karam regarding the plaintiff’s present and past mental health and conditions, the substance of which is set out in the report from Dr Karam dated 12 October 2023 and the addendum to that report dated 23 May 2024.
Dr Karam resides in Beirut, Lebanon. Dr Karam is willing to give evidence in the proceeding voluntarily.
Judge Tabet is a Mount Lebanon Prosecuting Judge. Judge Tabet’s evidence will be directed to the applicable Lebanese law which applies to the lease between the plaintiff and Mar Mickael, the substance of which is set out in the report from Judge Tabet dated 24 October 2023. That evidence may, I interpolate, be relevant to the plaintiff’s financial circumstances and assessing any claim for further provision.
Judge Tabet resides in Beirut, Lebanon. Judge Tabet is willing to give evidence in the proceeding voluntarily. Despite being the holder of judicial office, there are no rules that preclude Judge Tabet from giving evidence in the proceeding.[2]
[2]Expert Report of Maître Abdel Ghani Hamdan dated 16 August 2024 (‘Expert Report’); Affidavit of Simon Peter Matters affirmed on 18 September 2024, [11].
The plaintiff’s solicitors have confirmed that the technical requirements specified in s 42G of the Act are reasonably capable of being met if a direction for evidence to be given via video link is made. The solicitor’s belief is based upon information received from both Dr Karam and Judge Tabet that they have an internet connection of sufficient speed and stability to maintain a suitable connection, a clear camera, a speaker and a microphone so that they can be seen and heard by the Court and attendees, and in turn the Court and attendees can see and hear them.
The Act gives the Court a broad discretionary power to make orders for the taking of evidence by audio-visual link. In ASIC v Rich,[3] similar provisions of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), the related procedural rules and the case law about the procedure were analysed by Austin J.
[3](2004) 49 ACSR 578 (‘ASIC v Rich’). See also Kirby v Centro Properties Ltd (2012) 288 ALR 601 (‘Kirby’).
Austin J identified the following matters as being relevant to the Court’s discretion:[4]
Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audio-visual facilities for centrally important evidence, the assessment of credit where evidence is given by audio-visual link, difficulties raised by the use of documents for cross-examination in audio-visual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audio-visual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audio-visual facilities.
[4]ASIC v Rich (n 3), 583 [19].
In Kirby v Centro Properties Limited,[5] Gordon J identified some of the factors a Court may take into account in exercising its discretion to allow video link evidence:[6]
the employment commitments of an overseas witness: see, for example, Reinsurance Australia Corp at [4];
whether the credibility of the witness is in issue: ASIC v Rich at [28]; Australia Medical Imaging at [27]; Sunstate Airlines (Qld) at 6 and Lamesa Holdings BV v Commissioner of Taxation (unreported, FCA, Sackville J, 30 July 1998) at [6];
whether the witness’ evidence will be “centrally important” to the case: see, for example, StoresOnline International Inc at [15] and ASIC v Rich at [22] and [28];
whether the use of video link may frustrate or delay the management of documents in cross examination: see, for example, ASIC v Rich at [31].
[5]Kirby (n 3).
[6]Ibid, 604-605 [10].
I accept the evidence of both Dr Karam and Judge Tabet is centrally important to the trial of the proceeding. Additionally, it seems unlikely that either Dr Karam or Judge Tabet’s credit will be a central issue in the case.
Having regard to the issues in the trial as identified in the plaintiff’s evidence, there is no basis to expect that either Dr Karam or Judge Tabet’s cross examination will be complex or lengthy or that it is incapable of being managed effectively over an audio-visual link.
I am satisfied that Dr Karam’s employment commitments are significant. In addition, the plaintiff may be significantly disadvantaged in seeking the just determination of this proceeding if she is denied the opportunity to rely on Dr Karam’s evidence. Indeed, there could be little doubt that the plaintiff may suffer prejudice if she is denied the opportunity to rely on evidence from her clinical psychologist.
Further, in respect of Dr Karam, I adopt the remarks of Forrest J in Ghosn v Principle Focus Pty Ltd & Ors.[7] In that matter, his Honour commented that Victorian based doctors are regularly permitted to give evidence in Victorian Courts by video link, obviating the need for a significant disruption to their practice. His Honour then concluded that the principle underlying this practice must surely apply with greater force to practitioners overseas.[8]
[7][2008] VSC 454.
