Youssef v Youssef

The substantive proceedings are listed for hearing on 11-12 May 2026. On 30 April 2026, the plaintiff filed a notice of motion together with a supporting affidavit by his instructing solicitor. Orders are sought regarding the plaintiff’s competency to give evidence and whether his evidence regarding several alleged representations should be admitted.

Having regard to the notice of motion, supporting affidavit and the plaintiff’s outline of submissions, the Court was concerned that a more fundamental threshold issue also arose, namely whether the plaintiff presently had legal capacity to give instructions to his legal representatives.

The defendant opposed the notice of motion being heard at the commencement of the substantive hearing. Accordingly, the motion was listed for hearing today, Wednesday 6 May 2026. The parties were asked to also address the Court regarding the plaintiff’s legal capacity.

On 5 May 2026, the defendant filed a notion of motion and supporting affidavit dated 5 May 2026 by her instructing solicitor, Mr Thomas Henry Bray. The defendant seeks an order that the hearing listed for 11 and 12 May 2026 be vacated, primarily on the basis that the defendant has had insufficient time to issue subpoenas to medical practitioners who have treated the plaintiff.

For the following reasons, I consider that the substantive proceedings should be stayed pending the appointment of a tutor for the plaintiff. Necessarily, and in light of the defendant’s reasonable request for more time to issue subpoenas relating to the plaintiff’s mental health, the hearing listed for 11 and 12 May 2026 must regrettably be vacated.

The proceedings relate to a dispute between the plaintiff and his mother (the defendant). Without disrespect, I shall refer to the plaintiff and defendant as Hassan and Zeinab. Their dispute relates to a property in Banksia (Property). Zeinab is the sole registered proprietor of the Property. The Property was originally purchased in 1979 in the joint names of Hassan’s mother and father. It was the family home in which the parents lived together with their four children, including Hassan. Hassan lived at the Property from the time of his birth to around 2016 and then from 2024 to now. When Hassan’s father died in 2013, the title to the Property passed by survivorship to Zeinab.

The primary issue is whether the Court should declare Hassan a part owner of the Property based on his claims that he made long term repayments regarding a loan taken out in 2001 for the purchase of a property in Arncliffe, which was secured by a mortgage over the Property. Hassan also claims that he was responsible for renovations and improvements to the Property.

Hassan has sworn an affidavit dated 10 October 2025. A draft affidavit in reply has also been prepared for him. It responds to an affidavit sworn by Zeinab on 19 November 2025. The draft reply affidavit has not yet been sworn by Hassan because of his solicitor’s stated concerns regarding Hassan’s ability to give evidence.

The following extracts from the affidavit dated 30 April 2026 by Hassan’s solicitor, Mr Nathan Weinberger (which was filed in support of the notice of motion), highlight the need to give careful consideration to Hassan’s present legal capacity:

As noted above, Mr Weinberger deposes that Hassan has yet to swear the draft affidavit in reply because of Mr Weinberger’s concerns about Hassan’s ability to give evidence.

It is also appropriate to refer to some wider concerns regarding Hassan’s competency and capacity as expressed by senior counsel, Mr G A Sirtes SC, who was acting for Hassan before his appointment to the Supreme Court. The following material forms part of a written memorandum of advice dated 1 October 2025 (at [2]-[4]) provided to Mr Weinberger by Mr Sirtes SC. (Hassan waived privilege in respect of this document).

Returning now to Mr Weinberger’s evidence, he described how referrals were obtained in October 2025 for Hassan to be assessed by various specialists, including a neuropsychologist and a psychologist. Hassan failed to attend any consultation with those practitioners.

Mr Weinberger’s concerns that, based on his personal observations, Hassan’s competency had deteriorated markedly in recent months were reiterated later in his affidavit:

Mr Weinberger described further attempts to arrange for Hassan to be examined by a psychologist. This culminated in the retention of Dr Linda Thomas from the MedicoLegal Assessments Group (trading as MediLaw). Dr Thomas is a clinical psychologist. She was retained by Mr Weinberger on 26 March 2026 to provide two expert reports, one concerning Hassan’s capacity to give instructions and the other concerning his capacity to give evidence. For convenience, I shall refer to the two reports subsequently provided by Dr Thomas as the Instructions Report and the Evidence Report respectively both dated 1 April 2026.

Both reports are about ten pages in length. Their content substantially overlaps. Both are based on the same one hour telehealth conference on 30 March 2026 between Dr Thomas and Hassan.

In both her reports, Dr Thomas opines that Hassan presented with features consistent with a psychotic disorder which included “prominent paranoid delusional beliefs, evidence of formal thought disorder, as reflected in his disorganised and tangential speech and possible auditory hallucinations”.

