Sabek v The State of Western Australia
[2019] WASC 89
•22 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SABEK -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 89
CORAM: LE MIERE J
HEARD: 13 NOVEMBER 2018
DELIVERED : 22 MARCH 2019
FILE NO/S: CPCA 57 of 2007
BETWEEN: AMRO SABEK
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Criminal Property Confiscation Act 2000 (WA) - Freezing notice - Objections to confiscation of real property - Whether property interest owned or effectively controlled by plaintiff - Whether plaintiff's wife has equitable interest in plaintiff's property interest
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 3, s 8, s 84
Egyptian Civil Code, art 18, art 19
Marriage Act 1961 (Cth)
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Plaintiff's objection to confiscation dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr M A Tedeschi |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Damberg v Damberg [2001] NSWCA 87
De Nicols v Curlier [1900] AC 21
In Re de Nicols [1900] 2 Ch 410
Murakami v Wiryadi (2010) 268 ALR 377
Piatek v Piatek [2010] QSC 412
Willis v The State of Western Australia [No 3] [2010] WASCA 56
LE MIERE J:
Summary
The plaintiff, Mr Sabek, was charged with possession of a prohibited drug with intent to sell or supply. The Western Australian Police Service served a freezing notice pursuant to the Criminal Property Confiscation Act 2000 (WA) (CPC Act) (the Freezing Notice) on Mr Sabek. Mr Sabek has applied to set aside the Freezing Notice.
The court may set aside the Freezing Notice under s 84(2) of the CPC Act if the criteria set out are satisfied. Mr Sabek's application is limited to setting aside the Freezing Notice in relation to the property at 309 Morley Drive East, Lockridge (the Property).
The court may set aside the Freezing Notice under s 84(2) of the CPC Act, if the court finds that it is more likely than not that Mr Sabek does not own or effectively control the Property and has not at any time given it away.
Mr Sabek says that he transferred the Property to his wife, Ms Mahfouz, by a contract of dowry. For the reasons which follow, I find that Mr Sabek has not established that he does not own or effectively control the Property and has not given it away and therefore the Freezing Notice will not be set aside.
Freezing Notice
Upon the application of a police officer, a magistrate issued the Freezing Notice on 6 July 2007 for property, including the Property, on the ground that the property was owned or effectively controlled by Mr Sabek, or that Mr Sabek had at any time given it away, and Mr Sabek had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if he was convicted of the offence. The Freezing Notice was served on Ms Mahfouz on or about 2 August 2007 by registered post to an address in Egypt where she lives.
Confiscation of property
On 10 February 2009, Mr Sabek was convicted in the District Court of Western Australia of the offence of supplying a prohibited drug to another person contrary to s 6(1)(c) and declared a drug trafficker on 11 March 2009 pursuant to s 32A(1) of the Misuse of Drugs Act.
The effect of s 8(1) of the CPC Act is that when Mr Sabek was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act, all of the property that he owned or effectively controlled at the time the declaration was made and all of the property that he had given away at any time before the declaration was made was confiscated to the State.
The only objection to the confiscation of the property was made by Mr Sabek. In his affidavit sworn 28 September 2011 Mr Sabek limited his objection to the confiscation of property to the Property. Mr Sabek claims that the Property belongs to Ms Mahfouz.
The Property
The sole registered proprietor and the legal owner of the Property since 2 November 2001 is Mr Sabek. The property is subject to a registered mortgage to the National Australia Bank. No caveat has been lodged by Ms Mahfouz.
The marriage
On 7 June 2007, Mr Sabek married Ms Mahfouz in the presence of an authorised marriage officer in Egypt. The marriage contract is registered in the relevant Civil Affairs Register in Egypt.
The Marriage Act 1961 (Cth) provides that, subject to exceptions not presently relevant, a marriage entered into overseas is valid in Australia if the marriage was recognised as valid under the law of the country in which it was entered into at the time when it was entered into. The marriage between Mr Sabek and Ms Mahfouz is valid under the law of Australia.
A search of the Civil Register in Egypt discloses that Mr Sabek and Ms Mahfouz were divorced in Egypt on 25 March 2014.
The Transfer of Property Contract
Mr Sabek has produced a document entitled Transfer of Property Contract which purports to be signed by him and dated 5 June 2007. Mr Sabek gave evidence that he signed the document. It purports to be witnessed by two witnesses, one of whom is a relative of Ms Mahfouz and one of whom is a relative of Mr Sabek. Neither of them gave evidence. The document is not signed by Ms Mahfouz. The contract is in Arabic. The English translation is:
I, the undersigned, Amro Yousif Mahmoud Sabek, resident of Western Australia at 309 Morley Drive, Lockridge postcode 6054, do hereby declare that I have transferred my home which is number 309 Morley Drive, Lockridge ‑ Lot No 326 Perth, Western Australia to Mrs Mona Ibrahim Mohamed Mahfouz as an up‑front payment for marrying me. This transfer shall become effective at the time when we get married and become Husband & wife.
(It should be noted that this property in question is still under bank mortgage where around $50,000 'fifty thousand' Australian Dollars have to be paid for the National Bank of Australia to be released from mortgage).
Mr Sabek says that by reason of the Transfer of Property Contract under Islamic law Ms Mahfouz is entitled to ownership of the Property.
Mr Sabek says that he transferred the Property as a dower (or mahr) which is a mandatory payment paid by the groom to the bride at the time of marriage that legally becomes her property.
The State points to a number of matters which it says casts doubt on the Transfer of Property Contract being a transfer of the Property by Mr Sabek to Ms Mahfouz as a dower or dowry at the time of their marriage. The Transfer of Property Contract is not referred to in the marriage contract. The marriage contract makes no mention of the Property.
In an affidavit sworn on 19 December 2010 Ms Mahfouz says that under Egyptian, Islamic and customary law she has a legal right to her husband's property gifted to her in consideration of her marriage and under Australian family law, she has an equitable right and share in her husband's property to the extent gifted to her which is the whole of the Property.
Expert evidence
The marriage of Mr Sabek and Ms Mahfouz in Egypt, the execution of the Transfer of Property Contract in Egypt and the location of the Property in Western Australia potentially gives rise to conflict of law issues.
The question whether the Transfer of Property Contract is valid in the sense of giving rise to any legally enforceable rights and liabilities, must in the first instance be determined by the proper law of the contract. The proper law of the contract is the law of Egypt.
The plaintiff adduced in evidence an affidavit of Sheikh Yusuf Parker sworn 9 May 2011. The State does not accept Sheikh Parker is an expert in Egyptian law. Mr Parker deposes in [4] of his affidavit what he claims to be copies of certificates or documents evidencing his qualifications. However, the documents are not attached to the affidavit. He refers to a degree from Rand University, South Africa but does not say what subjects the degree related to. He says that he has memorised the entire Quran. That does not of itself establish that he is an expert in Egyptian law, Islamic law or sharia law. The plaintiff has not established that Sheikh Parker is an expert in Egyptian law. His evidence of his opinion concerning Egyptian and sharia law is not admissible.
The plaintiff adduced evidence from Moustafa Ali Mohamed El‑Gebaly, an Egyptian attorney. Mr El‑Gebaly's opinion is summarised in [4] of the English translation of his memorandum:
If the house assigned by Mr Amro Yousef Mahmoud Sabek to Mrs Mona Ibrahim Mohamed Mahfouz was an advanced part of the dowry to complete the marriage contract, and if this house is still in the possession of the assignee Mona Ibrahim; this does not change her position being a divorcee as she has been deemed an owner of this house upon the completion of the marriage contract.
Mr El‑Gebaly's opinion does not assist the court in determining whether the Transfer of Property Contract is effective under Egyptian law to transfer any interest in the Property to Ms Mahfouz.
Dr Mohamed Kamel, an expert in Egyptian law instructed by the State, has given evidence about the Transfer of Property Contract.
Dr Kamel has given his opinion on the legal effect and validity of the Transfer of Property Contract according to Egyptian law. There is no other admissible evidence concerning the validity of the Transfer of Property Contract according to Egyptian law. I accept Dr Kamel's opinion.
Dr Kamel states that the effect of articles 18 and 19 of the Egyptian Civil Code is that possession, ownership and other real rights are regulated, as regards immovable, by the law of the place in which the immovable is situated and contracts relating to immovables are governed by the law of the place in which the immovable is situated. Dr Kamel concludes therefore that Egyptian law is not applicable to contracts concerning real estate such as referred to in the Transfer of Property Contract.
Dr Kamel makes a number of observations about the alleged dowry under Egyptian law. Dr Kamel says that the problematic aspect concerning Ms Mahfouz's promised dowry is that the marriage contract does not include any information on the promised dowry. The marriage contract includes:
This marriage was solemnized against a marriage dowry (Sadak) agreed upon by the spouses. Advanced Dowry: the amount agreed upon by the spouses is received as declared by the wife. Postponed Dowry (Sadak Moagal): the amount agreed upon by the spouses and owed by the husband to his wife at its legal time.
A footnote states that the dowry (Sadak) both the advance and postponed amounts shall be written in figures and letters. They are not.
Dr Kamel concludes that the Transfer of Property Contract is an invalid document. He says that its legal effect is limited to the two parties who signed the contract and, in addition the contract, has no legal effect before third parties or the 'singular successor' having a legal interest in the real property in Western Australia as the contract was not recorded in the register prepared for such purposes, nor is there any indication in the marriage contract to the dowry. Dr Kamel concludes that, according to Egyptian law, the Transfer of Property Contract has no legal effect before the Egyptian Courts. Furthermore, Dr Kamel says that the Transfer of Property Contract is an unofficial document that is only binding on the parties to it and has no bearing against third parties in general, including the Government of Western Australia.
Potential conflict of law issues
A conflict of law issue potentially arises. As a general rule the lex situs (the law of the place where the property is situated) determines who has title and what the extent of that title is. However, where the parties have entered into a marriage contract, the law governing that contract will also determine their rights in relation to immovables such as land, so long as the lex situs permits it: Murakami v Wiryadi (2010) 268 ALR 377.
Counsel for the State referred to a number of authorities concerning the possible recognition of rights to property situated in Western Australia arising from a marriage relationship or contract between husband and wife made in, and governed by the law of, a foreign jurisdiction. They include in In Re de Nicols [1900] 2 Ch 410; De Nicols v Curlier [1900] AC 21; Murakami v Wiryadi; Piatek v Piatek [2010] QSC 412 and Damberg v Damberg [2001] NSWCA 87. I find it unnecessary to consider those authorities or the principles they address.
It is unnecessary to consider the potential conflict of law issues. There is no expert evidence of any relevant Egyptian law, Islamic law or sharia law, that the effect of an instrument, such as the Transfer of Property Contract or a marriage contract, is enforceable against third parties to transfer property situated outside of Egypt. Dr Kamel's evidence is that under Egyptian law, rights regarding immovable property are determined by the lex situs and more specifically, the marriage contract between Mr Sabek and Ms Mahfouz and the Transfer of Property Contract is not effective under Egyptian law to pass ownership of the Property to Ms Mahfouz.
CPC Act s 84
The court may only set aside the Freezing Notice under s 84(2) of the CPC Act if Mr Sabek does not own or effectively control the Property and has not at any time given it away.
Section 3 of the CPC Act provides that the Glossary at the end of the Act defines or affects the meaning of some of the words and expressions used in the Act. One of the terms in the Glossary is 'owner'. The Glossary provides:
Owner, in relation to property, means a person who has a legal or equitable interest in the property.
Mr Sabek is the registered proprietor of the Property. He has the full legal interest in the property.
Further, the application of the relevant provisions of the CPC Act to the evidence leads to the conclusion that Mr Sabek has given away any interest in the Property which is or may be held by Ms Mahfouz.
The Glossary provides:
Give, in relation to property, includes transfer for consideration that is significantly less than the greater of ‑
(a)the market value of the property at the time of transfer; and
(b)the consideration paid by the transferee.
Furthermore, the Glossary includes:
Valuable consideration, in relation to the transfer of property, does not include ‑
(a)any consideration for the transfer arising from the fact of a family relationship between the transferor and transferee; or
(b)if the transferor is the spouse or de facto partner of the transferee ‑ the making by the transferor of a deed in favour of the transferee; or
(c)a promise by the transferee to become the spouse or de facto partner of the transferor; or
(d)any consideration arising from the transferor's love or affection for the transferee; or
(e)the transfer of the property as a result of the distribution of a deceased estate; or
(f)the transfer of the property by way of gift; or
(g)consideration that is significantly less than the greater of ‑
(i)the market value of the property at the time of transfer; and
(ii)the consideration paid by the transferee.
There is no evidence that the Property was transferred to Ms Mahfouz for money or money's worth. Any consideration for the transfer was consideration for Ms Mahfouz marrying Mr Sabek. There is no evidence that before he married Ms Mahfouz, Mr Sabek made a promise to Ms Mahfouz that he would transfer the Property to her. There is no evidence that Ms Mahfouz did anything in reliance upon the Transfer of Property Contract, or any representation by Mr Sabek that he would transfer the Property to her. Ms Mahfouz did not live in the Property, she remained in Egypt when Mr Sabek returned to Australia. I infer and conclude that if Ms Mahfouz provided any consideration for Mr Sabek executing the Transfer of Property Contract, it was significantly less than the market value of the Property at the time of the purported transfer.
If the plaintiff's case is accepted then the Property was not transferred for valuable consideration within the terms of the definition of valuable considerable in the Glossary. The term 'valuable consideration' does not appear in s 84 of the CPC Act or in the definition of 'give'. However, it forms part of the context of the Act.
If the plaintiff's case is accepted, that is, that he executed the Transfer of Property Contract on 5 June 2007 in consideration for Ms Mahfouz marrying him, then the Property was 'given away' within the meaning of that term in s 84 of the CPC Act.
Ms Mahfouz claims to have an equitable interest in the Property. A person may have an equitable interest arising from a constructive trust as discussed in Willis v The State of Western Australia [No 3] [2010] WASCA 56.
There is no evidence of detrimental reliance by Ms Mahfouz upon a promise or representation by Mr Sabek to transfer the Property to her. It is therefore not necessary to consider whether any equitable interest in the Property of Ms Mahfouz was 'given away' to her by Mr Sabek.
Mr Sabek and Ms Mahfouz have not satisfied the requirements of s 84(2) of the CPC Act. It has not been established that Ms Mahfouz has any legal or equitable interest in the Property or, if she has, that it was not 'given away' to her by Mr Sabek. Mr Sabek's objection to the Freezing Notice in relation to the Property must be dismissed.
The court may make any necessary or convenient ancillary orders. The appropriate orders are those sought by the State to the effect that, pursuant to s 8 of the CPC Act, the property that Mr Sabek owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act on 11 March 2009 and all property that Mr Sabek gave away at any time before the Drug Trafficker Declaration was made, has been confiscated to the State of Western Australia. The property that has been confiscated includes the Property. Furthermore, the property confiscated includes the vehicle registration number 1CAD759, money standing to the credit of Mr Sabek in National Australia Bank account no 6‑334 49‑291‑8183, and any and all interest payable on such money and money standing to the credit of Mr Sabek in Police & Nurses Credit Society account number 01665614, and any and all interest payable on such money and cash in the sum of $635.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere
25 MARCH 2019
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