[8]Ibid, [9].
I make the same observations in respect of Judge Tabet’s employment commitments and travel to Melbourne. The plaintiff may be significantly disadvantaged in seeking the just determination of this proceeding if she is denied the opportunity to rely on Judge Tabet’s evidence in support of her application for further provision.
In the present case, there is a further matter that warrants consideration in relation to the exercise of my discretion. On 6 August 2024, the Australian Government released a travel advisory in respect of Lebanon in the following terms:
We continue to advise that Australians do not travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.
Australians in Lebanon should leave immediately while commercial flights remain available. The security situation could deteriorate rapidly throughout Lebanon with little or no notice. Some airlines have postponed or cancelled some flights. Further flight cancellations and disruptions could occur with little or no notice. You should take the first available flight and not wait for a preferred route.
Beirut airport could close, and you may be unable to leave for an extended period. Airlines may cancel more flights or set high ticket prices for any remaining flights. There may also be other travel disruptions. The Australian Government may not be able to assist you to leave in such circumstances.
Since 19 October 2023, our advice has been Do Not Travel to Lebanon.
Daily military action has increased in southern Lebanon, including rocket and missile fire, as well as airstrikes. The conflict could continue to escalate quickly or spread to other areas in Lebanon, including Beirut, with little notice. This could affect your ability to move to safety. Avoid areas where military activity is ongoing. See our advice on “Armed conflict” in “Safety”.
If you choose not to leave while commercial flights are operating, be prepared to shelter in place for an extended period. Make sure you have enough supplies including food, water, medicine, radio, torches and batteries. Know where your identity documents are, including your passport.
Terrorist attacks could occur anytime and anywhere, including in Beirut.
On 21 September 2024, that travel advisory was updated to reflect recent unrest in the region. It remains in similar terms. Whilst the travel advisory is directed at travel from Lebanon, the logical extension of the advice must be considered – namely that if commercial flights cease operating, there may be some difficulty for Dr Karam and Judge Tabet being able to return to Lebanon were they required to travel to Australia to give their evidence.
On this basis, I would reject any contention that it is either too hard for Dr Karam or Judge Tabet to travel to Melbourne or that they are unwilling to do so. The travel situation which presently exists in Lebanon is volatile and uncertain.
There exists a further issue which must be considered in determining this Application, namely whether making an order of the nature sought would result in a non-consensual intrusion on the sovereignty of a foreign country, being Lebanon. On this point, there was very limited assistance provided in the First Matters Affidavit, notwithstanding that the issues required to be identified were raised by me at the hearing on 27 October 2023.[9] That evidence was supplemented by the Expert Report, the relevant parts of which were drawn in these terms:[10]
…Neither Dr Karam nor Judge Tabet is prevented by the laws of Lebanon from giving evidence in an Australian court of law in a civil proceeding via audio-visual link. The reason is that … there are no laws in Lebanon which restrict, control or regulate the giving of evidence or oaths in foreign proceedings by audio-visual link from Lebanon. The witness is therefore at liberty to give the evidence via audio-visual link since Lebanese law does not prohibit or restrict [them] from doing so.
[9]Transcript of Proceedings (27 October 2023) 22.17-22.29.
[10]Expert Report, [10].
The issue of the sovereignty of a foreign nation was discussed by the Full Court of the Federal Court in Joyce v Sunland Waterfront (BVI) Ltd (‘Joyce’).[11] That case involved proceedings brought in Queensland between two groups of companies with respect to the purchase of land in the United Arab Emirates (‘UAE’). One of the participants in the proceedings, and a necessary witness, was Mr Joyce, an Australian citizen. Mr Joyce wished to give evidence in the case, however, he had been charged with criminal offences in the UAE concerning the transaction which was the subject of the proceeding. Although Mr Joyce had been granted bail, he was prevented by his bail conditions from travelling to Australia to participate in the Australian proceedings. Mr Joyce was willing to participate in the Australian proceedings by audio-visual link.
[11](2011) 195 FCR 213.
At first instance, the primary judge, Logan J, while accepting that he had power to take evidence in Dubai pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), thought that he should not do so absent evidence that the UAE government had no objection to that course. Logan J stayed the proceedings until such evidence was available. In so doing, Logan J considered that taking evidence by video link may be an assertion of Australian judicial power on the territory of the UAE.
The Full Court in Joyce, in rejecting the primary judge’s conclusions, did not think that such considerations were relevant in giving effect to the discretionary power under s 47A of the FCA Act to take evidence by video link. The Full Court stated:[12]
Section 47A of the [Federal Court of Australia Act] confers the power to allow testimony to be given by video link, audio link or ‘other appropriate means’. It specifically authorizes the exercise of this power where the person giving the testimony is in a foreign country. There are express provisions permitting the Court to dispense with the requirement for an oath or affirmation where the law in force in the foreign country does not permit such a course, or where it would be inconvenient, because of a law of that country for a person to give evidence on oath or affirmation. However the legislation does not require that the foreign state consent to a person within its borders giving evidence by video link to an Australian court. If the Parliament perceived any problem arising out of the concept of sovereignty or that of comity, then it seems to have overridden any obligation which Australia may have had in that regard. In our view, s 47A authorizes this Court to take evidence on oath or affirmation from a person located in any other state, save where the law of that state prohibits or makes inconvenient the giving of evidence on oath or affirmation. In that case, the Court may dispense with the oath or affirmation. We see no justification for imposing upon the exercise of the discretion conferred by s 47A, a requirement that the other state consent to the taking of evidence in that way.
Of course, if the law of a foreign state prohibits a person within its borders from participating in such a process, then problems might arise. That is not the present case...
In those circumstances we conclude that in exercising the discretion pursuant to s 47A, the Court is not hampered by any need to consider questions of sovereignty or comity between nations, at least absent any law forbidding such conduct, and subject to the question of whether an oath or affirmation should be required...
[12]Ibid, 71-72 [60]-[62].
In Wang Chunfeng v Law Society of New South Wales,[13] Basten AJ considered the reasoning in Joyce and noted (citations omitted):[14]
On the basis that the primary judge had taken irrelevant considerations into account, his orders were set aside. Nevertheless, the Full Court thought it appropriate to refer to “the widespread practice of approaching [the Department of Foreign Affairs and Trade] where a court proposes to take evidence in a foreign country, with a view to obtaining the consent of the relevant government”, a practice which was not disapproved. A distinction was drawn, however, between a person attending in a foreign country to obtain evidence from a witness and the witness giving evidence by video link from the country. The reasoning continued:
“However the rules relating to sovereignty and comity do not limit the individual rights and freedoms of individual persons. Provided that the law of the relevant nation does not forbid it, an Australian citizen, whilst present in a foreign country, may speak on the telephone to somebody in Australia, be it his or her mother, lawyer or, we suggest, a court sitting to determine a matter in accordance with the law of Australia.”
[13][2022] NSWSC 986 (‘Wang Chunfeng’).
[14]Ibid, [23].
Basten JA went on to consider Nygh’s Conflict of Laws in Australia,[15] opining as follows (citations omitted):[16]
Nygh’s Conflict of Laws in Australia, after noting the objection of some countries to foreign judicial officials taking evidence from persons within their territory on the ground that such an act constitutes an invasion of their sovereignty, nevertheless concludes that Joyce was authority for the proposition that “legislation authorising the taking of evidence by video link overrides any obligation that Australia might have had to respect another nation’s sovereignty for reasons of international comity”. Further, the commentary states:
“Accordingly, the court should exercise its discretion to take evidence by video link even if the country from which evidence is to be given does not consent to a person within its borders giving evidence to a court in Australia. If that country prohibits or makes inconvenient the giving of evidence on oath or affirmation from within its borders, the court should take the evidence by video link but dispense with the oath or affirmation.”
This passage distinguishes between non-consent and prohibition. As the authors note, Joyce did not address the question of a witness subject to a prohibition rendering it unlawful to give evidence to the court in another country. Nor does the discussion in the text, or the cases, address the distinction between a prohibition, the absence of consent and a law which conditions permission on the giving of consent.
[15]M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis, 10th ed, 2020) par 11.25.
[16]Wang Chunfeng (n 13), [25]-[26].
Section 47A of the FCA Act is in the similar terms to s 42E of the Act, save that there is no express statement in s 42 of the Act that dispenses with the requirement for an oath or affirmation where the law in force in the foreign country does not permit such a course, or where it would be inconvenient, because of a law of that country for a person to give evidence on oath or affirmation.
Section 42E of the Act permits, subject to section 42F of the Act and to any rules of Court, this Court to direct that a person may appear before, or give evidence or make a submission to, the Court by audio-visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the Court is sitting.
Moreover, both Dr Karam and Judge Tabet have volunteered to give evidence. On that basis, having regard to Expert Report, and adopting the reasoning in Joyce, I conclude that the exercise of my discretion under the Act is not hampered by the need to consider further any questions of sovereignty or comity between nations.
Turning then to other considerations, in particular the application of the Civil Procedure Act 2010 (Vic) (‘CPA’) in Wilson v Bauer Media Pty Ltd (No 3) (‘Wilson’),[17] Dixon J commented that (citations omitted):[18]
In exercising my discretion I am guided by the Civil Procedure Act 2010 and its requirement that I give effect to the overarching purpose in exercising the court’s powers, both statutory and procedural. In particular, I must further the overarching purpose by having regard to, amongst other things, the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources, the fair and just determination of the real issues in dispute, and dealing with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute.
Balancing all the relevant considerations on the basis of the evidence and counsel’s expectations about Ms Jackson’s evidence, I am not persuaded that the present circumstances warrant that I should take a particularly cautious approach to the use of audio-visual evidence and I do not consider it likely that the circumstances of Ms Jackson’s evidence as it unfolds will require a different conclusion. That said, I note that under s 42E(3) the court may, at any time in the course of a proceeding, vary or revoke a direction for evidence to be given by video link either on its own initiative or on the application of a party.
[17][2017] VSC 311.
[18]Ibid, [23]-[24].
I respectfully adopt Dixon J’s analysis. Applying the principles identified by his Honour, and exercising my discretion guided by the provisions of the CPA, and balancing the relevant considerations and evidence before me, I consider it appropriate to grant the Application.
Application for Discovery
On 12 August 2024, the defendants’ application for further discovery from the plaintiff also came before the Court. At the time of hearing the discovery application, I indicated to the parties that I was prepared to grant orders that the plaintiff provide further discovery in the terms sought by the defendants and advised that I would deliver short reasons for my decision at the time of delivering my reasons in respect of the Application. My reasons in respect of the discovery application follow.
Pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘AP Act’) the plaintiff seeks further provision from the estate. The plaintiff is an eligible person within the definition of that phrase in s 90 of the AP Act and has brought the proceeding herein within six months after the date of the grant of probate of the Will of the Deceased. Pursuant to s 90A of the AP Act, the plaintiff is thereby entitled to apply for a family provision orders pursuant to s 91 of the AP Act and by the proceeding herein makes such an application.
Pursuant to s 91(2)(c) of the AP Act, the plaintiff says that the Deceased owed her a moral duty to provide for her proper maintenance and support. Pursuant to s 91(2)(d) of the AP Act, the plaintiff says further that the distribution of the Deceased’s estate effected by the Will is not such as to make adequate provision for her proper maintenance and support.
By her affidavits affirmed 1 June 2021, 4 June 2023 and 13 October 2023, the plaintiff seeks further provision from the estate of the Deceased.
By Summons filed 30 July 2024, the defendants seek an order pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) that the plaintiff make discovery of all documents in her possession custody or control regarding the sub-lease of Spinney between the plaintiff and Gray McKenzie Retail Lebanon SAL including:
(a) any documents in relation to the gross sales of Gray McKenzie Retail Lebanon SAL for FY2022, FY2023 and FY2024;
(b) any monthly sales reports received from Gray McKenzie Retail Lebanon SAL;
(c) any audits submitted to the plaintiff by Gray McKenzie Retail Lebanon SAL; and
(d) any invoices issued by the plaintiff to Gray McKenze Retail Lebanon SAL (‘Documents’).
The application for discovery is supported by an affidavit of Mr Raymond Rockman sworn 29 July 2024 in which he deposes that:
(a) the plaintiff has deposed to a sub-lease from herself to Gray McKenze Retail Lebanon SAL of a supermarket premises situated at and known as 5 & 7 Kartaboun Real Estate Area Lebanon (‘Lease’);
(b) the Lease, as amended, provides that Gray McKenze Retail Lebanon SAL must pay rent to the plaintiff calculated at five percent of its gross sales. The relevant terms of the lease are extracted at paragraph 4 of Mr Rockman’s affidavit as follows:
5.2For the purpose of paragraph 5.1 and this contract, the term “gross sales” means the total sales achieved by the second party in the premises during each leave year before calculating the value-added tax according to the invoices issued by the sales system (POS) in the premises. The tenant’s income from the advertising business with its suppliers is excluded from the sales. The lease payable in accordance with this Article, the value added tax, if required, shall be paid based on invoices duly issued by the landlord.
5.3The second party shall pay the lease to the first party in monthly arrears instalments starting from the date of signing this Amendment.
5.4The second party shall send within eight days from the beginning of every month to the first party a monthly sales report issued according to invoices issued by the POS in the premises, showing the details of sales and the total sum in Lebanese pounds for its gross sales in the supermarket for the previous month. The first party shall send to the second party an invoice showing the relative value in Lebanese pounds of the lease based on the percentage agreed upon for the previous month according to the gross sales issued in the said monthly salary, in addition to VAT.
5.5On 30/09 of each year, i.e. three months after the end of the financial year, the tenant shall submit to the landlord a report signed by its accredited audit, showing by virtue of it its gross sales, in Lebanese pounds, as at 30/06 of the said year for the period elapsing from the concerned lease year to this date.
(c) repeated requests have been made of the plaintiff for the provision of the documents now sought to which there has been no response.
To give context to the relevance of the Documents sought, by her affidavit affirmed 1 June 2021 the plaintiff deposes that:
Spinneys Supermarket
84.Situated in front of the Jbeil project was agricultural land owned by the St Mickael Church (Mar Mickael). Prior to their dispute, Nabil and my brother said that this land posed a hindrance to the selling of the apartments, due to odours emitted by the crops and the extensive use of pesticides.
85.In 2009, Nabil and my brother decided to rent this land from Mar Michael [sic]. I was pregnant with Jones at the time. Nabil said that I would have the benefit of the lease and that I should ensure that trees such as mangoes and avocadoes were planted on the land, instead of crops.
86.Shortly after Jones was born, a supermarket called Spinneys contacted my brother to see if we would be willing to build a supermarket on the land according to their specifications.
87.Mar Mickael gave their consent, and Nabil and my brother applied for finance from Federal Bank, who agreed to advance the funds to pay for the build. One of the conditions of the loan was that all of the rental income would be paid by the lessee (Spinneys) directly to Federal Bank of Lebanon until all debt was discharged…
88.Nabil structured the Spinneys arrangement such that I was entitled to receive the rent paid by Spinneys after discharge of the Federal Bank loan and the various expenses and taxes associated with the arrangement.
89.The Spinneys rental agreement is for a term of 9 years, which expires on 17 September 2021. After this date, each year Spinneys has the option to extend the lease or vacate. I do not know whether they will do so. The land lease with Mar Mickael church ends in 2023, at this time I may seek renewal of the lease but the church has no obligation to renew…
…
189.Aside from borrowings from my family, my only source of income is the rent paid by Spinneys, the supermarket which I referred to earlier.
Further, in her affidavit affirmed 13 October 2023, the plaintiff deposes that:
Insofar as Mar Mickhael is now insisting upon increasing proportions of the lease being paid in US dollars in accordance with Article 7 of the lease (with 100% to be paid in US dollars next year), this will have the result of me having to forfeit the Spinneys lease, as the rent paid by the sub-tenant, Gray McKenzie Retail Lebanon SAL, since the last amendment of the sub-lease on 17 September 2021, is only 5% of its gross sales, which is currently the equivalent to approximately $USD120,000.00, 50% of which is paid in LL cash and 50% in LL check, which I then have to change part of to USD. If I have to pay 70% of the rent due to Mar Mikhael in US dollars I will not have sufficient funds to pay the current annual rent of $USD135,400.00.
The plaintiff intends to adduce expert evidence in relation to the Lease and the applicable laws in Lebanon by calling evidence from Judge Tabet at the trial.
In the proceeding, the plaintiff has not disavowed any intention to make a claim based on financial need. Rather, she is seeking further provision from the Deceased’s estate and, in so doing, has put her financial position in issue. Her evidence on that issue will necessarily include consideration of the Lease and any entitlements she may have thereunder. The defendants contended before me that the plaintiff’s evidence on that issue ought to be able to be tested, at least where there is a basis to consider that there may be other assets available to her. They submitted that the Documents sought by way of discovery were material to that task. They further submitted that they had made numerous unsuccessful requests of the plaintiff for the provision of the Documents.
In proceedings under Part IV of the AP Act, discovery will not be ordered unless the discovery relates to an issue in the proceeding and some kind of special circumstance is demonstrated.[19] The requirement to demonstrate special circumstances should not be the subject of undue focus as it risks the parties falling into technical and costly satellite disputes about non-essential issues.[20]
[19]Harris v Bennett (2004) 8 VR 425, 428 [11] (‘Harris’).
[20]Re Thompson; Thompson v Chen [2022] VSC 400, [43].
The fact that the categories of documents for which discovery is sought relate to one or more factors the Court must or may take into account in determining a Part IV claim neither demonstrates that the discovery relates to an issue in the proceeding or that ‘special circumstances’ have been demonstrated.[21] However, having disclosed her financial resources which assert a competing financial claim on the estate, the plaintiff has an obligation to present full and frank evidence of all her resources to the Court, including any prior benefits (such as the Lease).[22]
[21]Harris (n 19), 429 [14].
[22]Nowak v Beska [2013] NSWSC 166, [62]; Griffiths v Craigie [2014] NSWSC 1339, [169].
The factors which influence and inform discovery in civil litigation can be found in the CPA. Sections 7 to 9 of the CPA set out the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court is bound to give effect to this purpose. The participants to whom the CPA applies are required to conduct themselves in accordance with the overarching obligations set out in the CPA.[23] Part 4.3 of the CPA sets out a regime of disclosure and discovery. In addition, s 26 of the CPA sets out the overarching obligation on parties to litigation to provide continuous disclosure of any documents that are critical to the resolution of the dispute. Compliance with s 26 of the CPA is iterative. Section 26 of the CPA does not displace ordinary discovery obligations.
[23]Re Fitzgerald; Voss-Lassetter v Piacun [2020] VSC 784.
Order 29 of the Rules deals with discovery and inspection of documents and limits discovery to proceedings commenced by writ, except for discovery ordered under r 29.07(2) of the Rules or particular discovery under r 29.08 of the Rules. The plaintiff’s Part IV claim was commenced by originating motion. Accordingly, r 29.07 of the Rules applies.
The scope of discovery that may be ordered under r 29.07 of the Rules is limited, by r 29.01.1(3) of the Rules, to: documents on which the party relies; documents that adversely affect the party’s own case; documents that adversely affect another party’s case; and documents that support another party’s case.
Particular discovery by r 29.08 of the Rules is available where it appears to the Court, from evidence, or from the nature or circumstances of the case, or from any document filed in the proceeding, that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or have been in the possession of a party.
In this matter I accept the submissions of the defendants as to the issues the Court is required to determine on an application under Part IV of the AP Act and that the Documents which are sought are relevant to those issues.
Further, considering the matters set out in the plaintiff’s affidavits affirmed 1 June 2021, 4 June 2023 and 13 October 2023 concerning the Lease (including any amendments and sub-leases), I am satisfied that the Documents sought relate to an issue in the proceeding and that the defendants have demonstrated special circumstances.
The defendants’ application has been brought in a timely fashion and it will not delay the trial of the proceeding. In addition, the Documents in respect of which discovery is sought are unlikely to lead to a broadening of the disputes between the parties and a lengthening of a trial, contrary to s 7(1) of the CPA. The categories of discovery sought are limited and proportionate. Finally, the discovery sought by the defendants is, in my view, necessary as it will assist the trial judge in determining the plaintiff’s application for further provision.[24] Accordingly, the defendants’ application for discovery will be granted.
[24]Bolitho v Banksia Securities Ltd (No 18) (remitter) (2001) 69 VR 28, 33 [11].
SCHEDULE OF PARTIES
| S ECI 2021 00890 | |
| BETWEEN: | |
| ROULA GREGE | Plaintiff |
| - v - | |
| JAMES NABIL GREGE | First Defendant |
| WADAD GREGE | Second Defendant |
| KATHRENE GREGE | Third Defendant |
| CANDICE GREGE | Fourth Defendant |
2
9
0