Both reports also contain the following statement by Dr Thomas: “The overall clinical picture is most consistent with a disorder within the schizophrenia spectrum; however, a definitive diagnosis would require further assessment and collateral information”.

Both reports have a heading, “Opinion on Capacity”, where Dr Thomas opines as follows:

In the Instructions Report, in response to the question whether Hassan “understands the nature of the litigation, its purpose and its possible outcomes, including as to costs”, Dr Thomas responded: “Yes. I believe he has an understanding of the nature and purpose of the litigation, associated costs and possible outcomes”.

The Instructions Report also contains the following relevant material concerning Dr Thomas’ assessment of Hassan’s capacity:

Dr Thomas’ response to those questions in her Instructions Report may be contrasted with her responses to the following questions in the Evidence Report:

I shall now summarise the relevant legal principles before explaining why I consider that there is sufficient material before the Court to establish to my positive satisfaction that Hassan presently lacks legal capacity.

A person under legal incapacity may not commence or carry on proceedings except by his or her tutor: Uniform Civil Procedure Rules 2005 (NSW) r 7.14(1) (UCPR).

For the purposes of the UCPR, the phrase “a person under legal incapacity” has the meaning given to it in s 3 of the Civil Procedure Act 2005 (NSW), which provides that:

Rule 7.13 of the UCPR also states that a “person under legal capacity includes a person who is incapable of managing his or her own affairs”.

The meaning ascribed to the words “incapable of managing his or her own affairs” by Powell J in PY v RJS [1982] 2 NSWLR 700 (as they appeared in s 18 of the Mental Health Act 1958 (NSW)) have often been cited in the context of r 7.13 of the UCPR (see eg Farr v Queensland [2009] NSWSC 906 at [21]). Powell J in PY v RJS said at 702:

There is no power to appoint an unidentified person as tutor. As Beazley ACJ, Emmett and Leeming JJA held in Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [50]:

The test to be applied in determining whether a person is under a legal incapacity is usually that which was stated by Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; [2002] EWCA Civ 1889 at [75]:

Rule 7.18 of the UCPR gives the Court a power to appoint a tutor for a party to proceedings:

Further relevant legal principles were recently outlined by Kirk JA (Mitchelmore and Griffiths AJA agreeing) in Mahmoud v Ghahreman [2026] NSWCA 52 at [26]-[31]:

Although there is a starting presumption that Hassan does have capacity, having regard to the material above, I am positively satisfied that, even if he had capacity previously, he presently does not have capacity to give instructions to his legal representatives or to make informed and rational decisions concerning the litigation. I have reached that conclusion after taking into account the parties’ submissions and having regard to the following material:

The plaintiff submitted that appointing a tutor would have “minimal” utility, particularly having regard to the fact that Hassan has already had the benefit of legal advice, can give instructions regarding such advice and that Mr Weinberger (an experienced solicitor) is prepared to act on those instructions. Hassan does not want the trial adjourned and wishes the litigation to be finalised because it presents issues which he says are of great importance to him.

I do not consider that these matters carry much weight. The evidence referred to above establishes that Hassan presently lacks legal capacity. Accordingly, the prohibition in r 7.14(1) of the UCPR is engaged such that he is disabled from carrying on the proceedings except by a tutor. I am not persuaded that there is a sufficient basis for waiving compliance with the relevant UCPRs.

I have noted the plaintiff’s submission that there is no “natural candidate” to serve as Hassan’s tutor or any evidence of anyone who is willing to act in that capacity. Hassan’s counsel added, however, that inquiries could be made in relation to these matters and further evidence adduced. I encourage that course.

For all these reasons, I consider that the substantive proceedings should be stayed pending appropriate steps being taken in accordance with the relevant rules to have a suitable person appointed as Hassan’s tutor. As noted above, in his outline of written submissions dated 5 May 2026, Mr Mack of counsel has acknowledged that inquiries can be made as to whether a suitable person is willing to act as the plaintiff’s tutor, having regard to the significant responsibilities and potential liabilities which attach to that position.

The Court appreciates that Hassan prefers that the hearing proceed as scheduled. But the Court is obliged to provide fairness to both parties. The plaintiff is responsible for having belatedly raised the issue of his competency to give evidence. I accept the defendant’s submission that she has not had adequate time to issue subpoenas to medical practitioners which may cast light on that issue. Accordingly, I would uphold the defendant’s application to have the substantive hearing vacated.

The future conduct of the substantive proceedings will be reviewed if and when a tutor is appointed. It will be appropriate at that time to assess and determine Hassan’s capacity to give oral evidence. Necessarily, therefore, the hearing of the substantive proceedings on 11-12 May 2026 will be vacated.

I will make the following orders: