Habchi v Jason H Pty Ltd (ACN 658 016 418) as Trustee for the Jason H Family Trust

[2025] QSC 155

SUPREME COURT OF QUEENSLAND

CITATION:

Habchi v Jason H Pty Ltd (ACN 658 016 418) As Trustee For The Jason H Family Trust & ors [2025] QSC 155

PARTIES:

HABIB PETER HABCHI and others

(plaintiff)

v
JASON H PTY LTD (ACN 658 016 418) AS TRUSTEE FOR THE JASON H FAMILY TRUST

(first defendant)

JASON HABCHI

(second defendant)

JAYHAB DEVELOPMENTS PTY LTD ACN 142 479 570

(third defendant)

FILE NO/S:

BS 9265 of 2022
BS 1372 of 2024
BS 3450 of 2024
BS 11432 of 2024

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Freeburn J

ORDER:

1.   The plaintiff, Mr Habib Habchi, will give evidence first at the trial for separate questions commencing on 15 September 2025.

2.   I will hear the parties on costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – ORDER OF EVIDENCE AND ADDRESS – where the matter is set down for a hearing of separate questions – where the plaintiff brings an application that the defendant parties give evidence first at the hearing– where generally the party with the burden of proof gives evidence first – whether the plaintiff or the defendant parties should give their evidence first at the hearing of separate questions to be determined

COUNSEL:

The plaintiff appeared on his own behalf
B T Cohen for the respondent (sol)

SOLICITORS:

The plaintiff appeared on his own behalf
Bartley Cohen for the defendants

1. These are a collection of proceedings between Mr Habib Habchi and his brother Mr Jason Habchi, as well as entities controlled by or related to each of them. Mr Habib Habchi is self-represented. His brother is legally represented.

2. Both parties agree that, at the core of the dispute, are contentions regarding the proper interpretation of and the effect of a single page agreement entitled ‘Family Agreement’.

3. On 25 March 2025 the court directed that some specific issues be decided at a trial for eight days commencing on 15 September 2025. The parties have been preparing for that trial.

4. The present dispute, brought on by an application by Mr Habib Habchi, is essentially ‘who should go first’ at the trial of the separate questions. In a sense it is difficult to see why the issue has any particular significance. Both parties have, in accordance with directions of the court, filed and served affidavits comprising their evidence-in-chief. That means that both parties have already given proper notice of the evidence-in-chief that they rely on. The only practical consequence is that if Habib Habchi is first then the Jason Habchi parties have the opportunity to cross-examine first, and vice versa.

The Principles

1. The court has a discretion to make orders concerning the order in which evidence is adduced and the order in which the parties address the court.[1] The interests of justice are paramount. Generally, the party with the burden of proof would go first, although the question is an issue of fairness.

   [1]See Uniform Civil Procedure Rules 1999, rule 367.

2. The separate questions to be tried are as follows:

   (a)What is the proper construction of the Family Agreement?

   (b)Having regard to the answer to the question above:

   (i)was the Family Agreement breached by anyone?

   (ii)further or alternatively, was the Family Agreement terminated by anyone?

   (iii)further or alternatively, is anyone now entitled to terminate the Family Agreement?

   (c)Is any party estopped from asserting or maintaining any position with respect to the proper construction of the Family Agreement?

   (d)Having regard to the answers to the questions in paragraphs (a) and (c) above, other than in relation to the Mine Street Properties, what relief, if any, are:

   (i)the Habib Habchi Parties (or any of them) entitled to?

   (ii)the Jason Habchi Parties (or any of them) entitled to?

   (e)Are there grounds for the making of an order under s 233 of the Corporations Act 2001 (Cth) in relation to Jayhab Developments Pty Ltd, as provided for by s 232 of that Act?

   (f)Having regard to the answers to the questions in paragraphs (a) to (e) above, what orders or directions are necessary or appropriate to determine or facilitate the determination of any remaining questions in the Proceedings, including relief?

3. Those questions have a rather neutral flavour, suggesting that both parties are seeking determinations from the court. However, it is worth looking at the nature of the various proceedings.

4. First, there are proceedings that concern property at 2 City Road and 538 Sherwood Road. In essence, in that proceeding Mr Habib Habchi seeks declarations that one-half of the interest in 2 City Road and the whole or one-half of the interest in 538 Sherwood Road are held by entities associated with Mr Jason Habchi on trust for Mr Habib Habchi.

5. However, Mr Jason Habchi has not been passive in the litigation over these properties. Mr Jason Habchi sought removal of a caveat lodged by Mr Habib Habchi and his wife. There were fights about possession or access to the properties.

6. Second, Mr Habib Habchi commenced proceedings seeking a declaration that 63 Cook Street was held for him on a ‘constructive trust’.

7. Third, similarly Mr Habib Habchi seeks a declaration that he is entitled to 25% of the issued shares in Lantona or Lantona 2.

8. Fourth, Mr Habib Habchi commenced what is known as the Jayhab proceeding seeking orders under s 233 of the Corporations Act 2001 that he be appointed as the sole director, or alternatively as a director of Jayhab.

9. Thus, it is plain that Mr Habib Habchi is the dominant protagonist.

10. It is necessary to consider Mr Habib Habchi’s arguments that he should be permitted to ‘go second’.

11. First, Mr Habib Habchi says that he would be prejudiced if he does not present his evidence after Mr Jason Habchi’s evidence. I am unable to identify any prejudice. The evidence-in-chief from the main protagonists, Mr Habib Habchi and Mr Jason Habchi, has already been filed. There is a detailed affidavit from Mr Jason Habchi. The versions of both protagonists are on paper and available for scrutiny.

12. If Mr Habib Habchi wishes to respond to Jason Habchi’s evidence, then he can apply for leave to put in responsive evidence.

13. Second, Mr Habib Habchi makes this submission:

    “The plaintiff submits that the Defendants must go first as all the documents are held under a Constructive Trust and the Defendant has admitted to the existence of the Family Agreement/Constructive Trust. The Defendant is in control and his possession all the documents related. The only question for the Court is the proper construction of the Family Agreement/Constructive Trust.”

14. I have difficulty understanding that submission. It is true that both parties acknowledge the existence of the family agreement. It is a sparse, untidy document which will require some effort to properly interpret. But all of that is neutral. But Mr Habib Habchi’s case is that, by reason of the family agreement, various properties are held on a constructive trust. That is his positive case.

15. It has never been in contest that the family agreement exists. And, even if Mr Habib Habchi is right that Mr Jason Habchi’s affidavit admits, or goes some way towards admitting the existence of the constructive trust,[2] that merely means that Mr Habib Habchi’s case will be relatively easy to prove.

    [2]I am doubtful that the existence of the constructive trust is admitted. It seems more likely that there will be a contest.

16. Third, Mr Habib Habchi notes his claim that the properties comprehended by the family agreement are held on a constructive trust. That, of course, is the point made above – it is Mr Habib Habchi’s case that there is, in the circumstances, a constructive trust. In other words, Mr Habib Habchi makes claims of interests in the property. He is the substantive protagonist.

17. Fourth, Mr Habib Habchi submits that many of the documents relating to the properties are held by Mr Jason Habchi and his interests. That may be true. But, at the hearing the court will be aware that the documents relating to a property are likely to be held by the legal owner. Of course, profits and any income derived from the properties are not likely to be relevant at this stage of the proceeding. If Mr Habib Habchi succeeds in establishing that the has an interest in the properties then the documentation relating to the properties will become relevant.

18. Fifth, Mr Habib Habchi submits that Mr Jason Habchi has agreed to the existence of the family agreement. That much is true. But, as I have explained, it seems to always have been the case that both parties acknowledged the existence of the family agreement. The ‘live’ question is what the family agreement means and to what property it extends.

19. Sixth, Mr Habib Habchi argued that Mr Jason Habchi has failed or refused to provide proper disclosure. It has always been open to Mr Habib Habchi to bring an application for further or proper disclosure. And, if Jason Habchi has not produced relevant documents at trial then that may be relevant to his credit.

20. Seventh, a related point that is argued is that it is Jason Habchi, and not Mr Habib Habchi, who has knowledge of and control of the relevant properties. That may be so, but it is Mr Habib Habchi who seeks to establish a constructive trust over those properties. That must first be established.

21. In short, it is necessary for Mr Habib Habchi to establish his right to a remedial constructive trust. Presumably he will seek to do that by proof of the family agreement, or of a proposed joint enterprise, and by proof of other circumstances which call for a constructive trust.

22. For those reasons, it is directed that, Mr Habib Habchi will give evidence first at the hearing.