HANI v BANK AUDI S.A.L [2026] SASC 107

Case law · South Australia · 2026

Applicant: JIHAD FAWAZ HANI Counsel: MR C JACOBI SC WITH MR C MUNT AND MR D KELLY - Solicitor: FIRMSTONE & ASSOCIATES Respondent: BANK AUDI S.A.L Counsel: MR M HOFFMANN KC WITH MR L WICKS - Solicitor: JOHNSTON WINTER SLATTERY Hearing Date/s: 07/04/2025 to 17/04/2025, 29/04/2025, 28/05/2025 File No/s: CIV-22-011623 A SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HANI v BANK AUDI S.A.L [2026] SASC 107 Judgment of the Honourable Chief Justice Stein 16 July 2026 PRIVATE INTERNATIONAL LAW - RESTRAINT OF PROCEEDINGS - OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM - GENERALLY PRIVATE INTERNATIONAL LAW - RESTRAINT OF PROCEEDINGS - FOREIGN JURISDICTION CLAUSES - GENERALLY PRIVATE INTERNATIONAL LAW - JURISDICTION - SUBSTITUTED SERVICE OUT OF JURISDICTION PRIVATE INTERNATIONAL LAW - SERVICE OUT OF JURISDICTION - GENERALLY In October 2018, the applicant entered into a banking agreement and opened an account with the respondent, a Lebanese bank. The banking agreement provided that it was governed by, and to be construed in accordance with, Lebanese law. It also provided that Beirut courts would have exclusive jurisdiction over any dispute. However, the respondent would be entitled to take legal actions before any courts in Lebanon or abroad. The applicant subsequently transferred three sums of money to the respondent which were converted to US$ and placed into three separate term deposits. In late 2019, Lebanon began experiencing what became a significant, ongoing financial crisis. In 2022, the applicant asked the respondent to close his accounts and transfer amounts by international funds transfer to South Australia. The respondent closed his accounts but did not comply with the transfer request. The respondent instead engaged in a process referred to as a tender and deposit process whereby it provided cheques to a notary public in Beirut. In 2022, the applicant commenced proceedings in this Court alleging that the respondent had failed to repay his monies in breach of contractual and other legal obligations and sought orders for specific performance by payment of funds through international electronic funds transfer. The applicant alternatively claimed entitlement to damages. The respondent has not submitted to the jurisdiction and has not filed a defence. -- 1 of 251 -- In 2022, the respondent commenced proceedings in Beirut to validate the tender and deposit process but did not serve those proceedings at the time. Lawyers in Beirut (utilising a general power of attorney granted by the applicant) issued proceedings in the applicant’s name in relation to the tender and deposit process. Those proceedings were not served on the respondent. The applicant’s Australian legal representatives were not aware of those proceedings. By interlocutory application, the applicant seeks orders confirming the validity of service of the statement of claim on the respondent on the basis he did not require leave to serve, or, alternatively, seeks leave to serve the statement of claim nunc pro tunc. The respondent denies the statement of claim was validly served, opposes leave and has also, by interlocutory application, sought a stay or dismissal of the proceedings on the ground of forum non conveniens. The respondent relies, among other things, on the jurisdiction clause in the banking agreement which it contends is a valid, enforceable exclusive jurisdiction clause. The applicant submits the clause is invalid as an abusive clause contrary to Article 26 of the Lebanese Consumer Protection Law and/or as a potestative clause contrary to Article 84 of the Lebanese Code of Obligations and Contracts. Alternatively, the applicant asks the Court to not stay the proceedings on the basis, among other things, of a radical change in circumstances since the applicant entered into the banking agreement. The respondent contends the proceedings are oppressive and burdensome to it and this Court is a clearly inappropriate forum for the trial of the action. The applicant submits the respondent has not met the high bar necessary to justify the grant of a stay or dismissal on forum non conveniens grounds. Held (allowing the applicant’s interlocutory application and dismissing the respondent’s interlocutory application): 1. Leave to serve the originating process was not required in relation to the claims made concerning the first and second deposit contracts, and the originating process was validly served with effect from 10 October 2023. 2. Insofar as is required in relation to the balance of the originating process, leave is granted to serve nunc pro tunc to 10 October 2023. 3. The jurisdiction clause in the banking agreements between the applicant and the respondent is an express, exclusive jurisdiction clause. 4. The jurisdiction clause is an arbitrary/abusive clause contrary to Article 26 of the Lebanese Consumer Protection Law and is consequently completely void. 5. The jurisdiction clause is not a potestative clause contrary to Article 84 of the Lebanese Code of Obligations and Contracts. 6. This Court is not a clearly inappropriate forum for trial of the action. The respondent has failed to establish that the continuation of these proceedings will be seriously and unfairly burdensome, prejudicial or damaging or productive of such serious and unjustified trouble and harassment that the proceedings ought to be stayed or dismissed on forum non conveniens grounds. Uniform Civil Rules 2020 (SA) r 2.1, Sch 1, rr 2, 2(b)(iii), 2(c), 2(n), 3, 3(1), 3(5), 4, 5; Code of Money and Credit and the establishment of Banque du Liban Decree No. 13513 of 1 August 1963 (Lebanon) art 123; Code of Obligations and Contracts Law of 9/3/1932 (Lebanon) arts 84, 85, 138, 166, 172, 202, 213, 214, 220, 221, 243, 249, 250, 341- 343, 366-371, 690, 691, 701, 740, 754, 761, 822; Consumer Protection Law No. 658 promulgated on 4/2/2005 (Lebanon) arts 1-3, 17, 18, 26; Council Regulation (EC) No 44/2001 of 22 December 2020 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1 art 23; Law No. 2 of 1967 (Lebanon) art 4; Law No. 81 of 2018 (Lebanon) art 50; Law-Decree 150/83 (Lebanon); Lebanon Code of Commerce Legislative Decree No. 304 of 24 December 1942 (Lebanon) arts 5, 307, 444; -- 2 of 251 -- The Lebanese Code of Civil Procedure Legislative Decree No. 90 of 16/9/1983 (Lebanon) arts 1, 3, 96-106, 442, 501, 579- 588, 822-824, 1014, referred to. Agar v Hyde (2000) 201 CLR 552; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; Apple Sales CASS, First Civ, 7 October 2015, No. 14-16.898; Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297; Bank of Victoria Ltd v Roberston (1897) 23 VLR 3; Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906; Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB); BLOM Bank SAL v Attias Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024; Capic v Ford Motor Co Ltd [2020] FCA 486; Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228; Colosseum Investments Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803; Khalil v Lebanese Swiss Bank Court of First Instance of Beirut, Sixth Chamber; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Danne v Credit Suisse CASS, First Civ, 25 March 2015, No. 13-27.264; Ellinger v Guinness, Mahon & Co [1939] 4 ALL ER 16; Fransabank v Traboulsi Civil Court of Appeal Beirut, decision 398 dated 21/5/2024; Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 267 ALR 144; Gold Ridge Mining Ltd v AIG Australia Ltd [2024] QSC 217; Gosman v Ockerby [1908] VLR 298; Henry v Henry (1996) 185 CLR 571; Huddart Parker Ltd the The Ship “Mill Hill” (1950) 81 CLR 502; Idoport Pty Ltd v National Australia Bank Ltd [No 12] (2000) 50 NSWLR 640; Incitec Ltd v Alkimos Shipping Corporation (2004) 206 ALR 558; International Management Group of America Pty Ltd v Media Niugini Ltd t/as EMTV [2020] NSWSC 559; Kaadi v Byblos Bank SAL Court of Appeal in Bekaa, Second Chamber, Decision No. 13/2023; Khalifeh v Blom Bank [2021] EWHC 3399 (QB); Khalifeh v Blom Bank SAL [2021] EWHC 1502 (QB); Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd [2010] NSWSC 269; Liftronic Pty Ltd v Montgomery Elevator Company (1996) ATPR 41-458; Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB); McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340; Mills v Commonwealth [2003] Aus Torts Reports 81-714; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Puttick (as Executor of the Estate of Puttick) v Tenon Ltd (formerly called Fletcher Challenge Forests Ltd) (2008) 238 CLR 265; Raad v Bank Aldi LLC 2nd Cir, No 21-2612, 15 December 2022; Raad v Bank Audi SAL no 21- 2612 US Court of Appeals, 2D Cir, Dec 15, 202; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; Rossiter v Core Mining Limited [2015] NSWSC 360; Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190; Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; Temilkovski v Australian Iron & Steel Pty Ltd [1966] 1 NSWR 279; The Eleftheria [1970] P 94; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Waung v Subbotovsky [1968] 3 NSWR 499; Whung v Whung (2011) 258 FLR 452; X v Banque Privée Edmond de Rothschild CASS, First Civ, 26 September 2012, No. 11-26.022; Yunghhanns v Colquhoun Denvers [2016] VSC 403; Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47, considered. -- 3 of 251 -- -- 4 of 251 -- HANI v BANK AUDI S.A.L [2026] SASC 107 Civil PART 1 – LAY EVIDENCE CONCERNING THE CIRCUMSTANCES IN WHICH MR HANI TRANSFERRED FUNDS TO THE BANK ........................................................... 9 The circumstances in which Mr Hani came to transfer funds to the Bank ....................... 9 Summary of evidence of Mr Jihad Hani............................................................................ 9 Mr Hani meets the Bank representative in late 2018 .................................................................. 9 A KYC form is completed in October 2018 ................................................................................ 10 Account is opened and general agreement signed ..................................................................... 11 General agreement for opening and activating accounts and general terms and conditions for electronic banking services ........................................................................................................ 11 Execution of general banking agreement and KYC form .......................................................... 12 Mr Hani transfers funds in May 2019........................................................................................ 13 Mr Hani sends the Bank correspondence providing details of business activities in South Australia ..................................................................................................................................... 14 Mr Hani transfers funds in August 2019.................................................................................... 14 Second KYC form ....................................................................................................................... 14 Email attaching ASIC form ........................................................................................................ 15 Mr Hani was sent a “Terms” document .................................................................................... 15 Further accounts and transfers in 2020..................................................................................... 16 Third KYC form.......................................................................................................................... 16 Mr Hani received online service applications for electronic banking ...................................... 16 Total of Mr Hani’s funds in 2022 .............................................................................................. 17 Request for closure and transfer of funds .................................................................................. 17 Mr Hani’s residence .................................................................................................................. 18 Correction of some details in relation to dealings with the Bank.............................................. 18 Discussions after the banking crisis commenced....................................................................... 19 Mr Rachad Elias El-Khoury............................................................................................. 20 Introduction to Mr Hani............................................................................................................. 20 Meetings with Mr Hani .............................................................................................................. 20 Discussion about Mr Hani’s residence ...................................................................................... 21 Dealings with Mr Hani in 2019 ................................................................................................. 22 Further evidence of Mr Hani ........................................................................................... 23 Further evidence from Mr El-Khoury ............................................................................. 26 Identification documents produced by Mr Hani to Mr El-Khoury ............................................ 26 Further evidence about meetings and Mr Hani’s residence ...................................................... 26 Further evidence of Mr El-Khoury under cross-examination ................................................... 27 Further evidence of Mr Hani ........................................................................................... 31 Mr Fadi Saade .................................................................................................................. 36 Mr Ghazaleh ..................................................................................................................... 37 Mr Mazen El Masri........................................................................................................... 38 PART 2 – EVIDENCE CONCERNING TENDER AND DEPOSIT PROCEDURE AND PROCEEDINGS IN BEIRUT................................................................................................... 41 Evidence concerning the tender and deposit procedure and proceedings in Beirut issued by both the Bank and proceedings in Mr Hani’s name..................................................... 41 Mr Ghazaleh ..................................................................................................................... 41 Mr El Masri....................................................................................................................... 42 Mr Hani ............................................................................................................................. 43 Further evidence of Mr El Masri ..................................................................................... 45 Mr Wissam Ladki .............................................................................................................. 48 -- 5 of 251 -- [2026] SASC 107 Stein CJ 2 Evidence in relation to Mr El Masri’s engagement with experts ..................................... 50 PART 3 – EVIDENCE CONCERNING THE FINANCIAL CRISIS AND LITIGATION IN LEBANON .................................................................................................................................. 55 Evidence concerning the financial crisis ............................................................................. 55 Mr Ghazaleh ..................................................................................................................... 55 Mr Obeid ........................................................................................................................... 56 Mr Saade ........................................................................................................................... 61 Evidence concerning litigation in Lebanon ........................................................................ 61 Mr Zein .............................................................................................................................. 61 Evidence concerning costs and other issues associated with these proceedings ............. 63 Mr Ghazaleh ..................................................................................................................... 63 Mr Piesiewicz .................................................................................................................... 63 PART 4 – ASSESSMENT OF LAY WITNESSES ................................................................. 66 Assessment of lay witnesses .................................................................................................. 66 Mr El-Khoury .................................................................................................................... 67 Mr Piesiewicz .................................................................................................................... 67 Mr Obeid ........................................................................................................................... 68 Mr Saade ........................................................................................................................... 68 Mr Zein .............................................................................................................................. 68 Mr Hani ............................................................................................................................. 68 Mr El Masri....................................................................................................................... 69 Mr Ladki ............................................................................................................................ 70 Factual findings ..................................................................................................................... 71 Background, Mr Hani’s dealings with the Bank, invocation of the tender and deposit procedure and issue of proceedings ................................................................................. 71 Did the Bank know Mr Hani lived in Australia and did Mr Hani tell Mr El-Khoury he intended to retire in Lebanon? ......................................................................................... 79 Did Mr Hani know about Mr Hani’s Beirut proceedings? ............................................. 83 PART 5 – SERVICE .................................................................................................................. 85 What are the UCR requirements for the service of originating process overseas? ........ 85 Principles in relation to service............................................................................................ 86 Mr Hani’s pleaded case ........................................................................................................ 87 Mr Hani did not require leave to serve his originating process ....................................... 91 PART 6 – LEBANESE LAW AND EXPERT EVIDENCE ................................................... 99 Application of Lebanese law ................................................................................................ 99 Translations of documents ................................................................................................... 99 Relevant Codes ...................................................................................................................... 99 Expert Evidence .................................................................................................................. 100 Mr Abirached ...................................................................................................................... 100 Civil law system ............................................................................................................... 100 Court system .................................................................................................................... 101 Rules of construction ...................................................................................................... 101 Tender and deposit procedure ........................................................................................ 102 If litigated in Lebanon, what matters would be considered by a Lebanese court? ...... 104 Exclusive jurisdiction clauses ........................................................................................ 109 Fair trial in Lebanon ...................................................................................................... 110 Additional evidence under cross-examination............................................................... 111 -- 6 of 251 -- [2026] SASC 107 Stein CJ 3 Authorities ................................................................................................................................ 112 Capital control law .................................................................................................................. 113 Tender and deposit process ..................................................................................................... 113 Dr Kotob .............................................................................................................................. 114 Interpretation of legislation ............................................................................................ 115 Finance mechanisms and banking crisis ....................................................................... 116 Legal system .................................................................................................................... 117 Circulars and cheque value ............................................................................................ 117 Capital control law .......................................................................................................... 119 Tender and deposit procedure ........................................................................................ 120 Nature of bank contract/deposit ..................................................................................... 121 Financial crisis – force majeure .................................................................................... 123 Authorities ....................................................................................................................... 123 Fairness ........................................................................................................................... 125 Further evidence under cross-examination ................................................................... 125 Expertise .................................................................................................................................. 125 Expert code of conduct............................................................................................................. 126 Instructions, assumptions and meetings .................................................................................. 126 Hierarchy, court processes and interrogation ......................................................................... 129 Personal views about banks ..................................................................................................... 130 Fairness of trial in Lebanon .................................................................................................... 133 Banking restructure law........................................................................................................... 133 Mr Hani’s Beirut proceedings ................................................................................................. 133 Code of Obligations and Contracts ......................................................................................... 134 Systematic issues ...................................................................................................................... 134 Enforcement ............................................................................................................................. 135 Dr Zbeeb .............................................................................................................................. 136 Assessment of expert witnesses .......................................................................................... 136 Mr Abirached .................................................................................................................. 137 Dr Kotob .......................................................................................................................... 138 PART 7 – LEBANESE LAW AND STATUTORY CONSTRUCTION PRINCIPLES ... 142 Lebanese law ....................................................................................................................... 142 Lebanese statutory construction principles ...................................................................... 142 PART 8 – IS THE BANKING AGREEMENT AN ADHESION CONTRACT AND IS ARTICLE X AN EXCLUSIVE JURISDICTION CLAUSE? ............................................. 145 The general banking agreement is an adhesion contract ................................................ 145 Jurisdiction in Lebanese law .............................................................................................. 147 Article X ............................................................................................................................... 147 Mr Abirached’s evidence ................................................................................................... 147 Dr Kotob’s evidence............................................................................................................ 149 Article X is an express exclusive jurisdiction clause ........................................................ 150 Exclusive jurisdiction clauses have been upheld by Lebanese Courts ........................... 151 PART 9 – IS ARTICLE X INVALID AS AN ABUSIVE CLAUSE CONTRARY TO THE CONSUMER PROTECTION LAW? .................................................................................... 152 Consumer Protection Law ................................................................................................. 152 Article 26 of the Consumer Protection Law .................................................................. 152 Mr Abirached’s evidence on the Consumer Protection Law ........................................ 153 Dr Kotob’s evidence on the Consumer Protection Law ................................................ 161 The Consumer Protection Law applies to banks ........................................................... 164 Mr Hani is a consumer ................................................................................................... 166 Article 26 of the Consumer Protection Law applies to Article X .................................. 167 -- 7 of 251 -- [2026] SASC 107 Stein CJ 4 There is imbalance which favours the Bank ................................................................. 172 Article X is null and void ................................................................................................ 174 The ordinary jurisdiction rules in the Code of Civil Procedure apply ......................... 175 PART 10 – IS ARTICLE X AN INVALID POTESTATIVE CLAUSE CONTRARY TO ARTICLE 84 OF THE LEBANESE CODE OF OBLIGATIONS AND CONTRACTS? 176 Article 84 of the Code of Obligations and Contracts ....................................................... 176 Mr Abirached’s evidence on potestative clauses .............................................................. 176 Dr Kotob’s evidence on potestative clauses ...................................................................... 178 Why Article X is not potestative ........................................................................................ 180 PART 11 – EXERCISE OF DISCRETION .......................................................................... 187 Further factual findings ..................................................................................................... 187 Principles relevant to exclusive jurisdiction clauses and the exercise of discretion to not stay proceedings brought in breach of such a clause ....................................................... 190 Radical change in circumstances and prejudice factors ................................................. 192 PART 12 – FORUM NON CONVENIENS ............................................................................ 200 Forum non conveniens principles ...................................................................................... 200 The Bank maintains these proceedings are oppressive and burdensome to it .............. 203 Mr Hani contends the Bank has not met the high bar necessary to justify the grant of a stay........................................................................................................................................ 206 Overlap between the Beirut proceedings and these proceedings ................................... 208 The Bank’s tender and deposit proceedings .................................................................. 208 Mr Hani’s Beirut proceedings........................................................................................ 209 The claims in these proceedings ..................................................................................... 213 The claims interleave but do not fully overlap............................................................... 213 These proceedings have progressed further .................................................................. 215 These proceedings were instituted first but are likely to cost more .............................. 216 The Lebanese court will recognise orders of this Court................................................ 217 This Court can provide more effectively for the complete resolution of the whole controversy ...................................................................................................................... 217 There is some risk of inconsistent findings.................................................................... 218 The undesirability of allowing two independent actions involving the same question to proceed internationally ................................................................................................... 219 Some, but not all, of the relevant factors assist the Bank’s position .............................. 219 Lebanese courts have jurisdiction .................................................................................. 219 The substantive law is that of Lebanon.......................................................................... 219 Many, but not all, of the acts occurred in Lebanon ...................................................... 220 The Bank is resident in Lebanon while Mr Hani is resident in Australia ................... 220 Mr Hani has established a good arguable case that damage was suffered in Australia ......................................................................................................................................... 220 Most original documents and witnesses are located in Lebanon ................................. 221 The stay application was brought promptly ................................................................... 222 Comity and restraint are relevant ................................................................................... 222 Lebanese banking custom will be relevant .................................................................... 224 Mr Hani has a prima facie right to insist on the exercise of the jurisdiction .............. 224 The proceedings are not seriously and unfairly burdensome, prejudicial or damaging to the Bank ............................................................................................................................... 224 Orders ....................................................................................................................................... 225 ATTACHMENT 1 – Summary of general banking agreement........................................... 226 ATTACHMENT 2 – Summaries of Codes ............................................................................ 235 Consumer Protection Law No. 659 promulgated on 4/2/2005 ....................................... 235 -- 8 of 251 -- [2026] SASC 107 Stein CJ 5 Code of Money and Credit and the establishment of Banque du Liban Decree No. 13513 of 1 August 1963 .................................................................................................................. 237 Lebanon Code of Commerce Legislative Decree No 304 of 24 December 1942 ............ 238 Code of Obligations and Contracts Law of 9/3/1932 ....................................................... 239 The Lebanese Code of Civil Procedure Legislative Decree No. 90 of 16/9/1983 .......... 242 Lebanese Constitution ........................................................................................................ 246 Law 81 of 2018..................................................................................................................... 246 -- 9 of 251 -- [2026] SASC 107 Stein CJ 6 STEIN CJ. 1 In October 2018, the applicant, Mr Hani signed a banking agreement and opened an account with the respondent, Bank Audi SAL (the “Bank”), a Lebanese bank. In 2019, Mr Hani transferred to the Bank by international funds transfer from Australia two sums of money totalling A$4.8 million which were converted to US dollars and placed in term deposits. In late 2019, Lebanon experienced the start of what became a significant, ongoing financial crisis. In 2020, Mr Hani transferred to the Bank by international funds transfer from Australia a further sum of A$150,000. The amounts transferred by Mr Hani to the Bank totalled US$4,036,377. In 2022, by written correspondence, Mr Hani asked the Bank to close the accounts in which the funds were held and transfer the funds electronically to an account opened in South Australia with Australia and New Zealand Banking Group Limited (“ANZ”). The Bank responded to the correspondence by referring to the economic and financial crisis in Lebanon and stating that the Bank had decided to suspend all cross-border transfers for all customers. After further correspondence between the Bank and Mr Hani’s legal representatives, the Bank closed Mr Hani’s accounts. Rather than transferring the funds as requested by Mr Hani, the Bank paid the sum of US$4,832,579.67 by bank cheques to a notary public in Beirut. In 2022, Mr Hani commenced proceedings in this Court alleging that the Bank had failed to repay his monies in breach of contractual and other legal obligations and seeking orders for specific performance by payment of funds totalling US$4,862,214.67, partly by electronic funds transfer (US$4,472,214.67) with the remainder by bank cheque (US$120,000). Alternatively, Mr Hani claimed entitlement to damages. 2 The Bank has not submitted to the jurisdiction and has not filed a defence. 3 Mr Hani seeks orders confirming the validity of service of the statement of claim on the Bank, or, alternatively, seeks leave to serve the statement of claim nunc pro tunc. The Bank denies the statement of claim was validly served, opposes leave and has also sought a stay or dismissal of the proceedings on the ground of forum non conveniens. 4 The outcome of the applications will determine whether the substantive trial of Mr Hani’s claim will proceed in this Court or in Lebanon. 5 The applications raise the following overarching issues: • Did Mr Hani require leave to serve the statement of claim? • If Mr Hani did require leave, should leave be granted? • Should the Court dismiss or stay the proceedings? -- 10 of 251 -- [2026] SASC 107 Stein CJ 7 6 Those issues give rise to a plethora of subsidiary issues including: • Has Mr Hani made out a good arguable case that the claim is properly characterised as a claim: − seeking the enforcement of a contract to be part performed in Australia;1 or − in respect of a breach in Australia of a contract wherever made;2 or − founded on a cause of action arising in Australia?3 • If leave to serve is required, does the claim have a real and substantial connection with Australia and is Australia an appropriate forum for the hearing of the trial?4 • Is the jurisdiction clause in the banking agreements between Mr Hani and the Bank an express, exclusive jurisdiction clause? • Is the jurisdiction clause an arbitrary or abusive clause contrary to Article 26 of the Lebanese Consumer Protection Law? • Is the jurisdiction clause an invalid potestative clause contrary to Article 84 of the Lebanese Code of Obligations and Contracts? • If the jurisdiction clause is invalid, is it void? • If the jurisdiction clause is exclusive, valid and enforceable, has Mr Hani established the existence of an unforeseen radical change in circumstances since Mr Hani entered into the banking agreements and/or that Mr Hani has been prejudiced to justify the Court exercising the discretion not to grant a stay? • Should the proceedings be stayed or dismissed on forum non conveniens grounds? 7 For the reasons below, I have determined that: • Mr Hani’s claim raises a good arguable case, at least, of a breach in Australia of a contract wherever made.5 Mr Hani did not require leave to serve the statement of claim in respect of the allegations made in the 1 Uniform Civil Rules 2020 (SA) Sch 1, r 2(b)(iii). 2 Uniform Civil Rules 2020 (SA) Sch 1, r 2(c). 3 Uniform Civil Rules 2020 (SA) Sch 1, r 2(n). 4 Uniform Civil Rules 2020 (SA) Sch 1, r 3(5). 5 Uniform Civil Rules 2020 (SA) Sch 1, r 2(c). -- 11 of 251 -- [2026] SASC 107 Stein CJ 8 statement of claim relating to the first and second term deposits. He required leave in respect of the allegations relating to the third deposit. • Leave to serve should be granted in relation to the allegations concerning the third term deposit in light of the overlap in issues relevant to determination of the claims concerning the first and second term deposits and to avoid a multiplicity of proceedings. • The jurisdiction clause in the banking agreements between Mr Hani and the Bank is an express, exclusive jurisdiction clause. • The jurisdiction clause is an arbitrary/abusive clause contrary to Article 26 of the Lebanese Consumer Protection Law. • As a consequence of the application of Article 26, the jurisdiction clause is void. • The clause is not an invalid potestative clause contrary to Article 84 of the Lebanese Code of Obligations and Contracts. • If I had concluded that the clause was valid, I would have exercised the discretion to refuse a stay of proceedings brought in breach of the exclusive jurisdiction clause on the basis that Mr Hani has established on strong grounds a radical change in circumstances since he entered into the banking agreements with associated prejudice. • The application for a stay or to dismiss the proceedings on forum non conveniens grounds should be refused on the grounds that this Court is not a clearly inappropriate forum for trial of the action. Mr Hani has a prima facie right to commence proceedings in this Court. The Bank has failed to establish that the continuation of these proceedings would be seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment such that the Bank would suffer such injustice in defending the action that staying or dismissing the proceedings is warranted. -- 12 of 251 -- [2026] SASC 107 Stein CJ 9 PART 1 – LAY EVIDENCE CONCERNING THE CIRCUMSTANCES IN WHICH MR HANI TRANSFERRED FUNDS TO THE BANK 8 The parties adduced substantial evidence, both lay and expert. Some of the lay evidence was relevant to the interrelated topics of service, leave to serve and stay or dismissal of the proceedings. I commence by considering evidence concerning the circumstances in which Mr Hani entered into the banking agreements before returning to evidence on other topics. I have interpolated summaries of key documents where most helpful to assist in understanding the evidence of witnesses. The parties agreed there were some errors in the interpretation of oral evidence. In those instances, I have used the version agreed by the parties. The circumstances in which Mr Hani came to transfer funds to the Bank 9 The affidavits of Mr El-Khoury, a Bank representative, and Mr Hani in part responded to assertions in each other’s affidavits. While the Bank led its evidence first in the hearing, I summarise part of Mr Hani’s evidence in chief first to assist in understanding Mr El-Khoury’s evidence. I return to the balance of Mr Hani’s evidence later in these reasons. 10 This section only contains a summary of the evidence. My factual findings are addressed separately below. Summary of evidence of Mr Jihad Hani 11 Mr Hani resides in South Australia and is a dual citizen of Australia and Lebanon. He is a director of several companies which control aspects of his business and investment operations. He invests in commercial property in Australia and has been engaged in commercial businesses including retail businesses, shopping centres, hotel ownership and an olive processing business, all conducted in Australia where he has lived since 1968. He is heavily involved in stock market investment. Mr Hani meets the Bank representative in late 2018 12 In September 2018, while on holiday in Lebanon, Mr Hani became aware of investment opportunities in the Lebanese banking and finance sector. He believed that banks such as the Bank were offering high interest rates for investment and term deposit. He discussed those opportunities with his lawyer in Lebanon, Mr El Masri, who arranged a meeting with Mr El-Khoury, a representative of the Bank. Mr El Masri had known Mr El-Khoury for years. On 4 October 2018, Mr Hani met with Mr El-Khoury at Mr El Masri’s law office in Beirut. During that meeting, Mr El-Khoury told him about the Bank’s success, profits and the type of high yield interest the Bank was offering to local investors and overseas investors. Mr El-Khoury showed him on his laptop a range of Bank products attracting high interest rates. Mr El-Khoury assured Mr Hani he would personally oversee and manage his dealings with the Bank to ensure he obtained the best interest rates possible. -- 13 of 251 -- [2026] SASC 107 Stein CJ 10 13 During the meeting, Mr Hani said words to the effect that the Bank was offering good returns on investments for deposits, he was interested in investing and he had large sums available which he could invest with the Bank as long as he was assured the money would be safe and he would receive a good return. Mr Hani said Mr El-Khoury said words to the effect that the Lebanese banking system was one of the safest in the world, had one of the best reputations and he would ensure Mr Hani received the best interest rates. Mr Hani told Mr El-Khoury the money he had to invest was in accounts in Australia and Mr El-Khoury said that was not a problem, but the money would have to be converted into, and placed in, a US dollar account. Mr El-Khoury told him that the interest rate would be 8.5 percent to as high as 12 percent and that each time Mr Hani remitted monies, Mr El-Khoury would put them in the highest yielding term deposit and keep Mr Hani constantly informed of the rates available at the time. Mr El-Khoury invited Mr Hani to call Mr El-Khoury personally. Mr El-Khoury told Mr Hani he would give him details of an International Bank Account Number (“IBAN”) and international code to make the overseas transfer through his bank in Australia. Mr Hani told Mr El-Khoury that if the Bank was prepared to offer him high interest rates, he was sure in the future he would make large deposits with the Bank. 14 Mr El-Khoury suggested Mr Hani open a primary account with the Bank and future overseas transfers could be deposited into that account. Mr El-Khoury told him he could open the account immediately on his laptop. At Mr El-Khoury’s request, Mr Hani gave him personal details including his principal place of residence, country of tax residency, business activity and business address, and after completing the form, Mr El-Khoury gave the form to him to sign. 15 I pause my summary of Mr Hani’s evidence to set out the content of the form completed in early October 2018. A KYC form is completed in October 2018 16 The Bank used forms to capture information about its customer which it called “know your customer” (“KYC”) forms. The first such form relating to Mr Hani was completed in handwriting.6 It lists various personal information including names and the date and place of birth of Mr Hani. The KYC form contains a section to record the client’s nationality. Mr Hani’s form recorded his nationality as Lebanese and Australian. Mr Hani’s country of residence was recorded as Lebanon with the specified residential address of Villa Jihad Hani in Ras el Metn, Baabda. Mr Hani’s business address was recorded as Seacliff Park, South Australia. Phone numbers were recorded for both Lebanon and Australia, both designated as personal numbers. Mr Hani’s occupation/economic sector was specified as real estate services. 17 On the last page of the KYC form, there were a number of tick boxes under the heading “Nature of Account”. The following boxes were ticked: cash deposit, cash withdrawals, domestic wire transfers (incoming), cross border wire transfers 6 Court Book (“CB”) 453. -- 14 of 251 -- [2026] SASC 107 Stein CJ 11 (incoming), cheques, electronic banking and “others”. The box for cross border wire transfers (outgoing) was not ticked. The purpose of the account was described as saving. 18 The KYC form included the following statement: I the undersigned, hereby certify that the information mentioned above is complete and accurate and I undertake to immediately advise the bank of any changes that might occur in such information and provide any additional information and sign any additional documents that the bank may require. The KYC form was signed by Mr Hani. 19 The printed version of the KYC form7 with a print date of 5/10/2018 replicates the information in the handwritten form but extra information was added. For example, the country of activity was specified as Australia and an additional phone number was included on the printed form. Account is opened and general agreement signed 20 Mr Hani said he opened a US dollar account (account number ending in 0001) into which he made an initial cash deposit by giving Mr El-Khoury US$1,000 in cash at the meeting. After opening the account, Mr El-Khoury presented him with a document described as General Contract to Open and Move Accounts, General Conditions and Provisions Relating to Electronic Banking. Mr Hani dated and signed the document on 4 October 2018 during the meeting. General agreement for opening and activating accounts and general terms and conditions for electronic banking services 21 A translation of some of the terms of the general banking agreement8 between the Bank and Mr Hani, is set out in Attachment 1 to these reasons.9 22 Some of the relevant clauses in the banking agreement include that the client, Mr Hani, “has elected domicile” at an address recorded as Villa Jihad Hani, Arze Street, Ras el Metn, Baabda, Lebanon. The agreement states that the client shall inform the Bank of any change to the address or any related information. 23 The agreement contains a number of definitions including those relevant to electronic banking services. The electronic banking services definitions expressly include transactions executed in Lebanon or abroad; electronic transfers of cash including, but not limited to, withdrawals and services through the internet or the presentation of a request by electronic means for a banking service. 24 The general banking agreement sets out the general terms and conditions relating to accounts. The Bank, on the client’s request, can open accounts to which 7 CB460. 8 CB493; translation CB150. 9 The translation is primarily that of Ms Saade. Ms Rjeily’s translation of particular terms is interpolated where Mr Hani has submitted that her translation should be preferred. -- 15 of 251 -- [2026] SASC 107 Stein CJ 12 electronic banking services are connected and the client may have one or more identification numbers if joint accounts are opened with third parties. The accounts, the ordinary banking services and electronic banking services are governed by the terms and conditions in the agreement and in any application, document or annex, whether attached or signed separately. The accounts and banking services are also governed by any applicable laws in all matters not stipulated in the agreement. 25 The Bank has the right to credit the client’s account with the value of any amount transferred in favour of the client if his IBAN number is affixed on the transfer without being required to check the validity of that number. 26 The agreement sets out circumstances in which the Bank will be entitled to close an account. I pause to observe that Mr Hani contends that the Bank breached this clause when it engaged in the tender and deposit procedure by which it deposited cheques with the notary public. 27 The client is able to open current accounts and term deposit accounts. A deposit account is “activated” by cash, transfers or any electronic banking service the Bank decides to link to the deposit account. 28 The general conditions related to electronic banking services provide that the client is entitled to modify the primary account or choose new accounts linked to electronic banking services by informing the Bank. The Bank is entitled at its sole discretion to determine the technical restrictions including the number of transactions and the cash value limit allowed for different transactions including transfers. The Bank is entitled to suspend or cancel electronic banking services at the Bank’s sole discretion. 29 The Bank is entitled to carry out all withdrawals and currency conversion from and to the account at the exchange rate prevailing on the date of conversion. 30 Article X of chapter 6 entitled “Governing laws and competent jurisdiction” is central to submissions made by the parties. Article X refers to the banking agreement being governed by Lebanese laws and that Beirut courts shall exclusively have jurisdiction over disputes, however, the Bank shall be entitled to take legal action against the client in Lebanon or abroad. I set out the article in full in Part 8 of my reasons in which I address the parties’ arguments whether the clause constitutes a valid, binding exclusive jurisdiction clause. Execution of general banking agreement and KYC form 31 Mr Hani said that before he signed the general banking agreement at the meeting on 4 October 2018, Mr El-Khoury told him a document in that form was given to all new customers opening bank accounts. Mr Hani took it to be a standard bank contract with standard non-negotiable terms. He skimmed over the document and did not read the section relating to jurisdiction. -- 16 of 251 -- [2026] SASC 107 Stein CJ 13 32 Mr Hani says none of the handwriting in the original KYC form was his, other than his signature. Mr El-Khoury asked Mr Hani a series of questions as he filled out details in the form. Mr Hani told Mr El-Khoury that his residential address was in Hallett Cove in South Australia and Mr El-Khoury asked whether he owned any property in Lebanon. Mr Hani told Mr El-Khoury he jointly inherited property with siblings and Mr El-Khoury told him he was required under Lebanese law to state in the document that his primary place of residence was Ras el Metn, Lebanon. Mr Hani told Mr El-Khoury he did not want him to put incorrect information on the form as he and his wife lived permanently in South Australia and the property in Lebanon was an inherited property where he lived only when on holiday in Lebanon. Mr Hani conducted all of his business affairs in Adelaide and told Mr El-Khoury the money would be electronically transferred from his bank account in Adelaide. According to Mr Hani, Mr El-Khoury replied that because Mr Hani inherited a property in Lebanon, Mr El-Khoury was required to put in the form that his primary place of residence was Lebanon and the residential address was the address in Ras el Metn as this was a Lebanese government requirement. Mr Hani asked whether he would have to pay tax in Lebanon and Mr El-Khoury told him he would pay tax on interest earned from the Bank. Mr Hani told Mr El-Khoury to make sure the business activities and money he would be depositing was recorded as being from Australia and Mr El-Khoury said his primary business activity would be recorded as conducted in Australia, as well as incoming transfers from Australia. Mr Hani said once Mr El-Khoury filled out details, he skimmed the document. He checked, in particular, his name, date of birth and business address and skimmed the rest prior to signing it and handing it back to Mr El-Khoury. Mr Hani did not notice that the cross-border wire transfers outgoing box was not ticked. He did not recall any discussion at the meeting about the boxes or what they entailed and did not know why the box was not ticked. Mr Hani could not recall discussing how the funds would be returned to him at the end of the term deposit. His expectation was that electronic cross-border wire transfers would be the way the Bank would return the monies deposited and he had no reason to think the Bank would not repay Mr Hani and do so by electronic cross-border wire transfer. Mr Hani transfers funds in May 2019 33 After the meeting with Mr El-Khoury, Mr Hani returned to Australia. He made transfers into the primary account of $1,964,956 on 8 May 2019 and US$2 million on 14 August 2019. The funds were transferred from an Adelaide branch of the ANZ Bank and prior to transfer were converted to US dollars by overseas transfer using the procedure to deposit explained to Mr Hani by Mr El-Khoury at the meeting. When he was ready to make an overseas transfer, Mr Hani called Mr El-Khoury to tell him he was going to make a deposit by overseas money transfer. He asked Mr El-Khoury what the interest rate would be and waited for a response. Mr Hani then contacted his ANZ Bank branch and spoke to his personal account manager, Mr Ian Ruth, providing him with the IBAN number, the international code and instructing him to proceed to effect the overseas money transfer in US dollars. -- 17 of 251 -- [2026] SASC 107 Stein CJ 14 34 On about 8 May 2019, Mr Hani phoned Mr El-Khoury and said that he was ready to transfer A$2.8 million which, at that day’s exchange rate, was equivalent to US$1,964,956 and he asked Mr El-Khoury if he could get a high interest rate for the amount. Mr El-Khoury said he thought he could get him 8.5 percent on a fixed two-year term deposit and asked him whether those terms were acceptable which Mr Hani said they were. Mr El-Khoury said he would email the IBAN number and the international code and, when the money hit the primary account, he would open a new two-year fixed term US dollar account and transfer the US$2 million into that account. According to Mr Hani, Mr El-Khoury said the interest earned on the fixed term deposit could be transferred back to the primary account. Mr Hani agreed and told him to go ahead. Mr El-Khoury opened a US dollar fixed term account (account number ending 0004) in Mr Hani’s name and transferred US$2 million from the primary account into that account. (I will refer to this as “the first term deposit”). Mr Hani sends the Bank correspondence providing details of business activities in South Australia 35 On 12 May 2019, Mr Hani sent an email to Mr El-Khoury attaching documents containing confidential information requested by Mr El-Khoury relating to his ownership of a company called Woodcroft Town Centre Management Pty Ltd of the Woodcroft Town Centre shopping centre in South Australia and containing other company and banking related information. The email provided details of business activities in South Australia as requested by the Bank. Mr Hani transfers funds in August 2019 36 Mr Hani said that on about 14 August 2019, he telephoned Mr El-Khoury and said he was ready to transfer another US$2 million and asked what interest rate he could get on the amount. Mr El-Khoury said he could do better and get him 10 percent on a fixed two-year term. Mr Hani said he was happy with that and he would transfer the amount. Mr El-Khoury said he would email the IBAN number and international code and, when the money hit the primary account, open another two-year fixed term US dollar account and transfer the $2 million. Mr El-Khoury would transfer the interest from the new term deposit account back to the primary account. The following day Mr El-Khoury opened a US dollar fixed term account (account number ending in 0006) in Mr Hani’s name and transferred the US$2 million into that account from the primary account. (I will refer to this as “the second term deposit”). Second KYC form 37 Mr Hani said he was asked on two other occasions to sign other KYC documents. A KYC form signed 19 August 2019 was signed during a trip made to Lebanon. Mr Hani recalled it was signed at a meeting with Mr El-Khoury at Mr El Masri’s office during a general catch up with Mr El-Khoury regarding his banking activities. Mr El-Khoury said the client information needed to be updated, -- 18 of 251 -- [2026] SASC 107 Stein CJ 15 asked if there were any changes and Mr Hani said his details remained the same. Mr Hani quickly skimmed the form and handed it back to him after signing it. Mr Hani did not notice that the document only referred to incoming and not outgoing cross-border wire transfers. 38 A printed KYC form dated 19/08/201910 contains the same information as set out above but also states that Mr Hani’s country of tax residency is Australia. Mr Hani’s “primary” residential address is listed in Ras el Metn, Baabda, Lebanon. His professional details are recorded as real estate, property management with a country of activity as Australia. The business address is recorded as Australia, with an address in Seacliff Park. The purpose of the account is recorded as “personal operations”, with a business name of Woodcroft. The mailing address, country of residency is specified as Ras el Metn, Baabda, Lebanon. 39 The KYC form also included information for Mr El Masri as joint account holder. Mr Hani signed the KYC form. Email attaching ASIC form 40 On 5 September 2019, Mr Hani sent an email to Mr El-Khoury attaching “an extract of what you asked from me when I was in Lebanon”.11 The email attached an Australian Securities and Investment Commission (“ASIC”) form in relation to Woodcroft Town Centre Management Pty Ltd, the sole officeholder of which was Mr Hani. Mr Hani’s address on the ASIC form was recorded as Hallett Cove, South Australia. Mr Hani was sent a “Terms” document 41 Mr Hani was sent by Mr El Masri a Bank document entitled “Terms” dated 8 September 2019.12 Mr El Masri collected the form from the Bank. 42 The terms document refers to the account as a term deposit with the initial money currency and the account currency in United States dollars with a deposit value on opening of US$2 million and the source of funds as cross-border. It states that the account can only be closed on maturity. Upon maturity, the funds in the account are immediately and automatically released and the client irrevocably and finally authorises the Bank to transfer the total released balance to a particular account number (being the primary account number for Mr Hani). The document specifies an interest rate of 10 percent annually with maturity of three years. The Bank reserves the right to modify the terms and conditions provided the client is notified. The document states that the client requests the Bank to open an account knowing this document is an inherent part of a general contract relating to opening and operating accounts as well as to the general terms and conditions of online banking services. 10 CB462. 11 Supplementary Court Book (“SCB”) 521. 12 CB1605-1607. -- 19 of 251 -- [2026] SASC 107 Stein CJ 16 Further accounts and transfers in 2020 43 On about 30 January 2020, Mr Hani said he contacted Mr El-Khoury and told him he wanted the interest earned from the two US dollar fixed term accounts to be transferred to a separate joint account with Mr El Masri. Mr El-Khoury said that could be done and he would open a working account to receive the interest from both the fixed term deposits. Mr Hani asked whether that account would earn any interest and Mr El-Khoury said no. 44 Mr Hani said on about 31 January 2020, Mr El-Khoury opened a joint account with Mr El Masri (account number ending in 0003) into which the interest initially deposited in the primary account was transferred. On about 10 July 2020, Mr El-Khoury contacted Mr Hani to encourage him to deposit more money with the Bank and said that if Mr Hani transferred another US$70,000, the Bank would reward him by topping that amount up by a further US$50,000, totalling US$120,000, which could be deposited into a separate account. That money could not be withdrawn in cash or by bank transfer but only by bank cheque. Mr Hani agreed and said he would make the transfer and transferred the amount of US$70,000 to a US dollar bank account (account number ending 0013) which was opened by Mr El-Khoury later that day. (I will refer to this as “the third term deposit”). Mr Hani said other accounts were opened on his behalf by Mr El-Khoury for the purposes of paying general expenses when holidaying in Lebanon. These included two Lebanese pounds accounts (ending in 0011 and 0004) and two US dollar account (ending in 0006 and 0002). 45 Mr Hani said that, despite the Lebanese banking crisis, he continued to receive 8.5 percent interest on the US dollar account (ending 0004) in which US$2 million was deposited until 9 March 2022, the date of its maturity. He also continued to receive 10 percent interest on the US dollar account (ending 0006) in which US$2 million was deposited until 14 August 2022 which was its maturity date. Third KYC form 46 On 18 August 2021, Mr Hani signed a third KYC form13 containing largely the same information as the previous KYC forms. 47 Mr Hani said the third KYC dated 18 August 2021 was emailed to him. He only skimmed the document, knowing his details had not changed. Mr Hani says he did not notice it only referred to incoming and not outgoing cross-border wire transfers. Mr Hani sent the signed KYC to Mr El Masri, who forwarded the email attaching the signed documents to the Bank. Mr Hani received online service applications for electronic banking 48 Mr Hani said on 2 December 2021 he received by email from Mr El Masri two Bank online service application forms in Arabic for accounts under his 13 CB481. -- 20 of 251 -- [2026] SASC 107 Stein CJ 17 individual account identification number and under the joint account identification number. He believes Mr El Masri collected the forms from the Bank after Mr El-Khoury had said they were available. Mr Hani skimmed over the forms and signed them, emailing them back to Mr El Masri on 3 December 2021. Mr El Masri then emailed the signed forms to the Bank on 6 December 2021. Mr Hani was informed by Mr El Masri and believes that, in December 2021, after emailing the two signed forms, Mr El Masri received a phone call from Mr Eliya Ghaly asking him to come into the Beirut branch. Mr El Masri did so and was provided with online banking electronic usernames and passwords for accounts for the individual account identification number and accounts under the joint account identification number. Mr El Masri provided Mr Hani with the online banking electronic usernames and passwords. Mr Hani subsequently used the online electronic banking services to transfer funds from one bank account to another, check balances and print bank statements. Mr Hani noticed that an online facility for electronic transfer of funds to external accounts was available at least from his primary account ending in 0001 and the joint account in his and Mr El Masri’s name ending in 0003. He did not use the online external transfer facility. 49 The online service application dated 25 November 202114 states that Mr Hani and Mr El Masri, being holders of the joint account with an identification number ending 304, based on the provisions of the General Agreement and terms and conditions related to electronic banking services signed on 25 November 2021, request the Bank’s approval to benefit from the online services on the joint account. This form provides for the transfer of funds between individual and joint accounts, including to third party accounts in or outside the Bank. It includes a statement that the account holders had thoroughly reviewed the general agreement and consented to the terms and provisions relating to the online service. Total of Mr Hani’s funds in 2022 50 As of 16 August 2022, Mr Hani held a total of US$4,862,179.81 in three bank accounts. Request for closure and transfer of funds 51 On 30 August 2022, Mr Hani caused an email to be sent to the Bank attaching a letter authorising and directing the Bank to close and transfer his funds held in the three accounts to his nominated ANZ bank account. On 6 September 2022, Mr Hani received an email attaching a letter from the Bank stating the Bank was ready to provide a bank cheque drawn on the Banque du Liban (the Central Bank of Lebanon) to be paid in Lebanon for an amount equal to the balance of his accounts. Thereafter, Mr Hani instructed solicitors to send further correspondence to the Bank. I address the request for transfer and closure and the Bank’s response in more detail in Part 2 below. 14 CB1063–1064 (Rjeily translation). -- 21 of 251 -- [2026] SASC 107 Stein CJ 18 52 Mr Hani said he became aware the two term deposit accounts were closed and funds transferred to his primary account after checking the accounts online in around September 2022. He said he had been waiting for the second term deposit to mature before actioning a request for the return of the funds in the belief the Bank would refuse to make the transfer. Mr Hani’s residence 53 Mr Hani said he has been permanently domiciled in Adelaide since migrating to Australia in 1968. He has travelled to Lebanon on numerous occasions to visit family, last visiting in August 2020. He said he did not stay in Lebanon for any period of time greater than about six weeks. He inherited a property from his parents which he owns jointly and usually stays at that property when he travels to Lebanon. Correction of some details in relation to dealings with the Bank 54 Mr Hani swore a number of affidavits. In some of the affidavits, Mr Hani corrected statements made in previous affidavits. 55 Having refreshed his memory from documents, Mr Hani thought his conversation with Mr El-Khoury about interest rates occurred prior to the transfer of the first term deposit funds to the Bank. Mr Hani said on 24 April 2019, he sent an email to Mr El-Khoury attaching the completed transfer of A$2.8 million using an Australian business address in Seacliff Park. The email asked Mr El-Khoury to confirm when the transfer had been received and that it would be converted to US dollars at an exchange rate to be confirmed. Mr Hani had a telephone conversation with Mr El-Khoury in which he discussed the fluctuating Australian dollar and asked for the Bank to convert the monies to US dollars when the exchange rate was favourable. Mr El-Khoury responded later that day stating the Bank would inform him once the transfer had been received and would wait for the best exchange rate to convert to US dollars. Accordingly, Mr Hani thought the transfer of funds for the first term deposit occurred on 24 April 2019, but Mr Hani asked the Bank to convert the funds to US dollars on 8 May 2019. On 9 May 2019, Mr El-Khoury emailed Mr Hani a copy of the receipt for the sum converted to US dollars for a three-year term deposit with 8.5 percent interest paid monthly. 56 Mr Hani said his conversation with Mr El-Khoury about the second term deposit occurred several weeks prior to 14 August 2019. Mr Hani left Australia on 23 June 2019 for a holiday in Lebanon and Egypt and, in about June 2019 before leaving Australia, spoke to Mr El-Khoury about a further term deposit. Mr Hani wanted to reach the agreement with the Bank about the second term deposit amount and interest rate before leaving Australia. On 29 July 2019, after travelling to Egypt and Beirut, Mr Hani sent an email to Mr El-Khoury attaching an ANZ Bank payment summary report relating to the further A$3 million Mr El-Khoury and Mr Hani had discussed before Mr Hani left for Lebanon. The transfer was made on 30 July 2019 from a bank account in the name of his company, Johani Nominees Pty Ltd (“Johani Nominees”), with the account name WTC Management -- 22 of 251 -- [2026] SASC 107 Stein CJ 19 (standing for Woodcroft Town Centre Management). The purpose of the meeting scheduled between Mr El Masri, Mr El-Khoury and Mr Hani on 30 July 2019 was to see if anything else was required by the Bank concerning the second term deposit. Mr Hani said the transfer of the funds for the second term deposit occurred on 30 July 2019 but the commencement date for the second term deposit was 14 August 2019. Mr Hani was in Lebanon when he asked the ANZ Bank to transfer the funds to the Bank. On 6 August 2019, Mr Hani sent an email to Mr El-Khoury about the conversion to US dollars. The A$3 million was converted to US$2 million after bank fees. Mr Hani then left Lebanon, arriving back in Australia on 22 August 2019. 57 Mr Hani said he transferred A$150,000 from a bank account in the name of Johani Nominees on 22 May 2020. The Bank converted approximately A$100,000 to US$70,000 to transfer into the account number ending 0013 and the balance of about A$50,000 was converted into Lebanese pounds and transferred into a Lebanese pound account with the Bank. Mr Hani recalled that the conversation occurred around 22 May 2020, rather than in July 2020, and the transfer of funds occurred on 22 May 2020. Discussions after the banking crisis commenced 58 In late 2019, in circumstances which I describe separately below, a banking crisis commenced in Lebanon. Mr Hani said he had phone conversations with Mr El-Khoury about the financial situation, the effects on the Lebanese banking sector and the potential impact on his savings. Mr El-Khoury told him not to worry because the Bank and other Lebanese banks were in good financial shape with good liquidity. As the crisis worsened, Mr Hani began to have serious concerns about its impact on his term deposits with the Bank. He had additional conversations with Mr El-Khoury in late 2019 expressing his concerns and Mr El-Khoury told him the situation would calm down soon as it was being driven by political, rather than financial, forces and the Bank was in good shape. 59 Mr Hani said in early 2020 he telephoned Mr El-Khoury and told him he was aware of reports that the banks in Lebanon were beginning to impose strict withdrawal limits on deposits. Mr Hani said Mr El-Khoury told him it was political, the Bank was safe and had reserves. Mr Hani asked Mr El-Khoury if there might be any problem in transferring the whole amount to Australia when the term deposits reached maturity. According to Mr Hani, Mr El-Khoury told him when the term deposits expired, he needed only to send bank details in Australia and the money would be electronically transferred within 24 hours into the nominated Australian account. Mr El-Khoury said words to that effect in various other phone calls in 2020. However, Mr Hani’s concerns continued to escalate as the financial situation dragged on and upon hearing about further banks, including the Bank, imposing strict withdrawal limits. Mr Hani said he spoke with Mr El-Khoury in about mid-2020, again raising the issue of strict limitations on withdrawals and enquiring about the effect on his term deposit savings. Mr El-Khoury told him what was happening was a short-term measure to stop -- 23 of 251 -- [2026] SASC 107 Stein CJ 20 mass withdrawals that would affect the value of the Lebanese pound and it was a political situation, having nothing to do with bank liquidity. According to Mr Hani, Mr El-Khoury told him that the Bank had sold its Egyptian bank subsidiary, had high liquidity, the Banque du Liban had mass reserves, by the time his term deposits matured the limitation in withdrawals would be lifted and the Bank would electronically transfer the whole amount in his term deposit savings to Australia and he should stop worrying. 60 Mr Hani said nevertheless he came to believe the Bank would refuse to return the money due to the withdrawal limitations being imposed. 61 Some parts of Mr Hani’s affidavits were sworn in response to Mr El-Khoury’s affidavit. I turn now to summarise Mr El-Khoury’s evidence before returning to Mr Hani’s evidence. Mr Rachad Elias El-Khoury 62 Mr El-Khoury has been employed by the Bank since November 2007, holding various roles and is currently in the Bank’s head office as Business Support Lead. He was previously employed by the Bank as a Relationship Manager and was responsible for Mr Hani’s account. Introduction to Mr Hani 63 Mr El-Khoury is a friend of Mr El Masri. Mr El Masri introduced him to Mr Hani and Mr El-Khoury’s relationship with Mr Hani was facilitated by Mr El Masri. To the best of his recollection, Mr El Masri accompanied Mr Hani every time he met Mr El-Khoury in person on about eight occasions between late 2018 and 2019. Mr El-Khoury spoke with Mr Hani via telephone more frequently and infrequently emailed Mr Hani or messaged him through WhatsApp. Mr El-Khoury no longer has access to his emails or messages. Mr El-Khoury remembered the phone calls generally being short and as responsive to Mr Hani’s request to transact banking services. Mr El-Khoury recalled Mr Hani using his Lebanese phone number for the calls. As Mr Hani remained in Australia during the COVID-19 pandemic, after that time it was likely they spoke using Mr Hani’s Australian phone number. Mr El-Khoury thought Mr Hani was usually in Lebanon, because neither Mr Hani nor Mr El Masri ever told him that Mr Hani was in Australia and his experience was Mr Hani was always available to meet in Lebanon at short notice. Meetings with Mr Hani 64 Mr El-Khoury could not recall the precise date of his first meeting with Mr Hani but knew it was before 4 October 2014 because Mr Hani signed the general banking contract at their second meeting. Mr El Masri told Mr El-Khoury he wanted to introduce him to somebody willing to transfer substantial amounts of money to Lebanon. The first meeting with Mr Hani was in person at Mr El Masri’s offices. They primarily discussed Mr Hani’s retirement plans. Mr El-Khoury recalled Mr Hani saying he wanted to retire in Lebanon and wanted to transfer -- 24 of 251 -- [2026] SASC 107 Stein CJ 21 money to Lebanon to facilitate his retirement. He told Mr El-Khoury he had a house in Lebanon and his wife was a Lebanese resident. 65 According to Mr El-Khoury, the second meeting on 4 October 2018 occurred at Mr El Masri’s offices. Mr Hani provided Mr El-Khoury with identification to verify and Mr El-Khoury asked questions about personal details to complete the KYC form. Mr El-Khoury did not take a laptop to the meeting and did not show Mr Hani bank products on his laptop. He did not open an account at the meeting. He could not open bank accounts without using a computer connected to the Bank’s system. He did not print a form at Mr El Masri’s office for Mr Hani to sign. 66 Mr El-Khoury said on 4 October 2018, in Mr El Masri’s presence as Mr Hani’s lawyer, Mr Hani signed the Arabic version of the general banking contract. Mr El-Khoury said he wrote Mr Hani’s personal details by hand in the relevant parts of a hard copy KYC form. He took that hard copy document to the Bank and input the various information into the Bank’s computer system. Discussion about Mr Hani’s residence 67 Mr El-Khoury did not agree that Mr Hani explained that his primary residence was in South Australia. Mr El-Khoury said he inferred Mr Hani was a Lebanese resident because Mr Hani told him he had a house and wife in Lebanon. Mr El-Khoury said Mr Hani did not explain how he came to own his house in Lebanon. Mr El-Khoury did not agree that he told Mr Hani that he was required under Lebanese law to state that Mr Hani’s primary place of residence was Ras el Metn, Lebanon or that Mr Hani was required to state his house was his primary residence because he had inherited a property in Lebanon. Mr El-Khoury denied that Mr Hani told him Mr Hani did not want Mr El-Khoury to put the wrong information on the form because he and his wife permanently resided in South Australia and his property in Lebanon is inherited and only a holiday property. 68 Mr El-Khoury said Mr Hani told him his business affairs were based in Adelaide and he wished to transfer money from Australia to Lebanon to retire in Lebanon. Mr El-Khoury said he did not discuss tax implications of interest earned with Mr Hani and was not told by Mr Hani to ensure his business activities and money were recorded on the form as being from Australia. Mr El-Khoury said he recorded Mr Hani’s business activities being in Australia because Mr Hani told Mr El-Khoury that was where he conducted his business activities. 69 Mr El-Khoury said he completed the form in front of Mr Hani and confirmed each of the answers to each of the questions. Mr El-Khoury said he understood and believed Mr Hani was a dual national of Lebanon and Australia, a resident of Lebanon with tax residency in Australia, his residential and mailing address were in Lebanon, he owned Lebanese property and he had Lebanese and Australian phone numbers. -- 25 of 251 -- [2026] SASC 107 Stein CJ 22 70 Mr El-Khoury said there were no discussions about making US dollar transfers from Lebanon to other countries. Dealings with Mr Hani in 2019 71 After Mr Hani became a customer of the Bank, Mr El-Khoury had a number of meetings with him in Lebanon throughout 2019. They met on at least five occasions at restaurants in Beirut. They discussed Mr Hani’s retirement plans. Mr El-Khoury said the meetings were mostly to ensure Mr Hani was happy with the banking services and Mr El Masri was always present. Mr El-Khoury would usually arrange the meetings. He did not have difficulties with arranging the meetings and could not recall being informed Mr Hani could not come to a meeting in 2019 because he was not in Lebanon. 72 Mr El-Khoury said he attended at Mr Hani’s house on 14 August 2019. Mr El Masri was present. There were three cars parked at the house and one looked like Mr El Masri’s car. At that meeting, Mr Hani told Mr El-Khoury he wanted to open another account jointly with Mr El Masri because Mr El Masri was handling many of Mr Hani’s arrangements in Lebanon as his lawyer. At the meeting, Mr Hani and Mr El Masri signed a copy of the Bank’s general agreement and on about 19 August 2019, Mr Hani signed a further KYC form which Mr El-Khoury prepared using largely the same information he had used for the first form. 73 Mr Hani told Mr El-Khoury a number of things about his personal circumstances and business arrangements, but Mr El-Khoury could not remember precise words or specific dates. 74 Mr El-Khoury said Mr Hani told him he was transferring money to Lebanon to meet his investment goals, he had approximately A$6 million to transfer to his Lebanese bank accounts and he was proposing to transfer those amounts between December 2019 and January 2020. Mr Hani later told Mr El-Khoury that he did not transfer the money because of the COVID-19 pandemic which meant he did not leave Australia at the beginning of 2020 and had to postpone his retirement plans. That discussion took place over the telephone. Mr Hani also told Mr El -Khoury he had approximately A$26 million from the sale of a farm in Australia and he wanted to transfer a significant portion of it to Lebanon for his retirement. Mr El-Khoury believed that Mr Hani was living primarily in Lebanon and only travelled infrequently to Australia for business. 75 Mr El-Khoury did not recall speaking to Mr Hani in late 2019 or early 2020 about the economic situation in Lebanon. Mr El-Khoury recalled expressing his belief the situation would improve which was his personal point of view. He recalled saying that one could not predict what might happen with the financial crisis and that this was out of the control of the Bank. Mr El-Khoury said he did not purport to give Mr Hani any economic or investment advice because he was not authorised to do so and it was not within his experience. -- 26 of 251 -- [2026] SASC 107 Stein CJ 23 Further evidence of Mr Hani 76 Mr Hani agreed that when he met with Mr El-Khoury, Mr El Masri was present but he did not agree they met eight times. Mr Hani did not keep an electronic or hardcopy diary in relation to the meetings which were communicated to Mr El Masri by Mr Hani by phone. The only time Mr Hani spoke to Mr El-Khoury using his Lebanese phone number was during the limited times he was in Lebanon. During 2019, he spoke by phone with Mr El-Khoury when in Australia using his Australian phone number. 77 Mr Hani told Mr El-Khoury when they first met and at other times that he had lived in Australia since he immigrated in 1968. He was not usually present in Lebanon between October 2018 and December 2020 and categorically disputed he was generally available to meet with Mr El-Khoury at short notice in that time. It was only during the limited times he was in Lebanon from 4 September 2018 to 5 October 2018 and from 23 June 2019 to 21 August 2019 that he could meet with Mr El-Khoury. Mr Hani recalled the first meeting being on 4 October 2018. 78 Mr Hani categorically disputed that he ever told Mr El-Khoury he intended to retire in Lebanon and said on no occasion did he have any discussion with Mr El-Khoury about his retirement. He had no plans for retirement. He never intended to retire in Lebanon. His business interests and investments are all based in Australia other than the property he inherited in Lebanon and the monies deposited with the Bank. Mr Hani has three adult daughters, two adult sons and three grandchildren and he would never live in a country away from them. 79 Mr Hani disputed Mr El-Khoury’s assertion that he wanted to appoint a Lebanese director to his Australian companies. He said his plans are to pass his business interests on to his children when he can no longer conduct those interests. 80 Mr Hani maintained Mr El-Khoury had a laptop with him at the meeting on 4 October 2018. Mr El-Khoury used the laptop to tell him about offers and interest rates available. Mr Hani said it may be the case that the bank account was not opened on the Bank’s systems until after the meeting. Mr Hani agreed that Mr El-Khoury was correct that he had brought the general agreement form along and he used it to complete the handwritten sections before Mr Hani signed it. 81 Mr Hani maintained he told Mr El-Khoury that he resided in Australia and at the meeting on 4 October 2018 also said he had substantial commercial property interests in Australia. Mr Hani maintained he told Mr El-Khoury he was on holiday in Lebanon with his wife and the house in Lebanon was inherited property. 82 Mr Hani recalled attending restaurants in the company of Mr El Masri and Mr El-Khoury but not on as many as four or five occasions. Discussions included political discussions, discussions about interest rates and his commercial property interests in Australia, but not retirement plans. -- 27 of 251 -- [2026] SASC 107 Stein CJ 24 83 The second general agreement jointly signed by Mr Hani and Mr El Masri was signed at Mr El Masri’s law office in Beirut. Mr El-Khoury attended his house separately for a social occasion. 84 Mr Hani agreed he told Mr El-Khoury he wanted to deposit money with the Bank at high rates of interest to meet his investment goals. 85 Mr Hani said he never discussed with Mr El-Khoury selling a farm or any property for $26 million and has never, in fact, sold a farm or property for such a large figure. 86 Mr Hani agreed his wife is of Lebanese background and they had a marriage ceremony in Lebanon, but his wife and four-year-old daughter live with him in Australia and his wife has done so since April 2017. Mr Hani does not have any plans to live in Lebanon and he and his wife wish to raise their daughter in Australia. 87 Mr Hani disputed telling Mr El-Khoury he intended to return to Lebanon and this did not occur because of the pandemic. Mr Hani says he did not say nor do anything to provide a basis for Mr El-Khoury’s assertion that Mr Hani’s primary residence was in Lebanon and he had only been traveling to Australia for infrequent business trips. Mr Hani maintained he told Mr El-Khoury from the outset that his primary business and residence were in Australia where he has lived since 1968. 88 Mr Hani said if he had to commence a claim against the Bank in a Beirut court, he would be unable to travel to Lebanon and would be extremely fearful of doing so. Mr Hani believed it would be important for him to be present in court for the trial to give evidence if required, to provide instructions and to observe the proceedings. This was more so given the trial would be occurring in an unfamiliar foreign court, his claim is approximately A$7.34 million, concerns he has following the Lebanese financial crisis, and the Bank’s refusal to return to funds, which he said his expert Dr Kotob suggested was a systematic response to the Lebanese financial crisis adopted by Lebanese banks unregulated by the Lebanese government. 89 Mr Hani said when he signed the general agreement in October 2018, neither the Lebanese financial crisis nor the 2024 war in Lebanon existed. From around mid-September 2024, Mr Hani had been closely following reports on Lebanese television stations concerning escalation in conflict involving Israeli airstrikes causing injury and death including in Beirut.15 The Australian Department of Foreign Affairs and Trade (“DFAT”) published travel advice advising Australians 15 Mr Hani watched television reports and exhibited to his affidavit a number of online articles in relation to the conflict and its impact on Beirut. CB1768 – 1715. -- 28 of 251 -- [2026] SASC 107 Stein CJ 25 not to travel to Lebanon due to the volatile security situation and the risk of it deteriorating.16 90 Mr Hani believed he could not travel to Lebanon given the serious risk to his personal safety and the risk of being stranded in Lebanon for an extended period. Mr Hani is 72 years old and has a number of medical conditions for which he receives regular treatment from treating doctors and physiotherapist and for some of which he takes medication. Mr Hani believes that while those medical conditions would not be a problem for a short overseas trip, they could cause an issue if he was unable to leave for an extended period and if he were unable to obtain appropriate medical treatment. Mr Hani has knee and spinal osteoarthritis, including a vertebral crush fracture. He has ischemic heart disease. He takes medication and undergoes various tests. He suffers from a pre-malignant condition of the oesophagus. He is monitored and takes medication. He had a brain tumour removed in 2007. While in remission, his condition is being monitored by an oncologist. Mr Hani referred to the DFAT travel advice suggesting the potential for shortages of pharmaceutical and medical supplies in Lebanon and impact on the potential ability of hospitals to provide medical care. 91 Mr Hani said that at the meeting on 4 October 2018, he provided Mr El-Khoury with his Australian passport as his primary form of identification. He does not recall being asked to provide any other form of identification. Mr Hani also has a Lebanese passport which he uses entering Lebanon so he does not need a visa. Mr Hani generally does not carry the Lebanese passport with him. Mr Hani said Mr El-Khoury did not ask him to provide the Lebanese passport and he did not show it to him if he happened to have it with him at the time. Mr Hani has a Lebanese driver’s licence referring to the property in Ras el Metn. Mr Hani rarely drives in Lebanon; if he does, he carries his driver’s licence. However, to the best of his recollection he did not drive when he was in Lebanon in 2018. Mr Hani does not recall showing his Lebanese driver’s licence to Mr El-Khoury at the meeting on 4 October 2018. He considers it is unlikely he had his Lebanese driver’s licence with him at the time of the meeting, but he cannot be certain. 92 In Mr Hani’s fifth affidavit, he said Mr El Masri and Mr El-Khoury attended a social occasion on 18 August 2019 at his property which was held for Mr Hani and his wife to farewell family and friends before they left Lebanon to return to Australia on 22 August. About 50 to 60 guests attended and Mr El-Khoury and his wife were invited to the farewell party through Mr El Masri. No documents were signed at the farewell party. Mr Hani maintained the joint account agreement was signed at Mr El Masri’s office in Beirut on 19 August 2019. 16 CB1658-1677. -- 29 of 251 -- [2026] SASC 107 Stein CJ 26 Further evidence from Mr El-Khoury Identification documents produced by Mr Hani to Mr El-Khoury 93 After reading Mr Hani’s fourth affidavit, Mr El-Khoury asked the Bank’s legal team to conduct a search in the Bank’s records for copies of the identification documents provided by Mr Hani as part of completing the KYC form. Mr El-Khoury said he did not think to recover those records previously because he was not aware there was any controversy about the nature of the identification documents provided to him. 94 Mr El-Khoury attached to his affidavit a copy of Mr Hani’s Lebanese driver’s licence, Mr Hani’s passport issued by the Republic of Lebanon and Mr Hani’s Australian passport. Mr El-Khoury recognised his signature and handwriting as recorded on the identification documents. He recalled that he checked the originals of the identification documents and took a photocopy of them with the photocopier at Mr El Masri’s office and signed and annotated the photocopies. He then took the copies to the Bank branch for certification. 95 Mr Hani thereafter corrected aspects of his previous affidavit evidence. He said he should have referred to his Lebanese passport to confirm when he travelled to Lebanon during the period October 2018 to December 2020. Having done so, Mr Hani said his passport showed that he arrived in Lebanon on 5 September 2018, travelled to Turkiye for a week from 17 September to 24 September 2018, returned to Lebanon on 24 September and subsequently left for Australia on 5 October 2018. In 2019, he arrived in Lebanon on 24 June 2019, travelled from Lebanon to Egypt from 30 June to 10 July 2019 and then left Lebanon for Australia on 22 August 2019. He also returned to Lebanon on 10 November 2019, departing on 5 January 2020. 96 Mr Hani said in late 2019 his wife travelled to Lebanon to visit her parents and, while there, discovered she was pregnant. She was advised not to return to Australia for about three months and Mr Hani therefore went to Lebanon to join his wife. Mr Hani said he did not meet with Mr El-Khoury, nor the Bank, relating to any bank matters during the time he was in Lebanon in late 2019 to early 2020. In November or December 2019, Mr Hani attended a lunch at a seafood restaurant to which he was invited by Mr El Masri and at which Mr El-Khoury was present. Further evidence about meetings and Mr Hani’s residence 97 Mr El-Khoury recalled attending Mr Hani’s house twice. The first time was on 14 August 2019 and the second on 18 August 2019 to attend a party. The second general agreement was signed by Mr Hani and Mr El Masri on the first visit. While he had been to Mr Hani’s property before, he was not familiar with the area or how to get there. Mr El-Khoury was not told the party was held for the purposes of a farewell and it was just an ordinary social occasion. 98 Mr El-Khoury reiterated that he believed Mr Hani was a resident of Lebanon when he signed the first KYC form because of what Mr Hani told him. He sighted -- 30 of 251 -- [2026] SASC 107 Stein CJ 27 Mr Hani’s identification documents which recorded a residential address in Lebanon. When he asked Mr Hani for information to complete the KYC form at the second meeting, Mr Hani provided him with his residential and mailing address in Lebanon, told him his wife stayed at home and did not tell him he resided in Australia nor did he provide an Australian residential address. Mr Hani signed the form. Mr Hani’s house was the same as the address provided on the KYC forms. There were multiple cars at the house which were not Mr El Masri’s car. Further evidence of Mr El-Khoury under cross-examination 99 Under cross-examination, Mr El-Khoury agreed that as a bank representative he had to use the terms stated in the Bank’s standard term contract. He could never negotiate different terms. 100 When asked when he first learned that Mr Hani was a resident of Australia, Mr El-Khoury responded that Mr El Masri told him. Mr El-Khoury said that about a month before they signed the contract, Mr El Masri told Mr El-Khoury that he wanted to introduce Mr El-Khoury to a friend who had Australian citizenship. When asked whether he thought Mr Hani was a resident of Lebanon, Mr El-Khoury said that he always thought Mr Hani was a Lebanese resident and he still held that belief. Mr El-Khoury then said he first learned Mr Hani was an Australian resident when he read Mr Hani’s affidavits. I pause to observe that this evidence given by Mr El-Khoury concerning his knowledge and belief about Mr Hani’s status as a citizen or resident must be considered in light of an issue raised about the interpretation of the word “resident” and whether the word “resident” in the question posed by counsel was incorrectly interpreted as “citizen”. I return to address this issue in Part 4 of my reasons in which I set out my findings. 101 Mr El-Khoury did not remember why he only mentioned his second visit to Mr Hani’s house in Lebanon in his second affidavit. Mr El-Khoury said the party was private and it had nothing to do with the Bank, so he did not mention it. There were about 50 to 60 people at the party. Mr El-Khoury denied that Mr El Masri asked him to the party and denied he was told it was a farewell party; he was told it was a dinner party. He did not agree that the reason it was necessary to sign a form on 19 August was because Mr El-Khoury knew Mr Hani was leaving Lebanon later that week. 102 Mr El-Khoury recalled asking Mr Hani for information about directorships of companies he operated in Australia when he first opened the account but did not recall asking for information about his companies on other occasions. Mr El-Khoury agreed he was sent information about Mr Hani’s companies by emails and Mr Hani sent him emails agreeing to the conditions of term deposits. Mr El-Khoury did not accept he was told in correspondence from Mr Hani that Mr Hani’s principal place of residence was in South Australia. 103 Mr El-Khoury agreed that Mr Hani sent him an email on 5 September 2019 which attached an ASIC extract disclosing the identity of Woodcroft Town Centre -- 31 of 251 -- [2026] SASC 107 Stein CJ 28 Management17 and he read the email when he received it. He could not remember reading the attachment but said more than likely he would have read it. He said he did not pay attention to the details of the address of the officeholders on the form. 104 Mr El-Khoury said when he first met Mr Hani, Mr Hani said he was coming to Lebanon for his retirement and he might be going back to Australia to check on his business. 105 Mr El-Khoury said the first time he went to Mr Hani’s house in Ras el Metn he went with Mr El Masri but the second time he followed Mr El Masri because he did not remember the place, having only been there once. Mr El-Khoury was taken to the statement in his affidavit18 in which Mr El-Khoury said he observed two cars parked at Mr Hani’s house and he “inferred” they were Mr Hani’s cars because the third car was Mr El Masri’s car. When asked why he did not say he recognised Mr El Masri’s car because he had driven to the party in it, Mr El-Khoury responded that “they did not ask me”.19 Mr El-Khoury said he was not sure who did not ask him but said he knew the car. When asked again why he did not say he knew Mr El Masri’s car because he had gone to the party in it, Mr El-Khoury said he did not think that was something he should say and he was not going to mention each car or model. 106 Mr El-Khoury denied: • only having been to Mr Hani’s house once; • that the meeting on 14 August took place at Mr El Masri’s office; • that he failed to mention the party in his affidavit because he knew it was a farewell party for Mr Hani to return home to Australia with his wife; • that was the reason why he organised Mr Hani to sign a KYC form the day after the party before Mr Hani left Lebanon; • that he failed to mention the party because it would show he knew Mr Hani was a resident of Australia; • that he was sent correspondence by Mr Hani saying his principal place of residence was in South Australia. 107 Mr El-Khoury said he wrote down what the customer told him; he did not write down that Mr Hani was going to retire in Lebanon as there was no spot for 17 SCB521. 18 CB840. 19 TT88. -- 32 of 251 -- [2026] SASC 107 Stein CJ 29 that to be written down and he did not remember whether he had written a note of this. 108 Mr El-Khoury did not recall Mr Hani talking about his family in Australia when talking about retirement. When asked what other information he could provide about Mr Hani’s retirement, Mr El-Khoury said the airport in Australia was closed, his wife was pregnant and Mr Hani wanted her to give birth in Australia. Mr El-Khoury said Mr Hani told him he was going to sell an olive farm for $26 million and wanted to transfer $6 million for his retirement. When asked if he had any note of Mr Hani intending to transfer about $6 million to the Bank, Mr El-Khoury said he knew Mr Hani spoke about that. Mr El-Khoury did not remember making any record of the conversation. I pause to observe that an issue was also raised about the accuracy of the interpretation and, in particular, whether “note” was interpreted as “comment”. 109 When it was put to Mr El-Khoury that he was never told Mr Hani was proposing to retire to Lebanon, Mr El-Khoury said he was sure Mr Hani told him that and when it was put that there was no record, because Mr Hani never said it, Mr El-Khoury responded “I assure you, yes, he told me”. 110 Mr El-Khoury said he spoke to Mr Hani on his Lebanese telephone number and sometimes he used to call him on his Australian WhatsApp number. He could not remember the timeframe but agreed he used both numbers for the whole time he knew Mr Hani. Mr El-Khoury remembered meeting Mr Hani before he opened the bank account and after he went to his house. They met at Mr El Masri’s office and at some restaurants. He remembered when Mr Hani opened the account because it was documented but he did not remember dates of restaurant meetings. 111 Mr El-Khoury recalled asking Mr Hani for information about Woodcroft Town Centre Management to make sure of the source of the money being transferred. Mr El-Khoury did not recall reading a letter dated 13 May 201920 which stated Mr Hani was the sole owner of Johani Nominees and which listed Mr Hani’s postal address and specified an address in Hallett Cove, South Australia. When asked whether it was his evidence that, at the end of May 2019, he did not know Mr Hani resided in Hallett Cove, Mr El-Khoury said he did not remember. Mr El-Khoury said he did not recall whether the letter would have been uploaded into the banking system but agreed it was necessary to record on the Bank’s system a letter sent to the Bank to identify the source of the money transferred to the Bank from overseas and agreed that was the kind of document the Bank would need to keep. 112 Mr El-Khoury said the rates of interest for term deposits offered to Mr Hani21 were provided by head office and he had no idea why higher rates of interest were offered on US dollars than Australian dollars. Mr El-Khoury said the rate of 20 CB1599. 21 CB1589. -- 33 of 251 -- [2026] SASC 107 Stein CJ 30 interest offered in US dollars was available to all customers and it did not matter whether customers lived in Lebanon or overseas. 113 Mr El-Khoury said at the first meeting with Mr Hani, Mr Hani said he wanted to send money for his retirement plan in Lebanon and, when he retired in Lebanon, he wanted to appoint a person to look after his investments in Australia. Mr El-Khoury knew Mr Hani had a shopping centre. Mr El-Khoury maintained he remembered being told that Mr Hani proposed to appoint a Lebanese director to run his Australian companies but said he did not think about how a Lebanese director could operate a shopping centre in Australia. Mr El-Khoury maintained Mr Hani told him he had a house in Lebanon at the meeting when they opened the account. He did not recall having any written records of the first meeting. Mr El-Khoury did not remember exactly what he told Mr Hani about the Bank’s interest rate or products at the first meeting. 114 Mr El-Khoury agreed the mailing address was not filled in on the handwritten KYC form. He did not remember whether Mr Hani gave him a mailing address at the meeting and said he remembered only what he wrote down. When it was put to Mr El-Khoury that Mr Hani did not provide him with his mailing address, Mr El-Khoury responded “on the contrary, he did tell me”. When asked why he said Mr Hani told him the mailing address when he did not write Mr Hani’s address on the handwritten form, Mr El-Khoury said it was probably written on the contract and he was sure of that. 115 Mr El-Khoury said at the meeting on 4 October, Mr Hani told him he had a house in Lebanon but denied the proposition that Mr Hani did not tell him he was a resident of Lebanon. Mr El-Khoury maintained he was sure Mr Hani told him he was a Lebanese resident. 116 Mr El-Khoury was taken to the statement in his affidavit22 in which Mr El-Khoury said he inferred that Mr Hani resided in Lebanon. Mr El-Khoury said he did not infer, rather, Mr Hani told him that he had a villa in Ras el Metn. When it was put to Mr El-Khoury that this meant his affidavit was wrong, Mr El-Khoury responded “why is it wrong?”. When asked why he did not say in his affidavit that he knew Mr Hani’s primary residence was in Lebanon because Mr Hani told him, Mr El-Khoury responded “because he told me his address”. When asked whether Mr Hani told him he lived in Lebanon permanently, Mr El-Khoury responded that “he told me he’s coming to Lebanon for his retirement. He’s originally Lebanese citizen. He lived in Australia and coming back to Lebanon for his retirement”. Mr El-Khoury was asked whether Mr Hani told him that his primary residence was in South Australia. Mr El-Khoury said he did not remember exactly what Mr Hani said at the time and where was his primary residence; all he recalled was that Mr Hani told him he used to be in Australia and he was coming to Lebanon for his retirement. 22 CB837. -- 34 of 251 -- [2026] SASC 107 Stein CJ 31 117 Mr El-Khoury said when he filled in the form, he knew Mr Hani owned a house in Beirut. Mr El-Khoury denied that Mr Hani told him he lived in South Australia and said “when I was opening that account, the customer was sitting in front of me and he gave me his address”. He denied telling Mr Hani he preferred to include a Lebanese address on the form because it would be better for tax purposes or to make the process of opening the account easier. Mr El-Khoury also denied that Mr Hani told him he was in Lebanon on holiday with his wife or that the address in Lebanon was a property Mr Hani had inherited. 118 When it was put to Mr El-Khoury that he ticked the boxes on the handwritten KYC form23 without discussion with Mr Hani, Mr El-Khoury said he ticked them based on what Mr Hani said and maintained he discussed each of the topics with Mr Hani. When asked if he had any memory of discussing the matters with Mr Hani, he said anything written down would have been discussed with the client and explained and Mr Hani signed the form. Further evidence of Mr Hani 119 Mr Hani commenced his oral evidence by correcting a matter addressed in his last affidavit. Mr Hani said he agreed with Mr El-Khoury that he provided his Lebanese passport during the meeting and Mr El-Khoury took a copy. There was nothing else he wished to tell the Court; the only correction was on that topic. 120 During cross-examination, Mr Hani could not recall the dates when he was in Lebanon in 2017. Mr Hani recited dates during which he travelled to Lebanon in 2018 and 2019 and said he did not have regard to his Lebanese passport when he swore his first four affidavits. The information provided about his dates of travel was from refreshing his memory from his passport. Mr Hani said he recalled precisely what he was doing in 2018 and 2019. He did not necessarily keep a diary and he did not take any file notes or records of the meetings with Mr El-Khoury or Mr El Masri in 2018 or 2019. 121 When taken to the statement in his affidavit that he had a close relationship with his children and asked about his children of previous marriages, he said “not – close as I can be”.24 Mr Hani said he would never have told Mr El-Khoury he would retire to Lebanon because he was close to his children in Australia. He agreed his former wife had sole custody and parental responsibility for two sons from his second marriage. 122 Mr Hani said his business interests include ownership of two shopping centres at Woodcroft and Glynde, and now one hotel. Mr Hani said he did not own a farm. When it was put to him that a company he controls owns a farm at Coonalpyn, he said “not at present”; he did own a farm which was an olive and 23 CB864. 24 TT220.5. -- 35 of 251 -- [2026] SASC 107 Stein CJ 32 vineyard property, owned by Australasian Olive Agricultural Company Pty Ltd, of which he was a director. Before 2018, he was trying to sell the olive farm. 123 Mr Hani accepted that Mr El Masri is Mr Hani’s lawyer in Lebanon. Mr Hani has known him for about 20 years and he trusts Mr El Masri, extending to opening joint bank accounts together. Mr El Masri deals with his funds in Lebanon through the bank account. 124 In 2018, Mr Hani had a Lebanese phone number, a Lebanese driver’s licence and Lebanese passport. His business activities were based in Australia. His office was based in Hallett Cove, at his home. 125 Mr Hani said he had caused four versions of a statement of claim to be filed and he satisfied himself it was appropriate to instruct his solicitor to file those documents. When asked whether there were changes between the second and third versions, Mr Hani asked if he could be shown some documents and then said he did not know. Mr Hani said he made a claim from Australia for the principal plus the interest on the money he paid. Mr Hani agreed that his solicitor signed a certification saying he acted in accordance with Mr Hani’s instructions. Mr Hani did not remember whether he considered documents to refresh his memory before signing his first affidavit, saying the only document he used to refresh his memory was his claim. 126 Mr Hani said he met with Mr El-Khoury on three occasions in 2018 and 2019 for business, then said they met in 2018 and 2019 “about four or five times”. They met in restaurants about three times and once in his home for a social occasion on 18 August 2019. Mr Hani found the photographs of the social occasion on his computer. He remembered he met with Mr El-Khoury in late 2019 and went to a seafood restaurant. 127 The last time Mr Hani saw Mr El-Khoury was in 2019 when he signed the KYC form at Mr El Masri’s office. On a date in 2019 he could not recall, he went with Mr El-Khoury to a seafood restaurant and to the Metropol where Mr El-Khoury introduced him to his manager to show respect to Mr Hani. They did not discuss business; they discussed topics like food and Beirut. The other restaurant meeting was at a seafood restaurant. Mr Hani was invited by Mr El Masri who invited his friend Mr El-Khoury. They did not discuss business; they discussed the political situation in Lebanon. When asked whether he actually recalled what was discussed at restaurant meetings, Mr Hani responded that it was a passing comment; they sat, talked about the food and talked about things; only social talk, nothing to do with business. On both occasions Mr Hani went to the restaurant with Mr El Masri in his car. He did not recall any other meetings at restaurants. 128 Mr Hani denied meeting with Mr El-Khoury prior to 4 October 2018, saying the first meeting was on 5 October. He did not have a written record of the meeting. He, Mr El-Khoury and Mr El Masri were present. Mr Hani accepted that -- 36 of 251 -- [2026] SASC 107 Stein CJ 33 Mr El-Khoury brought some hardcopy documents, specifically the KYC form, to fill out. Mr Hani said he was not 100 percent sure but thought that Mr El-Khoury had a laptop with him. Mr Hani provided details about his identity and background, as required by the Bank, which he saw Mr El-Khoury write down on the form. Mr El-Khoury showed him the form when it was filled out and he signed it. When it was put to Mr Hani that the contents were true and correct, Mr Hani said he brushed through the document; it was a normal bank requirement and he signed it. When it was put to him that by signing it, he certified the contents were true and correct, Mr Hani said “not really, no”. Mr Hani reiterated he signed the document but brushed through it. When it was put to him again that when he signed it, he certified the contents were true and correct, Mr Hani responded that that is what the document is. 129 Mr Hani agreed there were two further KYC forms prepared by Mr El-Khoury. Mr Hani said Mr El-Khoury did not take the information from him, Mr El-Khoury had the information. Mr Hani agreed that he signed each of the forms and certified the contents were true and correct. Mr Hani accepted he was provided with the general banking agreement and he signed the agreement but said he brushed through the document. This was not a document he was familiar with, but he brushed through it and trusted the information he gave was correct. Mr Hani read the front page to ensure the parties were correct. Mr Hani said he mentioned he was leaving the next day and that was why they had to finish the document. 130 Mr Hani accepted he signed a second general banking agreement; agreed he read the first page of that document and he made sure the details were accurate before he signed it. Mr Hani said he read the first page and made sure that the name was correct. He did not check his passport number, just his name. He just skimmed over it; he read the items, his address, his name and the Bank’s address and did not read anything else. When it was put to Mr Hani that he had signed many bank documents in his business career, he responded that he did not look at Article X in the agreement. (I pause to observe that Article X is the jurisdiction clause in the banking agreement.) He brushed through it and saw some items were to be filled in later. Mr Hani reiterated that he read what was relevant and responded when Mr El-Khoury asked him. Mr Hani skimmed over Article X when he reviewed the agreement and he did not read Article X. He just read his particulars and they were correct. When it was put to Mr Hani that he has signed many documents over his successful business career, Mr Hani said he goes to ANZ Bank every year about his loans, he brushes through about 15 to 20 pages and the only things he looks at are the figures. In the case of the Bank, he was only interested in the interest. 131 When taken back to the KYC forms again, Mr Hani agreed when signing each document he certified that the information in it was complete and accurate. 132 Mr Hani could not recall the dates he travelled to Lebanon in 2017. Mr Hani said his medical conditions do not prevent him from travelling to international -- 37 of 251 -- [2026] SASC 107 Stein CJ 34 destinations but not for long trips and agreed he had managed to travel to Indonesia, Malaysia and Thailand on several occasions since 2023. 133 Mr Hani agreed that on 25 September 2021, he emailed to Mr El Masri a KYC form which he had signed and certified and that he had ample time to read the form, consider it and send it back. Mr Hani agreed the information on the KYC form was accurate. His civil register number in Lebanon was included in the form and his civil register place was Ras el Metn. His tax residency was in Australia. Mr Hani denied that the villa in Ras el Metn is called Villa Jihad Hani and denied that Mr El-Khoury correctly and accurately recorded in each of the KYC forms what Mr Hani told him, including that his residential address was in Lebanon and he was a resident at Villa Jihad Hani in the city of Baabda, Ras el Metn. He denied the two general agreements he signed recorded that he was a resident of Lebanon at that address. 134 Mr Hani accepted that Mr El-Khoury emailed him in January 2019 to tell him there were varying interest rates depending on the period of time and the amount of money he might deposit and, having considered that, he elected to deposit for three years at an interest rate of 8.5 percent, paid monthly. At that time in 2019 he was keeping a very close eye on financial markets all over the world if he could. He kept himself apprised of exchange rates, share markets and their performance and, when making his decisions about the investments with the Bank, he had regard to his knowledge of financial market issues and his experience in business. 135 Mr Hani has six grandchildren. He said he has met them all in response to a proposition that he had only met one of them. Mr Hani denied he was estranged from his adult children. When it was put to Mr Hani that he was suing his daughter, Candice, in this Court, Mr Hani said he fired the barrister that did that. Mr Hani said it was a surprise to him that on 12 November 2024, proceedings in his name were issued against Candice Braggins, his daughter, so he fired the barrister as he was supposed to negotiate. When asked if he was telling the Court that the lawyer filed the action without his instructions, Mr Hani responded “correct”. Mr Hani said he had changed to another legal firm and they had instructions to close that and move on. Mr Hani was shown the amended claim revision 1 and a defence in proceedings commenced in this Court by Mr Hani and Big Olive Company and Johani Nominees against Candice Braggins. Mr Hani maintained that his lawyer’s firm commenced the proceedings without his instructions. Mr Hani denied that he was continuing to pursue the claim. He agreed his first lawyer’s instructions had been terminated and another lawyer was retained and was conducting the proceedings on his behalf. He did not know that the matter was before the Court on 6 February 2025. 136 When it was put to Mr Hani that he was estranged from his sons and had no relationship with them, Mr Hani said he would like to have more of a relationship with them, but they are independent. He last saw Candice’s three children in Melbourne last year when he visited them in their home. He then agreed with the proposition that he had been estranged from Candice since 2017 but said he had -- 38 of 251 -- [2026] SASC 107 Stein CJ 35 communications with her. When it was put to him that since 2017, he had had no relationship with his sons because of Family Court proceedings, Mr Hani responded “[n]o. I keep attention with them, and that’s unfortunate that’s the way they preferred it, or their mother preferred it”. He could not recall the last time either of his sons visited his home; it had been a long time. 137 Mr Hani said all his identification documents, being his Australian passport, Lebanese passport and Lebanese driver’s licence, were on the desk in the meeting with Mr El-Khoury and Mr El-Khoury could take and copy anything. When asked whether there were any other documents, Mr Hani said he made sure when he spoke to Mr El-Khoury to say that they were on holiday in Lebanon and leaving the next day and he did not know if Mr El Masri provided any documents to Mr El-Khoury. Mr Hani thought Mr El Masri made the photocopies. 138 Mr Hani denied that he knew that he needed to take identification documents to the meeting on 4 October 2018 because he had met with Mr El-Khoury and Mr El Masri about four weeks before and denied telling Mr El-Khoury that he had plans to retire to Lebanon. He could not remember telling Mr El-Khoury that he had married a Lebanese woman in 2017 but said that if Mr El-Khoury had asked he would have answered that his wife is Lebanese and they married in Lebanon. Mr Hani agreed he told Mr El-Khoury that his business activities were in Australia and they concerned real estate investment and real estate management. He denied telling Mr El-Khoury he had an olive farm which he was trying to sell. Mr Hani said they did not discuss the olive farm then but agreed he was in fact trying to sell the olive farm in 2018. Mr Hani received approximately A$4 million for the sale of the olive farm. 139 When it was put to Mr Hani that Mr El-Khoury did not tell him that he needed to write on the KYC form a residence in Lebanon because that was legally required, Mr Hani responded “yes, he made it as it was legally required”. Mr Hani denied that Mr El-Khoury did not tell him anything about tax requirements in Lebanon and said they did not discuss tax. 140 Mr Hani agreed he lived in Lebanon in 1997 for an extended period, perhaps five or six months, which involved the children going to school. He used the property at Ras el Metn as his residence and he eventually organised an alternative residence near the school. He filed forms with ASIC recording his residential address at Ras el Metn, Lebanon and said that was the address he would have recorded when he was in Lebanon in 1997. 141 Mr Hani agreed that Mr El Masri was his trusted lawyer and able to use the joint account. Mr El Masri had a power of attorney to operate the bank accounts and an arrangement with the Bank to sign on withdrawals to pay expenses for Ras el Metn as well as a general power of attorney to act on Mr Hani’s behalf. Mr Hani continues to pay bills for the Ras el Metn property while his sister looks after everything. Mr Hani’s brother lives in Australia but he has uncles and aunts in Lebanon. Mr Hani has not travelled to Lebanon since 2020. -- 39 of 251 -- [2026] SASC 107 Stein CJ 36 Mr Fadi Saade 142 Mr Saade has been employed by the Bank since 1998 and is currently a regional manager. 143 Mr Saade said the Bank is a Lebanese bank licensed by the Banque du Liban. The Bank has 62 branches in Lebanon and offers personal, business and private banking services to individual and corporate customers. The Bank’s business and the group’s business is heavily focused on Lebanon. At the end of 2018, the Bank’s strategy involved strengthening its key entities in Lebanon, Egypt and Turkey. It did not have any presence in Australia and its initiatives and strategies did not, and do not, involve obtaining business from individuals domiciled in Australia or the Asia Pacific. 144 Mr Saade is familiar with the general policies and procedures for banking customers and for compliance with policies and procedures as his role as regional manager includes managing conflicts with customers and assisting with the conduct of the Bank’s legal affairs. 145 Prospective customers are required to attend a branch or meet a representative in person to open an account. Before opening a bank account, the Bank representative must prepare relevant application documentation using information provided by the customer and the customer is required to sign and verify the accuracy of the information. Once the application documentation is completed, the Bank reviews and validates that information and, if validation is successful, will accept the application and open an account. Once an account has been opened, the customer can use services through a mobile application or the Bank’s website if a customer has signed the appropriate documentation. Bank branches require customers who seek to open a personal banking account to review, complete and sign documents including the KYC form, the general agreement for opening and activating accounts and general terms and conditions for electronic banking services. 146 All Bank customers are allocated a unique identification number. All subaccounts are linked. The Bank’s records identify an account number ending 1572 which is an individual account opened under the name of Mr Hani, associated with subaccounts ending in the numbers 0001 and 0013. An account number ending in 8304 is a joint account opened under the name of Mr Hani and Mr El Masri, with an associated subaccount ending in the number 0003. 147 The Bank’s compliance procedures include following a customer acceptance and due diligence procedure whenever a customer seeks to open an account. KYC procedures involve the provision of minimal personal information necessary to open an account; the necessity to complete a KYC form to verify that personal information and providing identification documentation. The Bank representative reviews the completed form and identification documents to be reasonably satisfied the information is accurate. Once verification is complete and there are no inaccuracies or issues, the Bank representative is required to follow specific -- 40 of 251 -- [2026] SASC 107 Stein CJ 37 procedures. If they meet in a location other than a Bank branch, the customer completes the form in the presence of the representative who verifies the information. The representative then takes the completed copy of the form to the branch and scans and files a copy of the completed form into the Bank’s document management system. If the customer attends a Bank branch, the representative will directly enter the information into an electronic version of the form. The form will be completed and printed for the customer to sign and then scanned and stored in the document management system. 148 All customers are required to sign the general banking agreement to open an account. 149 Mr Saade can read documents in English and was able to read documents which were shown to him. 150 Under cross-examination, Mr Saade said he is familiar with deposit-taking by the Bank. He did not agree that, from 2015, the Bank sought to attract deposits in US dollars from customers outside Lebanon; he said their job was in Lebanon and most of their work was for people in the country. Mr Saade said the rates for US dollar deposits contained in an email sent by the Bank to Mr Hani25 represented the market at the time. He thought the highest rates offered by the Bank for deposits in US dollars were set out in the email. All customers were offered the same rates. 151 Mr Saade agreed that the Bank would record information about the source of international transfers of funds. Mr Saade said he did not personally search for information in respect of Mr Hani. 152 Mr Saade was asked questions suggesting the Bank’s practice was to discharge transfer requests by adopting the tender and deposit procedure. Mr Saade said he did not understand and that if the customer did not come to pick up the cheque, the Bank would deposit the cheque. Mr Ghazaleh 153 At the time of swearing his affidavit, Mr Ghazaleh was Deputy Chief Executive Officer of the Bank. Mr Ghazaleh holds a degree in accounting and graduated from the Executive Management Program and Advanced Management Programs at the Harvard Business School. He was the Chief Financial Officer of Standard Chartered Bank in Jordan from 2002 to 2004, when he joined the Bank group. 154 Mr Ghazaleh said the Bank is a Lebanese bank with 62 branches in Lebanon. Its core business is based in the Middle East-North Africa region. It operates overseas with a focus on countries with ties to Lebanon. It does not have any employees or offices in Australia nor the Asia Pacific region, nor relevant licences 25 CB1589. -- 41 of 251 -- [2026] SASC 107 Stein CJ 38 to conduct business in Australia and it does not have any property in Australia nor the Asia Pacific region. The Bank maintains correspondent bank accounts at banks around the world to access foreign currency. Those accounts cannot service customers. If the Bank must pay in Australian dollars, it would be processed through correspondent bank accounts held with the Bank of New York. 155 All of the Bank’s records relating to Mr Hani are stored in Lebanon. A majority of the Bank’s customers are residents of Lebanon. Non-residents can be customers, but they are usually present in Lebanon to open their accounts to physically sign their relevant documents. 156 Mr Ghazaleh gave other evidence which I address separately below. Mr Mazen El Masri 157 Mr El Masri is a Lebanese national who resides in Lebanon. His native language is Arabic but he is proficient in English. He is a joint account holder with Mr Hani in his capacity as Mr Hani’s legal representative and agent in dealings with the Bank. 158 Before Mr Hani travelled to Lebanon on holiday in mid-September 2018, Mr El Masri had several discussions with him about Lebanese banks offering high interest on deposits. After Mr Hani arrived in Lebanon, Mr El Masri said he would set up a meeting with Mr El-Khoury to discuss Mr Hani depositing monies with the Bank. Mr El Masri has known Mr El-Khoury for many years through dealings with the Bank. Mr El Masri facilitated the meeting between Mr Hani and Mr El-Khoury and was physically present but was not retained by Mr Hani to provide advice in relation to the contracts or the deposit of funds by him. He provided services to Mr Hani concerning administration of his accounts after they were opened. 159 Meetings between Mr Hani and Mr El-Khoury were arranged by Mr El Masri over the phone with Mr El-Khoury and he would relay the details to Mr Hani by phone. Some meetings were informal dinner meetings. He did not keep an electronic or hardcopy diary in relation to those meetings. The meetings only occurred while Mr Hani was on holiday in Lebanon in September and October 2018 and July and August 2019. Mr El Masri was not aware of Mr Hani being present in Lebanon from 2018 to 2020. Mr El Masri recalled the first meeting occurring in his law office in Beirut on 4 October 2018. Mr El Masri said Mr Hani never told Mr El-Khoury in his presence that he was a Lebanese resident and recalled Mr Hani telling Mr El-Khoury he had been living in Australia since 1968. There were no discussions in his presence concerning Mr Hani’s retirement. Mr El Masri recalled Mr Hani saying that he was a businessman interested in investment opportunities and the purpose of deposits with the Bank was to earn high interest. Mr Hani did not say he wanted to transfer his money to Lebanon for the purposes of retiring. Mr El Masri said Mr Hani had never discussed retirement plans with him but has discussed expanding his business activities in Australia. -- 42 of 251 -- [2026] SASC 107 Stein CJ 39 160 When Mr El Masri met with Mr Hani and Mr El-Khoury on 4 October 2018, Mr El-Khoury was using a laptop. Mr Hani told Mr El-Khoury he resided in Australia, was in Lebanon on holiday with his wife and owned and inherited a house in Lebanon which he used when he was in Lebanon on holiday. Mr El-Khoury told Mr Hani it was a Lebanese legal requirement to record Mr Hani’s residential address in Ras el Metn as he owned a property there. Mr Hani told Mr El-Khoury the funds would be coming from business activities in Australia. There was no discussion about the cross-border wire transfer boxes in the Bank’s KYC form. Mr El Masri believed the funds would be transferred back to Mr Hani electronically when the account was closed, subject to any agreed fixed term deposit period. Mr El Masri did not read the documents. He knew standard general banking contracts could not be varied by a customer. 161 Mr El Masri recalled two occasions having dinner at restaurants in Beirut with Mr El-Khoury and Mr Hani. They discussed politics, Mr Hani’s business interests in Australia and potential interest on earnings from deposits with the Bank. There was no discussion about Mr Hani’s retirement. Mr Hani said he was depositing money with the Bank to meet his investment goals. 162 Mr El Masri maintained that the joint account banking agreement was signed at his legal firm not at the Ras el Metn property. At the time the joint account banking agreement was signed, Mr El Masri also signed a KYC form including information about the joint identification number for Mr El Masri’s joint account with Mr Hani. 163 Mr El Masri said he and his wife had been invited by Mr Hani to a going away party on 18 August 2019 because Mr Hani and his wife were returning to Australia the following week. Mr Hani asked Mr El Masri to invite Mr El-Khoury and his wife to the party, which he did. Mr El-Khoury asked Mr El Masri if he could follow Mr El Masri and his wife to the party because he did not know the location of Ras el Metn. They arranged to meet at Mr El Masri’s office in Beirut and Mr El-Khoury and his wife followed Mr El Masri’s car, arriving at the property at the same time. About 70 guests attended the party and no documents were signed. That was the only time Mr El Masri was at the Ras el Metn property with Mr El-Khoury. 164 Mr El Masri said the KYC form dated 19 August 2019 containing Mr Hani’s signature was signed at his firm’s office in Beirut on 19 August 2019. 165 Under cross-examination, Mr El Masri said he has known Mr Hani for approximately 20 years and acted as his lawyer in Lebanon for the entirety of that period. He holds a general power of attorney on behalf of Mr Hani and has been the holder of a joint bank account with Mr Hani with the Bank from at least 2022. He continues to represent Mr Hani in Lebanon. Mr El Masri holds a power of attorney in respect of Mr Hani’s Swiss bank account. He also holds a power of attorney in respect of a bank account in Lebanon. -- 43 of 251 -- [2026] SASC 107 Stein CJ 40 166 Mr El Masri did not remember what identification papers Mr Hani presented to Mr El-Khoury in 2018. Mr El Masri did not photocopy the identification documents, that was done by his secretary. Mr El Masri knew information provided to the Bank was required to be accurate and complete and that Mr Hani also had to provide information that was accurate and complete. When asked whether, as Mr Hani’s lawyer, he read the general banking agreement before Mr Hani signed it, Mr El Masri responded that you cannot make any changes to a bank agreement other than your personal details. Mr El Masri then said he did not read the general banking agreement before Mr Hani signed it. He signed a general banking agreement for the joint account, but he did not read the contract before he signed it because it is not possible to change the contract. 167 Mr El Masri said Mr Hani did not ever mention he wanted to retire in his presence. Mr Hani was his close friend and he knew he would not retire. Mr El Masri agreed that Mr Hani had an olive farm in South Australia that he was seeking to sell in 2018. He remembered Mr Hani saying he wanted to tell Mr El-Khoury, not that he actually told him. Mr El Masri said Mr Hani definitely did not tell Mr El-Khoury he was a resident of Lebanon. 168 When it was put to Mr El Masri that the second of the general banking agreements which Mr El Masri signed as a party stated Mr Hani’s residence in Lebanon, Mr El Masri said that was not his residence; the Bank asked for an address in Lebanon and an address in Australia; they asked where Mr Hani worked and Mr Hani said “Australia”. Mr El Masri denied that Mr Hani told Mr El-Khoury his residence was in Lebanon in Mr El Masri’s presence. Mr El Masri said Mr El-Khoury knew when they met that Mr Hani was visiting Lebanon and that he was a resident of Australia. -- 44 of 251 -- [2026] SASC 107 Stein CJ 41 PART 2 – EVIDENCE CONCERNING TENDER AND DEPOSIT PROCEDURE AND PROCEEDINGS IN BEIRUT Evidence concerning the tender and deposit procedure and proceedings in Beirut issued by both the Bank and proceedings in Mr Hani’s name 169 I turn to address evidence concerning the steps taken by the Bank after Mr Hani asked for his account to be closed and the circumstances in which proceedings were then issued in Beirut. 170 The evidence refers to articles of the Code of Civil Procedure which provide for a process referred to as a tender and deposit or tender and consignment process. Translation of the articles are set out in Attachment 2. For present purposes, Article 822 provides that a debtor seeking to discharge his liability to a creditor has the right to consign the amount he considers himself indebted to the creditor through a notary who prepares a report documenting the tender and notifies the offeree with a copy of the report. Article 823 provides that the creditor must respond by accepting or rejecting the tender through written statement on the notice document or by submitting a statement to the notary. If the tender is rejected, the notary must inform the debtor. Article 824 provides the debtor must file a lawsuit within 10 days of being notified of the creditor’s rejection to prove the validity of the actual tender and consignment. The creditor may also file a lawsuit within 10 days of rejection to prove the invalidity of the tender and consignment. Mr Ghazaleh 171 Mr Ghazaleh was aware that from time to time the Bank sought to discharge its obligations to customers seeking to withdraw their funds through the tender and deposit procedure provided by Article 822 of the Code of Civil Procedure. 172 Mr Ghazaleh said Mr Hani was informed that the Bank had elected to return the balance of his funds through the tender and deposit process. The funds were paid by cheque into the account of the notary public so that the amounts could be paid to Mr Hani and Mr El Masri if they consented to the tender and consignment procedure. However, Mr El Masri rejected the tender and consignment on his behalf and on behalf of Mr Hani. 173 Mr Ghazaleh said that as Mr Hani did not acknowledge the tender and deposit process on 30 November 2022, the Bank commenced proceedings in compliance with Article 822 seeking to validate its reliance on the tender and deposit process in relation to Mr Hani’s accounts and the joint account (“Bank’s tender and deposit proceedings”). In December 2022, the Bank filed additional demands in the proceedings seeking to validate closure of the accounts. 174 On 16 December 2022, the Bank closed Mr Hani’s accounts. 175 As at 9 June 2023, the Bank had not been served with any response to the Bank’s tender and deposit proceedings. -- 45 of 251 -- [2026] SASC 107 Stein CJ 42 Mr El Masri 176 On 23 November 2022, Mr El Masri was served by a process server on behalf of the notary public with a copy of the Bank’s tender and deposit proceedings issued by the Bank in relation to the Bank accounts in Mr Hani and Mr El Masri’s joint names. When served with the documents, he wrote in handwriting in Arabic a notation to the effect that: We refuse the offer and deposit categorically since it isn’t valid and non-legitimate noting that these checks isn’t considered as payments and isn’t discharge them from all preserves in the lawsuit submitted from my agent before the Australian Court and send notification by you, also we preserve concerning the matter of violating the law of banking secrecy, with all preserves before any person for any authority. 177 Mr El Masri signed the notation, made a copy of the documents and handed the originals back to the process server to be delivered to the Bank’s legal department. He attended to this tender and deposit response under Article 823 of the Lebanese Code of Civil Procedure. 178 On 30 November 2022, the Bank filed its tender and deposit proceedings in the Beirut Civil Court of First Instance naming Mr El Masri as a party insofar as the proceedings relate to the joint account. 179 Mr El Masri said he and his firm had not at any time been served with the Bank’s tender and deposit proceedings nor with any additional demands, so no response had been filed and was not presently required to be filed. Mr El Masri’s law firm acts for Mr Hani in relation to the Bank’s tender and deposit proceedings. 180 Mr El Masri said the tender and deposit process documents were received by the Bank from the notary public before the Bank’s tender and deposit proceedings were commenced. At that time the Bank was on notice of Mr Hani’s objections to the tender and deposit procedure. Mr El Masri says the Beirut Civil Court of First Instance will be on notice of Mr Hani’s rejection of the tender and deposit procedure and the existence of the proceedings in South Australia because the tender and deposit response was provided by the Bank to the Civil Court of First Instance as part of the Bank’s tender and deposit proceedings. The rejection letter was attached by the Bank to the Bank’s tender and deposit proceedings. 181 On 25 June 2024, Mr El Masri made enquiries at the Registry of the Civil Court of First Instance in relation to the Bank’s tender and deposit proceedings. Mr El Masri’s enquiries revealed no further steps had occurred in the proceedings since filing on 30 November 2022 other than the Bank filing additional demands. No proof of service had been filed. 182 When asked whether he was instructed by Mr Hani to dispute the tender and deposit procedure, Mr El Masri responded that he refused it straightaway when he was informed. In September 2022, Mr El Masri did not receive any information about whether the Bank was going to use the tender and deposit procedure. -- 46 of 251 -- [2026] SASC 107 Stein CJ 43 Mr Hani 183 During cross-examination, Mr Hani was asked whether he had another attorney in Lebanon, a Mr Wissam Ladki, to which he responded “no”. When it was put to Mr Hani that he had issued an action in Lebanon, making claims against the Bank, Mr Hani responded that he only worked with Mr El Masri and he did not work with anyone else in Lebanon. When asked if he had issued a claim against the Bank in Lebanon in 2022 for alleged breach of the deposit agreement the subject of these proceedings, Mr Hani responded “I only has Mazen and I think he would have acted on my behalf, not another lawyer. Or he may have appointed another lawyer”. 184 When it was put to Mr Hani that he had commenced proceedings in Lebanon against the Bank, Mr Hani said he did not recall the proceedings and he only had one claim in Adelaide. It was put to Mr Hani that statement was untrue: he responded that he was not aware of the proceedings and he did not know the lawyer. It was also put to Mr Hani that he deliberately did not tell the Court he had commenced proceedings in Lebanon with the same issues in this action other than additional damages. Mr Hani reiterated that he was not aware of it, was not aware of the document and he had not seen it. 185 When shown a copy of proceedings issued in his name in Lebanon against the Bank,26 Mr Hani maintained this was the first time he had seen the document and denied that was a lie. (I will refer to those proceedings as “Mr Hani’s Beirut proceedings”). When taken to the details contained in Mr Hani’s Beirut proceedings, Mr Hani said Mr El Masri may have done this, but he was not aware that anything came out of it. He said Mr El Masri could have done it if he had to file it in response to something, but he did not know. Mr Hani read a document in Arabic, and then said that the document was a response and he was aware of it, but nothing had come of it. I pause to observe that in re-examination Mr Hani clarified that in this evidence he was referring to the tender and deposit documents (which I address later in my reasons) not the proceedings. 186 When taken through the allegations made in the statement of claim in his Beirut proceedings, Mr Hani said he had not seen the document, but it described the chaos in Lebanon in providing his money. Mr Hani said he “sent US$4.8 million – AUD into USD – to Lebanon and expected [it] back” and that “this was another ploy the Bank has used during the corruption of Lebanon”. He said he instructed his lawyer to claim that money in Adelaide. 187 Mr Hani agreed that the Beirut proceedings made claims about contraventions of Lebanese law and the same allegations were made in the proceedings in this Court. When asked if there were allegations made in the Lebanese proceedings of breaches of the Lebanese Code of Commerce,27 Mr Hani 26 Exhibit R2. 27 That code was variously referred to as the Commercial Code, the Code of Commerce or the Commercial Law throughout the proceedings. -- 47 of 251 -- [2026] SASC 107 Stein CJ 44 responded that it could be true and that “there is corruption in justice and injustice in Lebanon … and that’s why [he had not] got [his] money back yet”. He said the Bank deceived him. 188 Mr Hani was taken to a section of the Beirut proceedings which claimed a penalty by way of a coercive fine of US$100,000 for each day of delay while retaining all rights to the legal proceedings filed in Australia. There was also a claim for US$2 million compensation for loss and damage incurred because of the alleged arbitrariness of the Bank. Mr Hani said he had not signed the document, he did not know Mr Wissam Ladki, had never met him nor instructed him nor called him nor emailed him. Mr Hani did not accept that this was a claim filed in Lebanon making claims in respect of the very same subject matter of this action with additional amounts of US dollars. When asked if he had read the document, he said he had; he was “reading a newspaper here, nothing else”. Mr Hani reiterated he was not aware of the Beirut proceedings and it was not lodged by him. 189 Mr Hani was also shown a translation of a document dated 1 December 2022 on the heading of the Civil Court of First Instance of Beirut Financial Chamber which stated the Judge’s mutual fund fee was paid. Mr Hani responded that he did not “believe this [was] a genuine approach, [that it was a] corrupt government, a corrupt society, a corrupt judicial system there … and … this could have been done by any judge who [was] paid…”. He said he never authorised nor approved any of this. 190 Mr Hani agreed that Mr Wissam Ladki had witnessed Mr El Masri’s affidavits, but Mr Hani did not know that Mr Wissam Ladki worked from the same address as Mr El Masri. Mr Hani denied that the case in Lebanon was the very same case being run in South Australia. Mr Hani reiterated that he had not commenced proceedings in Lebanon; he had not had communications with Mr El Masri about the proceedings in this Court and he had not had any communications with Mr El Masri since giving evidence the day before. 191 Mr Hani was asked whether the Beirut proceedings were prepared and instituted by Mr El Masri. Mr Hani said he did not know, and he had never endorsed any proceedings outside this Court. 192 After Mr Hani was cross-examined on the proceedings issued in his name in Beirut, Mr Hani gave evidence that his information technology manager had searched each of his email accounts to find if there were any records of Mr Wissam Ladki communicating with him by email and no results were found. Mr Hani also gave instructions to that manager to look for a copy of the Beirut proceedings and he did not provide Mr Hani with any documents relating to those proceedings.28 28 I received this evidence de bene esse. I have determined to receive it. However, I accord it little weight in view of the ambiguities in the scope of searches and the matters I address separately in my assessment of the evidence of Mr Hani. -- 48 of 251 -- [2026] SASC 107 Stein CJ 45 193 Mr Hani maintained he had never given a power of attorney to Mr Wissam Ladki, he had never provided Mr El Masri with information for the purposes of including it in the Lebanese proceedings and he had never asked Mr El Masri nor Mr Ladki to make a claim against the Bank in a Lebanese court for compensation or damages. Further evidence of Mr El Masri 194 After Mr Hani was cross-examined about the Beirut proceedings issued in his name, Mr El Masri swore a further affidavit to address those proceedings. 195 Mr El Masri acknowledged that he had not mentioned those proceedings in his second affidavit and accepted he should have done so. 196 Mr El Masri said he was not experienced in dealing with the tender and deposit procedure under Articles 822-824 of the Code of Civil Procedure. He consulted a lawyer, Mr Chahine, who told him Article 824 required Mr Hani to commence proceedings seeking to invalidate the tender and deposit procedure within 10 days of responding. 197 When Mr El Masri swore his second affidavit, he had not been served with the Bank’s tender and deposit proceedings and he did not know they existed. Under Article 824 of the Code of Civil Procedure, Mr Hani’s proceedings seeking to invalidate the tender and deposit procedure had to be filed within 10 days of the tender and deposit response. 198 Mr El Masri has a general power of attorney from Mr Hani to act on his behalf in relation to his affairs in Lebanon. Given the tender and deposit procedure was also against Mr El Masri personally in his capacity as a joint account holder for one account, Mr El Masri considered it was proper he instruct another attorney to urgently commence proceedings on behalf of Mr Hani and he asked Mr Wissam Ladki to do so. 199 Mr El Masri said it is not unusual in Lebanon for an attorney to appoint another attorney by power of attorney to deal with all or part of a case. Mr Ladki had previously been employed by Mr El Masri, starting his own law firm in late 2021. Mr El Masri described Mr Ladki as a friend and a colleague who assisted him with legal matters from time to time. 200 On 1 December 2022, Mr El Masri gave Mr Ladki a special power of attorney appointing Mr Ladki to act for Mr Hani in relation to litigation involving Mr Hani as a plaintiff or defendant, including in all lawsuits filed or to be filed against the Bank. He did so in his capacity as Mr Hani’s attorney under the general power of attorney. 201 Mr El Masri made the decision to instruct Mr Ladki to commence Mr Hani’s Beirut proceedings without consulting Mr Hani or Mr Hani’s Australian lawyer, Mr Issa. Mr El Masri said he did not inform Mr Hani about his appointment of -- 49 of 251 -- [2026] SASC 107 Stein CJ 46 Mr Ladki or provide him with a copy of the power of attorney appointing Mr Ladki. Mr El Masri said he and Mr Hani had known each other for over 20 years, both professionally and personally. Mr Hani generally provided Mr El Masri with initial instructions and then Mr El Masri would proceed to act on those instructions. In this case, he did not inform Mr Hani about engaging Mr Ladki or about filing the proceedings on his behalf. He said that as Mr Hani has no understanding of Lebanese law or procedure, he thought it would be too difficult for him to understand the process and he decided to take the initiative and handle it on Mr Hani’s behalf under the general power of attorney. Mr Ladki, with Mr El Masri’s assistance, prepared and filed Mr Hani’s Beirut proceedings on 1 December 2022. Mr El Masri said his intended purpose was to invalidate the tender and deposit procedure taken by the Bank and restore the previous status of Mr Hani’s accounts and the account in their joint names prior to the tender and deposit procedure. Mr Hani’s proceedings did not seek an international funds transfer because Mr El Masri was aware this was being sought in Mr Hani’s Australian proceedings. Mr El Masri said he believed and continues to believe he was acting in Mr Hani’s best interests by arranging for the proceedings to be filed under Article 824 to preserve Mr Hani’s position in relation to the alleged invalidity of the tender and deposit procedure. The proceedings were never served by Mr El Masri, or to the best of his knowledge by Mr Ladki, on the Bank. Mr El Masri said he gave Mr Ladki clear instructions that the proceedings were not to be served on the Bank unless or until it became necessary because he understood Australian proceedings had been commenced. No action had been taken by Mr El Masri or Mr Ladki, to the best of his knowledge, in relation to the proceedings since they were filed and Mr El Masri had not issued any invoice to Mr Hani in relation to those proceedings. 202 Mr El Masri said in about November 2024 he was served by the Bank with the Bank’s tender and deposit proceedings. Since that time, nothing had occurred in the proceedings. Mr El Masri said if he was informed of an initial hearing date, he intended to instruct Mr Ladki on Mr Hani’s behalf to apply under Article 501 of the Code of Civil Procedure to join the Bank’s tender and deposit proceedings with Mr Hani’s Beirut proceedings and for the combined proceedings to be stayed until the South Australian proceedings had been finalised. 203 To the best of Mr El Masri’s knowledge, Mr Hani did not know Mr Ladki. He had never introduced him to Mr Hani, nor told Mr Hani about either Mr Ladki, or the power of attorney. Mr El Masri did not mention Mr Hani’s Beirut proceedings to Mr Hani, nor provide him with a copy of those proceedings, nor send to him any emails in relation to the proceedings at any time. He did not think this was necessary while nothing was happening in relation to the proceedings. Mr El Masri never communicated with Mr Issa in relation to Mr Hani’s Beirut proceedings until the topic was raised in the trial. 204 Mr El Masri said the claim for compensation or damages in the sum of US$2 million in the proceedings was included because Mr El Masri thought it was -- 50 of 251 -- [2026] SASC 107 Stein CJ 47 in Mr Hani’s interests. He did not discuss with or communicate to Mr Hani the claim for compensation or damages. 205 Mr El Masri did not mention Mr Hani’s Beirut proceedings in his second affidavit as at the time they had not been served on the Bank and no steps had been taken in relation to them, nor to the Bank’s tender and deposit proceedings which had neither been served on him at that time. However, he accepted he should have mentioned those proceedings to give a complete version of events. 206 During cross-examination Mr El Masri said he assisted Mr Ladki to prepare the proceedings filed on behalf of Mr Hani in Lebanon. Mr El Masri did not know what was happening in Australia. The claim filed by Mr Ladki in Lebanon was pursuant to a power of attorney given to him by Mr El Masri. Mr El Masri discussed several things with Mr Ladki and Mr Ladki prepared the document. Mr El Masri did not accept he was aware the claim filed in Lebanon asserted Mr Hani was a distinguished businessman in Lebanon and abroad. Mr El Masri agreed that Mr Ladki had never dealt with Mr Hani and the only information he had was provided by Mr El Masri. Mr El Masri then asserted that the translation of the claim was not accurate and the claim does not say Mr Hani was working in Lebanon, but that he was well-known in Lebanon and abroad. Mr El Masri said Mr Hani’s Beirut proceedings related to the account closure and tender and deposit procedure and it is possible to ask for compensation. Mr El Masri denied the suggestion that he knew there was a claim for US$2 million in compensation for damage and loss incurred by Mr Hani. Mr El Masri said a petition had been filed to discontinue the claim for compensation for US$2 million because there was some risk of duplication. Mr El Masri denied that he knew the proceedings in Lebanon were directly relevant to the issues before this Court in South Australia; saying they were completely different; the proceedings reserved the right of Mr Hani in the Australian court and that was why they did not do anything awaiting the actual result from the Australian court. Mr El Masri reiterated that the proceedings in Lebanon were separate and they did not proceed with anything in Lebanon, they were just applying to protect Mr Hani. When Mr El Masri was referred to the penalty of US$100,000 a day to be paid by the Bank, Mr El Masri responded that this was compensation as the Bank closed the account and placed the money with a notary public, this was telling the Bank it needed to return the money to the account awaiting the outcome of the Australian case. 207 Mr El Masri said Article 824 of the Code of Civil Procedure gives the Bank 10 days to reply and gives the plaintiff another 10 days to cancel, that is, to nullify the acceptance. It was put to Mr El Masri that Mr Hani had an option to issue proceedings, but it was not mandatory to do so under Article 824. Mr El Masri said he spoke to an expert who he said the correct meaning of the article was that Mr Hani must do as in the event of a technical issue, he might lose his right. 208 Mr El Masri accepted that, as a member of the Beirut Bar Association, he has a duty not to mislead Lebanese courts when putting information before them. -- 51 of 251 -- [2026] SASC 107 Stein CJ 48 209 When it was put to Mr El Masri that he knew on each occasion he affirmed his affidavits that he should have disclosed the existence of Mr Hani’s proceedings in Lebanon but chose not to do so, Mr El Masri responded that they filed these proceedings just to protect Mr Hani’s interests. He probably could have elaborated more, but he considered this issue was just a detail especially when they did not go ahead with it and he did not even tell the Bank about it. 210 It was put to Mr El Masri that it was untrue that he had never mentioned to Mr Hani the proceedings issued in Beirut, nor provided to him a copy, nor sent to him any emails on the topic, nor had any communications with Mr Issa until after the proceedings were raised in the trial. Mr El Masri denied the proposition and said the procedures he took in Lebanon were completely legal and he did not tell Mr Hani or Mr Issa. Mr Wissam Ladki 211 Mr Ladki has been a member of the Beirut Bar Association since 2016 and has had his own law practice since December 2021. He was previously employed by Mr El Masri’s law firm. Mr Ladki has known Mr El Masri for over 14 years, both personally and professionally. Since starting his own law firm in December 2021, he has assisted Mr El Masri from time to time with legal matters. 212 In late November 2022, Mr El Masri told Mr Ladki he had been served by the notary public with documents issued by the Bank under the tender and deposit procedure in Articles 822-823 of the Code of Civil Procedure. Mr El Masri told Mr Ladki he had rejected the tender and deposit procedure. Mr Ladki said Mr El Masri told him it was appropriate for another lawyer to be appointed to conduct the matter because the proceedings related in part to a bank account in the joint names of Mr El Masri and Mr Hani. Mr Ladki was shown the general power of attorney by Mr Hani in favour of Mr El Masri. 213 On 1 December 2022, Mr El Masri granted Mr Ladki a special power of attorney to act for Mr Hani in relation to litigation involving Mr Hani as a plaintiff or defendant, including all lawsuits filed or to be filed against the Bank. Mr Ladki said the special power of attorney was specifically granted by Mr El Masri to allow Mr Ladki to act for Mr Hani in the proceedings to be brought by Mr Hani in Beirut. 214 Mr Ladki said all instructions relating to Mr Hani’s Beirut proceedings were provided by Mr El Masri; Mr El Masri provided copies of the documents and assisted Mr Ladki drafting the documents. Mr Ladki discussed with Mr El Masri the purpose of the proceedings being to reject the tender and deposit procedure initiated by the Bank to protect Mr Hani’s position by alleging the invalidity of the tender and deposit procedure under Article 824 of the Code of Civil Procedure. 215 Before the proceedings were filed, Mr El Masri told Mr Ladki that Mr Hani had commenced proceedings against the Bank in South Australia seeking the electronic transfer of funds from the Bank to Mr Hani’s Australian account. Mr El Masri also told Mr Ladki that the Beirut proceedings were necessary to -- 52 of 251 -- [2026] SASC 107 Stein CJ 49 protect Mr Hani’s position in relation to the tender and deposit procedure while the Australian proceedings were being heard and determined. Mr Ladki and Mr El Masri discussed the necessity to file the proceedings within 10 days of the rejection of the bank cheques provided by the Bank under the tender and deposit procedure. 216 Having prepared the submissions, Mr Ladki attended the Beirut Court of First Instance and filed the proceedings. He never provided Mr Hani with a copy of those proceedings and had never met or spoken to Mr Hani nor communicated with him in any way. All of his communications had been with Mr El Masri. Prior to 9 April 2025, Mr Ladki had never spoken to Mr Issa, nor communicated with him in any way. 217 Mr Ladki did not charge Mr El Masri for the legal services as he was a close colleague. 218 Mr Ladki and Mr El Masri discussed the claim for compensation of US$2 million for damages at the time of preparing the proceedings and they made the decision to include that claim. On 12 April 2025, Mr Issa on behalf of Mr Hani asked Mr Ladki to withdraw the compensation claim. Mr Ladki said he prepared the necessary amendment to withdraw the damages component and would be filing the amendment in the Beirut Court of First Instance the next day. 219 At the time Mr Hani’s Beirut proceedings were being prepared, Mr Ladki discussed with Mr El Masri that they were not to be served on the Bank while the proceedings continued in South Australia. Those proceedings were never served on the Bank by Mr Ladki, or anyone on his behalf, and no action had been taken by Mr Ladki in relation to the proceedings. 220 Mr Ladki said he had no involvement in, nor prior knowledge of, the Bank submitting powers of attorney which were added to the Court file and the Court then serving the Bank’s representative with Mr Hani’s Beirut proceedings. 221 Mr Ladki confirmed he has a degree in law from Beirut Arab University, which he attained in 2014/15. Mr Ladki said it was necessary to file Mr Hani’s Beirut proceedings within 10 days because Article 824 requires the creditor to bring the proceedings within 10 days as that is the period in which to object and otherwise the creditor will lose their right to object. 222 Under cross-examination Mr Ladki maintained he was correct in his view that it was necessary to file proceedings within 10 days relying on Lebanese law. Mr Ladki did not accept that Article 824 does not require Mr Hani to commence proceedings in the Beirut court. Mr Ladki said it was not correct to say that Article 824 enables the creditor to file a lawsuit within 10 days but that it was not mandatory nor necessary to do so. The article stipulated the 10-day time frame. When asked whether, in 2022, he believed that Article 824 required Mr Hani to commence proceedings within 10 days, Mr Ladki said it was not his belief, but it -- 53 of 251 -- [2026] SASC 107 Stein CJ 50 was the correct legal path and the usual practice. Mr Ladki said the claim for compensation did not rely on Article 824. 223 Mr Ladki agreed that it was necessary to have power of attorney to commence proceedings in Lebanon and that is included on the file when proceedings are taken. Mr Ladki held a power of attorney given by Mr El Masri. Mr Ladki did not have a power of attorney directly from Mr Hani but it is permissible to obtain power of attorney from an appointed solicitor. Mr Ladki did not have a power of attorney from Mr Issa. When asked on what basis he took instructions to file the petititon to amend Mr Hani’s claim in Beirut, Mr Ladki said he received a call from Mr El Masri who told him to speak to Mr Issa because there was a misunderstanding about the compensation which needed to be resolved. Mr Issa told Mr Ladki to withdraw the US$2 million compensation which he did. 224 Mr Ladki said he was told the facts by Mr El Masri. Apart from the petition to withdraw the compensation claim, the claims made in Mr Hani’s Beirut proceedings remain. When asked whether it was Mr El Masri who told him the proceedings were not to be served on the Bank, Mr Ladki said if the Bank were to proceed, they would have the client protected, otherwise there would be no need to proceed. 225 When Mr Hani’s Beirut proceedings were commenced, Mr El Masri told Mr Ladki there was another court case in South Australia, but it was different and that is why they reserved the right in relation to whatever happened in the Australian court. Mr Ladki denied he was aware the very same facts were alleged in the statement of claim in South Australia. Mr Ladki did not read the South Australian statement of claim. Evidence in relation to Mr El Masri’s engagement with experts 226 I address the expert evidence separately below. 227 In this section I address cross-examination of Mr El Masri concerning the extent to which, if at all, he was involved in dealing with experts retained on behalf of Mr Hani. This was relevant to criticisms made by the Bank about the expert, Dr Kotob, and to my assessment of Mr El Masri. 228 Mr El Masri said he met Dr Kotob to introduce him to Mr Hani’s solicitor, Mr Issa, and to communicate with him about the report. The other time he met Dr Kotob was to pay him. Mr El Masri said he met with Dr Kotob at the Grand Café in late August or early September 2022 and that was the first and only meeting to introduce him to Mr Issa. Mr El Masri called Mr Issa by video call on WhatsApp and then gave Mr Issa’s number to Dr Kotob. Mr El Masri said he did not make any records of that meeting nor of any meeting he attended with either Dr Kotob or Dr Zbeeb, another expert retained on behalf of Mr Hani, in connection with the proceedings. Mr El Masri did not keep any file notes of any phone calls with Dr Kotob. Mr El Masri thought he met with Dr Zbeeb maybe twice and spoke with him on a number of occasions. Mr El Masri said he was copied into -- 54 of 251 -- [2026] SASC 107 Stein CJ 51 emails in connection with the preparation of Dr Kotob’s and Dr Zbeeb’s expert reports. 229 Mr El Masri denied that he provided substantial assistance in relation to the preparation of expert reports, coming up with ideas that found their way into the expert’s reports. He said they were the experts and they wrote the reports. Mr El Masri denied suggesting to Dr Zbeeb that he refer to Article 26 of the Lebanese Consumer Protection Law in his report. Mr El Masri said there was a discussion about that law, but he did not remember when the discussion occurred. They usually met in court and talked about his work but never discussed anything involved in this case. 230 Mr El Masri was aware expert evidence was being sought from Dr Kotob in relation to proceedings Mr Hani was considering commencing in Australia in September 2022. Mr El Masri said he did not know, at 8 September 2022, that the Bank had indicated to Mr Hani it intended to engage the tender and deposit procedure. 231 Mr El Masri denied participating in a WhatsApp conference with Dr Kotob and Mr Issa on 12 September 2022. When shown Mr Issa’s file note of the WhatsApp conference,29 Mr El Masri said he had never been in a conference with Dr Kotob and Mr Issa; he just introduced Dr Kotob to Mr Issa who would send him everything he needed and he did not have any involvement. On 12 September 2022, Mr Issa emailed Dr Kotob copying Mr Hani and Mr El Masri.30 That email referred to a telephone conference that evening including Dr Kotob and Mr El Masri. When put to Mr El Masri, he said he had never been part of a telephone conference on WhatsApp with Dr Kotob and Mr Issa and he was not sure why that was written in Mr Issa’s email. 232 Mr El Masri denied reviewing and commenting on Dr Kotob’s expert reports, saying Dr Kotob was the expert and he could not comment on those reports. 233 Mr El Masri denied participating in a Zoom conference with Dr Zbeeb and Mr Issa on 23 February 2023. He said he introduced Dr Zbeeb to Mr Issa, hand-delivered to Dr Zbeeb the letter of instruction dated 23 February 2023 and Mr Issa’s phone number and that was the extent of his involvement. After Mr El Masri was shown a copy of a file note of a Zoom conference with Dr Zbeeb, his legal team and Mr El Masri,31 Mr El Masri said “yes, there was one call”. Mr El Masri denied the proposition that during the call the topics upon which Dr Zbeeb’s opinion was sought were discussed. He said Dr Zbeeb was explaining about a case in the United Kingdom, not this case. When it was put to Mr El Masri that during the conference there was discussion of the need for the report to provide comprehensive advice on the pertinent issues, Mr El Masri said Dr Zbeeb was 29 Exhibit R11. 30 CB1904. 31 Exhibit R22. -- 55 of 251 -- [2026] SASC 107 Stein CJ 52 talking about a case in the UK. Mr Issa did ask him about what was happening in Lebanon, but discussion was very general and, at that stage, Dr Zbeeb had not seen the file. 234 Mr El Masri said he gave Dr Zbeeb general information during the conference. Dr Zbeeb asked Mr El Masri matters such as when the account was opened, the kind of account, and so on. Mr El Masri did not know whether Dr Zbeeb was later provided with the statement of claim. In the meeting he did not have it to give to Dr Zbeeb. 235 Mr El Masri did not remember after the first meeting Dr Zbeeb asking there be a meeting by Zoom to be attended by him, Mr Issa, and Mr Hani. When shown an email dated 24 February 2023 referring to Dr Zbeeb requesting a conference together with Mr Hani to get to know the client and ask some relevant questions, Mr El Masri said he remembered that Mr Issa said this was illegal and anything he needed to know, he needed to go through Mr Issa. Mr El Masri did not remember a Zoom conference taking place on 24 February 2023 with Dr Zbeeb, Mr El Masri and Mr Hani. Mr Issa’s file note32 stated the purpose of the meeting was for Dr Zbeeb to meet Mr Hani and after introductions, Mr Issa suggested the conference continue without Mr Hani. When asked whether the file note refreshed his memory, Mr El Masri said he had never been in a meeting with all of those people.33 236 Mr El Masri was involved in negotiations with Dr Zbeeb about his fee, he was asked to negotiate it down. The fee was then agreed by Dr Zbeeb following discussion with Mr El Masri.34 When it was put to Mr El Masri that he discussed with Dr Zbeeb his opinions and proposed evidence about Article X, Mr El Masri said they asked him whether he saw Article X and why it was on the contract and he said he did not actually read it and he was not aware of the clause. Mr El Masri was shown an email dated 20 April 2023 from Dr Zbeeb to Mr Issa, copied to Mr El Masri and Mr Hani, which, among other things, referred to communications between Dr Zbeeb and with Mr El Masri on a regular basis over the phone and having a promised to deliver a summarised document relating to Article X, which was requested separately.35 Mr El Masri said he was asked about Article X, why it was there, and whether he read it, but he said he was not qualified to give a legal opinion on it, as that was for Dr Zbeeb. When asked whether he talked about Article X, Mr El Masri said, “[Y]es, okay, discussion”, but maintained he did not give an expert opinion about it. Mr El Masri said Mr Issa told him the critical question was whether the Australian court had jurisdiction. 237 Mr El Masri agreed that in an email from Dr Zbeeb that he received as a carbon copy on 24 April 2023, Dr Zbeeb asked whether Mr El Masri had proceeded with legal action in Lebanon which needed to be taken following the 32 Exhibit R23. 33 Exhibit R23. 34 Exhibit R24. 35 Exhibit R25. -- 56 of 251 -- [2026] SASC 107 Stein CJ 53 service of the account closure and a cheque deposit.36 When it was put to Mr El Masri that Mr Issa in response suggested Dr Zbeeb should speak directly with Mr El Masri, Mr El Masri said he did not recall Mr Issa telling him that. Mr El Masri was shown the email from Dr Zbeeb. He said Dr Zbeeb was asking whether he had performed any legal procedures in Lebanon. Mr El Masri accepted that at that time, he knew proceedings had been filed on behalf of Mr Hani in Lebanon. He said he had put a case regarding the deposit and tender process in Lebanon but the case did not actually proceed. When asked whether he told Dr Zbeeb that had occurred, Mr El Masri said as solicitors they could not reveal private matters. Mr El Masri accepted he did not tell Dr Zbeeb that Mr Hani’s Beirut proceedings had been filed. Mr El Masri did not tell Mr Hani about the proceedings because Mr Hani knew Mr El Masri had rejected the offer, Mr Hani was living overseas, the procedures were filed to defend Mr Hani and Mr Hani would not understand what it meant. 238 Mr El Masri was shown an email dated 3 June 2023 from Dr Zbeeb to Mr Issa, copied to Mr El Masri, which referred to attaching the final version of the expert report in which he had addressed “all your comments and requests as well as Me. Masri’s suggestion”.37 When it was put to Mr El Masri that he did make suggestions to Dr Zbeeb about the content of his expert reports, Mr El Masri said he was not an expert, and he could not give advice. He said this was about Article 26 and he said “this is an article that I encountered… do you think you can use it… is it of any use?”. Mr El Masri said he was copied in to the emails relating to the content of Dr Zbeeb’s expert reports because he was the head lawyer and Dr Zbeeb could ask him about specific things but he was in no position to give the advice, Dr Zbeeb was the expert. 239 Mr El Masri was taken to an email dated 27 April 2023 from Mr Issa to Dr Zbeeb in which Mr Issa asked Dr Zbeeb to clarify a statement in his draft report as to whether Article X is entirely invalid and Dr Zbeeb responded, “I cannot state that the clause is invalid because that would be an untrue statement”.38 Mr El Masri said he did not read that at the time; he was copied in the email, but he did not discuss Article X or give an opinion on it. He deferred to Dr Zbeeb’s opinion about the validity or otherwise of Article X because Dr Zbeeb was the expert. The inadequacy of the language used in Article X and the language normally expected to confer exclusive jurisdiction was a legal debate between them and Mr El Masri did not get into that. 240 Mr El Masri denied assisting Dr Zbeeb in locating Lebanese cases. He said cases are not all entirely computerised and Dr Zbeeb asked for them in paper form but Mr El Masri said he did not have enough knowledge of the cases. Mr El Masri was taken to an email from Dr Zbeeb to Mr Issa dated 9 November 2023 which referred to Mr El Masri having communications with Dr Zbeeb about certain 36 Exhibit R25. 37 Exhibit R26. 38 Exhibit R26. -- 57 of 251 -- [2026] SASC 107 Stein CJ 54 cases. Mr El Masri said Dr Zbeeb was asking whether he was the source of those cases reaching Australia which he said he was not. -- 58 of 251 -- [2026] SASC 107 Stein CJ 55 PART 3 – EVIDENCE CONCERNING THE FINANCIAL CRISIS AND LITIGATION IN LEBANON 241 Evidence was called concerning the financial crisis, litigation in Lebanon involving depositors seeking transfers of funds outside Lebanon and issues associated with the Bank litigating in this Court. That evidence was relevant to a number of issues, including Mr Hani’s alternative case relying on an asserted radical change of circumstances and the Bank’s application for a stay. I address the lay evidence in this section. I address the experts’ evidence separately below. Evidence concerning the financial crisis Mr Ghazaleh 242 From October 2019, Mr Ghazaleh was involved actively in the Bank’s response to the Lebanese financial crisis. He was also involved in providing instructions on legal proceedings. He kept himself informed about the Lebanese financial crisis, including by reviewing news, publications by government and regulatory institutions, economic and risk reports and other documents. 243 According to Mr Ghazaleh, the Lebanese financial crisis began in about October 2019 when, following widespread protests there was a run on the banks throughout Lebanon, including the Bank, as depositors sought to withdraw deposits in local and foreign currencies. All Lebanese banks closed between 18 October and 31 October 2019. 244 The liquidity problem was exacerbated by Lebanon defaulting on its Eurobond debt. According to Mr Ghazaleh, in early March 2020, Lebanon announced it would default on its US$1.2 billion Eurobond debt, due to be repaid on 9 March 2020, and would seek out restructuring proposals. On 9 March 2020, Lebanon did not pay the Eurobond debt. In around March 2020, the Lebanese government held approximately US$30 billion in Eurobonds denominated in US dollars. Lebanese banks, including Banque du Liban held about 40 percent of the Eurobonds. This significantly depleted the foreign currency liquidity of the Banque du Liban as a holder of Eurobonds and created a shortage in liquidity of foreign currency across the Lebanese financial system. According to Mr Ghazaleh, Lebanon had still not negotiated a debt restructuring and the Bank’s exposure to Banque du Liban remained significant. 245 Mr Ghazaleh said since 8 June 2021, the Bank had been required to keep 14 percent of its foreign currency deposits with Banque du Liban pursuant to Banque du Liban Intermediate Circular 586 dated 8 June 2021. The Bank in fact held significant funds with Banque du Liban as the regulator and supervisory body of the Lebanese banking system. Since about mid-2020 the financial crisis had resulted in hyperinflation in Lebanon, reduction in gross domestic product and supply chain disruptions. -- 59 of 251 -- [2026] SASC 107 Stein CJ 56 246 On 4 August 2020, an explosion at the Port of Beirut caused billions of dollars in damage to Lebanon’s most important port upon which Lebanon depends for imports of goods. 247 Mr Ghazaleh said on 2 April 2021, the World Bank reported that the Lebanese banking sector had informally ceased lending, adopted severe capital controls and was not attracting deposits. 248 The Bank is a member of the Association des Banques du Liban (“ABL”) founded in 1958 which is the peak industry association of Lebanese banks. On 17 November 2019, the ABL, in consultation with Banque du Liban, released Announcement No. 248/2019. Mr Ghazaleh believed that announcement meant there were no restrictions on new funds transferred in from abroad so any customer who transferred new funds into an account from outside Lebanon was permitted to transfer those amounts outside Lebanon without restriction. 249 Mr Ghazaleh said the Lebanese government enacted one law relevant to the banking system in October 2020. This law imposed on banks the duty to transfer in foreign currency for the 2020/2021 academic year up to US$10,000 for the payment of tuition for Lebanese students studying abroad who were already enrolled in universities and whose parents had accounts with a Lebanese bank. 250 The Bank is regulated by Banque du Liban which is a regulatory authority established by Decree-Law No. 13513 on 1 August 1963. The Banque du Liban is responsible for monetary policy and supervises banks operating in Lebanon. The Banque du Liban makes decisions, directives and issues circulars with which the Bank must comply as, according to Mr Ghazaleh, the circulars are binding on banks. Banks may be subject to penalties for non-compliance with a directive of the Banque du Liban. Mr Ghazaleh believes that the Bank has been restricted in its ability to make large transfers of foreign currencies since the financial crisis started because of the circulars issued by the Banque du Liban in response to that financial crisis. Mr Ghazaleh believes that there are no formal restrictions on interbank transfers in foreign currency within Lebanon. Depositors have access to their funds as long as they use their US dollars within Lebanon. 251 After Mr Ghazaleh’s affidavit was filed in the proceedings, Mr Ghazaleh left the Bank, moving to employment with another bank in Jordan. Consequently, the Bank called Mr Obeid to give evidence in place of Mr Ghazaleh. Mr Obeid did so in part by reference to the content contained in Mr Ghazaleh’s affidavit. Mr Obeid 252 Mr Obeid is the Chief Operations Officer of the Bank. Mr Obeid commenced employment with the Bank in 1999, holding a range of roles. He was Deputy Chief Operations Officer from October 2019. He has been involved in the Bank’s response to the Lebanese financial crisis including being an intermediary between management and operations teams. -- 60 of 251 -- [2026] SASC 107 Stein CJ 57 253 The Bank now has 42 branches in Lebanon. 254 Mr Obeid agreed with Mr Ghazaleh’s affidavit. Since Mr Ghazaleh’s affidavit was sworn, further matters had occurred. One such matter was that the 11 Lebanese banks (including the Bank) which form the Board of ABL had commenced legal proceedings against the Republic of Lebanon to protect their interests in a multi-billion dollar debt owed by the Lebanese State to the Banque du Liban. 255 Mr Obeid said that on 15 April 2024, the Bank received a letter from Banque du Liban stating the Bank was not allowed to repay two subordinated multi-million dollar loans provided to it by the International Finance Corporation, part of the World Bank group. Mr Obeid said the Bank is complying with the letter on the basis it is a direction by Banque du Liban. 256 Mr Obeid considers he is in a similar position to Mr Ghazaleh to express views about the Lebanese financial crisis because he is familiar with the responses to that crisis. 257 During cross-examination, Mr Obeid said the Bank continues to operate in Lebanon but it is not a profitable institution and there is no liquidity in foreign currency. Mr Obeid said the Bank is currently just a transaction banking institute. Customers put money into the Bank to pay off credit cards, to perform across-world transactions or buy items on a website, but there is no actual lending or return on deposits through an interest rate and the Bank did not currently offer savings accounts. 258 When asked whether the Bank had US$5 million to repay Mr Hani, Mr Obeid said he did not know what was meant by the question. He said there were restrictions put in place by the Banque du Liban to manage all the funds for the one million depositors with foreign currency, including Mr Hani. Mr Obeid said the Banque du Liban asked banks to build reserves of three percent of the total sum of money held in the banking system prior to October 2019 to allow the gradual payment of funds to clients in accordance with Banque du Liban circulars and to repay all depositors fairly. When asked to put aside restrictions and to consider the Bank’s reserves, Mr Obeid said he was not familiar with the Bank’s liquidity and, as the person in charge of making sure the Bank was paying everyone, he could not put the circulars aside. When asked again whether he knew if the Bank had US$5 million to repay Mr Hani in September 2022, Mr Obeid said that if it had, and he did not say that it had, it was supposed to be paying up to 120,000 people who qualified under Circular 158 for repayment in the amount of $400 per month and Banque du Liban did not allow paying one depositor more than another. 259 Mr Obeid was not aware if from 2015 onwards the Bank was seeking to secure foreign capital in US dollars but thought the Bank was not looking to raise capital abroad. When asked whether he agreed that the Bank had successfully -- 61 of 251 -- [2026] SASC 107 Stein CJ 58 attracted US dollar deposits from local customers and expatriates by offering high interest rates, Mr Obeid answered that that was the market and it was the kind of activity all banks do in all countries; banks try to attract deposits from core clients, the core clients for the Bank are Lebanese residents and they do not usually talk with non-residents. When asked again whether the Bank sought to attract foreign capital from abroad, including from the expatriate community, Mr Obeid said “yes, this was normal activity of every bank. The Bank grows by attracting deposits. Most would come from the local market. Some are Lebanese who are resident and have businesses in Lebanon or overseas”. Mr Obeid did not recall the specific interest rates but thought the rates were quite competitive, given the market trend. 260 When asked whether in 2015 the Banque du Liban sought to bolster the supply of US dollars to Lebanese banks, Mr Obeid responded that the Banque du Liban is the regulator of the market and the banks, having power to intervene in the market and it has always since 1992 sought the stability of the Lebanese pound as against the US dollar through different mechanisms. Mr Obeid agreed that steps were taken in 2015 and 2016 to encourage US dollar deposits to be made in US dollars in Lebanon. Mr Obeid could not explain the mechanism of the operation but did not dispute it. Mr Obeid was not aware of the World Bank observation in a publication called “Economic Monitor” to the effect that Lebanese banks had sought to attract deposits especially from wealthy Lebanese expatriates. 261 In response to a question whether he accepted that in support of Banque du Liban’s objectives, the Bank sought to attract US dollar deposits from abroad, Mr Obeid said in all markets with the Bank, including Lebanon, Jordan, Syria and Egypt, the objective is always to attract deposits to bring in capital; the Bank always sought to talk to Lebanese people to bring in their deposits and there was no department in the Bank that dealt exclusively with expatriates. Mr Obeid said he was not familiar with and was not involved in seeking US dollars from customers abroad. 262 Mr Obeid said the interest rates in an email sent by Mr El-Khoury to Mr Hani39 looked standard. Mr Obeid said the Bank did not have Australian dollar deposits in Lebanon and does not keep Australian dollars with correspondent banks in response to a question why interest rates were higher for US dollars than Australian dollars. The Bank dealt with US dollars and Euros because Europe is a major trading partner and they dealt a little with Sterling because England is a favoured destination for Lebanese travelling abroad. The Bank thus would not offer rates on Australian dollars. 263 Mr Obeid said that the financial crisis followed nationwide political unrest in 2019, triggered by a proposal to tax calls made by WhatsApp. The unrest included protests, street riots and roadblocks. Lebanese banks closed between 18 October and 31 October 2019. During that time, the Bank directed employees not to process any new cross-border requests until after the Bank re-opened. When 39 CB1589. -- 62 of 251 -- [2026] SASC 107 Stein CJ 59 the Bank re-opened on 1 November 2019, there was a run on all Lebanese banks. A large number of clients attempted to withdraw or transfer foreign currency abroad. Major clashes occurred between clients and employees, leading banks to close. From 1 November 2019, the Bank imposed restrictions on cash withdrawals and transfers. There was no understanding of what was happening and how long it would be until the Banque du Liban would intervene and stabilise the market. International transfers were then only permitted for personal expenses and the directives were intended as a temporary measure. At the time, the banks thought the crisis would be short-lived and clients’ loss of confidence would be restored. 264 Mr Obeid did not agree that systematic issues within the banking sector meant Lebanese banks were highly exposed to fiscal issues with the Lebanese State. He accepted the banks rely heavily on the Banque du Liban for foreign currency liquidity, saying the Bank relied on the regulator. As the crisis unfolded, he believed the Banque du Liban restricted Lebanese banks from accessing foreign currency deposits with the consequence that banks could not make international transfers. The Bank had therefore been operating with severe currency shortages since 2019. 265 Mr Obeid agreed that Lebanon’s economic turmoil and political unrest has worsened since 2019; the Lebanese pound has lost 90 percent of its value; the Lebanese economy has shrunk and shrank further in late 2023 and 2024 with the Gaza war. 266 Mr Obeid agreed that on 11 November 2019, after 10 days of unrest, the Federation of Syndicates of Bank Employees in Lebanon called for a strike over fears for their safety. On 11 November, the Governor asked banks to process cross-border transfers only for personal necessities. The ABL then began developing a harmonised policy on international transfers which it released on 17 November 2019. Mr Obeid believed the circular directed that transfers abroad were to be limited to urgent personal expenses and set out maximum recommended levels of transfers abroad. The Bank is a member of the ABL and when the ABL issues a circular, Mr Obeid believes the Bank is bound by its content. He believes the circular was adopted by the Bank and the banking sector to achieve a fair and consistent approach across the sector and to protect the Bank’s shrinking foreign currency liquidity by putting limits on withdrawals and creating a framework for operations. Mr Obeid said thereafter, the Bank and other banks began to tighten their policies and transfer limits because the crisis was not transient. He said they did so in accordance with a series of Banque du Liban circulars which he believed stipulated the amount and purposes for which banks were required to permit clients to transfer money overseas. When asked whether it was his view that if a transfer was not within the scope of a circular it was prohibited by the circular, Mr Obeid responded that Circular 158 allowed for gradual withdrawals of funds in existence in the banking sector before October 2019 and the purpose of Circular 158 was gradual repayment of foreign currency deposits. Mr Obeid believes the circular compels a bank to make a transfer to a new sub-account capped at $50,000 upon a customer request. From the sub-account, $800 would be debited and credited into -- 63 of 251 -- [2026] SASC 107 Stein CJ 60 the customer’s current fresh account comprising funds the customer could use. There were restrictions on daily or monthly withdrawals. Mr Obeid understood that transfers or withdrawals exceeding US$400 a month were prohibited by the circular. 267 Mr Obeid was familiar with the idea there were eight phases of internal policies and restrictions within the Bank. Mr Obeid thought the phases happened before and after the issue of Circulars 153 and 158, and the policies were tightened gradually within the eight phases since the onset of the crisis. The phases applied when a deposit holder made a request for the transfer of funds in a foreign currency. Mr Obeid said it made sense that the eighth phase may have commenced on about 1 January 2021 and applied in 2022. He did not recall the restrictions that were applied in each phase but thought each must have been tighter than the previous phase. The policy would have been communicated by senior executives to branch employees. Mr Obeid said those internal policies were not referred to in the Bank’s affidavits because they do not apply to the case.40 268 Mr Obeid agreed that until 17 October 2010, a cheque was legal tender that could be used in the banking system in Lebanon. When it was put to him that after the financial crisis, cheques started to lose their value, Mr Obeid responded that cheques were cheques and the banks were still processing cheques. When it was then put to Mr Obeid that the value of cheques had deteriorated to about 15 percent of value, he said he had no numbers about that. Mr Obeid said it was hearsay that there was a decline in the value of cheques and that cheques were only being accepted in the economy at discounted rates; the value for the Bank was the same. Mr Obeid said there was some mark-up service for settling loans, but he was not familiar with that as it that was part of the Bank’s lending operation. When it was put to Mr Obeid that the mark-up service consisted of banks offering bankers cheques to clients in return for 20-25 percent of the value of the cheque to be paid by the bank in cash, Mr Obeid said he was not familiar with the Bank’s practices in relation to issuing cheques. 269 Mr Obeid did not have great familiarity with the tender and deposit procedure. He knew it was used by banks to return funds to clients. Mr Obeid was aware Mr Hani was informed the Bank had decided to return the balance of his funds by tender and deposit and he rejected that procedure. Mr Obeid said the Bank engaged in the tender and deposit procedure whenever there was a disagreement regarding a deposit. Mr Obeid was asked if he could explain why the Bank used the tender and deposit procedure when Mr Hani asked for his account to be closed. Mr Obeid said the Bank provided the answer that, due to current restrictions in the market, the Bank needed to discharge itself by providing a cheque drawn on the Banque du Liban. When asked again why the Bank took the process despite the fact Mr Hani had asked for the account to be closed, Mr Obeid said it was obvious. Mr Hani asked for his account to be closed by a 40 I received evidence about the eight phases subject to submissions. I determined to receive the evidence as relevant to the Bank’s approach to dealing with requests for transfers. -- 64 of 251 -- [2026] SASC 107 Stein CJ 61 cross-border transfer; the Bank responded that a cross-border transfer was not allowed and so the account was closed with a cheque drawn on the Banque du Liban. Mr Obeid said Mr Hani expressed his view that he did not want to deal with the Bank anymore, he wanted the money transferred out and accordingly the Bank placed the cheque with the notary public. 270 Mr Obeid was not familiar with the Bank seeking a stay of execution of orders of lower courts requiring the Bank to pay monies. He was not in a position to say how many claims were made against the Bank by depositors but said it is unfair to infringe on large depositors against small depositors where one depositor presents a lawsuit and 990,000 others do not. Mr Obeid considered the crisis was systemic and needed to be dealt with fairly for all depositors. Mr Saade 271 Mr Saade was aware that, after the financial crisis, there were internal policies which restricted foreign transfers which changed over time which were described as being in eight phases. When asked about the contents of phase 8 of the internal Bank policy about foreign transfers that applied after 1 January 2021, Mr Saade said they followed the instructions from the Banque du Liban and dealt with internal policies according to the Banque du Liban. Evidence concerning litigation in Lebanon Mr Zein 272 Mr Zein is a litigator and senior partner of Zein Law Firm, a leading Lebanese firm specialising in banking law. He was asked to address the estimated total costs which would be incurred by the Bank, including solicitors’ fees, if the dispute was brought in the courts of Beirut. 273 Mr Zein explained there are three degrees of jurisdiction, first instance, appeal and cassation. In Lebanon, a plaintiff can file a case before a sole judge dealing in urgent matters (summary proceedings) or before a first instance court composed of three magistrates. The choice of forum would not have any material impact on the costs. Depending on the outcome, there may be an appeal to the appellate court and a further appeal to the Court of Cassation. 274 Mr Zein said Mr Hani’s case is a common type of proceeding with which Lebanese courts have been dealing frequently since the beginning of the economic crisis in 2019. 275 Mr Zein has acted in over 100 banking dispute cases. To the best of his belief, it is customary for attorneys in Lebanon representing defendant banks to charge costs based on a lump sum for each stage of the proceedings. Some attorneys charge an annual retainer and do not charge additional fees. He is unaware of cases where an attorney would charge for deliverables or charge on an hourly rates basis. Mr Zein believes a case similar to the one filed by Mr Hani would incur costs between US$1,000 to US$5,000 for each degree of jurisdiction. -- 65 of 251 -- [2026] SASC 107 Stein CJ 62 To act in all three degrees of jurisdiction would cost from US$3,000 to a maximum of US$15,000. 276 Mr Zein said there are 60 banks holding a licence from Banque du Liban to operate in Lebanon. He has represented various leading banks in more than 100 cases filed by depositors against the banks since the financial crisis. There are only a small number of specialist banking and finance lawyers who regularly act for large banks. Mr Zein has observed a significant change to the nature of legal work performed for banks as a result of the financial crisis. 277 Mr Zein exhibited to his affidavit a schedule representing a sample of cases in which he acted for the Bank in the first half of 2022 which set out the amounts invoiced. The fees depended on the complexity of the matter and ranged from US$1,000 to US$5,000. The fees were charged per lawsuit as a result of their complexity rather than the amount at stake. 278 Mr Zein prepared a list of a sample of banking disputes in which he had, or was currently, acting as a lawyer.41 This list was a sample but not an exclusive list of all cases. 279 Mr Zein said in Lebanon it is not possible to represent a party to proceedings without a power of attorney. 280 In cross-examination, Mr Zein said he exclusively acts for banks and has not acted for any depositor. His cost estimate was in respect of costs which would be incurred by the Bank, not the costs likely to be incurred by the depositor. 281 Mr Zein estimated he had represented the Bank since 2019 in about 50 cases. The schedule exhibited to his affidavit referred to matters in which bills were generated in the first six months of 2022. Since then, Mr Zein has continued to act for the Bank in more matters. He estimated there might be 30 or 40 more such cases. 282 Mr Zein confirmed that when he was asked about preparing his first affidavit, he raised a concern about conflict and accepted he was not an independent witness. 283 When Mr Zein referred to banking disputes, he meant proceedings which aimed to compel banks to perform international transfers. Mr Zein agreed there was an explosion of claims of such a nature after the financial crisis began in 2019 and Mr Zein had acted for the Bank and other Lebanese banks in over 100 cases of this kind. Mr Zein has acted for various banks in addition to the Bank, and the list exhibited to his affidavit was a list of banks published on the website of the Banque du Liban. Mr Zein was prepared to assume that most of those banks would have had a substantial volume of litigation with depositors. Mr Zein thought it would be fair to assess that there would be thousands of banking disputes going 41 Exhibit R7. -- 66 of 251 -- [2026] SASC 107 Stein CJ 63 through the courts since the financial crisis, in a number he would estimate as exceeding 1,000. 284 Mr Zein said he could not say whether all the cases in the schedule to his second affidavit were still on foot but it was likely that most would still be. Mr Zein thought he recalled some judgments against the Bank which were on appeal. He thought one case had been settled on appeal but generally they were still ongoing. None of the judgments in favour of the depositor had been paid out. Mr Zein said that while appeals were ongoing, the judgments are suspended. Mr Zein was not aware of any ruling in favour of a depositor by the Court of Cassation. Mr Zein was not aware of any matter in which a court had given a judgment in favour of a depositor and where judgment had been paid in full by the Bank. Evidence concerning costs and other issues associated with these proceedings Mr Ghazaleh 285 Mr Ghazaleh said the Bank’s in-house legal department are lawyers trained in Lebanese law. The Bank has never been a party in legal proceedings in Australia and its in-house legal department is not familiar with Australian law. Mr Ghazaleh deposed to believing the Bank will incur significantly greater legal fees if the trial proceeds in Australia as a result of having to rely on Australian lawyers, the need for expert evidence on Lebanese law and additional travel and translation costs. As a result of time differences between Lebanon and Australia ranging from seven and a half hours to eight and a half hours in the Australian summer, Mr Ghazaleh said the Bank can only instruct solicitors out of ordinary work hours. Mr Ghazaleh thought the time differences meant it would not be possible for the Bank to provide instructions virtually and it may be necessary to send members of the legal department and witnesses to Australia. Mr Ghazaleh believed that even if witnesses could give evidence by video link, given time zone differences and language difficulties it would be necessary for the Bank to send the witnesses to Australia. He considered it would be a significant imposition on witnesses to give evidence through the evening or early morning which may impair their ability to give evidence in the light of language difficulties. Translation difficulties via video link may exacerbate difficulties and give rise to prejudice to the Bank. Mr Ghazaleh deposed to ordinary costs of translation being approximately US$200 to translate one page from Arabic to English. The Bank staff are native Arabic speakers and do not speak English fluently and giving their evidence in English would give rise to difficulties. Mr Piesiewicz 286 Mr Piesiewicz is a partner at Johnson Winter Slattery, solicitors for the Bank. Mr Piesiewicz prepared a cost estimate which estimated that that these proceedings will cost not less than A$243,600, amounting to approximately US$163,772, based on an exchange rate of A$1 to US$0.67. The estimate was indicative only given the number of variables. -- 67 of 251 -- [2026] SASC 107 Stein CJ 64 287 Mr Piesiewicz said the Bank had only led evidence in relation to the jurisdictional issues and had not put on evidence it would lead on a trial of the substantive dispute. Mr Piesiewicz considered if the substantive dispute was dealt with under Lebanese law, the Bank would lead evidence addressing issues including: • The existence or otherwise of a partly oral, partly written and part implied contract in Lebanese law; • Whether the concept of collateral contracts exists in Lebanese law; • The terms of the alleged contracts including whether there is a contractual international transfer right; • The effect of the provisions of the Code of Obligations and Contract and Lebanese Code of Commerce; • The merits under Lebanese law of each of the defences which may be available to the Bank including by reference to the Bank’s ability to make international transfers of the nature sought or the constraints on such transfers and the case law that would be considered or applied by a Lebanese court and any Lebanese banking or other relevant regulatory instruments. 288 Mr Piesiewicz said further documentary evidence and translation evidence would be required. 289 Mr Piesiewicz in cross-examination agreed that some parts of the evidence from lay witnesses on the Bank’s application, such as Mr El-Khoury, would likely be relevant on the merits of the substantive dispute. Mr Piesiewicz said Mr Abirached, the Bank’s expert, had identified defences which would be available and would need to explain the application of those defences in a substantive hearing. Mr Piesiewicz agreed the aspect of Mr Hani’s statement of claim concerning Article X would no longer be relevant once this application had been determined. Mr Piesiewicz thought from recollection that there was no evidence before the Court in this application on whether a partly oral, partly written and partly implied contract might exist under Lebanese law; there was no evidence before the Court to the effect that there was no concept of collateral contracts under Lebanese law; he could not say such a concept does not exist under Lebanese law; and whether or not the international transfer right existed would be a matter of construction of the contract or implied by custom. Mr Piesiewicz accepted that evidence Mr El-Khoury would need to give in a substantive hearing would be limited to oral terms depending on the character of oral terms as described in Lebanese law. Mr Piesiewicz did not agree that Mr Abirached’s reports address the matters which would need to be considered in a trial of the substantive dispute. While there was reference to the topic of a contractual international transfer rights, -- 68 of 251 -- [2026] SASC 107 Stein CJ 65 there was no analysis of whether having regard to this contract the Court would form the view a contractual international transfer right exists. 290 Mr Piesiewicz had not explored other factual matters pertaining to other Lebanese banks such as how the position concerning other Lebanese banks could impact on Mr Hani’s claim. He was aware of a Court of Appeal decision which, on Mr Abirached’s evidence, suggested that systemic aspects of the crisis would be relevant to the defence. Mr Abirached identified the legal effect of the Bank circulars as a topic but did not express a view on it. Mr Piesiewicz had not explored whether there were any other constraints that might exist that had not been identified by Mr Abirached. Mr Abirached’s reports referred to court decisions, but he had not expressed any view of the implications including the competency issue vis-à-vis Urgent Matters decisions for a trial of the substantive issues on the merits. Mr Piesiewicz had not explored any other relevant banking or regulatory instruments that would be relevant beyond those addressed in Mr Abirached’s report. 291 Mr Piesiewicz had not made any enquiries with further potential witnesses and was not in a position to form a view whether any such witness would be willing to give evidence. Mr Piesiewicz had not made any enquiries about further expert evidence or further documentary evidence nor about French decisions relevant to the substantive issues. 292 Factual matters about the crisis and its implications having regard to the current state of law had not been addressed. Mr Piesiewicz accepted substantial documents about the contracts and deposits had been tendered. He agreed both parties had obtained expert evidence but said there were other aspects which had not been developed. Mr Piesiewicz did not know why there would be a difference to the extent of evidence that would need to be obtained and adduced if the matter was heard in Lebanon versus Australia. -- 69 of 251 -- [2026] SASC 107 Stein CJ 66 PART 4 – ASSESSMENT OF LAY WITNESSES Assessment of lay witnesses 293 In this section I address the assessment of all the lay witnesses. 294 I experienced some difficulty in assessing witnesses who gave evidence through interpreter and via audiovisual link (“AVL”) for a number of interrelated reasons. The AVL dropped out frequently during the trial, resulting in interruptions at times to either audio or video and at other times to both. At times the AVL quality deteriorated, interrupting questions or answers. Answers had to be repeated from time to time. There were occasions when such repetition could have given witnesses the opportunity to reflect and re-phrase answers, but I could not assess whether that occurred. 295 At times the witness could be heard but the video froze or the video feed deteriorated such that I could not observe the witness’ expressions or body language. Some witnesses were positioned further from the screen and it was more difficult to see their facial expressions. Sometimes when documents were displayed on the screen for the witness to view, the witness turned away from directly looking into the screen, reducing my ability to observe them closely. 296 I found it difficult to interpret the witnesses’ tone given my lack of familiarity with their language. 297 Without being critical of the interpreters, at times during the trial, issues were raised by instructing solicitors (on both sides of the Bar table) about the accuracy of the interpretation. Three separate Arabic interpreters assisted the Court. The first two attended in person but the last appeared via AVL from Victoria. The screen displaying the AVL link was split to show both the witness and interpreter, reducing the size of the image of the witness. While the AVL should have operated to ensure the person speaking was given prominence, that did not consistently occur. At times, this left me unable to see the facial expressions of the witness. This was the case when both Mr El Masri and Mr Ladki were giving evidence. 298 Given these issues with language and interpretation, together with the AVL drop-outs, I found it more difficult than usual to assess whether any witness was being evasive in their response or whether hesitation or an indirect response resulted from the witness failing to clearly understand a question. 299 The combination of AVL unreliability, concerns about interpretation accuracy and the limitation of interpretation generally rendered findings on credit more difficult than usual. However, I did not consider it so problematic as to prevent me from forming views. I have paid particular attention to contemporaneous documents, where they exist, in reaching views both in the assessment of credit and in making factual findings. -- 70 of 251 -- [2026] SASC 107 Stein CJ 67 Mr El-Khoury 300 Mr El-Khoury gave reliable and credible evidence in relation to uncontentious issues. On the hotly disputed topics, I have doubts about the reliability of his evidence in light of the time lapse since important conversations occurred, the absence of file notes or other records and some inconsistencies in Mr El-Khoury’s recollections. 301 Mr El-Khoury generally gave very short answers to questions, mostly saying “no” or “yes”. He rarely elaborated and remained impassive. On a number of occasions, there was a long pause and then Mr El-Khoury asked for the question to be repeated. On some of those occasions it appeared there was a momentary break in the AVL. At other times, I could not assess whether Mr El-Khoury had difficulty understanding the question, whether there was an issue with interpretation or whether he was trying to anticipate the line of questioning. 302 Mr El-Khoury readily agreed with some questions, usually when he was presented with a bank document and asked if it recorded certain information. When counsel put questions to Mr El-Khoury to the effect that he only recorded a Lebanese address on the KYC form for reasons of expedience and that Mr Hani had told him his primary residence was in Australia, Mr El-Khoury crossed his arms and looked down and away from the AVL screen. This pattern repeated when he gave answers to the effect of “I assure you that happened”, or “I assure you, he told me”, or when responding “yes” to questions to the effect that Mr Hani told Mr El-Khoury he resided in Lebanon. While this body language was subtle, it tended to undermine the credibility of his answers. 303 There were aspects of Mr El-Khoury’s evidence which were potentially evasive, defensive and unconvincing. I return to address those aspects separately below in addressing factual findings. 304 While it is entirely believable and reasonable that Mr El-Khoury would not remember specific conversations or communications from six or more years earlier, there were notable inconsistencies between Mr El-Khoury’s specific recollection of some conversations and when they occurred, but inability to recall the timeframe or details of other conversations or communications. Given the time lapse since October 2018, the lack of file notes and taking into account Mr El-Khoury’s evidence that he remembered what was written down, I was left in considerable doubt whether Mr El-Khoury’s recollections were reliable. 305 I return to address Mr El-Khoury’s evidence on the contested issues below. Mr Piesiewicz 306 Mr Piesiewicz was a credible, reliable and honest witness. Mr Piesiewicz was clear and careful, gave direct answers, made some appropriate concessions and was very careful to clarify when he was not able to answer questions. -- 71 of 251 -- [2026] SASC 107 Stein CJ 68 Mr Obeid 307 Mr Obeid was a fluent English speaker and gave his evidence in English. 308 I formed the view that Mr Obeid was an experienced bank operator with a good understanding of bank operations. I consider he was generally endeavouring to assist the Court and was an honest, reliable and credible witness. Mr Saade 309 Mr Saade gave his evidence via interpreter but he understood English to some extent. He nodded when counsel asked a question before the interpreter interpreted the question. He could read and understand documents displayed on the screen in English. 310 Mr Saade’s evidence was impacted by the general issues concerning AVL and interpretation to which I have referred above. 311 While on a few occasions I was left with the impression that Mr Saade was seeking to evade direct answers and maintain the Bank’s position, it did not adversely impact on my assessment that he was generally an honest, reliable and credible witness. Mr Zein 312 Mr Zein was direct and careful in answering questions and made appropriate concessions. I formed the view that Mr Zein was genuinely trying to assist the Court. Mr Zein was an honest, reliable and credible witness. Mr Hani 313 Mr Hani was an unsatisfactory witness and I do not accept all his evidence as reliable or credible. Some of his evidence was evasive, some self-serving and some potentially misleading through omission. Mr Hani’s denial of factual propositions which were established by documents, such as his denial that he was suing his daughter in this Court, followed by what appeared to be prevarication in his evidence about those proceedings, reflected badly on him. 314 I have doubts about the reliability and credibility of Mr Hani’s evidence on disputed issues. There were obvious issues with the accuracy of some of Mr Hani’s recollections. One example is Mr Hani properly correcting his evidence about the identification documents he gave to Mr El-Khoury after the Bank produced their records of the identification material he had provided. Mr Hani’s evidence also was impacted by the time lapse, the absence of file notes or other records, and his poor recall. 315 In the early part of his evidence, Mr Hani made ready concessions especially when pointed to records. He was often quite literal in answering questions which, at times, had the potential to create an incomplete picture. For example, when asked if he owned a farm, he said he did not own a farm but then, when asked if -- 72 of 251 -- [2026] SASC 107 Stein CJ 69 he owned a farm through corporate entities, he said he owned an olive farm and vineyard through a company. Mr Hani tended to answer questions in high level terms but at times later conceded he could not recall specifics. 316 When Mr Hani was cross-examined about having signed the banking paperwork, Mr Hani started to volunteer non-responsive information, such as stating he was surprised that the form did not mention his Australian address. This had a self-serving flavour. 317 When counsel cross-examined Mr Hani about Mr Hani’s Beirut proceedings, he seemed genuinely surprised. During this section of cross-examination, Mr Hani made assertions about corruption and bribery in the Lebanese judicial system that were astonishing. I was left with the impression that Mr Hani was employing attack to deflect the line of questioning. I make a similar observation in relation to his evidence that he had fired the barrister when asked if he was suing his daughter. Mr Hani’s evidence about the closeness of his relationship with his children was evasive and difficult to accept. 318 I return separately below to address the discrepancies between Mr Hani and Mr El-Khoury’s evidence on significantly contested issues. I also address separately below whether Mr Hani was aware of Mr Hani’s Beirut proceedings. Mr El Masri 319 Mr El Masri gave his evidence via interpreter. After a period of giving evidence, there was a complaint about the accuracy of the translation. A different interpreter was then located, interpreting by AVL. 320 In the initial part of his cross-examination, the AVL link was relatively good. The AVL mostly focussed on the interpreter who appeared as a large image on the screen and Mr El Masri appeared as a small image. From about a third of the way through his evidence, the video feed deteriorated and while I could continue to hear Mr El Masri speaking, at times the screen went blank and at times the screen froze. Consequently, I was unable to see his facial expressions or body language. Despite these difficulties which made assessment more difficult, I was still able to form views about Mr El Masri. 321 Mr El Masri appeared to have some understanding of English because at times, when the question was simple, he answered immediately after the question had been posed without waiting for the interpretation and Mr El Masri occasionally answered in English. 322 When I could see Mr El Masri, he remained completely impassive. When responding to more difficult questions, he tended to look down and away from the screen. For example, when asked about his duties to the Court in Lebanon as a practitioner and a member of the Beirut Bar Association, he shifted in his seat and looked down and away from the screen which left the impression of discomfort. He also looked down and away from the screen when denying that he suggested -- 73 of 251 -- [2026] SASC 107 Stein CJ 70 propositions to the experts. He appeared irritated and sighed when asked questions about his dealings with the expert Dr Kotob and whether he had notes of meetings. I address that evidence separately below, together with the expert evidence, but have taken it into account in forming my views about Mr El Masri’s evidence. 323 As was the case with Mr El-Khoury and Mr Hani, and for similar reasons, I had some concerns about the reliability of Mr El Masri’s recollections about interactions with Mr El-Khoury. 324 Mr El Masri denied propositions which were plainly inconsistent with documentation in the form of Mr Issa’s file notes of meetings. Even if he misunderstood questions about a WhatsApp call on 12 September 2022, because this meeting occurred during part of the restaurant meeting between Mr El Masri and Dr Kotob, his attempts to distance himself from dealings with the experts were difficult to accept. Mr El Masri’s evidence limiting his role to negotiating with experts about fees was unconvincing in the context of the email correspondence and the file notes about the WhatsApp meetings. I formed the view that Mr El Masri was endeavouring to minimise his role in relation to the preparation of the experts’ reports. His evidence that he did not play an active role in addressing topics upon which expert evidence may be adduced, such as Article 26 of the Consumer Protection Law, was unconvincing. 325 Mr El Masri’s denial of the $2 million claim for compensation was perplexing. His explanations why he did not disclose Mr Hani’s Beirut proceedings to Mr Hani and Dr Zbeeb when asked directly were odd and unconvincing. 326 Mr El Masri did not directly deny that he knew on each occasion he affirmed his affidavits that he should have disclosed the Lebanese proceedings; rather he reiterated that he filed proceedings to protect Mr Hani’s interests. However, Mr El Masri did accept he should have disclosed Mr Hani’s Beirut proceedings. While bearing in mind that there may be differences in custom and practice in Lebanon, it is nonetheless difficult to understand why a qualified practitioner would not appreciate the relevance, and importance, of disclosing the existence of Mr Hani’s Beirut proceedings to this Court. I address this topic in further detail below. 327 On these topics I have difficulty accepting Mr El Masri’s evidence. This impacted my willingness to accept at face value his evidence in support of Mr Hani’s account of dealings with Mr El-Khoury when placed in conjunction with concerns about the reliability of his recall in the absence of file notes and/or other contemporaneous records. Mr Ladki 328 The AVL link with Mr Ladki was initially problematic and at times poor. -- 74 of 251 -- [2026] SASC 107 Stein CJ 71 329 Mr Ladki remained very impassive during cross-examination. He appeared uncomfortable during some of the cross-examination, particularly when referring to having to go to Mr El Masri about the facts and when asked questions about the South Australian proceedings. 330 Mr Ladki’s relationship with Mr El Masri may explain his discomfort when questioned about Mr El Masri’s role. I formed the view that he was overall honest, reliable and credible. Factual findings 331 There are aspects of the application which require me to make factual findings. However, on the service application the Court is required to approach the determination of issues without considering the merits. I have not made all of the factual findings sought by the parties as, in some respects, I have decided it was not necessary to do so in order to reach conclusions on the applications before me. 332 I set out below my findings concerning the dealings between Mr Hani and the Bank in narrative form. I address findings relevant to the expert evidence separately. Background, Mr Hani’s dealings with the Bank, invocation of the tender and deposit procedure and issue of proceedings 333 Mr Hani moved to Australia in 1968, has Australian citizenship and resides in South Australia. Mr Hani has family in Lebanon and inherited a house in Ras el Metn, Beirut, with his siblings. 334 Mr Hani operates a real estate management business. Mr Hani is an experienced businessman. Mr Hani paid close attention to the financial markets, interest rates and exchange rates when determining when to place his funds on term deposits with the Bank. 335 In 1997, Mr Hani resided in Lebanon for a period of time and his children attended school in Beirut during that time. 336 On 17 October 2016, Mr Hani gave his Lebanese lawyer, Mr El Masri, a general power of attorney.42 337 Between 17 and 24 September 2018, Mr Hani travelled from Lebanon to Turkey and then returned to Lebanon. While in Lebanon, Mr Hani was introduced by Mr El Masri to the Bank’s representative, Mr El-Khoury. 338 The Bank is a Lebanese bank with a large number of branches within Lebanon, providing personal, business and private banking services. It does not 42 Exhibit A20. -- 75 of 251 -- [2026] SASC 107 Stein CJ 72 have any presence nor does it conduct operations within Australia or the wider Asia Pacific region. 339 During 2018 and 2019, Mr El-Khoury met Mr Hani and Mr El Masri at restaurants in Lebanon. I am unable to determine on how many occasions or the dates of those meetings. 340 On 4 October 2018, while in Beirut, together with Mr El Masri, Mr Hani met with Mr El-Khoury. At that meeting, Mr Hani signed the Bank’s general banking agreement for opening and activating an account and a KYC form. Mr Hani provided to Mr El-Khoury his Australian and Lebanese passports, and a Lebanese driver’s licence as forms of identification. Copies were taken of those documents and kept in Bank records. Mr El-Khoury completed the forms, which Mr Hani signed. The general agreement and KYC form contained the information which I have summarised above. 341 Neither Mr Hani nor Mr El Masri fully read the details of the banking agreement or KYC form, but both signed the acknowledgement that the contents were true and correct. 342 Mr Hani did not place significant funds with the Bank until over seven months later. 343 The information in the handwritten KYC form was input into the Bank’s system and an electronic version was signed by Bank representatives. 344 The Bank then opened an account (with an identification number ending in 0001) in Mr Hani’s name. For ease of reference, I will refer to this account as the “main account”. 345 The sum of US$1,000 was deposited into the main account on about 4 October 2018. 346 On 5 October 2018, the first KYC form in typed form was completed, printed and signed by Bank staff. 347 On 4 January 2019, Mr El-Khoury sent to Mr Hani an email setting out interest rates in US dollars which would be paid on amounts between US$1 million and US$3 million.43 348 Sometime after 4 January 2019, but before 24 April 2019, a conversation occurred between Mr Hani and Mr El-Khoury after which Mr Hani transferred A$2.8 million to the Bank.44 349 On 24 April 2019, Mr Hani sent to Mr El-Khoury an email attaching a copy of the completed transfer of A$2.8 million, confirming the amount would be 43 CB1589. 44 CB1590. -- 76 of 251 -- [2026] SASC 107 Stein CJ 73 converted to US dollars when they confirmed the applicable exchange rate between AUD and USD.45 Mr El-Khoury responded by email to Mr Hani on 24 April 2019 confirming he would notify Mr Hani once the transfer was received and would wait for the best exchange rate for the conversion.46 350 On 8 May 2019, Mr Hani sent to Mr El-Khoury an email stating that today was the day of conversion to US dollars of the transfer. Mr Hani asked Mr El-Khoury to call him.47 It is likely that on 8 May 2019, a conversation occurred between Mr Hani and Mr El-Khoury as, on 9 May 2019, Mr El-Khoury sent an email to Mr Hani attaching the receipt of the transaction for three years with 8.5 percent interest to be paid monthly, confirming the exchange rate of A$1 to US$0.7012.48 Mr Hani transferred A$2.8 million to the Bank by international electronic funds transfer. 351 After the transfer, the Bank placed the funds, (converted to US$1,965,377) into a three-year fixed term deposit account (with an identification number ending in 0004) paying interest at 8.52 percent per annum paid monthly. This was the first term deposit. The interest was paid into another account held by Mr Hani with the Bank. 352 On 12 May 2019, Mr Hani sent an email to Mr El-Khoury thanking him for his email. Mr Hani’s email said that, as requested, he attached two letters for Mr El-Khoury to identify his relationship to Woodcroft Town Centre Management and his capacity in that regard.49 The request must have occurred in a conversation given the absence of an email request to that effect. The email attached two letters dated 13 May 2019. The first letter stated that Woodcroft Town Centre Management was wholly owned and operated by Mr Hani, with an account operated at the ANZ Bank in South Australia. The letter disclosed that Woodcroft Town Centre Management operated various companies owned by the Johani Group and the sole operator was Mr Hani as director and secretary.50 The second letter stated that Mr Hani was the sole owner, director and secretary of Johani Nominees, being the owner operator of the Woodcroft Town Centre operating the ANZ Bank account identified in the letter. The letter continued:51 Mr Jihad (JO) Hani of PO Box 35, Seacliff Park SA 5049; Resident at: [redacted] Perry Barr Road Hallett Cove SA 5158, is the sole operator and owner of the above bank account as verified by the ANZ Bank. 353 In around June 2019, Mr Hani spoke by telephone with Mr El-Khoury concerning a transfer of a further US$2 million and opening a further fixed term deposit. Shortly thereafter, Mr Hani opened a fixed term deposit account (with an 45 CB1590. 46 CB1592. 47 CB1593. 48 CB1594. 49 CB1597. 50 CB1598. 51 CB1599. -- 77 of 251 -- [2026] SASC 107 Stein CJ 74 account identification ending 0006), into which US$2 million was to be transferred. 354 Mr Hani departed from Lebanon on 30 June 2009 to travel to Egypt, returning on 10 July 2019. Mr Hani remained in Lebanon until 22 August 2019. 355 On about 29 or 30 July 2019, Mr Hani transferred the amount of A$3 million to the Bank. The amount was transferred by international payment from an ANZ Bank account.52 356 On 6 August 2019, Mr Hani sent to Mr El-Khoury an email saying he had just finished talking to Mr El Masri and if a conversion rate around $0.69 or close could be obtained, he would convert the A$3 million to US dollars.53 The amount of A$3 million was then converted to US$2 million. The term deposit earned a rate of 10 percent per annum, fixed for three years.54 This was the second term deposit. 357 On 14 August 2019, a meeting took place between Mr El-Khoury, Mr Hani and Mr El Masri. There is a dispute about the location of the meeting which is relevant only to credit. 358 There is no dispute that a meeting took place and that during that meeting Mr Hani and Mr El Masri signed the second general agreement concerning the joint account. The agreement contained the information I have summarised above. 359 On 18 August 2019, Mr El-Khoury and his wife attended at Mr Hani’s villa in Ras el Metn. The occasion was a social occasion and no business was conducted. There is a dispute about whether Mr El-Khoury was aware this was a farewell party for Mr Hani and his wife. I do not consider it necessary to make findings on this as it does not impact my conclusions and findings set out below about whether the Bank knew Mr Hani was an Australian resident. 360 On 19 August 2019, Mr Hani signed the second KYC form during a meeting with Mr El-Khoury and Mr El Masri at Mr El Masri’s office.55 The KYC form contained the information I have summarised above. 361 On 22 August 2019, Mr Hani left Lebanon for Australia. 362 On 5 September 2019, Mr Hani sent to Mr El-Khoury an email attaching an extract of “what Mr El-Khoury requested when he was in Lebanon”. The attachment was an extract of an ASIC document disclosing the identity of Woodcroft Town Centre Management. The attached document recorded the principal place of business of Woodcroft Town Centre Management as Perry Barr 52 CB1602. 53 CB1604. 54 CB1606-1608. 55 CB463. -- 78 of 251 -- [2026] SASC 107 Stein CJ 75 Road, Hallett Cove, South Australia. It also recorded the office holders as Mr Hani, at the same address in Perry Barr Road, Hallett Cove.56 363 On 8 September 2019, the Bank provided to Mr Hani its “terms” in relation to the second term deposit. 364 In late 2019, the Lebanese financial crisis commenced. I address further findings in relation to the financial crisis separately below. 365 Mr Hani arrived in Lebanon on 10 November 2019 and remained in Lebanon until 5 January 2020. 366 On 31 January 2020, Mr Hani opened a joint account with Mr El Masri (with an identification number ending 0003) into which interest from his main account was deposited. 367 In about May 2020, Mr El-Khoury contacted Mr Hani regarding Mr Hani making a further deposit of US$70,000. On 22 May 2020, Mr Hani transferred by international payment the sum of A$150,000 to the Bank.57 This amount was deposited into an account with identification number ending in 0013 with the Bank. (This was the third term deposit.) 368 On 27 July 2021, the joint KYC of Mr Hani and Mr El Masri was updated by telephone.58 369 On 18 August 2021, an updated third KYC form was signed by Mr Hani and Mr El Masri.59 370 On 2 December 2021, Mr Hani signed two Bank online service applications.60 Mr El Masri emailed the online service application forms signed by Mr Hani to the Bank for bank accounts held in Mr Hani’s name including his main current account and accounts relating to the first and second term deposits and an online service application form signed by Mr Hani and Mr Masri for bank accounts held by them jointly. 371 The Banque du Liban issued a number of circulars relating to the withdrawal or transfer of foreign currency which applied to foreign currency banked prior to specified dates in 2019. The parties did not dispute the issue of those circulars. However, they did dispute their legal effect. I have not considered it necessary to determine the legal effect of the circulars for the purposes of these applications. 372 Lebanese banks thereafter distinguished between currency deposited with banks in Lebanon prior to 17 November 2019 and funds deposited thereafter, 56 SCB521-522. 57 CB1609. 58 CB475. 59 CB480. 60 CB1613-1622. -- 79 of 251 -- [2026] SASC 107 Stein CJ 76 which were commonly referred to as “fresh funds” to which the withdrawal and transfer limits did not apply.61 373 On 30 August 2022, Mr Hani sent an email to the Bank enclosing a direction for closure and transfer of funds held in Mr Hani’s US dollar accounts (with identification numbers ending in 0001, 0003 and 0013) together with a letter from the ANZ Bank which advised a US dollar account had been opened by Mr Hani with ANZ Bank to enable funds to be transferred in US dollars from his bank accounts to his ANZ account. 374 On 7 September 2022, the Bank replied by email which enclosed a letter referring to the severe economic and financial crisis in Lebanon. The letter stated that in response to the crisis and in line with decision 428 of ABL, Lebanese banks, including the Bank, had implemented restrictions in relation to withdrawals of funds in foreign currency and cross border transfers. The letter informed Mr Hani that the Bank had decided to suspend all cross-border transfers for all customers. The Bank was prepared to provide Mr Hani with a banker’s cheque drawn on the Banque du Liban for an amount equal to the balance of Mr Hani’s accounts. The letter referred to the terms of the general agreement, stating that the Bank was entitled to close Mr Hani’s account and deposit the funds with a notary public within ten days if the account had not been closed. 375 On 7 September 2022, Mr Issa, Mr Hani’s solicitor, wrote to the Bank stating that if the funds were not transferred within seven days, proceedings would be instituted. 376 On 29 September 2022, Mr Hani’s solicitor wrote to the Bank advising of Mr Hani’s intention to commence proceedings in Australia. 377 On 18 October 2022, Mr Hani commenced, but did not serve, these proceedings. 378 On 16 November 2022, the Bank deposited cheques and other documents with a notary public pursuant to the tender and deposit process.62 379 On 18 November 2022, the Bank attempted to serve the tender and deposit cheques and documents on Mr Hani and was informed that Mr El Masri could receive the documents.63 380 On 18 November 2022, Mr Hani’s solicitor sent the statement of claim to the Bank via email with an attached letter stating that the statement of claim was attached by way of service. 61 According to the evidence, the date was initially earlier, but varied by later circular. 62 CB693 and 735. 63 CB695. -- 80 of 251 -- [2026] SASC 107 Stein CJ 77 381 On 23 November 2022, by email to Mr Hani, the Bank stated that the Bank had elected to return the balance of his accounts through the tender and deposit process which, by statute, amounted to discharge of the debt.64 The letter stated that the Bank had deposited cheques for the balance of the individual accounts and the joint account (some in Lebanese pounds and some in US dollars) with a notary public of Beirut, Lebanon by virtue of the tender and deposit procedure. Pursuant to Article 823 of the Lebanese Code of Civil Procedure, Mr Hani was put on notice to either accept the tender and deposit or to clearly reject it within 48 hours. The correspondence stated that failure to respond would be construed as a rejection of the offer which would entail the Bank filing a court case against Mr Hani to substantiate the tender and deposit in accordance with Article 824 of the Code of Civil Procedure. The letter from the Bank referred to the account opening contract which provided that any dispute be submitted to the exclusive jurisdiction of the courts of Beirut and that the contractual relationship was governed by Lebanese law and regulations. The letter was marked without prejudice. 382 On 23 November 2022, Mr El Masri acknowledged receipt of the tender and deposit documents and rejected the tender and deposit by marking a notation to that effect on the tender and deposit documents which were served on him. 383 By email from his solicitor dated 24 November 2022,65 Mr Hani notified the Bank that Mr Hani rejected the return of the balance of the accounts through the tender and deposit process pursuant to Article 823 of the Code of Civil Procedure. 384 On 29 November 2022, the notary public provided to the Bank documents by which Mr El Masri rejected the tender and deposit on behalf of Mr Hani, and on his own behalf.66 385 On 30 November 2022, the Bank commenced, but did not serve, its proceedings in Lebanon to validate the tender and deposit process.67 386 On 1 December 2022, Mr El Masri granted a special power of attorney to Mr Ladki to act for Mr Hani in relation to litigation in Lebanon, including all lawsuits to be filed or to be filed against the Bank.68 Mr El Masri consulted another lawyer about the necessary process. That day, Mr Ladki commenced, in Mr Hani’s name, but did not serve, Mr Hani’s Beirut proceedings.69 387 On 1 December, when Mr Hani’s Beirut proceedings were issued, the Bank’s tender and deposit proceedings had not been served. 388 On 16 December 2022, the Bank closed Mr Hani’s accounts. 64 CB684. 65 CB690. 66 CB693. 67 CB166. 68 Exhibits A20 and A27. 69 Exhibits R2 and R3. -- 81 of 251 -- [2026] SASC 107 Stein CJ 78 389 On 21 December 2022, the Bank filed, but did not serve, additional demands in the Bank’s tender and deposit proceedings.70 390 On 5 January 2023, Mr El Masri hand delivered to the Jbeil branch of the Bank in Byblos the statement of claim.71 391 On 11 January 2023, the Bank filed its interlocutory application seeking a dismissal or stay. 392 On 11 October 2023, Mr Hani filed his interlocutory application in relation to service or leave to serve the statement of claim. 393 When the statement of claim was served, Mr Hani’s solicitor overlooked the requirement to include a notice (in the form of Form 36 – Notice to parties served outside Australia) pursuant to Sch 1, r 5 of the Uniform Civil Rules 2020 (SA). On 10 October 2023, the solicitor sent to the Bank’s solicitors a notice in the required form.72 The solicitor also inadvertently omitted a copy of Sch 1, rr 2-7 of the Uniform Civil Rules 2020 (SA) which he sent to the Bank’s solicitors by email on 11 October 2023.73 394 Mr Hani filed revision 1 to his statement of claim in November 2023. 395 In 2023 and thereafter, Mr Hani travelled to Indonesia, Malaysia and Thailand. 396 In about November 2024, the Bank served Mr El Masri with the Bank’s tender and deposit proceedings. 397 In late 2024, Mr Hani filed proceedings against his daughter Candice Braggins in the Supreme Court of South Australia. Those proceedings are defended. 398 On 28 March 2025, Mr Hani filed revision 3 to his statement of claim. 399 On 8 April 2025, the Bank attended the Beirut Court and was served by the Court with Mr Hani’s Beirut proceedings. 400 On 11 April 2025, the Bank requested the Bank’s tender and deposit proceedings and Mr Hani’s Beirut proceedings be conducted together.74 70 CB787. 71 CB1777. 72 CB1779-1782. 73 CB1786-1790. 74 Exhibit A19. -- 82 of 251 -- [2026] SASC 107 Stein CJ 79 401 On 14 April 2025, Mr Ladki, on behalf of Mr Hani, submitted a petition in Mr Hani’s Beirut proceedings seeking to amend the proceedings to remove the claim for damages.75 402 I do not consider it necessary to determine whether the meeting on 4 October 2018 was the first or second meeting nor whether Mr Hani and Mr El Masri met Mr El-Khoury at Mr Hani’s house on 14 August 2019. The controversy on those topics is relevant only to credit and reinforces my concern about the reliability of memory of the witnesses. 403 I set out additional findings including in relation to the financial crisis separately below after considering the expert evidence. Did the Bank know Mr Hani lived in Australia and did Mr Hani tell Mr El-Khoury he intended to retire in Lebanon? 404 The question whether the Bank knew about Mr Hani’s residence is relevant to topics including Mr Hani’s arguments concerning the Lebanese Consumer Protection Law, the exercise of discretion if Article X is an enforceable exclusive jurisdiction clause and forum non conveniens. 405 As set out above, close to the start of Mr El-Khoury’s cross-examination, he was asked when he first learned that Mr Hani was a resident of Australia. He responded that he was told by Mr El Masri before they signed the contract. Mr El Masri said he wanted to introduce him to his friend who had Australian citizenship. This evidence was given before the AVL stream was recorded to enable the parties to review the interpretation. The recording practice started part way through Mr El-Khoury’s evidence after the Bank’s Arabic speaking instructors raised concerns with the interpretation. The Bank took issue with this interpretation, submitting that the word “resident” in English was interpreted as “citizen” in Arabic. Given the dilemma, I have not placed any weight on that evidence. The Bank also took the position that “resident” was interpreted as “citizen” when Mr El-Khoury was asked if his evidence was that the first time he learned Mr Hani was an Australian resident was when he read Mr Hani’s affidavit. If the word “citizen” was used both times, Mr El-Khoury’s evidence was internally inconsistent as to when he first became aware that Mr Hani was an Australian “citizen”. However, I do not draw any inferences from that as I cannot reach any view on the accuracy of the interpretation. 406 Despite his unequivocal and strong assurances, there were aspects of Mr El-Khoury’s evidence about Mr Hani’s residence which were unconvincing. An intention to retire to Lebanon gives rise to the inference that the retirement was from a place other than Lebanon. Mr El-Khoury referred in his evidence to Mr Hani “coming to Lebanon for his retirement”. At face value, “coming to” is 75 Exhibit A18. -- 83 of 251 -- [2026] SASC 107 Stein CJ 80 consistent with understanding that Mr Hani lived elsewhere. However, I have not relied on this particular language in reaching my findings. 407 Mr El-Khoury initially said he “inferred” Mr Hani’s primary residence was his address in Beirut. Mr El-Khoury’s evidence about “inferring” Mr Hani was a resident of Lebanon because he had a house in Beirut and a wife in Lebanon despite insisting Mr Hani told him the address to put on the form was perplexing. Mr El-Khoury’s response that “they didn’t ask him” when questioned about his evidence that he recognised Mr El Masri’s car at Ras el Metn was odd. I was left with the impression that Mr El-Khoury was not willing to make any concessions and was determined firmly to adhere to the position that he did not know Mr Hani resided in Australia nor that Mr Hani’s primary place of residence was in South Australia and that the information on the form was provided by Mr Hani. 408 It is clear from the general agreement and KYC forms that from the time of entry into the first banking agreement, Mr El-Khoury knew Mr Hani had an Australian passport, an Australian phone number, was an Australian citizen, conducted his business in Australia, his business address was in South Australia, his primary tax residence was Australia and the funds were being transferred from accounts with the ANZ Bank in Australia. From that time, Mr El-Khoury was aware he was dealing with an Australian citizen and businessman. 409 Mr El-Khoury sometimes dealt with Mr Hani via an Australian WhatsApp number although it is conceivable he might have thought Mr Hani was in Australia on business at those times. 410 Mr Hani sent to Mr El-Khoury on 12 May 2019 and then on 5 September 2019 written information disclosing an address in Hallett Cove in response to requests from Mr El-Khoury for information. The correspondence in May 2019 was sent expressly at Mr El-Khoury’s request at the time of the first term deposit and the September 2019 correspondence was sent at Mr El-Khoury’s request at the time of the second term deposit. Mr El-Khoury said he did not remember reading the correspondence from Mr Hani or the information about the address. It is believable that he might not remember specific emails or specific conversations. However, it is surprising that he would not have read the information when it was received given it was requested by him because the Bank needed that information to identify the source of the foreign funds. Dr Kotob said that banks required such information as a consequence of anti-money laundering laws. (I address his evidence below.) 411 Mr El-Khoury acknowledged reading the information in September 2019 and that he likely read the ASIC extract but said he did not read or pay attention to the officeholder’s stated address. I query the reliability of this evidence given the effluxion of time. In any event, the information was provided to, and was in the possession of, the Bank. -- 84 of 251 -- [2026] SASC 107 Stein CJ 81 412 The Bank contended that the forms did not record a home address as opposed to a place of business. However, the ASIC form recorded a business address and also the address of Mr Hani in his capacity as officeholder. Mr El-Khoury did not give evidence that he believed that Mr Hani’s officeholder address was a business address. Rather, Mr El-Khoury said he did not read it. Further, Mr El-Khoury did not say that he did not know Mr Hani lived at Perry Barr Road in Hallet Cove but rather that he could not remember. 413 There is no obvious reason why Mr Hani would have lied about his residence or told Mr El-Khoury his primary residence was in Lebanon when that is not the case. Mr Hani provided the information which disclosed his Australian address to the Bank in 2019, which is consistent with not concealing his usual place of residence. 414 Given the various pieces of information provided to Mr El-Khoury, it is inherently implausible that Mr El-Khoury believed Mr Hani’s primary residence was in Lebanon. 415 The Bank treated the fact that Mr Hani completed the declaration confirming the accuracy of the KYC forms as corroboration of Mr El-Khoury’s evidence. However, the inclusion of an address in Beirut is not inconsistent with Mr Hani having a primary residence elsewhere, as is in fact the case. It also does not answer Mr Hani’s assertion that Mr El-Khoury told him to use his Lebanese address on the form because it made the account opening process easier.76 416 Mr Hani’s evidence that he only “brushed over” the banking documents was surprising given the amount of money he intended to deposit and his business experience. On the other hand, his evidence that he was only interested in the interest figure had a ring of truth to it. 417 Mr El-Khoury maintained that the tick boxes on the KYC form were completed with discussion with Mr Hani. It is not clear what may be the difference between the cross-border wire transfers, electronic banking and “other” boxes on the form. There is no obvious reason why Mr Hani would have given instructions not to tick the “wire transfer out” box given the source of the funds from Australia. Even if Mr Hani had an intention to retire to Lebanon, Mr El-Khoury’s evidence did not indicate when it was envisaged that possible retirement may occur, nor that such intention meant the funds in the term deposits were destined exclusively to remain in Lebanon. On the Bank’s case, Mr Hani was an experienced businessman. The emails between Mr Hani and Mr El-Khoury demonstrate that Mr Hani paid close attention to the interest rate and the exchange rate for conversion. The Bank did not cross-examine Mr Hani to the effect that he intended 76 I have not considered it necessary to make findings about why or what was said when the address in Beirut was recorded given I have concluded from the correspondence that the Bank was aware Mr Hani’s primary residence was in Australia. -- 85 of 251 -- [2026] SASC 107 Stein CJ 82 exclusively to retain his funds in Lebanon because of his asserted intention to retire there. 418 The purpose of retirement was not stated on the banking documents as the reason for placing funds with the Bank. In the absence of contemporaneous documents, and given the lapse of time, I have concerns about the accuracy of Mr El-Khoury’s recollection concerning precise matters he says were discussed during the meetings including about what boxes should be ticked on a form. The same observation applies to Mr Hani. 419 I am not persuaded by Mr Hani’s denial that he told Mr El-Khoury he intended to retire in Lebanon because of his family in Australia in light of the cross-examination about the state of his relationships with family members. 420 Mr El-Khoury could not have known about the sale by Mr Hani of an olive farm unless Mr Hani told him. To some extent that supports Mr El-Khoury’s evidence that Mr Hani discussed retirement with him. However, it does not preclude the possibility that Mr Hani discussed the olive farm for other reasons, such as expecting to be coming into money which he would be interested in placing with the Bank, unrelated to possible retirement. 421 In light of my concerns with the reliability of the evidence of both Mr El-Khoury and Mr Hani concerning the discussions at the time the banking documents were completed, in reaching my findings I have placed greater reliance on contemporaneous documents in the possession of the Bank. 422 Taking into account the matters to which I have referred above, including issues with reliability of recall and lack of any contemporaneous relevant records, I do not accept Mr Hani’s account that there was no discussion about retirement. I am not satisfied that Mr El Masri’s evidence that there was no such discussion while he was present sufficiently justifies me finding no such discussion occurred. However, given the same issues, I also do not accept Mr El-Khoury’s account. There is a lack of sufficient evidence linking any discussion about retirement to where Mr Hani was residing at the time or to Mr Hani’s purpose in depositing and maintaining funds with the Bank to justify the conclusion that Mr El-Khoury believed Mr Hani was primarily resident in Lebanon or that he was depositing funds with the Bank for the purposes of retirement in Lebanon. 423 Based on all of the information in the possession of the Bank connecting Mr Hani with Australia, including the correspondence of May 2019 and September 2019 referring to addresses in Hallett Cove, I find that the Bank knew that Mr Hani was an Australian citizen, customer and businessman who was transferring funds to the Bank from Australia. I also find that the Bank knew, at the latest by May 2019, that Mr Hani’s primary place of residence was in South Australia. -- 86 of 251 -- [2026] SASC 107 Stein CJ 83 Did Mr Hani know about Mr Hani’s Beirut proceedings? 424 The Bank sought findings that Mr El Masri told Mr Hani that Mr Hani’s Beirut proceedings had been issued and Mr El Masri and Mr Hani deliberately withheld disclosure of those proceedings from the Bank and this Court. 425 I accept that Mr Hani’s Australian solicitor, Mr Issa, and his counsel were not aware of the existence of Mr Hani’s Beirut proceedings. No criticism was, or could be, directed at them. 426 When senior counsel cross-examined Mr Hani about Mr Hani’s Beirut proceedings, Mr Hani reacted in a way which I considered to be genuine surprise, consistent with being unaware of the proceedings. There is the potential that he reacted in surprise because he was taken aback that the Bank knew about the proceedings. Mr Hani’s assertions about forgery and bribery when questioned about those proceedings were astonishing but I could not assess whether they constituted an attempt to evade, or were a consequence of genuine surprise and confusion. 427 I have taken into account Mr Hani’s evidence on this topic in my assessment of Mr Hani’s evidence on this topic and as a whole. 428 I do not place any weight on Mr Hani’s evidence concerning the searches he directed be conducted of his laptop. The search terms were unclear and the person who conducted the searches did not give evidence. 429 Mr Hani submitted that there was no need for Mr El Masri to inform Mr Hani about the proceedings as no steps had occurred in relation to the proceedings and no invoice had been issued. It is surprising by Australian standards that proceedings would have been issued in Mr Hani’s name which related to the same facts and circumstances, including a claim for penalty and compensation, without Mr Hani having provided instructions or knowing about it even if no further steps were taken. Mr Hani urged caution in applying Australian practice standards to Mr El Masri’s actions and I have heeded that warning. No evidence was called about Lebanese legal practices other than in relation to the requirement for a lawyer to hold a power of attorney. 430 The only other person who could have given instructions for the commencement of the proceedings would have been Mr Hani’s lawyer in Lebanon, Mr El Masri, who granted the power of attorney to Mr Ladki. Mr El Masri had a power of attorney from Mr Hani which enabled him to do so. Mr El Masri has been Mr Hani’s trusted lawyer and friend for many years. Given that relationship and the clear trust Mr Hani placed in Mr El Masri, it is conceivable Mr El Masri acted without express instructions and absent Mr Hani’s knowledge given he had Mr Hani’s power of attorney and conducted matters for him in Lebanon. I have taken into account Mr Hani’s observation that an Australian judge may instinctively find it difficult to understand that Mr Hani was not aware of Mr Hani’s Beirut proceedings. While acknowledging the potential -- 87 of 251 -- [2026] SASC 107 Stein CJ 84 for differences in practice, I nonetheless struggle to accept Mr El Masri’s stated reasons for not having told Mr Hani that Mr Hani’s Beirut proceedings had been filed. The reasons, including that Mr Hani, an experienced businessman, would not understand, made little sense. Similarly, the explanation that he did not tell Dr Zbeeb about the proceedings when Dr Zbeeb specifically asked whether proceedings had been issued to invalidate the tender and deposit process because of confidentiality obligations lacked credibility and was suggestive of concealment. Although I had great difficulty in accepting Mr El Masri’s explanation for not telling Mr Hani, I was left in doubt whether or not Mr El Masri in fact told Mr Hani about the proceedings, including by reason of Mr Hani’s response in the witness box. It may have been that Mr El Masri chose to not tell Mr Hani, but not for the reasons he gave. 431 Ultimately, I do not consider it necessary to determine whether Mr Hani was aware of Mr Hani’s Beirut proceedings. The lawyers holding his power of attorney acted in reliance on that authority in issuing the proceedings and the proceedings were issued in his name. The focus for the purposes of whether to grant a stay rests on the potential for multiplicity of proceedings and thus the overlap, if any, of the issues in Mr Hani’s Beirut proceedings and these proceedings. 432 I now turn to address Mr Hani’s service application before returning to the expert evidence which is relevant to the Bank’s stay application. -- 88 of 251 -- [2026] SASC 107 Stein CJ 85 PART 5 – SERVICE 433 Mr Hani’s interlocutory application (FDN 25) dated 11 October 2023 seeks a declaration that leave to serve the originating process is not required under the Uniform Civil Rules 2020 (SA) (“UCR”) and a declaration that the originating process has been validly served with effect from 10 October 2023, when Form 36 was served on the respondent’s solicitors. In the alternative, Mr Hani seeks leave to serve the originating process and seeks that leave be granted nunc pro tunc to the time that service occurred on 10 October 2023. What are the UCR requirements for the service of originating process overseas? 434 An originating process may be served out of Australia without leave in specified cases, including:77 (b) when the claim is for the enforcement…of, or for damages or other relief in respect of a breach of, a contract which— (i) (ii) …; (iii) was to be wholly or in part performed in Australia; … (c) when the claim is in respect of a breach in Australia of any contract, wherever made,…; … (n) when the claim is founded on a cause of action arising in Australia;78 435 Mr Hani’s statement of claim constitutes an originating process.79 436 If a person is to be served an originating process out of Australia, the person must also be served with a notice in the prescribed form informing the person of various topics, including the scope of the jurisdiction of the Court in respect of the claims, the grounds alleged to found jurisdiction and the person’s right to challenge service of the originating process or the jurisdiction.80 437 In any proceeding when service is not allowed under Sch 1, r 2 an originating process may be served outside Australia with leave of the Court.81 The Court may grant an application for leave if satisfied that:82 77 Uniform Civil Rules 2020 (SA) Sch 1, r 2. 78 “Cause of action” is defined as a set of facts by reason of which (subject to any defence or exercise of discretion) a person is entitled to relief in a claim. 79 Uniform Civil Rules 2020 (SA) r 2.1. 80 Uniform Civil Rules 2020 (SA) Sch 1, r 5. 81 Uniform Civil Rules 2020 (SA) Sch 1, r 3(1). 82 Uniform Civil Rules 2020 (SA) Sch 1, r 3(5). -- 89 of 251 -- [2026] SASC 107 Stein CJ 86 (a) the claim has a real and substantial connection with Australia; (b) Australia is an appropriate forum for the trial; and (c) in all the circumstances the Court should assume jurisdiction. 438 The Court has the power to dismiss or stay the proceeding or set aside service of the originating process when originating process has been served outside Australia.83 The Court may make an order if satisfied: (a) that service of the originating process is not authorised by the Rules, (b) that the Court is an inappropriate forum for the trial of the proceeding; or (c) that the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim. 439 The Bank has not submitted to the jurisdiction and accordingly has not filed a defence. Principles in relation to service 440 If a respondent served outside Australia has not entered an appearance, an applicant for leave to proceed must demonstrate that one or more of the circumstances set out in Sch 1, r 2 of the UCR applies.84 441 The question whether the subject matter of the proceedings falls within the rules allowing service without leave is ordinarily to be answered by reference to the allegations.85 Attention is focused on the nature of the claim made and the Court does not consider the merits nor does it assess the likelihood of success of the claim at trial.86 If the statement of claim does not show all that is necessary to assess whether the claim falls within the rule, evidence may be required to establish that a particular part of the rule is engaged.87 The Court may consider further evidence which is directed to where the facts alleged, or additional facts put forward, are “plainly incorrect”.88 442 If the originating process makes a claim of a kind which falls within one of the paragraphs of the rule, on proof of service, the Court’s jurisdiction is prima facie invoked. In the absence of some countervailing consideration, leave to 83 Uniform Civil Rules 2020 (SA) Sch 1, r 4. 84 Agar v Hyde (2000) 201 CLR 552 at [48] (Gaudron, McHugh, Gummow and Hayne JJ). 85 Agar v Hyde (2000) 201 CLR 552 at [50]-[51] (Gaudron, McHugh, Gummow and Hayne JJ). 86 Agar v Hyde (2000) 201 CLR 552 at [50]-[51] (Gaudron, McHugh, Gummow and Hayne JJ); Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22 at [24]-[25] (Mandie JA), [27] (Beach JA agreeing) and [28] (John Dixon AJA agreeing); Yunghhanns v Colquhoun-Denvers [2016] VSC 403 at [28]. 87 Agar v Hyde (2000) 201 CLR 552 at [52] (Gaudron, McHugh, Gummow and Hayne JJ). 88 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22 at [24]-[25] (Mandie JA), [27] (Beach JA agreeing) and [28] (John Dixon AJA agreeing); Yunghhanns v Colquhoun-Denvers [2016] VSC 403 at [28]. -- 90 of 251 -- [2026] SASC 107 Stein CJ 87 proceed should then be given.89 The issues which arise on an application for leave to proceed differ from those arising on an application to decline to exercise jurisdiction.90 443 The enquiry is undertaken at the date the contract was entered into or varied, not the date of demand for payment.91 Each cause of action must be considered individually and only causes of action consisting of subject matter within the rule may be continued.92 The level of satisfaction required to establish one of the grounds within the rule is the “good arguable case” test.93 444 In cases involving an alleged breach of contract based on a failure to pay, if the contract and circumstances existing when the contract was entered into demonstrate the place of payment is to occur within Australia and, through the default of the debtor, the money is not paid, there will be a prima facie breach within the jurisdiction.94 A relevant circumstance may include the residence or place of business of the creditor.95 445 Whether there is an obligation to make payment in the jurisdiction will depend on the proper construction of the contract. It is not sufficient to ask merely whether, at the time when demand for the payment was made, the payment should properly have been made in the jurisdiction.96 In the absence of an express provision in the contract, the place of payment will depend on the place the parties should be taken as having impliedly intended payment would occur in all of the circumstances.97 That question must be ascertained at the date of the contract or any variation of the contract.98 However, if the contract does not contain an express provision, the parties’ conduct thereafter may have some relevance.99 446 As the question whether Mr Hani required leave to serve is addressed primarily by reference to the allegations in the pleading, I next summarise Mr Hani’s pleaded case before returning to address authorities relied on by the parties. Mr Hani’s pleaded case 447 Mr Hani alleges the following matters. 89 Agar v Hyde (2000) 201 CLR 552 at [54] (Gaudron, McHugh, Gummow and Hayne JJ). 90 Agar v Hyde (2000) 201 CLR 552 at [52] (Gaudron, McHugh, Gummow and Hayne JJ). 91 McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 351. 92 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22 at [24]-[25] (Mandie JA), [27] (Beach JA agreeing) and [28] (John Dixon AJA agreeing); Yunghhanns v Colquhoun-Denvers [2016] VSC 403 at [28]. 93 Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [115]-[119]. 94 Gosman v Ockerby [1908] VLR 298 at 305-306. 95 Gosman v Ockerby [1908] VLR 298 at 306. 96 McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 351. 97 McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 348, 350-351; Gosman v Ockerby [1908] VLR 298 at 305-306. 98 McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 351. 99 McFee Engineering Pty Ltd v CBS Constructions Pty Ltd (1980) 44 FLR 340 at 351. -- 91 of 251 -- [2026] SASC 107 Stein CJ 88 448 In 2018, Mr Hani met with a Bank representative and signed documents to open a current account. 449 In 2019, Mr Hani transferred large amounts from accounts in South Australia which were converted into USD and placed into two three-year term deposits earning high interest rates. 450 In late 2019, a financial crisis commenced in Lebanon. Banks closed for a period after a run on the banks. Thereafter, withdrawals and transfers of foreign currency were restricted. 451 In 2020, Mr Hani transferred further amounts from South Australia which were converted into USD and placed into a term deposit together with amounts contributed by the Bank. 452 In 2022, Mr Hani asked the Bank to close his accounts and transfer his funds to a bank account in South Australia. The Bank closed his accounts but did not transfer the funds. It paid the funds by bank cheque to the notary public in Beirut, seeking to use a procedure provided for by Articles 822-824 of the Lebanese Code of Civil Procedure. Mr Hani rejected the utilisation of that procedure. 453 Mr Hani’s pleading alleges the following matters. 454 Mr Hani is an Australian citizen, of dual Australian and Lebanese nationality, resident in and carrying on his business in South Australia. Mr Hani is bi-lingual. The Bank is a Lebanese bank which carries on business providing banking services to customers in Lebanon and overseas including through electronic banking services. 455 In October 2018, the Bank represented to Mr Hani that: • it could provide him with banking services available for use from Australia; • it could offer high-yield interest rates of between 8.5 to 12 percent per annum on fixed term deposits; • the Bank would open separate fixed term deposits on request and monies held would be in US dollars. 456 The Bank was aware of Mr Hani’s nationality and citizenship, that his business operations were conducted in South Australia and that: • Mr Hani’s residential address and primary residence was in South Australia; • Mr Hani’s monies would be deposited by electronic transfer from Australia; and -- 92 of 251 -- [2026] SASC 107 Stein CJ 89 • Mr Hani intended to use internet and electronic banking services remotely from Australia. 457 In reliance on the representations made by the Bank, Mr Hani entered into an agreement with the Bank for provision of banking services by signing the general terms and conditions, opening a current account, and then depositing monies into main accounts and sub-accounts and opening sub-accounts for the purposes of investment and to receive interest. 458 The banking agreement was in part oral, in part writing, and in part implied including as a matter of Lebanese law and/or custom. 459 The terms of the banking agreement included terms that: • the Bank would provide Mr Hani with electronic and internet banking services including money exchange and transfers for deposits and withdrawals including using international bank account numbers; • Mr Hani had the right to move or close a term deposit on maturity at which time the monies would be moved in cash through transfers or electronic banking services linked to the account but not by cheque. • international electronic banking operations were available to Mr Hani; • on closure of the accounts, the Bank would move the monies by the means directed by Mr Hani. 460 In about April 2019, an agreement collateral to the general banking agreement was reached which was in part oral, in part written and in part implied. That agreement was to the effect that Mr Hani would transfer A$2.8 million to the Bank by electronic international funds transfer, the Bank would convert the sum to US currency, the Bank would open a three-year fixed term deposit account and the Bank would pay Mr Hani interest at 8.52 percent per annum paid monthly into another account held by Mr Hani with the Bank. 461 A second collateral agreement was entered into in around August 2019 to similar effect by which Mr Hani would transfer A$3 million to the Bank by electronic international funds transfer from Australia. However, this agreement is alleged to have additional terms to the effect that, upon maturity, the amount of the term deposit would be released immediately and Mr Hani authorised the Bank to transfer the released balance to the main account. 462 In about May 2020, a third collateral agreement was reached by which Mr Hani would transfer by electronic international funds transfer Australian dollars to be converted by the Bank to US$70,000, the Bank would open a new account into which the amount would be paid, the Bank would pay an additional US$50,000 into the account as a reward and the funds could not be withdrawn in cash or bank transfer but only by bank cheque. -- 93 of 251 -- [2026] SASC 107 Stein CJ 90 463 The deposit contracts are alleged to be deposit contracts for the purposes of Article 307 of the Code of Commerce and Articles 690, 691, and 701 of the Code of Obligations and Contracts. 464 In December 2021, Mr Hani’s lawyer based in Lebanon, Mr El Masri, provided to the Bank an online service application form signed by Mr Hani for bank accounts (including his main account and accounts relating to the first and second term deposits) and an online service application form signed by Mr Hani and Mr El Masri for bank accounts held by them jointly. The online service applications are said to: • provide for the provision of electronic banking services by the Bank; and • include rights for the transfer of funds between accounts held by Mr Hani and for transfer of funds from accounts to third party accounts. 465 The Bank accepted the online service applications by providing online electronic banking usernames and passwords and resulted in the electronic transfer facilities becoming written additional terms of the General Banking Contract and the first and second deposit contracts when the maturity date of each such deposit was reached. The electronic transfer facilities comprised an electronic banking service the Bank linked, or was required to link, to all of the accounts held by Mr Hani other than the third deposit contract. 466 Mr Hani had the right to transfer funds from his account by electronic international transfer to an external bank account nominated by him subject to the expiry of any term deposit with the exception of the third term deposit. These rights arose by the terms of the agreements or, alternatively, as a matter of Lebanese law and custom or, alternatively, through implied terms. 467 Mr Hani pleads that as a matter of Lebanese law and/or custom, all deposits made were owned by the Bank on a temporary basis and were required to be returned by the Bank to Mr Hani at his request, subject to the expiry of any term deposit period. In the alternative, Mr Hani pleads entitlement to return under Lebanese law, and further in the alternative, pleads that Mr Hani and the Bank were obliged to act in good faith towards one another so as not to cause harm to Mr Hani or deprive him of the benefits of his rights in connection with the banking agreement and the deposit contracts. 468 The claim pleads that in breach of these obligations, the Bank has failed to comply with Mr Hani’s written demands for return of his deposit funds and has failed to pay those funds in US currency into Mr Hani’s nominated bank account in Australia. 469 Mr Hani pleads that the Bank, purportedly pursuant to the tender and deposit procedure under Articles 822 to 824 of the Lebanese Code of Civil Procedure, -- 94 of 251 -- [2026] SASC 107 Stein CJ 91 tendered to the notary public in Beirut bank cheques in US dollars in the total sum of US$4,832,579.67. The bank cheques are said to be worth at most 15 percent of their face value comprising about US$725,000 and were not of a value equal to the deposited funds or of a similar type or value or amount to the deposited funds. 470 In failing to repay the deposited funds and by its conduct through the tender and deposit procedure, Mr Hani pleads the Bank has breached the terms of the banking agreement and the deposit contracts or applicable Lebanese law. 471 Mr Hani pleads that a jurisdiction clause contained in the banking agreement is invalid: • on the basis of Article 26 of the Lebanese Consumer Protection Law; • alternatively, under Article 84 of the Code of Obligations and Contracts as a purely potestative condition; • further in the alternative, as being an unfair clause for the purposes of Articles 213 and 214 of the Code of Obligations and Contracts. 472 Mr Hani claims damages consequential on pleaded loss by reason of the breach. Mr Hani seeks orders for payment of the deposited funds, in the alternative, damages to be assessed for loss of use of the deposited funds, and a declaration the jurisdiction clause is invalid, interest, and costs. 473 I turn now to analyse whether Mr Hani required leave to serve. Mr Hani did not require leave to serve his originating process 474 I have concluded that Mr Hani has demonstrated a good arguable case that his claim in relation to the banking agreements and the first and second term deposits, at least, are for breach of a contract within Australia or to be performed in part within Australia. It follows that Mr Hani did not require leave to serve his originating process. 475 Mr Hani does not rely on the demand having been made from Australia. 476 Mr Hani accepts that his claim in relation to the third term deposit cannot create a cause of action arising in Australia, nor constitutes a breach occurring in Australia, nor required performance of the contract in Australia, as there is no claim to a right to electronic international transfer of funds in that term deposit. However, he contends that given the circumstances of the first and second deposit contracts and their relative value, it would be appropriate to grant leave with respect to the third deposit contract to enable it to be dealt with in the same proceedings. 477 I turn first to my reasons why Mr Hani has satisfied me that he has a good arguable case that the banking contracts, excluding the third term deposit contract, were to be performed in part within Australia or were breached within Australia. -- 95 of 251 -- [2026] SASC 107 Stein CJ 92 478 Mr Hani relies on the provisions of the UCR which allow service on the basis his claim is to enforce, or for relief in respect of, a breach of contract which was to be wholly or in part performed in Australia because, on his case, the Bank was contractually required to comply with his requests to pay him the money in Australia by international electronic funds transfer. Mr Hani also relies on his claim being founded on a cause of action arising in Australia based on the failure to make the international electronic funds transfer. 479 On Mr Hani’s case, the alleged breach is a failure to repay. 480 As set out above, without reiterating all of the detail, Mr Hani’s statement of claim pleads that, among other things, the terms of the general banking contract included electronic banking services and that Mr Hani had the right to close a term deposit on maturity at which point the funds would be moved through transfers or electronic banking services and the Bank would hold and move monies by the means directed by Mr Hani. Mr Hani pleads an alternative implied term to the same effect. Mr Hani also pleads a right as a matter of Lebanese law and custom to require the Bank to transfer funds from Mr Hani’s accounts by electronic international funds transfer to an external bank account nominated by Mr Hani subject to the expiry of any fixed term deposit period. 481 Based on the general principles in the cases I have set out above, I must consider whether Mr Hani has established a good arguable case, based on the pleading and evidence, where necessary, that at the time the banking agreements were entered into, the provisions of the agreement permitted Mr Hani to make electronic funds transfers (including by international transfer) such that Mr Hani could require the Bank to repay his funds by international funds transfer to a bank account he nominated within Australia. That will give rise to consideration whether such a claim is for enforcement of an agreement to be (part) performed in Australia and/or whether the Bank’s failure to transfer funds to the ANZ account nominated by Mr Hani constituted a breach in Australia of the agreement. This to be addressed based on the allegations, the terms of the contract and, in the absence of express contractual terms, the circumstances surrounding the entry into the contract. 482 To the extent consideration of evidence is required to consider whether the UCR are engaged or whether the facts alleged are plainly incorrect, the following matters assist Mr Hani in making out the threshold for a good arguable case. 483 As set out above, the Bank knew that it was dealing with an Australian citizen and customer, the source of the funds was from Australia and Mr Hani resided in South Australia. The general agreements contain sufficient terms to give rise to a good arguable case on Mr Hani’s pleading. Without analysing all the terms or forming views on the merits about their proper interpretation, the general agreements provide for electronic banking services which include transactions executed in Lebanon and abroad and include transfers of electronic funds encompassing withdrawals. The definitions are broad and sufficient to support a -- 96 of 251 -- [2026] SASC 107 Stein CJ 93 good arguable case they encompass international electronic funds transfers. The clause referring to IBAN numbers supports a good arguable case that the banking agreement contemplates international funds transfers. The agreements exempt the Bank from liability if Mr Hani was unable to use electronic banking services in countries where the level of encryption used by the Bank did not comply with the laws and regulations in those countries, such that it was Mr Hani’s responsibility to ensure his ability to use the electronic banking services in such countries. Such clauses favour Mr Hani’s argument. I have therefore concluded that these clauses, among others, raise a good arguable case as pleaded by Mr Hani that the parties recognised and accepted that repayment of the funds could occur through the means of international funds transfer to Australia. 484 I accept that the KYC forms do not on their face nominate “wire transfers” out and Mr Hani signed the KYC forms. I have not made findings about the meaning of “wire transfers” out, nor on the competing cases about whether Mr El-Khoury discussed the boxes on the KYC forms with Mr Hani, as I consider those to be matters for trial. However, for present purposes, I do not consider the failure to nominate wire transfers out on the KYC forms is of itself sufficient to preclude a good arguable case of entitlement to international funds transfer. The proper interpretation of the terms of the general agreements together with the KYC forms will be a matter for determination at trial. 485 The Bank contends that while Mr Hani demanded payment be made to Australia, the pleaded claim does not allege that the banking contracts required payment to be made in Australia. I accept the Bank’s position that asserting a claim to an international transfer right does not translate to a plea that the contract mandated payment in Australia. However, I do not accept that the authorities limit Mr Hani to establishing a good arguable case based only on an express contractual requirement to pay in Australia. In my view, the authorities also envisage the potential for a good arguable case based on an express or implied contractual entitlement to require payment by nominating an account within Australia into which payment is to be made at the time payment is to be made. I turn to consider those authorities. 486 In Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (“Sydbank”),100 the Full Court of the Federal Court said that “cause of action” in the phrase “cause of action which arose within the jurisdiction” does not refer to all elements of the cause of action but refers to the act on the part of the defendant which gives the plaintiff his cause of complaint.101 A cause of action will arise within the jurisdiction if the act by the defendant which gives the plaintiff the cause of complaint occurs within the jurisdiction. Where the cause of complaint is the failure or the refusal of a defendant to do a particular thing, it is possible to speak of the place of the acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the cause of 100 (1996) 68 FCR 539. 101 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 546. -- 97 of 251 -- [2026] SASC 107 Stein CJ 94 complaint. The place of the act which gives the plaintiff his cause of complaint is to be ascertained in a commonsense way.102 In Sydbank, the cause of action was misleading and deceptive conduct based on a statement in a telephone conversation made overseas to the plaintiff in Australia to the effect that Sydbank would deal with the proceeds of a sale in accordance with instructions which included making payment to Australia. The Court concluded the conduct occurred within Australia because that was the location in which the enquiry was made and the statement would be acted on. It was also open to find there was an offer by telephone which was accepted, as a consequence of which a contract was made in Australia. The breach occurred in Australia because of the failure to remit the funds to Australia in accordance with the instructions which were given. 487 In Benson v Rational Entertainment Enterprises Ltd (“Benson”),103 Robb J addressed a question of service in a case in which the plaintiff had a contract giving him the facility to engage in online gambling in poker games. After the plaintiff paid amounts into a gambling account, litigation relating to the online gambling activities was settled by an agreement which contained a term requiring the online account balances of all non-United States players (of which the plaintiff was one) to be made available for immediate cash withdrawal. The defendant refused to pay the plaintiff. 488 Justice Robb considered that where a breach of contract occurs by omission, the issue of where the breach took place must depend on where the contract required the act of performance to occur, which depends on the proper construction of the contract. If the contract does not expressly identify the place of performance, and when the obligation is to pay money to a creditor, the traditional view that the debtor must pay the creditor in the creditor’s place of residence will carry significant weight. However, the issue remains one of construction and that proposition must give way if all of the circumstances relevant to the proper construction of the contract point to a different conclusion.104 Justice Robb also referred to authority for the proposition that the failure to perform a quasi-contractual obligation requiring the payment of money occurs at the place of residence or business of the creditor when payment is not made.105 489 Justice Robb found the plaintiff had a good arguable case that the terms of the contract allowed the plaintiff to choose his method of withdrawal which included permitting him to require the defendants to pay the money by electronic transfer into an account nominated by the plaintiff. The evidence was sufficient to establish that the plaintiff elected to require the defendants to pay him the amount within New South Wales. There was a strong argument that the phrase “make available for immediate cash withdrawal” carried an implication the defendants 102 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 547. 103 [2015] NSWSC 906. 104 Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [91]. See also Liftronic Pty Ltd v Montgomery Elevator Company (1996) ATPR 41-458 at 41,588. 105 Benson v Rational Entertainment Enterprises Ltd [2015] NSWSC 906 at [92] referring to Schweitzer v Kronen Verwaltungs GmbH [1998] VSC 190 at [39]-[43]. -- 98 of 251 -- [2026] SASC 107 Stein CJ 95 would implement any proper request as to how the relevant monies were to be transferred in which case the demand operated as a request to be paid the sum of money within New South Wales. 490 In Gold Ridge Mining Ltd v AIG Australia Ltd,106 Hindman J addressed a contention that service of a claim on a defendant outside Australia was not authorised. A deed between the parties included, among other things, the term that certain payments were to be made to the payee’s nominated bank account by a particular time. Justice Hindman concluded the deed was to be partly performed in Australia because the clause required payment to be made by direct transfer to a bank account nominated in writing by the payee. The payee nominated a bank account in Melbourne as the account into which payment was to be deposited. It followed that the deed was to be partly performed in Australia.107 Justice Hindman also referred to a contractual clause requiring particular certificates to be sent to the payee. As a matter of construction of the deed, Hindman J regarded a reference to “send” as relating not only to the act of dispatching but also to the requirement to deliver. As that delivery was to occur in Australia, it followed that the deed was to be partly performed in Australia.108 491 In Kim Michael Productions Pty Ltd v Tropical Islands Management Ltd,109 an alleged oral contract contained a term that funds would be paid into a bank account in Sydney. While conceding there was no express term setting out the place where the contract sum had to be paid, the plaintiff submitted it could be implied the parties intended the place of payment to be New South Wales for reasons including that the plaintiff had no office or staff in any jurisdiction other than New South Wales, part payment of a sum was made by the defendants to a Sydney bank account and the demand for payment was issued in New South Wales. Justice Howie considered the parties intended the contract price to be paid into a New South Wales bank account when the plaintiff had no office or staff in other jurisdiction, nor any foreign bank account. Accordingly, breach by non-payment occurred in New South Wales and the proceedings could validly be served outside Australia. In the absence of an express contractual provision, the Court took into account the manner in which the plaintiff operated in reaching the conclusion the parties intended payment to be made in the State. 492 In International Management Group of America Pty Ltd v Media Niugini Ltd t/as EMTV,110 the Court considered a contract which provided for the broadcast in Papua New Guinea of Queensland Cup rugby league matches played in Australia and recorded by either Channel Nine or Fox Sports. The broadcast was to be made available at an access point in Sydney from which EMTV was obliged to transmit the broadcast to Papua New Guinea. Justice Stevenson concluded that the contract was to be partly performed in Australia because there was a contractual obligation 106 [2024] QSC 217. 107 Gold Ridge Mining Ltd v AIG Australia Ltd [2024] QSC 217 at [17]-[19]. 108 Gold Ridge Mining Ltd v AIG Australia Ltd [2024] QSC 217 at [22]. 109 [2010] NSWSC 269. 110 [2020] NSWSC 559. -- 99 of 251 -- [2026] SASC 107 Stein CJ 96 to procure the rugby league to use reasonable endeavours to obtain access to venues in Australia to produce commentary on the games.111 493 Mr Hani also relied on Bank of Victoria Ltd v Roberston.112 In that case, the Court said that while the contract did not contain an express provision for payment of a mortgage in Melbourne, the deed described the mortgagee as “of Melbourne” and provided that payment was to be made to the mortgagee. It was thus implied that “Melbourne” was the address of the mortgagee, requiring payment at that address. 494 I do not accept that Mr Hani’s pleaded case is as narrow as that put by the Bank. Mr Hani does not assert that the contract expressly required payment to Australia. Mr Hani rather alleges that his monies would be paid back to him by the Bank when his deposits matured or his accounts were closed and such repayments were to be by international electronic funds transfer by the means directed by Mr Hani. He further pleads that, by custom, there was an implied term obliging the Bank to repay Mr Hani’s monies by international electronic funds transfer to the Australian bank account he nominated. Mr Hani relies on the fact that the Bank knew the funds were transmitted by Mr Hani from Australia and his Australian residence, in conjunction with the contract terms, to assert that Mr Hani and the Bank would have envisaged the repayment of the funds to Australia. 495 In the case as framed by Mr Hani, the contract entitled Mr Hani at a future point in time to nominate transfer to a bank account in Australia. On his case, the alleged breach is a breach to repay the monies to an account within Australia when so nominated. Accordingly, on the basis of the principles set out in the authorities to which I have referred, the plea as framed by him amounts to a plea of a breach of contract within Australia. Such breach is alleged to have occurred at the time the Bank failed to transfer the funds in accordance with Mr Hani’s request. By analogy with the reasoning in Benson, I consider Mr Hani’s request to the Bank to facilitate the transfer of his funds to an account held with ANZ in Adelaide amounted to a request to be paid the funds within South Australia sufficient to found a good arguable case that a breach occurred within the State. 496 On the topic of banking custom in relation to international transfers, I observe that in Manoukian v Societe Generale de Banque au Liban SAL (“Manoukian”),113 Picken J in the Queen’s Bench Division of the High Court of Justice considered a claim by Mr Manoukian requiring the Bank (and another Lebanese bank) to execute international transfers from Lebanese accounts to accounts nominated by Mr Manoukian in Switzerland. The banking contracts in that case were governed by Lebanese law. Justice Picken recognised the existence of banking custom in Lebanon, concluding that international transfers were part and parcel of the services provided by banks in Lebanon and had been for many years, such that 111 International Management Group of America Pty Ltd v Media Niugini Ltd t/as EMTV [2020] NSWSC 559 at [78]-[80]. 112 (1897) 23 VLR 3. 113 [2022] EWHC 669 (QB). -- 100 of 251 -- [2026] SASC 107 Stein CJ 97 clients were entitled to expect transfers would be made subject only to compliance verification and the existence of a valid request.114 The reasoning in Manoukian,115 in which Picken J considered a similar clause in the Bank’s banking agreement, supports Mr Hani’s contention of a good arguable case based on custom. In reaching this view I have not overlooked Picken J’s reliance on cases of Urgent Matters Judges nor other more recent cases referred to by the parties, some of which I address separately below. 497 I reiterate that it is not for me to reach conclusions on the merits of Mr Hani’s case to contractual entitlements to international funds transfers or an entitlement based on custom. The proper interpretation of the banking agreements, the KYC forms and evidence of custom remain matters for trial as does the question whether there was any breach of any obligation which may be established at trial. 498 I do not accept the Bank’s submission that Mr Hani’s case would lead to an absurd result in that jurisdiction would be vested in whichever country Mr Hani chose to nominate as the destination for payment and, as such, the one forum which would not have jurisdiction would be Lebanon. Whether Mr Hani could make out a basis for jurisdiction in another country would depend on that country’s jurisdictional requirements. Mr Hani’s case is not inconsistent with a court in Lebanon also having jurisdiction in the event Mr Hani nominated a transfer to a country other than Lebanon given the Bank’s domicile in Lebanon. 499 Having reached this conclusion, it is not necessary for me to consider the alternative bases upon which Mr Hani relied to establish he did not require leave to serve. 500 The Bank contends that a claim for declaration as to the invalidity of the exclusive jurisdiction claim cannot fall within the UCR as it is a claim in respect of an exclusive jurisdiction clause under Lebanese law in a standard form Arabic-language banking contract entered into in Lebanon. However, the invalidity or otherwise of the exclusive jurisdiction clause must be determined on the Bank’s interlocutory application. The declaration sought will not have to be agitated in any future trial on the merits. 501 I accept I have the power to grant the declarations sought by Mr Hani that leave to serve was not required and that the originating process was validly served with effect from 10 October 2023.116 I accept that the originating process and all the necessary documents were served, albeit with delay, and there is no suggestion that the failure to serve all the necessary documents at the same time arose other than through inadvertence. The Bank filed its application for dismissal or stay in this Court in January 2023, prior to the service of all of the required forms. There 114 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB) at [85]. 115 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 116 See Rossiter v Core Mining Limited [2015] NSWSC 360 at [48] in which similar orders were made. -- 101 of 251 -- [2026] SASC 107 Stein CJ 98 is no suggestion that the Bank has been prejudiced by the initial failures to serve those required forms. 502 The Bank submits that on no view can the claim asserted in relation to the alleged third deposit contract create a cause of action arising in Australia or breach in Australia or requirement to perform the contract in Australia when Mr Hani accepts in his summary of argument that he has no claim for the electronic international transfer of funds the subject of the alleged third deposit contract. I accept that the part of the claim relating to the third deposit contract does not meet the requirement for service outside Australia without leave. 503 In my view, there is good reason to grant leave to serve in respect of the third deposit contract claim. The questions which will need to be determined in relation to the third deposit contract overlap with those relevant to the first and second deposit contracts but are narrower in compass and less significant in terms of quantum. There is good reason to avoid multiplicity of proceedings involving the same parties, the same substratum of facts and overlapping issues. 504 Accordingly, on the question of service I declare that leave to serve the originating process in relation to the first and second deposit contract claims was not required and that aspect of the originating process was validly served with effect from 10 October 2023. I grant leave to serve the originating process in respect of the third deposit claim and grant that leave nunc pro tunc to 10 October 2023. -- 102 of 251 -- [2026] SASC 107 Stein CJ 99 PART 6 – LEBANESE LAW AND EXPERT EVIDENCE 505 Having concluded that leave to serve was (largely) not required, I turn to address the evidence and other matters relevant to the Bank’s application to stay or dismiss Mr Hani’s proceeding. Application of Lebanese law 506 The parties agree that the relevant banking agreements are governed by Lebanese law. Translations of documents 507 The original language of the relevant Codes, decisions and documents of Lebanese courts is Arabic, and French in the case of decisions of the courts of France. The parties produced their own translations and I was provided with two sets of translations of documents prepared by translators, Ms Helena Saade and Ms Olivia Rjeily, both of whom hold relevant qualifications.117 Translations were not identical. 508 By reason of the way the parties conducted the trial, the summaries in my reasons are mostly derived from the translations of Ms Saade other than where only Ms Rjeily provided a translation. In summarising, I have closely adhered to the language used in the translations.118 Relevant Codes 509 The parties’ positions on relevant Lebanese law were based on expert opinion concerning the application and interpretation of a number of Codes and relevant Lebanese and French authorities. Reliance was mostly placed upon the Consumer Protection Law No. 659 promulgated 4 February 2005, Code of Money and Credit and the establishment of Banque du Liban Decree No. 13513 of 1 August 1963, Lebanon Code of Commerce Legislative decree No. 304 of 24 December 1942, Code of Obligations and Contracts Law of 9/3/1932 and Lebanese Code of Civil Procedure Legislative decree No. 90 of 16/9/1983. I attach as Attachment 2 to these reasons the translation of provisions of the Laws and Codes referred to by the parties. 510 As will become evident, there was little agreement between the experts on critical issues involving the interpretation and application of Lebanese Codes. 511 To assist in understanding the evidence, I interpose summaries of core provisions in the sections below dealing with the expert evidence. 117 Not every document was translated by both translators. 118 I have avoided the inclination to change the language for clarity which may have resulted in inadvertent alteration of meaning or nuance. -- 103 of 251 -- [2026] SASC 107 Stein CJ 100 Expert Evidence 512 Mr Abirached mostly gave his evidence through a French interpreter. Dr Kotob gave much of his evidence in English, after complaining about the accuracy of the Arabic interpretation. At times Dr Kotob asked for the interpreter to interpret specific answers. In my summary of cross-examination, I have endeavoured to replicate the language used during the trial even though at times it was difficult to follow. I have done so to avoid inadvertently misconstruing the evidence. For ease of understanding and to avoid some level of repetition, I have endeavoured to summarise evidence by topics even though the evidence was not called and did not flow in that way. 513 The style of the experts in giving evidence is relevant in light of criticisms, which I address below, of the independence of the experts and failures to answer questions directly or at all. 514 To avoid duplication, where possible some of the evidence is summarised in the sections in which I address the parties’ arguments on particular issues. Mr Abirached 515 Mr Abirached is a Lebanese banking and judicial systems expert with over 56 years of experience in the legal profession. He is a senior partner at a law firm and an expert in Lebanese law, banking law, company law, international commercial law and intellectual property. He was admitted to the Beirut Bar in 1965 and, among other qualifications, has Lebanese and French Masters of Laws degrees and a Diploma in Private Law from Paris University. He has provided expert reports on issues arising under Lebanese law in other matters. 516 Mr Abirached prepared two reports. The second report responded to certain issues raised in Dr Kotob’s and Dr Zbeeb’s expert reports119 and Mr Hani’s affidavits. Mr Abirached considers most of the statements in Dr Kotob’s reports are derived from news sources and his statements are unfounded. Civil law system 517 Mr Abirached explained that Lebanon’s legal system is a civil law system relying heavily on codified law. The Lebanese Code of Obligations and Contracts mostly derives from the French Civil Code of 1804 which sets out the general rules applicable to all civil matters. In addition, special laws are codified in the Lebanese Code of Civil Procedure, the Lebanese Code of Commerce and the Lebanese Code of Money and Credit. 518 According to Mr Abirached, in accordance with the Lebanese Code of Money and Credit, the Banque du Liban has power and authority to establish 119 Dr Zbeeb was not called at trial and I have therefore disregarded the sections of Mr Abirached’s report which are responsive to Dr Zbeeb’s reports. -- 104 of 251 -- [2026] SASC 107 Stein CJ 101 monetary policies of Lebanon and to regulate and organise the operations of the banks by issuing necessary decisions and circulars which are obligatory for banks. Court system 519 Mr Abirached explained that Lebanese civil courts have three degrees of jurisdiction: first instance courts, the Court of Appeal, and the Court of Cassation which does not rehear cases but has the power to quash decisions made by the lower courts on points of law. A Judge of Urgent Matters comprises a first instance court. 520 Mr Abirached says case law is not formally binding in the Lebanese civil system but in practice lower courts tend to follow previous decisions issued by upper courts. Most of the cases addressing international transfer rights have been issued by Urgent Matters Judges. Matters before Urgent Matters Judges are governed by Articles 579 to 588 of the Code of Civil Procedure. Those decisions have addressed requests from depositors seeking to enjoin the banks to pay them deposits which were being withheld by the banks allegedly in breach of contractual rights. Mr Abirached explains that a Judge of Urgent Matters can make orders without ruling on the merits but if a seriously disputed issue is submitted to the Urgent Matters Judge, the latter is required to rule that he or she has no jurisdiction. Pursuant to Article 584 of the Code of Civil Procedure, decisions of an Urgent Matters Judge do not have the force of res judicata. The order of an Urgent Matters Judge can be appealed within two weeks.120 521 Mr Abirached says decisions of Urgent Matters Judges are executable but, once appealed, the Court of Appeal may suspend execution. The same applies to appeals to the Court of Cassation. According to Mr Abirached, Lebanese courts enforce judgments once they obtain an exequatur which is an order to enforce in accordance with Article 1014 of the Code of Civil Procedure. The exequatur decision is issued by the President of the Court of Appeal and may be appealed to the Court of Cassation. Once an exequatur is obtained, the foreign judgment is treated like a Lebanese judgment in terms of enforcement. Mr Abirached is not aware of any steps taken to enforce in Lebanon favourable foreign judgments. Rules of construction 522 Mr Abirached explained the rules of construction as follows. The main principle is the principle of contractual liberty. Parties to a contract are free to organise their relationships as they choose without prejudice to mandatory legal provisions and may choose and agree the terms of their choice unless an overriding legal provision applies.121 Contracts lawfully formed oblige those who have made them.122 Contracts must be understood, interpreted and performed in accordance with good faith, equity and customs. This establishes the application of the principle “pacta sunt servanda” in Lebanese contract law, that is, the contract is 120 Art 586 of the Code of Civil Procedure. 121 Art 166 of the Code of Obligations and Contracts. 122 Art 221 of the Code of Obligations and Contracts. -- 105 of 251 -- [2026] SASC 107 Stein CJ 102 the law of the parties and the parties and the courts are bound by its terms. If terms of a contract are ambiguous or obscure, the court may interpret the terms. 523 The court follows certain principles which are set out in Articles 366 to 371 of the Code of Obligations and Contract. Mr Abirached summarises those principles as follows: • Courts seek a common intent of the parties rather than stopping at the literal meaning of words. • The judges may take into account the behaviour of parties, including after the contract was signed, as well as the context of the transaction. If judges cannot detect the parties’ intention, they interpret the clauses according to the meaning a reasonable person in a similar situation would give to the clauses. • Where a text is susceptible to two meanings, it is to be understood in the sense that better correlates with the purpose and spirit of the agreement and to mean that which may produce some effect rather than producing none. • All clauses are interpreted with reference to one another by giving to each one the meaning that results from the whole. • If doubt persists, the clause shall be interpreted in favour of the debtor. 524 The judge shall refer to customary rules even when those are not expressly included in the agreement. Tender and deposit procedure 525 In Mr Abirached’s view, in normal circumstances the Bank can release its debt by depositing a cheque with a notary public in accordance with the tender and deposit procedure. The court will assess whether the value of the cheque matches the value of the debt in deciding whether the process releases the Bank. 526 I pause to set out a quote of the translations of the account closing clause of the banking agreement and a summary of the relevant articles of the Code of Civil Procedure which relate to the tender and deposit procedure. 527 Ms Saade’s translation of the account closing clause is as follows: The Bank shall be entitled to close the Account(s), any time it deems appropriate and at its sole discretion. In such case, the Client undertakes to settle such Accounts immediately and provide the Bank with all the means made available to him/her to activate such Accounts as well as cancel the Electronic Banking Services. In case the Account has not been closed by the Client after a period of ten (10) days from the date the Bank informed him/her of the same, the Bank shall be entitled to withdraw the entire balance of the Account, to close it and to deposit the funds in the name of the Client at a public notary by the means of a formal offer and deposit according to the applicable legal proceedings. -- 106 of 251 -- [2026] SASC 107 Stein CJ 103 528 Ms Rjeily’s translation of that clause is as follows: The bank has the right to close the account(s) at any time at its absolute discretion. In this case, the client shall undertake to liquidate immediately these accounts and provide the bank with all delivered means to move them plus the cancellation of e-banking services. In the event, the client does not close the account after ten days of his notification by the bank, this latter has the right to withdraw the entire balance of the account, close it, perform a real offer in the mentioned balance in the name of the client through the notary public in accordance with legal regulations. 529 The Code of Civil Procedure provisions relating to the tender and deposit procedure provide, in summary, as follows. 530 Article 822 provides that a debtor seeking to discharge his liability to a creditor has the right to consign the amount he considers himself indebted to the creditor through a notary. The notary prepares a report documenting the actual tender and consignment and immediately notifies the offeree with a copy of the report. Article 823 provides that the creditor must respond by accepting or rejecting the tender within 48 hours from the date of notice, either through written statement on the notice document or by submitting a statement to the notary. Acceptance cannot be conditioned on any terms or reservations. If the tender is rejected, the notary must inform the debtor. Article 824 provides the debtor must file a lawsuit within 10 days of being notified of the creditor’s rejection to prove the validity of the actual tender and consignment, under penalty of forfeiting the effects of the said tender and consignment. The creditor may also file a lawsuit within 10 days of rejection to prove the invalidity of the tender and consignment. The lawsuit filed to validate or annul the tender and consignment shall be filed according to the standard rules for filing lawsuits. 531 Mr Abirached says the relationship between the Bank and account holder is governed by the Code of Commerce123 which provides that the bank which receives a sum of money as a deposit acquires ownership of it. It must refund it in one or several instalments of equivalent value on the depositor’s first request or within the terms of the time limit or prior notice laid down in the contract. Where the banks are not under an obligation to execute a transfer, the practical recourse to settle the debt is the tender and deposit procedure. Lebanese courts will take into consideration whether the cheque deposited with a notary public is equivalent to the debt or matches the object of the obligation in deciding whether the tender and deposit procedure releases the Bank from its payment obligation. 532 Mr Abirached says that, according to the majority of Lebanese court decisions, a bank cheque is no longer equal to the value of bank notes in light of currency devaluation. The mismatch between the cheque value and the value of bank notes is the result of abnormal circumstances in which the banking sector is operating, including Banque du Liban’s creation of two types of US dollars, those that entered the banking system before 17 November 2019 and those after. 123 Art 307 of the Code of Commerce. Applied by reason of art 123 of the Code of Money and Credit. -- 107 of 251 -- [2026] SASC 107 Stein CJ 104 According to Mr Abirached, courts have acknowledged the distinction in cases where banks have to repay to their clients their deposits made before November 2019 but have disregarded it where a client had to reimburse the bank for a loan made in US dollars. Mr Abirached says the discrepancy demonstrates that the decisions of the Lebanese courts are not in harmony and do not reflect a stable and clear vision and that the enactment of a clear law on capital controls is awaited as part of a comprehensive recovery plan. 533 Mr Abirached does not agree with Dr Kotob’s view that the fact the Bank resorted to the tender and deposit procedure terminated the contractual relationship between the parties. Mr Abirached says that position is contrary to the express terms of the law, referring to Articles 822 – 824 of the Code of Civil Procedure. Mr Abirached takes the view the tender and deposit procedure constitutes an offer that may be accepted or rejected and requires court validation. If the offer is rejected and the court has not validated it, the contractual agreement remains in effect. Accordingly, Mr Abirached considers the tender and deposit procedure a first step towards, but not alone sufficient to terminate the contract. If litigated in Lebanon, what matters would be considered by a Lebanese court? 534 In deciding whether or not to grant relief pursuant to Lebanese law, Mr Abirached said it would be necessary to analyse the agreement to determine whether there is an international transfer right in favour of Mr Hani. 535 Mr Abirached considers that in deciding whether the banking agreement gives rise to cross-border transfer rights in favour of Mr Hani, despite the absence of an express provision, Lebanese courts would consider the provisions of the banking agreement, the parties’ conduct, general principles of Lebanese law, or any other argument it deems relevant such as contractual right or custom. 536 In Mr Abirached’s opinion, the Bank has a contractual right to refuse to undertake the transfer. The right is not discretionary but to be exercised for legitimate reasons such as availability of funds and compliance. He says banks argue the current financial and economic crisis constitutes legitimate reasons or may be treated as a force majeure. There are no formal capital controls laws which allow a bank to reject a client’s transfer request. In assessing this matter, the courts would need to consider whether the Banque du Liban circulars oblige the banks to refrain from accepting cross-border transfers in cases other than those specified by the Banque du Liban. 537 In Mr Abirached’s opinion, the agreement terms and conditions do not expressly state the existence of an international transfer right in favour of Mr Hani. However, the interpretation of the agreement will seek to understand the various situations the parties intended to address, especially in light of any customs deemed to be included. 538 Mr Abirached considers the Lebanese court would likely look at: -- 108 of 251 -- [2026] SASC 107 Stein CJ 105 • the circumstances of the agreement including Mr Hani’s address and the source of the funds; • certain particular provisions of the agreement, especially: − the section entitled “Transfers” and any provisions relating to cross-border transactions to assess whether there is a distinction between domestic and international transfers; − Chapter 1 which refers to the terms and conditions in the agreement and in any application, document or annex whether attached or signed separately. 539 Among other matters, Mr Abirached also referred to the KYC form confirming Mr Hani is a dual citizen of Lebanon and Australia but not including outgoing wire transfers as an envisaged activity. 540 Mr Abirached said the question of international transfer rights is a difficult issue of Lebanese law on which no definitive ruling has emerged from the Lebanese courts. 541 Mr Abirached explained that most Urgent Matters Judges have determined the question of the existence of a transfer right is not seriously disputed and have accepted their jurisdiction. Urgent Matters Judges looking prima facie at the issue of a transfer right have considered several matters including: • customary practices, the economic development and the nature of commercial transactions; • general principles in the Lebanese Constitution; in particular, that the Lebanese economic system is free, guarantees personal initiative and private ownership; that the right of ownership is guaranteed by law; and that all Lebanese shall be equal before the law, equally enjoy civil and political rights and shall be bound equally by public obligations and duties; • the provisions of the contract; • the definition of the services provided by banks generally as defined by scholarly articles. 542 Mr Abirached says the final position under Lebanese law remains to be decided. 543 If the Court decides there is an international transfer right in favour of Mr Hani, then Mr Hani will be entitled to specific performance if the obligation is in line with his claim. Under Articles 249 and 250 of the Code of Obligations and Contracts, specific performance is the primary remedy for failure to perform a -- 109 of 251 -- [2026] SASC 107 Stein CJ 106 contractual obligation. Article 249 provides that to the extent it is possible, discharge of obligations must occur in kind as the creditor has an acquired right to the direct fulfilment of the obligation. Mr Abirached considers in the absence of a valid reason to excuse performance, the appropriate remedy would be to order performance of the transfer. 544 Mr Abirached says a Lebanese court would assess the applicable laws and regulations and any potential defences available under the contract or at law. Mr Abirached considers the applicable rules and regulations are to be understood in the political, economic and financial context in which banks are currently operating in Lebanon. 545 According to Mr Abirached, on 9 April 2020, Banque du Liban issued Circular 150 distinguishing between funds in the banking system before 9 April 2020 and new funds entering the banking system after 9 April 2020, which could be withdrawn in cash or transferred internationally to a foreign account without any restriction. Circular 165 of 12 April 2020 reset the date of distinction to 17 November 2019. 546 Mr Abirached says the Lebanese Parliament enacted law number 193 on 16 October 2020 followed by Banque du Liban Circular 155 dated 9 December 2020. This imposed on banks the duty to transfer from non-fresh accounts in foreign currency for one year up to $10,000 to pay tuition for Lebanese students studying abroad who were already enrolled in university and whose parents had accounts with a bank. Mr Abirached considers that, by that law, Parliament implicitly acknowledged the restrictions applied by the banks on international transfers of non-fresh funds. 547 Banque du Liban Circular 154 issued on 27 August 2020 requested banks to “urge” customers who obtained from banks a transfer abroad for more than US$500,000 or equivalent, despite the banks’ restrictions, to deposit in a term special account an amount equivalent to 15 to 30 percent of the transferred amount. 548 According to Mr Abirached, on 18 April 2023, the Lebanese Council of Ministers decided to request the Banque du Liban to take the mandatory and appropriate measures to enjoin banks to respect the ceilings for transfers and withdrawals or otherwise compel the banks to treat their clients equally without favouring any depositor. The decision stated that banks should afford their clients full liberty to dispose of their fresh funds. 549 Mr Abirached says that a Lebanese court would have to assess whether, in the absence of a capital control law, the Banque du Liban circulars which are mandatory for the banks implicitly provide that the banks may not transfer any amounts abroad for reasons other than those described in the circulars and thus constitute legal basis for them to refuse to effect international transfers. -- 110 of 251 -- [2026] SASC 107 Stein CJ 107 550 Mr Abirached says the Lebanese Parliament has not voted on a capital control law. 551 Mr Abirached considers the court would also take into account other matters including exceptional circumstances, force majeure and the tender and deposit procedure. Banks have argued that they are not under an absolute obligation to make transfers and such an obligation is subject to their approval. Mr Abirached considers that, as a matter of legal analysis, a transfer order received by a bank is a mandate to be accepted by the bank and the execution of the transfer constitutes the bank’s approval. A Lebanese court would need to consider the extent of the bank’s discretion to refuse to operate a particular transaction based on the terms of the banking agreement or other applicable principles. 552 Mr Abirached refers to the provisions of the banking agreement124 with Mr Hani which give the Bank the discretion to determine technical restrictions, the number of transactions and the cash value limit allowed for different transactions. He also refers to the limitation on liability of the Bank125 by reason of the unavailability of foreign currency especially as a result of decisions taken by the competent legislative or administrative authorities or for any other reason. Mr Abirached says the Lebanese court would analyse each reason to assess the legitimacy of the Bank’s refusal to perform the transfer. 553 Mr Abirached says banks have argued that the exceptional circumstances in which banks are operating justify their refusal to undertake international transfers as the controls have avoided insolvency and the collapse of the entire banking system. In the absence of an express text addressing the issue of exceptional circumstances under Lebanese laws, he says that in cases with similar context, courts have decided that the bank cannot plead exceptional circumstances unless such circumstances amount to a force majeure event. Under Lebanese law, in the context of the performance of contractual obligations, force majeure126 is an event that could not have been anticipated at the time of the conclusion of the contract (thus unforeseeable); beyond the control of the debtor so it cannot be imputed to the party availing itself thereof and that may not be avoided or mitigated (thus irresistible). The obligation of the debtor must have become impossible to perform and not merely more onerous. The onus is on the debtor to prove the conditions are met so he is released from performing the obligation. 554 Mr Abirached says the Lebanese economic and financial crisis, or any measures relating to it, would need to be examined to determine if they constitute force majeure. Mr Abirached considers the crisis may well be determined to be beyond a party’s control and may be considered unforeseeable for contracts entered into before November 2019. The key issue is likely to be whether the performance of the Bank’s obligations under the agreement is impossible. 124 Chapter 4/I/8. 125 Chapter 6/II/2/c. 126 Arts 243, 341, 342 and 343 of the Code of Obligations and Contracts. -- 111 of 251 -- [2026] SASC 107 Stein CJ 108 555 According to Mr Abirached, Lebanese banks rely heavily on the Banque du Liban for their foreign currency liquidity and Banque du Liban has restricted access to the foreign currency deposits of Lebanese banks for international transfers. He says the Bank has been operating with severe foreign currency shortages since October 2019 and economic turmoil and political unrest have since worsened with the Lebanese pound having lost more than 90 percent of its pre-crisis value according to the most recent World Bank report. That report stated that inflation averaged 171.2 percent in 2022, financial losses in the banking system exceeded US$22 billion, more than three times the value of Lebanese Gross Domestic Product, and the banking sector remained insolvent. 556 Mr Abirached notes that parties have the freedom to override the definition of force majeure by changing or supplementing it. He points to the provision of the banking agreement with Mr Hani127 which provides the Bank shall not be liable for damages resulting from a force majeure event or security incidents or other cause beyond the control of the Bank. Mr Abirached considers the scope of that provision is not clearly defined but the clause indicates the parties envisaged the Bank’s liability may be waived in the case of events which did not qualify as force majeure. 557 Mr Abirached refers to decisions of the Court of Cassation deciding that: • whether a depositor’s request to transfer funds outside Lebanon is an obligation of the Bank; and • whether a cheque issued on Banque du Liban in favour of a depositor in an amount equal to the amount of the funds requested to be transferred constitutes performance of the Bank’s obligations are questions that relate to merits and fall outside the scope of the jurisdiction of Urgent Matters Judges. 558 He considers those decisions end the question of competence of Urgent Matters Judges to decide disputes between depositors and banks. Depositors may file cases on the merits before a court of first instance requesting the same relief but the final position of Lebanese courts on these cases is still to be decided. Mr Abirached refers to a decision dated 8 January 2024 in which the Court of First Instance in Beirut rejected the plaintiff’s request for a declaration that the Bank of Syria and Lebanon was in a state of cessation of payment pursuant to Article 4 of Law No. 2 of 1967 (which established special provisions concerning banks in default of payment). According to Mr Abirached, the Court referred to the difficulties of banks in Lebanon and concluded the crisis affects the entire financial system. In Mr Abirached’s view, the decision is important because it describes and characterises the banking crisis in Lebanon as systemic. 127 Chapter 6/II/2. -- 112 of 251 -- [2026] SASC 107 Stein CJ 109 Mr Abirached accordingly takes the view that Lebanon’s political and economic circumstances are relevant to Mr Hani’s claim. 559 Mr Abirached refers to a decision of the Beirut Court of Appeal dated 21 May 2024, decision on the merits number 398, which rejected the request of a depositor seeking to compel the Bank to transfer the balances of their dollar and Euro accounts to another bank. According to Mr Abirached, the Court declared the foreign transfer request null because of a defect in signature. The Court validated the Bank’s tender and deposit process and, according to Mr Abirached, based its reasoning on a World Bank report from June 2023, highlighting Lebanon’s systemic banking crisis. The Court concluded the Bank faced circumstances beyond its control which impacted its foreign currency liquidity and rejected the request to compel the Bank to execute the transfer. 560 In Mr Abirached’s opinion, if a court in Australia applied Lebanese jurisprudence it would require the court, in the absence of a Court of Cassation case to the contrary, to consider factors similar to those referred to by the Court of Appeal concerning the systemic nature of the banking crisis and the impact of court decisions on all banks and the Lebanese economy. Exclusive jurisdiction clauses 561 Mr Abirached says the choices open to a plaintiff under Lebanese law are limited and specified by Article 100 of the Code of Civil Procedure and the application of alternatives leads to the jurisdiction of Lebanese courts, as opposed to foreign courts. According to Mr Abirached, the choices available under Article 100 are not applicable in the presence of an exclusive jurisdiction clause which is valid and enforceable. 562 Mr Abirached states that it appears it was known to the Bank that Mr Hani was a Lebanese and an Australian national and had residences in both countries and a business in Australia but Mr Hani, in the agreement, elected domicile at his Lebanese address. In Mr Abirached’s view, this does not affect the validity of the forum selection clause or competence of the court. In his view, the court will consider domicile in accordance with Articles 100 and 101 of the Code of Civil Procedure. Mr Abirached does not agree with Dr Kotob that the jurisdiction clause is void, inapplicable and should be redrafted. 563 According to Mr Abirached, in order to conclude a valid contract under Lebanese law there are three requirements: • consent of the parties; • an existing and lawful cause of the obligations (that is the counter obligation of the other party); and • a defined and lawful subject matter of the contract. -- 113 of 251 -- [2026] SASC 107 Stein CJ 110 564 According to Mr Abirached, consent is vitiated or excluded when given in error, obtained by fraud or extorted by fear, or in the case of abnormal deceit and incapacity.128 Other than in those cases, contracts lawfully formed are binding on the parties and must be understood, interpreted and carried out in conformity with good faith, equity and usage.129 Mr Abirached says that iniquity is a discrepancy or lack of equilibrium between the obligations in favour of one party and imposed on the other party in onerous contracts.130 Iniquity does not vitiate consent except in expressly defined cases.131 Contracts may be voided by reason of iniquity when the aggrieved party is a minor or the injury is excessive or abnormal and the beneficiary wants to exploit the distress, recklessness or inexperience of the aggrieved party.132 I pause to observe that the clauses referred to by Mr Abirached were translated differently by the translators. Among other things, Ms Saade’s translation refers to “deceit”, while Ms Rjeily’s refers to “iniquity”. Mr Abirached considers this does not apply to Mr Hani as he is of legal age and a businessman involved in stock market investment who proactively sought to enter into an agreement with the Bank that he determined to be beneficial. 565 Mr Abirached reiterated his view that Article X is clear and does not create any confusion and Lebanese law gives primary importance to the actual agreed text. Where that text is clear, there should be no deviation from it. Fair trial in Lebanon 566 Mr Abirached was asked to give his opinion on whether Mr Hani could obtain a fair trial in Lebanon. 567 As set out above, Mr Abirached explained the hierarchy of the courts of Lebanon and then referred to articles of the Code of Civil Procedure which provide additional guarantees for proper functioning of the judiciary. The judiciary is independent133 and any person regardless of nationality may file claims or defences in Lebanese courts.134 Lower courts follow higher court decisions even though they are not bound to do so. The law governing the organisation of the judiciary, among other things, gives the Higher Judicial Council the task of ensuring the proper functioning of the judiciary, the courts and judicial independence.135 The Judicial Inspection Agency monitors and controls the proper functioning of judges and can consider complaints. 568 According to Mr Abirached, the Lebanese judicial system has been reliable in deciding civil and commercial disputes despite disruptions from war between 1975 and 1990, the financial crisis and the pandemic. Judges went on strike 128 Art 220 of the Code of Obligations and Contracts. 129 Art 221 of the Code of Obligations and Contracts. 130 Art 213 of the Code of Obligations and Contracts. 131 Art 214 of the Code of Obligations and Contracts. 132 Art 214 of the Code of Obligations and Contracts. 133 Art 1 of the Code of Civil Procedure. 134 Art 3 of the Code of Civil Procedure. 135 Law-Decree 150/83. -- 114 of 251 -- [2026] SASC 107 Stein CJ 111 between August and December 2022 which impacted the total number of decisions issued in 2023. Mr Abirached says the relief sought by Mr Hani can be requested before Lebanese courts and specific performance is the primary remedy. Mr Abirached says decisions issued by Judges of Urgent Matters in cases brought by depositors against banks have mostly been appealed and appeals are still pending. 569 Mr Abirached does not believe banking strikes have impacted judicial decisions, despite adverse press about judicial decisions said to result in depletion of banks’ foreign reserves and unfairness that loans can be repaid in US dollars. 570 Mr Abirached says after hostilities between Lebanon and Israel ceased in September 2024, relevant courts in Beirut had been operating in the same way they previously operated. A new President has been elected and a new government formed. At the time of his report, the General Assembly of the Court of Cassation could not meet because it was missing six out of 10 members. 571 Mr Abirached says that if Mr Hani filed a case in Lebanon, he would not need to attend in person but appoint a lawyer with a notarised power of attorney. Exchanges are completed in writing as, pursuant to the Code of Civil Procedure,136 a case is submitted through written pleadings with all necessary documents. Additional briefs may be submitted if there is a justified reason. Ordinarily, in non-urgent matters, hearings are postponed one to two months. Parties may submit a written memorandum to complete or clarify points in their pleadings with a process for submitting a memorandum and a counter-memorandum. There is a judicial vacation from 15 July to 15 September each year. 572 Based on his experience, Mr Abirached says the timeframe from when a statement of claim is submitted to the date of exchange being completed before a court of first instance is around 1.5 years with another two to six months for issue of a decision. The timeframe increases if the Judge calls witnesses or an expert is appointed by the court or either party submits an expert report. Appeal stages usually take about two years. Cassation stages vary considerably and decisions generally take two years or more to deliver. Mr Abirached does not see any issues that would take Mr Hani’s case outside the usual timelines. Additional evidence under cross-examination 573 Mr Abirached confirmed he had read the Expert Code of Conduct and he understood that he was not advocating for any particular party but rather helping the Court. 574 Mr Abirached said the Code of Civil Procedure has extensive provisions addressing the presence of parties in court. The defendant can ask for the applicant to be present or vice versa or the Judge can take the initiative and ask for the 136 Art 442 of the Code of Civil Procedure. -- 115 of 251 -- [2026] SASC 107 Stein CJ 112 defendant or applicant to be present. He is not aware of any case where that has ever arisen but it is a matter of discretion. Authorities 575 During cross-examination, Mr Abirached was taken to a number of Lebanese authorities and asked questions about them. 576 Mr Abirached agreed the decision of the Court of First Instance of Beirut dated 8 January 2024 regarding Bank of Syria and Lebanon SAL was based on the meaning of Article 4 of Law No. 2 of 1967, it was a case on insolvency and Article 4 of that law was not applied. Mr Abirached did not agree that Article 4 of Law No. 2 of 1967 did not apply to a dispute by a depositor seeking the return or transfer of their funds, saying Article 4 was not specific and applies to all enterprises, not just banks. When asked if he agreed that Article 4 had no application to a possible defence by a bank to a claim made by a depositor seeking to recover their funds from a bank, Mr Abirached responded by posing a hypothetical case of Mr Hani bringing an action before the Insolvency Chamber alleging the Bank was insolvent but said the refusal of the Bank to make an international transfer does not mean Mr Hani could bring an action before the Insolvency Court which would have to find itself competent on the basis the Bank was insolvent. 577 When asked whether a section of his first report was a substantial cut and paste from paragraph 22 of the decision of Manoukian, Mr Abirached responded that he did not have the Manoukian judgment and he did not study it and he stated facts concerning the banks and banking practices. 578 Mr Abirached was asked whether he agreed that decision 398 of the Beirut Court of Appeal dated 21 May 2024 concerned the meaning and application of Article 50 of Law No. 81 of 2018. Mr Abirached said the case concerned a request for an electronic transfer of funds by a depositor but the signature did not comply with electronic signing requirements. When asked whether he agreed it was as a result of the contractual transfer request being invalid that it became necessary to consider Article 50, Mr Abirached said everyone knows the value of cheques drawn on the Banque du Liban are no longer representative and are not adequate to settle a debt in full unless the creditor accepts so, so the Bank turned to the tender and deposit process requiring validation or cancellation of the tender process on the basis the cheque is insufficient. Mr Abirached said if a depositor then brings an action for payment for what the bank owes them, one moves into the realm of insolvency. When asked again if he agreed it was only because the Court validated the tender and consignment procedure that there was any recourse to Article 50 of Law No. 81 of 2018, Mr Abirached said the signature was defective, the Bank was not obliged to execute the electronic transfer and Law No. 18 was referred to in the light of that finding, adding that he did not say this was a good judgment. Mr Abirached said he cited this decision because the Court based its reasoning on the systematic nature of the banking crisis affecting all banks. Mr Abirached then -- 116 of 251 -- [2026] SASC 107 Stein CJ 113 said that the legislature is not doing its job; it should have implemented a capital control law; this was a systematic crisis for which the Banque du Liban and the government were all responsible and the World Bank recommended stopping foreign currency outflows. 579 When asked if he agreed there was no Lebanese court decision where a court has held it is relevant to consider the impact of the court’s decision on a contractual transfer right on the Lebanese economy in general to determine the contractual claim, Mr Abirached said he did not understand the question completely, but referred to an economic reason to prohibit outflows of foreign currency. When asked again, Mr Abirached said the jurisprudence was initially favourable to depositors and but was now hardening in favour of banks. 580 Mr Abirached agreed that the decision 398 of the Beirut Court of Appeal dated 21 May 2024 has been appealed to the Court of Cassation. Capital control law 581 Mr Abirached said the previous day, three new Justices were appointed to the Court of Cassation and consequently there was now a coram of five members on the Bench. 582 When asked whether he was aware that there was an announcement of a new law about banking, Mr Abirached said he knew there was a draft Bill which was still to be debated and the way he could help this Court was by giving information on law, not draft Bills. When asked whether he agreed there was still not a proposed law to address the conflict between the interests of depositors and banks, Mr Abirached said there was nothing in terms of a decision of the Court of Cassation. When asked the question again, Mr Abirached responded again in similar terms. Mr Abirached then agreed there was no proposed law to be made by the Lebanese Parliament to resolve the dispute between the position of depositors and the banks. Tender and deposit process 583 When asked whether he agreed that if a cheque deposited under a tender and deposit procedure was worth one-fifth of the value of the deposit, there would not be an equivalent value for the purposes of Article 307 of the Code of Commerce, Mr Abirached said he did not understand the link with Article 307. He said it is clearly accepted that a cheque deposited does not have the same settlement value and does not have the same value as its equivalent in banknotes and that was well known, although he would estimate a little more than one-fifth of value. When asked to assume that if a Lebanese court finds the value of the cheque was not equivalent, the court would not validate the tender and deposit procedure, Mr Abirached said he knew the answer, but this was a matter that should be debated between lawyers and it was not for him to give an opinion. Mr Abirached said he would not share his thoughts and he did not see why he was obliged to -- 117 of 251 -- [2026] SASC 107 Stein CJ 114 answer the question. When I then asked him to answer that question, Mr Abirached said it was outside his instructions. 584 Mr Abirached said the cheque does not represent the full value of the deposit and this will give rise to a claim by the creditor because the creditor must have their debt paid in full. If it is decided the cheque given to the notary does not represent the total debt owed, the creditor will have a claim for the unpaid balance but this went to the merits and it was not up to him to answer. 585 When asked if he agreed that depositing a cheque with a notary would not be the equivalent of the right, Mr Abirached responded that a notary cheque does not represent the same value in banknotes and added that the Manoukian case was outside the instructions given to him. 586 Mr Abirached was asked to assume that a Lebanese court does not validate the tender and deposit procedure, the contractual relationship is not terminated and the contract contains a transfer right. On those assumptions, Mr Abirached was asked whether a depositor could sue the Bank for the transfer of funds under the contract. Mr Abirached said the question whether the Bank is obliged to make the international transfer can only be resolved by interpretation of the contract and there is a distinction between domestic and international transfer. He could not make the assumptions asked of him but said there is a dilemma between private and public interests in Lebanon. The public interest contemplates the survival of the Lebanese banking system and he did not see why the depositor, having elected domicile in Lebanon and having Lebanese nationality, should be awarded a privilege over other Lebanese depositors. When asked the question again, Mr Abirached said if the contract obliged the Bank to make an international transfer, the depositor could bring an action for what is owed by means of international transfer. However, he said there are hundreds of thousands of Lebanese customers who cannot access deposits and then posed as a question why a Lebanese person who claims they have overseas residence should be privileged over other depositors in the country? Mr Abirached then said he asked counsel not to ask any more questions outside the instructions given to him by his lawyers. 587 I return to address Mr Abirached’s evidence on jurisdiction, the Consumer Protection Law and potestative clauses separately below. Dr Kotob 588 Dr Kotob has a doctorate in law, specialising in financial laws, is a professor of law at the Faculty of Law and Political and Administrative Sciences at the Lebanese University, which is the main university in Lebanon, and holds the rank of full Professor and Jury in the Joint Advisory Committee for promoting professors of higher education in Lebanon and the Arab world. Dr Kotob works as a consultant and trainer for the banking sector, has supervised the doctoral theses of numerous students, previously served as the director of the Faculty of Law at the Lebanese University and is currently the head of the Department of Law. Dr Kotob has written books and articles concerning finance, law and banking. -- 118 of 251 -- [2026] SASC 107 Stein CJ 115 Dr Kotob’s doctorate and Masters degree are from the Lebanese Beirut Arabic University. His doctoral dissertation addressed methods of privatisation of public utilities with both a legal and economic perspective. Dr Kotob has a degree from the National Institute of Administration which is a public institution preparing leaders and which provides courses about law, public administration, management and economics. Dr Kotob is the head of the Public Law Department at the Lebanese University. Dr Kotob has taught public finance, law, taxation law, administrative law and banking and monetary economics, teaching in the Faculty of Law. Dr Kotob has published four books. The latest in 2025 relates to administrative law. He published a book which was an introduction to public finance in 2017 concerning the rules governing public finance and the finance of the government and public institutions in Lebanon. He has published a book on the taxation system in Lebanon. His texts are for students and lawyers. Dr Kotob was the head of the taxation department and a financial controller in the Ministry of Finance before entering academia. 589 Dr Kotob said he understood the Expert Code of Conduct and followed it. He understood he worked impartially and is independent. Interpretation of legislation 590 Dr Kotob says the start point is the clear and unambiguous meaning of the text. Where words are plain, it must be applied as written without recourse to extrapolation. When ambiguous or subject to multiple meanings, the interpretation that best reflects the legislator’s true intent must prevail. The intent is drawn from the spirit of the law at the time of its enactment. Preference is given to the interpretation ensuring the effectiveness of a provision over one rendering it inoperative. The provisions of a legal text are interpreted coherently in light of the text as a whole. 591 The interpretation approach focuses on interpreting the text in a way to achieve the legislator’s intended purpose, taking into account evolving social and economic conditions. The judge can align the law with current reality providing they do not create new legal rules beyond the spirit of the text. 592 In the event of a conflict between a general and a specific provision, the specific rule applies. For example, the Consumer Protection Law will take precedence over general provisions in the Code of Obligations and Contracts. 593 In the absence of any applicable legal provision, the judge may apply analogous rules or resort to general principles, custom and equity. 594 When ambiguity exists in a legal provision, interpretation favours the consumer. 595 Courts in Lebanon follow an interpretative framework involving three steps: -- 119 of 251 -- [2026] SASC 107 Stein CJ 116 1. The Court interprets the provision in light of the broader legislative context in which it appears, ensuring consistency with other relevant provisions. 2. The Court analyses the language in the text according to established legal terminology. 3. The Court evaluates whether the legal rule is applicable to the specific facts of the case. If inapplicable, it must be set aside in favour of a more appropriate rule, providing the application remains faithful to the legislator’s intention without distortion of the provision. Finance mechanisms and banking crisis 596 According to Dr Kotob, prior to the financial crisis in 2019, Lebanon was a regional financial hub, attracting savers wishing to profit from high interest rates and banking secrecy laws. He opines that in that period, the Banque du Liban used mechanisms to enable the Lebanese pound to be pegged to the US dollar at a rate of US$1 to LL1,500 for over two decades. However, those mechanisms were short term solutions which lacked a proper financial foundation. Dr Kotob says that in August 2019, banks started to limit depositors’ access to their own foreign currency funds by imposing monthly cash withdrawal limits from US dollar accounts. After protests in October 2019, banks shut their doors for two weeks, fearing a depositors’ rush. After re-opening, banks instituted informal capital controls to limit the amount of US dollar amounts that could be transferred out of the country or withdrawn in cash, resulting in a collapse in the currency to an exchange rate of US$1 to LL34,000 in January 2025. 597 According to Dr Kotob, the banking restrictions created two tiers of US dollars. The first is fresh dollar funds accounts created by international transfer after 17 October 2019 which are totally accessible and from which amounts can be withdrawn and transferred to international bank accounts. The second are amounts deposited before 17 October 2019 (referred to as “lollars”) that are subject to informal capital controls and can only be used for interbank transfers, national cheques and payments within Lebanon. According to Dr Kotob, this distinction is not based on legal rules but procedures imposed by banks and the Banque du Liban has not issued clear regulations requiring these procedures. Dr Kotob describes Lebanon’s financial collapse as the world’s worst since the 1850s, evolving daily with frequent decisions from the Banque du Liban, attempts to resolve matters in Parliament and attempts by courts to reach fair decisions. 598 According to Dr Kotob, the decision in March 2020 by the Lebanese Prime Minister to default on payment of Eurobonds was very harmful to the banks because banks used depositor’s assets to buy government bonds. When governments ceased payment, this resulted in the bank’s justification for restrictions imposed on withdrawal of deposits. However, Dr Kotob considers that generally accepted banking rules require banks not to use deposit funds in high-risk situations, but the banks nevertheless used deposits for loans to government, -- 120 of 251 -- [2026] SASC 107 Stein CJ 117 despite knowledge of the poor financial condition of the Lebanese government and widespread corruption. According to Dr Kotob, banks did not manage deposits rationally. 599 On 6 February 2023, banks commenced a strike with the ABL asking authorities to pass measures to deal with the financial crisis. According to Dr Kotob, the decision was made after a meeting by the ABL to discuss judicial measures taken against the banks and their impact on banking workflow and the rights of depositors. According to Dr Kotob, the strike was an attempt to pressure Lebanese judiciary not to take action against the interest of banks, with banks referring to arbitrary judicial decisions draining their foreign currency reserves. The strike was said to follow a Court of Cassation decision on 1 February 2023 in Beirut in favour of depositors which reversed a Court of Appeal decision suspending an order of enforcement. Dr Kotob considers the Lebanese judiciary is under pressure from banks seeking to undermine decisions leading to the restoration of depositor’s rights. Legal system 600 Dr Kotob explained that most Lebanese laws are inspired by French and other European laws, including the Code of Civil Procedure, the structure of the Lebanese legal system is inspired by French law and Lebanese jurisprudence is influenced by that of France. 601 The Lebanese legal system has first instance, appeal and cassation levels of jurisdiction. To commence first instance proceedings, the plaintiff may file a claim before a judge in Urgent Matters or before a court constituted by three judges acting as a primary court. Court of First Instance judgments can be appealed. Court of Appeal decisions can be overturned by the Court of Cassation for reasons specified by law. A Judge of Urgent Matters handles urgent cases. These judges have the authority to make prompt decision, such as restraining orders and emergency injunctions. Decisions can be directly enforced before the Enforcement Department but Enforcement Department decisions are subject to appeal. The Judicial Enforcement Department is a specialised division responsible for enforcing court orders and judgments. It collects fines, evicts people, seizes property, issues and executes writs of execution and collects debts through methods such as garnishing. It can impose penalties for non-compliance. Execution Bureau and Beirut Enforcement Agency refer to the same entity. The decisions of Judges of Urgent Matters can be appealed as can the decisions of the Enforcement Department. They are considered non-final until the deadline for appeal has passed. Circulars and cheque value 602 Dr Kotob says banking cheques relating to “lollar” accounts were not accepted in banking and financial markets but are subject to a deduction of about 85 percent as a consequence of which the cheques do not grant to the depositor their full right, giving a depositor 15 percent of fresh US dollars only. -- 121 of 251 -- [2026] SASC 107 Stein CJ 118 603 Dr Kotob says the Banque du Liban of Lebanon has issued a series of circulars over two years to try to curb the crisis and stabilise the currency. According to Dr Kotob, on 3 April 2020, Circular 148 allowed small depositors to withdraw the full amount in Lebanese pounds at the market rate and perform other cash transactions. Circular 151 dated 21 April 2020 allowed depositors with foreign currency accounts exceeding US$3,000 to withdraw cash in Lebanese pounds at a rate of one US$1 to LL3,900 within their cash withdrawal limit defined by each bank. Circular 151 was amended in 2021 to increase the rate to US$1 to LL8,000, explained by Dr Kotob as a consequence of a massive increase in the black market rate. Dr Kotob considers the circular constitutes a “hair cut” as withdrawals would entail the loss of more than 80 percent of true market value of the accounts. He says Circular 154 dated 27 August 2020 requires banks to conduct a fair assessment of their assets and liabilities and develop a plan to ensure compliance with regulations, especially those relating to the liquidity and adequacy of capital. That circular imposed an obligation on banks to try to convince depositors to take up an option of converting deposits into shares, or tradable, convertible, perpetual bonds with a view to restructuring the banking sector. Dr Kotob considers there were no serious measures to implement the circular or restructure the banking sector. Dr Kotob says Circular 158 on 8 June 2021 set out a framework to allow depositors to withdraw amounts from foreign currency “lollar” accounts. Depositors were allowed to withdraw the equivalent US dollars on a monthly basis worth US$400 in cash and LL400 at an exchange rate of US$1 to LL12,000. The circular sets a cap on funds redeemable to US$50,000 with a total annual withdrawal limit not surpassing US$4,000 per depositor. Dr Kotob says Circular 154 does not apply any longer to depositors who chose to apply Circular 158. Circular 161 dated 16 December 2021 allowed depositors to withdraw US dollar cash amounts from Lebanese pound accounts at a “Sayrafa” electronic platform rate within their cash withdrawal limit as defined by each bank. It also applies to holders of “lollar” US dollar deposit accounts. The circular is subject to a cash withdrawal limit of US$3,000 per month. Dr Kotob considers that if depositors implemented the circular, their loss would exceed 60 percent. There is an exception for international wire transfers for students abroad in Circular 153 issued on 19 August 2020 which allows depositors to transfer US$10,000 or equivalent to students abroad enrolled in an educational institution and living abroad before the end of 2019. 604 Dr Kotob says the Lebanese Parliament passed a law providing for one-time financial transfers of no more than US$10,000 which resulted in Circular 155 on 9 December 2020. 605 According to Dr Kotob, Circular 165 issued on 19 April 2023 creates a new monetary system including the use of cash deposited after 19 October 2019 and regulates the handling of electronic cards related to them. Dr Kotob considers the banks will create a new monetary system based on the “ruins” of the old monetary system prior to 19 October 2019. He says Circular 165 requests banks to open new accounts with cash funds in US dollars and Lebanese pounds to be used -- 122 of 251 -- [2026] SASC 107 Stein CJ 119 exclusively to settle electronic bank transfers in cash and to clear cheques in funds transferred from abroad or received in foreign currency after 17 November 2019. 606 Dr Kotob says the Information Technology Directorate at the Banque du Liban will be required to issue a new smart card for use instead of cash on such accounts. The word “fresh” will be added to cheques to distinguish them from other cheques in circulation. Dr Kotob believes that the circular will reduce the use of cash and there are doubts about the fate of all deposits in banks not yet returned to their owners. 607 Dr Kotob says a legal researcher in banking law has argued that banking custom has allowed transfers as a right of the depositor for more than 70 years. According to Dr Kotob, none of the circulars of the Banque du Liban include any restrictions on transferring funds abroad and there are no other circulars imposing such obligation. Dr Kotob also takes the view the ABL does not have any specific regulatory role stipulated by law and their decisions do not bind depositors. The Monetary and Credit Law gives the Banque du Liban regulatory authority. According to Dr Kotob, the head of Beirut’s Enforcement Department in 2021 affirmed that using circulars of the ABL to reject transfer requests after 18 November 2019 was invalid as the ABL is not a legislative source. 608 Dr Kotob considers Banque du Liban circulars do not include clear, explicit, and direct restrictions on preventing overseas transfers. According to Dr Kotob, while courts interpret Banque du Liban circulars as binding for banks, in the absence of a specific law on capital controls there is no absolute restriction on international transfers. Dr Kotob agrees that the Banque du Liban enacts regulations by making directives and circulars and banks may be subject to penalties in the event of non-compliance. However, Dr Kotob considers there are no circulars nor decisions issued by the Banque du Liban placing restrictions on transfers abroad and the circulars and decisions are subject to supervision of the Lebanese judiciary. Dr Kotob also considers a constitutional right allowing freedom of capital movement cannot be constrained by implicit measures in a regulatory circular. Dr Kotob says if Circular 158 applied to Mr Hani, he could not recover the full amount of his deposit. Capital control law 609 Dr Kotob says no capital control law has been introduced to address the crisis and there is therefore no legal framework for restrictions of withdrawals or prohibiting international transfers. Dr Kotob does not anticipate a capital control law being approved in the near future. 610 Dr Kotob says depositors have lost their trust as a result of the restrictions implemented by banks outside legal frameworks and, according to Dr Kotob, there has been a wave of claims filed by depositors against Lebanese banks before Urgent Matters Judges seeking withdrawal of deposits or transfer to international accounts. -- 123 of 251 -- [2026] SASC 107 Stein CJ 120 Tender and deposit procedure 611 According to Dr Kotob, if the Bank presents a cheque payable in Lebanon through a notary public, the depositor has the following options: • cash the cheque in Lebanese pounds at the official exchange rate which will result in a loss of over 90 percent of its value; • deposit the cheque in a “lollar” account with a different Lebanese bank if the second bank agrees. The second bank will most probably reject the international transfer; • open a new “lollar” account, but that is not an option currently offered by banks; • discount the value of the cheque on the black-market rate to about 15 percent of its value; • file a lawsuit. 612 In the context of current economic conditions, Dr Kotob considers any judge will find the value of the cheque is not proportionate to the deposit’s value. 613 While agreeing Article 221 of the Code of Obligations and Contracts provides that contracts lawfully formed oblige those who have made them, Dr Kotob points out that under Consumer Law, contracts classified as compliance contracts have benefits against arbitrary clauses. Dr Kotob states that if the tender and deposit process is adopted, it must be in accordance with the actual value of the deposit and in this case, the value of the cheque will not equal the value of the deposit. 614 Dr Kotob says the procedure by which a bank cheque is deposited with a notary public strips depositors of their ability to bring proceedings and stands in the way of court rulings that can be rendered in favour of depositors. According to Dr Kotob, Manoukian137 deemed the process a fraud. Dr Kotob considers that even if a cheque can be assumed to be a means of compensation, the discharge is only achieved after disbursement of the cheque in accordance with the value specified in it. Fulfilling the delivery of a cheque that is accepted by the creditor is not a renewal of the debt contract, but the original debt remains in place with all of its guarantees until the cheque is paid.138 Thus, a cheque is not a means of payment until its value has been received. Dr Kotob says the bank is obliged to secure the provision of the cheque and enable the depositor to obtain its full value. 615 Dr Kotob considers the placement by banks on cheques of the words “to be cleared only in Lebanon” is contrary to Lebanese law and an attempt to make the cheque valid only for internal circulation. Lebanon is a member of the Geneva 137 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 138 Art 444 of the Code of Commerce. -- 124 of 251 -- [2026] SASC 107 Stein CJ 121 International Convention which, according to Dr Kotob, promulgated a uniform law for cheques on 19 March 1931. That convention ratified the cheque as an external means of circulation and Dr Kotob considers it obliges banks to enable a depositor to disperse a cheque outside Lebanon. Dr Kotob considers compensation through bank cheques an unreasonable process if the creditor cannot disperse the cheque for its listed value. In his view, when the discounted amount reaches approximately 85 percent, the cheque cannot be considered a method of settling the bank’s debt. 616 Dr Kotob referred to a number of judicial decisions including of the Court of First Instance in Beirut ruling the bank is obliged to immediately reimburse money in cash not through bank cheques which lose their value. Dr Kotob said the Head of the Enforcement Department issued a decision on 30 November 2021 referring to legal violations committed by banks that refrain from making international transfers in the absence of explicit legislation. According to Dr Kotob, the ruling means that banks are obliged to make international transfers even if a cheque states it is only to be compensated in Lebanon. He says Judge Anani has issued related decisions guaranteeing the rights of a depositor and ordering the seizure of the bank’s assets to secure the depositor’s right. Dr Kotob points out that these decisions are subject to appeal and cassation, preventing execution, and consequently finalisation of rights remain pending. 617 Dr Kotob considers that under the provisions of the banking contract with Mr Hani, the Bank did not allow Mr Hani to withdraw his deposit or transfer it abroad and that is contrary to the contract. Dr Kotob said the Bank’s action is conditional on the depositor not closing its account. In this case, Mr Hani tried to do so but the Bank did not allow that. As the Bank did not allow the customer to apply the requirements, the Bank’s action contradicted the contract. The Bank did not make a real offer through the notary public because the bank cheque is not a means of payment as its actual value does not equal the value in it and accordingly Mr Hani’s rights had not been fulfilled and the contract expired. According to Dr Kotob, the closure of the account ends the contract. Thus, the dispute is no longer over a deposit on the basis of the concluded contract but a dispute over a debt held by the Bank which it has not fulfilled and is a dispute relating to the general rules of obligations as between individuals. Nature of bank contract/deposit 618 Dr Kotob says any contract concluded by Lebanese people on Lebanese territory is subject to the Lebanese Code of Obligations and Contracts. A deposit contract is also part of banking operations regulated by Article 5 of the Lebanese Code of Commerce. Article 307 of the Lebanese Code of Commerce provides that: A bank that receives, by way of deposit, an amount of money, becomes it owner and must return its equivalent value either through one or several payments at the depositors first request, either in accordance with the terms of the time limits, or based on the preceding declarations specified in the contract. -- 125 of 251 -- [2026] SASC 107 Stein CJ 122 619 According to Dr Kotob, the Lebanese Monetary and Credit Law requires bank deposits to be subject to the provisions of Article 307 of the Code of Commerce, as a consequence of which banking law has recognised the application of the Code of Commerce to a bank deposit contract. Dr Kotob says that a bank deposit is a consumer loan and subject to the provisions of the Code of Commerce as a consequence of decision 214 of the Court of Cassation dated 21 December 2000. 620 According to Dr Kotob, jurisprudence has settled on defining a bank deposit contract as a consumer loan where ownership of money lent by the creditor is transferred to the borrowing depositor who utilises it in his or her own investment, providing the latter commits to repaying its value to the creditor. As a result, because the Code of Commerce does not address consumer loans provisions, it is necessary to consider the Code of Obligations and Contracts for definitions of a deposit and rules relating to consumer loans. That Code, among other things, provides that if a sum of money is deposited, and the depositary is authorised to use it, then the contract will count as a consumer loan.139 621 Dr Kotob says this article reciprocates the provisions of Article 740 which requires the borrower to return, within the agreed time limit, the amount loaned plus any amounts compounded since the date of the loan. Thus, the creditor hands over money to the borrower, provided the borrower pays back in similar amount and type within the agreed period140 and a borrower must return the subject borrowed in similar type and value.141 Dr Kotob says this obliges the bank to return the deposit in the same currency in which it was deposited. 622 Dr Kotob considers that a deposit for a certain term means that, on the expiry of the term, at the customer’s request to withdraw, it must be returned to the depositor leading to the termination of the contractual relationship between the parties. Failing to return the deposit, according to Dr Kotob, means the bank has violated the contractual agreement and unlawfully seized cash funds. 623 Dr Kotob says all methods adopted by the Lebanese banking system in light of the current crisis and plans put in place based on Banque du Liban circulars lead to loss of value of depositors’ funds and assets and contradict the contractual relationship with the bank. In his view, if the bank loses funds, the bank has total legal responsibility and is obliged to return the funds. Dr Kotob’s opinion is that it is contrary to Lebanese law to say the bank has the right not to refund deposits based on the default of a third party. 624 Dr Kotob considers the steps taken by the ABL in imposing restrictions on the withdrawal of deposits in foreign currencies violates the deposits provisions in the Lebanese legal system and these procedures are not based on judicial decisions nor circulars issued by the Banque du Liban and contradict the free economic 139 Art 691 of the Code of Obligations and Contracts. 140 Art 754 of the Code of Obligations and Contracts. 141 Art 761 of the Code of Obligations and Contracts. -- 126 of 251 -- [2026] SASC 107 Stein CJ 123 system in the Lebanese Constitution. According to Dr Kotob, the Lebanese Constitution considers the economic system as free, guaranteeing individual initiative and private property and no restrictions can be placed on movement of capital. In his view, any law legitimising such control would be subject to appeal by the Constitutional Council on grounds that any law limiting the movement of capital is contrary to the Constitution. Financial crisis – force majeure 625 Dr Kotob does not agree that the financial crisis is a legitimate reason to refuse transfers nor that it amounts to force majeure because he says it does not preclude a bank’s requirement to settle debts, banks are still functioning and performing banking services, have assets and are still making profits. Dr Kotob considers that the banks are not wearing any of the consequence but only placing the responsibility on the depositors, wasting their rights. Authorities 626 Dr Kotob agrees that most decisions relevant to the return of deposits were taken by Judges of Urgent Matters and their decisions do not have the force of res judicata. Nevertheless, Dr Kotob says the legal content of the decisions confirms the depositor’s rights to have their deposits returned according to true value. Dr Kotob also considers the judiciary has failed to perform its role, resulting in scarcity of final decisions and that justifies resorting to courts outside Lebanon. 627 Dr Kotob also refers to a number of judicial decisions. One involved proceedings against Byblos Bank in which the Urgent Matters Judge ruled in favour of the depositor and ordered the bank to wire funds to an account in Dubai. The Court of Appeal affirmed the decision, and Dr Kotob says an appeal is before the Court of Cassation. 628 Dr Kotob referred to several non-final decisions issued by the Court of First Instance, Judge of Urgent Matters, Judicial Enforcement Department or Court of Appeal. In his view, the decisions included rulings that Société Générale SAL must reopen closed accounts, return cheques deposited with a notary public and replace them and record their value in a reopened account as it was not possible to say the cheques constituted actual payment of the obligation to the depositor. In another decision, the Lebanese Swiss Bank was obliged to return to the plaintiff the balance of a savings account on the basis no law had been issued restricting the withdrawal of cash deposits. The refusal to hand over the depositor’s balance was said to be a clear infringement of rights, a violation of the Constitution and positive laws protecting individual property and a contravention of the Bank’s contractual obligations. 629 Dr Kotob says a decision in 2021 issued by the head of the Beirut Enforcement Agency considered the bank’s delivery of cheques at face value to a depositor who could not collect them abroad could not be considered as discharging the bank from a transfer request. The Judge concluded the bank had -- 127 of 251 -- [2026] SASC 107 Stein CJ 124 no right to use exceptional circumstances as an excuse on the basis the interest of depositors and the national economy cannot be preserved by holding the depositor accountable for a crisis in which it had no role. Dr Kotob also referred to a decision of the Civil Court of Appeal on 26 April 2022 which required a bank to take necessary measures to transfer money to the plaintiff’s account overseas, considering it was not legal to circumvent the plaintiff’s claim and close his account and deposit a cheque with the clerk. 630 Dr Kotob said not all decisions favour the depositor. He referred to a case against Fransabank in December 2021 in which both the Urgent Matters Judge and the Court of Appeal dismissed the case on the basis of jurisdictional incompetence of the Urgent Matters Judge. This was because the bank’s refusal to make the transfer was an issue requiring a review of the account opening agreement and assessment of the banker client relationship, thus falling within the jurisdiction of the Court of First Instance. Dr Kotob said no appeal decision has been issued. 631 Dr Kotob says some depositors have filed lawsuits before the Court of First Instance. He says in Ghazaleh v SGBL Bank,142 Mr Ghazaleh requested a transfer to his bank account in Amman, the transfer was refused, the account closed and the depositor presented with a cheque payable in Lebanon. According to Dr Kotob, two years has passed and no decision has been issued. 632 Dr Kotob says a number of lawsuits have been filed overseas including in the UK, US and France and foreign courts are accepting jurisdiction on several bases including the European Union consumer law. Dr Kotob refers to a decision issued by a French court in November 2021 which decided in favour of a depositor, ruling that Saradar Bank SAL should pay $2.8 million to a Syrian depositor living in France, considering the unilateral decision to close the account and deposit the money in cheques with a Beirut notary meant the bank failed to fulfil its restitution obligation. Dr Kotob also refers to Manoukian,143 in which an English court ordered the Bank and the SGBL to transfer US$4,000,000 to the depositor’s bank account. He refers also to Khalifeh v Blom Bank SAL.144 633 According to Dr Kotob, the United States Court of Appeals for the Second Circuit in Raad v Bank Aldi LLC145 on 15 December 2022 determined that Lebanese commercial banks could be pursued outside Lebanon, overturning a decision, of the United States District Court for the Southern District of New York which concluded it had no jurisdiction to hear a case dealing with the bank’s refusal to transfer money abroad on the basis Beirut courts had exclusive jurisdiction. Dr Kotob says the Appeals Court found the jurisdiction clause in the general agreement did not contain language stipulating Beirut courts have exclusive jurisdiction. Dr Kotob also refers to a decision of the Court of Appeal 142 CB1809. 143 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 144 [2021] EWHC 1502 (QB). 145 (2nd Cir, No 21-2612, 15 December 2022). -- 128 of 251 -- [2026] SASC 107 Stein CJ 125 of Paris, France of 20 November 2022 as confirming that funds illegally held by a bank in Lebanon had to be paid in France. Fairness 634 According to Dr Kotob, Lebanon’s judicial system was paralysed by a six-month strike by judges in 2022. In February 2023, Lebanese banks went on strike following a meeting of ABL. Dr Kotob’s view is that the strike aimed to exert pressure on the Lebanese judiciary, discouraging actions that could harm banks’ interests, with banks announcing an intention to resume a strike in March 2023, citing the depletion of their foreign currency reserves due to what they described as unjust legal rulings. Dr Kotob asserts that Lebanese banks take the view the government and individual depositors should bear the burden of the financial deficit. According to Dr Kotob, the State has been unable to pay operational costs and salaries of judges. Dr Kotob does not believe that in the current economic, social and political circumstances, Lebanese courts are capable of addressing banking deposit issues fairly and justly. 635 Dr Kotob says there is no specific legal provision expressly granting the right to transfer funds abroad. The Constitution includes a reference to the economic system being free and guaranteeing individual initiative and private ownership. In his view, one of the elements of a free economic system is the freedom of movement of capital to and from Lebanon and consequently, in the absence of legislation restricting the right, it cannot be denied. Further evidence under cross-examination 636 Dr Kotob gave his evidence in English but on the basis he would use an interpreter when he wished. Expertise 637 The Bank disputes Dr Kotob’s expertise to opine on matters of economics, accounting and finance. 638 Under cross-examination, Dr Kotob accepted he does not have a degree in economics nor a degree in accounting but said he had experience in accounting through working at the Ministry of Finance, especially in the taxation department. Dr Kotob accepted he has never worked in a law firm and he is an academic. Dr Kotob said he is a trainer for the banking sector in Gulf countries, especially Saudi Arabia, and he had given more than 50 workshops for the banking sector. However, he had not worked in a bank and was not a banker. The seminars he delivered to banks and financiers related to the relationship between the banking sector and the Banque du Liban, financial engineering and banking management. 639 When asked questions about his curriculum vitae, Dr Kotob explained that the section on conferences and seminars related to conferences he attended, not conferences he delivered. The section addressing workshops he had delivered was under the heading “Training experience”. The training for the Iraqi Ministry of -- 129 of 251 -- [2026] SASC 107 Stein CJ 126 Manufacturing, Ministry of Electricity and the Department of Financial Accounts concerned taxation, accounting and public finance. He also provided training to the Saudi public sector on international rules related to trade. He delivered workshops in Istanbul and Beirut to employees in ministries of manufacturing and electricity and finance. Dr Kotob said he did not give training to Lebanese banks because only the Banque du Liban provides workshops for the banking sector. 640 In re-examination, Dr Kotob was asked whether he undertook courses in economic theory. He said he graduated from the National Institution of Administration and took courses relating to economics, accounting, and management and as part of his teaching he teaches banking and monetary economics to undergraduates in the faculty of law. Expert code of conduct 641 Dr Kotob said he complied with the Expert Code of Conduct rules. When asked whether he had identified all documents and other materials upon which he had been asked to consider when expressing his opinions, and asked to give a yes or no answer, Dr Kotob responded that he took into consideration the documents presented to him after making his own analysis. Instructions, assumptions and meetings 642 Dr Kotob said he was contacted by Mr El Masri in 2022 who asked him to provide an expert report. Dr Kotob said Mr El Masri told him about the facts of the case and said a law firm would request him to prepare a report. He met Mr El Masri at a restaurant called the Grand Café. He thought they met for a half an hour or an hour. After his meeting with Mr El Masri, Dr Kotob received a request from Mr Issa to prepare a report. All of the emails were attached to his first report. 643 Dr Kotob was taken to the letter of instruction from Mr Hani’s solicitors146 and asked if he was instructed that for Mr Hani to successfully commence and maintain legal proceedings, it would be necessary to satisfy a judge that Australian courts have jurisdiction. Dr Kotob responded that he was asked about exclusive jurisdiction and insight into Lebanese law, which he provided. He was asked to give expert evidence on Lebanese law and court processes. He was also asked to explain the financial crisis in Lebanon and to explain the procedures for enforcement of judgments in Lebanon. Dr Kotob was asked whether it was correct that he was instructed it was crucial Mr Hani satisfied an Australian court that it would be inappropriate or there would be no practical utility to commence legal proceedings in a Lebanese court. Dr Kotob responded that he was told to clarify the Lebanese legal position and he gave insights into the Lebanese legal system. When asked whether it was Mr Issa or Mr El Masri who requested his opinion, Dr Kotob said he prepared his report on request from Mr Issa and dealt with the points raised by Mr Issa. Dr Kotob said Mr El Masri was a connection between 146 CB1899. -- 130 of 251 -- [2026] SASC 107 Stein CJ 127 him and Mr Issa and, after he started dealing with Mr Issa, he did not have instruction from Mr El Masri. 644 When asked whether he attended a conference by audio-visual means on 12 September 2022 at which both Mr El Masri and Mr Issa were present, Dr Kotob initially said there were no meetings with him, Mr Issa and Mr El Masri. When the question was repeated, Dr Kotob said “yes, yes, yes”; that he remembered when they made the meeting Mr El Masri gave the phone to Dr Kotob to call Mr Issa and they talked about general matters related to the case. This was at a restaurant. Dr Kotob said the call he attended on 12 September 2022 was a general overview about the case and how to prepare an expert report.147 Dr Kotob agreed that after this call he received an email with instructions to prepare an expert report about Article X. Dr Kotob was asked if Mr El Masri was copied to the email instructions. Dr Kotob was initially confused, saying the email was sent by Mr Issa “not by me” but then he realised that the email was carbon copied to Mr El Masri. When he was asked if Mr Hani was also carbon copied, Dr Kotob said there was no relationship between him and Mr Hani, he did not know Mr Hani, he had not met him, nor had he spoken to him on the telephone. When the email address “[email protected]” was drawn to his attention, he said he did not know who “johome” is but now understood that to mean Mr Hani. 645 Dr Kotob agreed he received further instructions in which he was asked about Article X and about legal principles pertaining to contracts in Lebanon and was asked to make some changes to his draft report. When it was pointed out to Dr Kotob that the email stated that the language in the report would need to be addressed because it was, at times, emotive and adjectival when the subject matter did not require such language, Dr Kotob responded that this was a matter of language. 646 When asked if he had regard to the KYC information when preparing his first report, Dr Kotob said the facts were in his report and other facts he did not know. When it was put to Dr Kotob that he was not instructed to have regard to the KYC information, but he did so, Dr Kotob responded that he was an expert and he dealt with the facts, which he knows. Dr Kotob then agreed that he had regard to information in the KYC documentation when preparing his first report148 but continued to say that the translation was “very bad”. Dr Kotob was taken to the reference to the source of the initial funds as being “professional from business”. Dr Kotob said that this was normal for anti-money laundering and the Bank had to know the source of money was from a business. 647 Dr Kotob understood Mr Hani had certified the information on the form as complete and authentic and that Mr Hani undertook to inform the Bank of any changes. When asked to confirm that the form certified by Mr Hani recorded his residence in Lebanon, Dr Kotob said there is a legal text from the Banque du Liban 147 Exhibit R11. 148 CB461. -- 131 of 251 -- [2026] SASC 107 Stein CJ 128 which identifies the condition of residence and states that residence in Lebanon should be for at least one year. He had found the decision the previous day. Because Mr Hani resided outside Lebanon for more than a year and came to Lebanon for temporary visits, Dr Kotob considered Mr Hani was a non-resident. Dr Kotob confirmed that the document to which he was referring was a Banque du Liban circular and said that as a circular of the Banque du Liban, it was binding on the Bank. Dr Kotob agreed he did not refer to the circular when preparing his reports. 648 When asked when he got the understanding that Mr Hani had only come to Lebanon for short periods of time, Dr Kotob said that he did not know when Mr Hani came or left Lebanon. He said he knew from the facts of the case that Mr Hani did not reside in Lebanon when questioned whether he got the information from the Court Book. When it was put to Dr Kotob that he did not have any instructions about that topic, Dr Kotob responded that Mr Hani worked outside Lebanon and his main business was outside Lebanon. Dr Kotob said he had not read Mr Hani’s five affidavits in the Court Book in the last 15 days. When asked again whether he read Mr Hani’s affidavits in the Court Book, Dr Kotob said he had not read the last one and denied reading the other four affidavits. When the question was repeated, Dr Kotob said “he was responsible for his expert reports”. Dr Kotob then said he was being asked about procedures and facts and he wished to be asked about legal points. Dr Kotob responded “no” when asked the question again. When Dr Kotob was asked what parts of the Court Book he read in the last 15 days, Dr Kotob said he prepared his expert reports first and read Mr Abirached’s reports. 649 Dr Kotob was asked where he got information about when Mr Hani came into and out of Lebanon. Dr Kotob said he concluded that as the facts state that Mr Hani is working in Australia and resides in Australia and his main activity is real estate in Australia. When asked again how he got the information about Mr Hani being in Lebanon temporarily, Dr Kotob said Mr Hani’s main activity was in Australia which means he resides in Australia. Dr Kotob was asked if he formed that view from reading the KYC form, to which Dr Kotob responded that he gave assumptions and a conclusion. When it was put to Dr Kotob that when he read the KYC form, he had regard to the fact that Mr Hani had certified the information that he was resident in Lebanon as complete and authentic, Dr Kotob responded that Mr Hani did not reside in Lebanon and Mr Issa told him that, but he did not remember when. 650 Dr Kotob responded to the proposition that he did not refer to Mr Hani certifying the truth of the contents of the KYC form in his report by saying that the place of residence recorded within the contract was Lebanon but the information on the Bank system stated the country of taxable authority was Australia. Dr Kotob then added that when he spoke to Mr El-Masri the first time, Mr El-Masri told him Mr Hani resided in Australia. Dr Kotob said he recorded the facts in his report when it was put to Dr Kotob that he did not record that information in his report. Dr Kotob then agreed that he did not have regard to the -- 132 of 251 -- [2026] SASC 107 Stein CJ 129 fact that Mr Hani had certified the KYC forms when preparing his reports and agreed that the chosen residence in the agreement was in Lebanon. 651 When Dr Kotob was asked what assumptions of fact he was instructed to make, Dr Kotob responded that he was not given any instruction to amend his point of view. He said he was told to change something related to language but was not told to change his legal insight. When asked again about assumptions of fact, Dr Kotob said he included the main facts in his report. When it was put to Dr Kotob that the letter and emails did not mention any facts he had to assume, Dr Kotob said he prepared the facts. The summary of the facts was from the documents he received and he prepared them. Dr Kotob confirmed he was sent a copy of the statement of claim in 2023 and an affidavit of a Mr Ghazaleh. Having read those and formed a view about the facts that appeared to be relevant to his opinion, he set those facts out in his first report. When Dr Kotob prepared his second report, he was instructed by letter to make some assumptions for the purposes of the preparation of the report. Dr Kotob was asked to address further matters, including expressing an opinion about the Lebanese Consumer Protection Law. The assumptions he made for the purposes of the second report were those set out in the letter of instruction dated 18 October 2023. When it was put to Dr Kotob that he was not provided with any instructions or assumptions as to the circumstances in which Mr Hani entered into the general agreement with the Bank, Dr Kotob said every instruction or assumption from Mr Issa was written, everything was in either emails or letters. When it was put to Dr Kotob that he was not told Mr El Masri was present on every occasion Mr Hani met with the Bank, Dr Kotob said the facts he relied on were in his report. 652 Dr Kotob said after he started with Mr El Masri, he then dealt only with Mr Issa. Dr Kotob said a discussion with Mr Issa on 8 May 2023 was only with Mr Issa. He then met the barrister towards the end of 2024 and to prepare the expert evidence before the Court. 653 Dr Kotob was shown exhibit R7, which is a list of cases proceeding before courts in Lebanon involving banks. Dr Kotob said he had not had any involvement in any of those proceedings, he was a legal expert and he was not involved in any of the cases as a lawyer. Dr Kotob agreed he had never conducted a proceeding as he was not a lawyer and is an academic. Hierarchy, court processes and interrogation 654 Dr Kotob agreed there was an Urgent Matters Court in Beirut and a First Instance Court of Beirut. If a matter is urgent, the case is filed before the Urgent Matters Judge. A case relating to enforcement would be filed before the Bureau of Enforcement. If it relates to a substantive matter, it would be filed before a First Instance Court. An Urgent Matters Judge decision can be appealed. 655 Dr Kotob said proceedings commence by lawyers and proceedings cannot be filed without a lawyer. It is necessary to have a power of attorney to commence a case. A proceeding commenced in the First Instance Court is commenced by a -- 133 of 251 -- [2026] SASC 107 Stein CJ 130 written claim. The defendant prepares a response and there is an exchange. Dr Kotob said the Judge assigned to the case has a discretion to interrogate parties. In factual cases related to personal finance, Dr Kotob thought the Judge would usually want to hear the creditor and debtor. The Judge can ask questions of the parties’ lawyers. When asked whether under the Lebanese Code of Civil Procedure a Judge can require a foreign court to take evidence, Dr Kotob responded by reference to the jurisdiction of the courts. After an issue about interpretation was raised, the question was asked again. Dr Kotob said this related to the authority of the Judge; the Judge has a discretion as to whether to hear the plaintiff or defendant. When asked if the Judge has power to request a person outside of Lebanon be required to give evidence in a foreign court, Dr Kotob said that Judges have the power to request a person in a foreign country to give evidence. The Judge also has the authority to require the physical presence of the person for interrogation. When asked if he knew of any deposit holder cases where the Judge had required the plaintiff to attend to give evidence, Dr Kotob responded that he gives the legal point of view. When asked again if he knew of any case brought by a deposit holder where the Judge required the deposit holder to give evidence, Dr Kotob said it was not his responsibility. When it was put to him that he did not know the answer, Dr Kotob said he knew that judges have the authority to request the physical presence of the plaintiff or defendant. When asked the question again, Dr Kotob said this was a practical issue, not a legal issue. Personal views about banks 656 When it was put to Dr Kotob that he holds strong views about the behaviours of banks and had made public statements about that, Dr Kotob said he was an expert and had a lot of meetings with newspapers, media outlets and television networks and he had written articles related to how the banks deal with the crisis and providing legal insights. He said he was relying on his expertise and knowledge acquired from news reports that he had heard and listened to and read in Lebanon. 657 Dr Kotob agreed he had expressed views publicly about banks and restrictions on transfers and withdrawal of money. Dr Kotob agreed that he had a Facebook page and on 1 April 2022 had posted on his Facebook page that banks in Lebanon were turning into a monopolistic authority over the financial and monetary system, exploiting the crisis in an irrational manner. Dr Kotob said at the beginning of the crisis he did not want to be against the banks but agreed he said the banks had become a monopoly to the financial system and monetary system and the banks were investing in the crisis. Dr Kotob was asked to agree that the Facebook post states that bank branches are turning into profit making centres by working to exploit the circulars issued by Banque du Liban, branches refrain from paying employees their full salaries despite the circulars from Banque du Liban that are only meant to waive liability, and banks feel secure at the government solution that accommodates their interests at the expense of the people and the depositors. Dr Kotob responded that the government has not made decisions to give a solution to the depositor cases; there is a crisis; -- 134 of 251 -- [2026] SASC 107 Stein CJ 131 the responsibility lands only on the depositors; the banks refuse to return their money and the banks do not bear responsibility. Dr Kotob said the banks are dealing in the crisis to generate profit, especially when they use the Sayrafa platform to generate money. They generate money from fees but the rights of the depositors are still pending. 658 Dr Kotob agreed on 19 March 2023, he posted on his Facebook page a post saying that the dollar had reached LL110,000; its value had multiplied over 70 times; there was no prospect for halting its unchecked rise; banks were punishing the Lebanese people; the Banque du Liban Governor shields himself from investigations through people’s livelihoods; the political class did not understand its legitimacy had expired and that crisis profiteers roamed freely. Dr Kotob accepted this was posted on his Facebook page. He continued to say that the banks are not playing their role as a mediator between saver and investor but had changed their essential role and invested in Treasury bills and given loans to the government at high interest rates. The Banque du Liban gave banks the highest rates of interest and the Banque du Liban gave the money to the government as Treasury bills with high levels of interest, there is corruption in the government, the government loses money and banks do not repay depositors. Dr Kotob considers there is serious responsibility at the Banque du Liban and the government level, but they do not deal with the crisis and depositors bear the responsibility. Dr Kotob said banks should not concentrate their investments, but the banks had invested with high risk, high interest, concentrating their investments in Treasury bills. Accordingly, in his view, banks should bear responsibility and the depositors should not bear the responsibility alone. 659 Dr Kotob agreed on 24 January 2024, he posted to his Facebook page a post which stated banks had refused to return $150 in fresh dollars to depositors, claiming this exceeded their capacity; currently Lebanese banks were paying in Lebanese pounds with a ceiling of $24 million pounds which equated to $268 credited by the bank to the depositors’ account with $1,600: an unprecedented injustice and unfairness. Dr Kotob said this was a very important issue because it was a “haircut” for depositors and people lose their rights through financial engineering by banks. 660 Dr Kotob did not agree that he considers the conduct of the banks unjust and unfair. He said he wanted to make the banks’ stability okay, but the banks were now not playing their role. Before the crisis, they had $2 billion in deposits but there was now $5 billion in deposits and banks did not give loans. Dr Kotob said this was a Ponzi scheme and the only role the bank was playing was transferring their payroll and taking fees. Dr Kotob agreed he was suggesting the depositors are the victims of a Ponzi scheme run by banks and said the World Bank put a picture of Pinocchio on the cover of its report when talking about the financial -- 135 of 251 -- [2026] SASC 107 Stein CJ 132 crisis.149 Dr Kotob said that as an expert, he is with the depositors and he wants to defend them and get their rights. 661 Dr Kotob agreed in his Facebook post of 24 January 2024, he put forward a possible solution that if repayment in fresh dollars was rejected by banks, repayment should be made in Lebanese pounds at an exchange of LL89,500 to US$1 with a monthly withdrawal ceiling of LL24 million to be credited to accounts according to actual value. Dr Kotob agreed the Facebook post reflected his views as at January 2024, saying banks did not accept withdrawal of deposits of dollars at the Sayrafa rate or the real rate of the dollar. Rather, the bank permits the depositor to withdraw at a rate that is a real “haircut” to the depositor. 662 Dr Kotob agreed that on 12 January 2025, he posted a post on his Facebook page stating that there was no salvation for the people except through a true democracy based on regular rotation of power whereby one political group assumes governance while another opposes it, monitoring and holding it accountable. Dr Kotob said this was a political point of view and a point of view reflecting his view of the government and the failings of the government which led to the financial crisis. Dr Kotob said the banks, Banque du Liban and government bear responsibility and there has been no solution for the crisis; the depositors bear the responsibility and that is unfair and unjust. Dr Kotob said as an expert, he has his legal and his political views. He wants his country to be safe, he wants financial and political governance and what has happened is unjust and unfair. Dr Kotob agreed that at the end of the post he said what had gone on had resulted in chaos, backwardness and the dominance of abhorrent mafia-like practices. When asked whether it was his view of the government’s behaviour, Dr Kotob said “this is a fact”. 663 Dr Kotob agreed that on 9 February 2025, he posted to his Facebook page a post saying that since independence, a small elite of political and economic figures had controlled the levers of power in Lebanon, turning the system into a deeply rooted oligarchy; dominance had been entrenched through sectarian quotas and alliances between political power and capital, leading to the accumulation of wealth in the hands of a narrow group at the expense of the public interest; the failure of the system reached its peak as of 2019, with the worsening of crises, the financial collapse and the evaporation of monetary deposits of Lebanese people without any serious accountability. The post continued that the formation of the new government [that day] raised questions about Lebanon’s fate and posed a question whether they were facing real change or merely recycling the oligarchy with new faces. Dr Kotob said the post was a political thought which did not affect his legal point of view. Dr Kotob continued to say that when preparing to give evidence he read his reports and Mr Abirached’s reports and he was here to give evidence about law and the legal point, but he was also a human being with 149 A copy of the World Bank report entitled “Lebanon Public Finance Review Ponzi Finance?” depicting Pinocchio on the cover was tendered as exhibit A36. -- 136 of 251 -- [2026] SASC 107 Stein CJ 133 political thoughts which he put on his Facebook page. His expert reports put his legal point of view unaffected by those political thoughts. Fairness of trial in Lebanon 664 When asked whether appointees from the Supreme Judicial Council form the Court of Cassation, Dr Kotob said the High Judicial Council could not then take decisions until at least eight of 10 members were appointed and they awaited an election for other members. Dr Kotob said that the whole number appointed was eight and agreed that with another four appointed, the Court of Cassation had sufficient numbers to form a quorum but until now, the High Judicial Council could not work. It was also necessary to appoint the Head of Chambers of the Court of Cassation to form the General Assembly of the Court of Cassation. Banking restructure law 665 Dr Kotob said he had read the draft law relating to the restructuring of the banking sector.150 In response to the proposition that the draft law deals with the rights of customers who have deposits with banks in Lebanon, Dr Kotob said the draft law is related to restructuring the banking sector only and does not address the deposit problem. Dr Kotob accepted that the draft law uses the concept of old and new deposits with a cut-off date of 30 October 2019. Dr Kotob agreed that the objectives of the draft law include seeking to protect deposits in the liquidation process and sets out a hierarchy for how the rights of stakeholders in Lebanese banks would be addressed in a liquidation process and that the draft law provides that the bank under liquidation shall preserve the right of depositors to access information relating to the nature and value of their deposits. Dr Kotob also agreed that the draft law provides for the establishment of a special court and contains a provision to the effect that any claim pending before the Lebanese Court of First Instance relating to an existing dispute between a creditor, including the depositor and the bank concerned, and for which no final decision has been issued administratively shall be referred to the special court within one month of the appointment of the liquidator or the liquidation committee. The draft law describes a hierarchy of equity and debt to be applied in the case of liquidation. Dr Kotob said the draft law includes standards with which the banks need to abide. However, he said the old deposits are not mentioned in the draft law and experts agree the law does not resolve the crisis of deposits in Lebanon. Mr Hani’s Beirut proceedings 666 Dr Kotob said he did not know Mr Hani had brought a lawsuit against the Bank in Lebanon. When taken to the claim, Dr Kotob said the first request was declaring the invalidity of the actual tender process, which was different to a claim to return the deposit. The second request was to declare the invalidity of the termination and compel the Bank to restore the previous state of affairs before the Bank closed the account. Dr Kotob said that was a direct response to Article 822 and was not a claim to return the deposit and was different to the claim in Australia. 150 Exhibit R28. -- 137 of 251 -- [2026] SASC 107 Stein CJ 134 Dr Kotob agreed that the second head of claim was for a penalty of coercive fine US$100,000 for each day of delay, while retaining all rights towards legal proceedings in Australia. Dr Kotob did not agree that this was in addition to rights being asserted in the Australian proceedings. He said the essential requests are for invalidity, re-opening and compensation relating to invalidity and re-opening. When taken to the factual allegations in Mr Hani’s Beirut proceedings and asked to agree that the claim arises out of the contracts entered into by Mr Hani and the Bank, Dr Kotob agreed, but said the proceedings related to the tender and deposit procedure. When it was put to Dr Kotob that the fact of proceedings having been commenced in Lebanon was obviously relevant to jurisdiction, Dr Kotob responded that this lawsuit was different from a request to return the deposit. This applied Article 824 of the Code of Civil Procedure, not jurisdiction in Articles 100 and 101. When asked again to agree that, under Articles 100 and 101 of the Code of Civil Procedure, Mr Hani could issue proceedings in Lebanon because the Bank is domiciled in Lebanon, Dr Kotob responded that “here we cannot apply 100 and 101 but should apply Article 824”. He said the Bank made the tender and deposit procedure and Mr Hani wanted to nullify the procedure. Dr Kotob reiterated that Article 824 addressed the invalidity of the tender and deposit procedure when asked again to agree with the proposition that Article 824 does not deal with jurisdiction of the Lebanese courts. Code of Obligations and Contracts 667 When taken to Article 221 of the Code of Obligations and Contracts, Dr Kotob said this was a “bad” translation and it should say contracts should be understood, interpreted and carried out in conformity with good faith, equity and custom rather than usage. Dr Kotob agreed the rules of interpretation of contracts are set out in Articles 366-371 of the Code of Obligations and Contracts. 668 Dr Kotob agreed that Article 166 of the Code of Obligations and Contracts states that rights on contract are dominated by the principle of contractual freedom, but that was not an absolute principle. I pause to note that in re-examination, Dr Kotob explained that when he said the principle in Article 166 of the Code of Obligations and Contracts was not an absolute principle, there was a limit related to public order, morals, and also the Consumer Protection Law. Systematic issues 669 Dr Kotob agreed that in addressing teleological interpretation, which takes into account evolving social and economic conditions, he relied on an extract from a book by Albir Farhat. Dr Kotob agreed the judgment in the Second Chamber of the Court of Appeal of Bekaa, Decision No 13 of 2023,151 dealt with the jurisdiction of the Urgent Matters Court and the reasons expressly addressed the impact of the systematic financial crisis. Dr Kotob then said he wanted to comment on the two legal points in the case. The first relates to the power of the Judge of Urgent Matters. Dr Kotob said that in cases relating to deposits, one does not deal with 151 Exhibit R31. -- 138 of 251 -- [2026] SASC 107 Stein CJ 135 the merits but applies the contractual obligations and it is an urgent matter not a merits matter. A merits matter involves interpreting the contract. When a depositor requests the return of their deposit, it is the application of a contractual obligation, and the Judge of Urgent Matters should rule to return the deposit or transfer the money abroad. Accordingly, he considers one cannot consider an Urgent Matters Judge is not competent. Dr Kotob said the case discussed the systematic crisis, but the systematic crisis did not relieve the bank of contractual obligations. The crisis could not be considered a force majeure and could not enable the bank to stop applying the contract. When it was put to Dr Kotob that, as a consequence of the matters identified in the reasons of the Court of Appeal, it was determined the Urgent Matters Judge was not competent and the matter had to go to a trial court, he responded that this was the context of this particular ruling. Enforcement 670 Dr Kotob states that any substantive final, binding decision issued by a foreign court in civil matters can be enforced, provided a number of conditions are satisfied. Those include that the judgment must be by a competent court considered to have jurisdiction in accordance with the law of the State of origin, provided the jurisdiction is not solely determined by the nationality of the plaintiff. The judgment must be enforceable and final. The judgment debtor must have received notice of the action and been provided with the opportunity to defend itself. The content of the foreign judgment must not be contrary to Lebanese public policy. The State of origin should allow the enforcement of Lebanese judgments in its territory by way of reciprocity. 671 The Lebanese Code of Civil Procedure requires the foreign judgment creditor to submit a petition to the head of the Civil Court of Appeal of the debtor’s place of domicile or the head of the Civil Court of Appeal of Beirut. If a request for enforcement is denied, there is a right to object to the decision before the Court of Appeal. If the enforcement request is accepted, the debtor can object before the Court of Appeal. The merits will not be relitigated except in cases such as false or forged document, discovery of crucial documents concealed by a party, a contradiction in the judgment, or the law of the State of origin requires the review of a Lebanese judgment before granting it recognition. Dr Kotob states that in normal circumstances an application for recognition of judgment would take about five working days but at the time Dr Kotob prepared his report, he said the Lebanese courts were disrupted. 672 A foreign judgment may be enforced in the same way as a Lebanese judgment, including by seizure and sale. Dr Kotob says the Execution Bureau will use Lebanese pounds in calculating the amount due and the courts have not agreed on an exchange rate to be used when ruling on cases in US dollars. He states that some courts are using the official exchange rate while others are using the Sayrafa platform rate or other rates which can result in a marked difference. In his view, a better option is to seek enforcement of judgment abroad by the sale of bank assets in that country. -- 139 of 251 -- [2026] SASC 107 Stein CJ 136 673 I return to address Dr Kotob’s evidence on jurisdiction, the Consumer Protection Law and potestative clauses separately below. Dr Zbeeb 674 Reports prepared by Dr Zbeeb were filed but Dr Zbeeb was not called to give evidence. 675 In written submissions, but not oral closing, the Bank submitted that Mr Hani’s Australian proceedings are an abuse of process by reason of correspondence between Mr Hani’s solicitor and Dr Zbeeb including the proposal that Dr Zbeeb reduce his fees on the basis that the report would be a foundation for setting up a long term relationship, and success in the proceedings would provide potential for other legal proceedings to be commenced against the Bank in Australia.152 The Bank also pointed to email correspondence in which Mr Hani’s solicitor asked Dr Zbeeb to clarify a statement in his draft report (to the effect that Article X was not invalid but is a handicapped clause as there is a major imbalance in contractual obligations) and pointed out it would serve Mr Hani’s purpose if Dr Zbeeb could state it was entirely invalid, to which Dr Zbeeb responded that he could not because that was an untrue statement.153 The Bank intimated that in due course it will seek the costs of dealing with Dr Zbeeb’s reports on an indemnity basis. I will address any such application if made. 676 The Bank asked me to infer that Dr Zbeeb’s evidence would not have assisted Mr Hani’s case on the validity of Article X and the functioning of the Lebanese court system. As Mr Hani did not call Dr Zbeeb and his reports were not in evidence, I could not, and have not, had any regard to his reports in addressing the applications. Assessment of expert witnesses 677 My assessment of the experts was impacted to some extent by similar considerations to those I have set out above in relation to the lay witnesses. 678 In assessing the experts, I have considered not only the evidence set out above, but also the evidence I address below in considering the issues raised on the applications. 679 The French interpreter was extraordinarily skilful and worked exceptionally hard to interpret Mr Abirached’s long, discursive answers. It was necessary for me frequently to interrupt Mr Abirached to ask him to pause to allow the interpreter to absorb everything he was saying and interpret. 680 Dr Kotob gave much of his evidence in English, at times asking for assistance from the interpreter. While he appeared to have a good understanding of English, with no criticism of him, he lacked the fluency of a native English speaker. 152 Exhibit R26. 153 Exhibit R26. -- 140 of 251 -- [2026] SASC 107 Stein CJ 137 At times when he relied on the interpreter, issues were raised about the accuracy of the interpretation. 681 Both experts almost always failed to answer questions directly. Indeed, very few questions in multiple days of evidence were answered with a simple yes or no answer. Both experts tended towards long explanations. Often those explanations did not directly respond to the question. In answering questions about legal issues, both experts tended to incorporate in their answer a reference to factors about the respective parties’ cases. For example, at times Mr Abirached referred to aspects of the banking documents signed by Mr Hani, and Dr Kotob at times referred to Mr Hani’s circumstances, each pointing to matters which supported their respective views. In both cases, this gave a flavour, at times a strong flavour, of lack of independence. 682 Both parties criticised each other’s experts as lacking independence. In considering those criticisms, I have born in mind the observation of Picken J in Manoukian154 that it can sometimes be difficult for an expert to keep to the correct side of the line in giving evidence on foreign law, especially so when advocates, such as Mr Abirached, are used to putting forward an argument as persuasively as possible. I return to address the parties’ criticisms later in my reasons, including the Bank’s challenge to Dr Kotob’s expertise on matters of economics, accounting and finance. Mr Abirached 683 As referred to above, Mr Abirached rarely answered questions directly and, at times, did not answer at all. Mr Abirached tended to give broader answers than were asked, including by adding references to Mr Hani and the claim brought by him even when counsel was asking a question about a legal proposition in the abstract, such as a question about the scope of the Consumer Protection Law. At times, counsel had to repeat a question once or twice, reminding Mr Abirached to listen carefully to the question because Mr Abirached was not answering the question. Even on repetition, at times Mr Abirached failed to answer the question. 684 When Mr Abirached answered by reference to the Bank’s or Mr Hani’s case, it gave a flavour of barracking, at times strongly so. Examples included when he referred to the Bank as having nothing to reproach itself for and referring to thousands of Lebanese not being able to access their deposits in a manner that appeared to be advocating for the Bank’s position. 685 At one point, Mr Abirached expressly referred to the fact that he realised he was putting the position as if he was a lawyer, that is, advocating for a client, and apologised for doing so. Mr Abirached nevertheless continued to do so at times and to give long answers when generally a “yes” or “no” would suffice. He also would not answer a question about the invalidity of the tender and deposit 154 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB) at [15]. -- 141 of 251 -- [2026] SASC 107 Stein CJ 138 procedure until I asked him to do so and he declined to answer questions which he said were beyond his instructions. 686 Mr Abirached appeared to have strong opinions on certain legal issues, such as the interpretation of Article 26 of the Consumer Protection Law (which I address below). He conceded that certain of his views were his own, based on his own analysis, rather than on authorities or articles. Some of his opinions were expressed by reference to parts of articles of the Consumer Protection Law without reference to others, such as the reference only to one part of Article 1. At times Mr Abirached “insisted” on certain matters, including that Mr Hani was not denied the right to sue. His language tended to suggest he was resolute in certain views and unwilling to make concessions. 687 Somewhat strangely, Mr Abirached said he did not have a copy of Manoukian, but part of one of his reports utilises parts of Picken J’s reasons in a way which cannot be coincidental. 688 Mr Abirached tended to give examples which were irrelevant to the question asked of him. For example, when asked if there was any Lebanese court decision which stated it was relevant to consider the systemic crisis in resolving contractual claims, he answered by reference to phases of authorities which were favourable to depositors and then favourable to banks. 689 At times I was unclear whether Mr Abirached fully understood specific questions. On occasion he said he did not understand. At times he appeared genuinely confused. Mr Abirached appeared evasive in some responses, such as to questions about the draft law before the Lebanese Parliament concerning the restructure of banks. He also appeared so when saying it was not for him to answer a question about the tender and deposit procedure on the basis of certain assumptions and referring to questions being outside his instructions. 690 Mr Abirached appeared confused about the process of cross-examination. Early in his evidence he referred to “her Honour” suggesting he understood that I was the Judge. However, during cross-examination, Mr Abirached responded to a question put by counsel for Mr Hani by referring to “the matters stated by the President”. This suggested Mr Abirached thought Mr Hani’s counsel was the Judge. At this point, to dispel any confusion, I clarified the situation. 691 Mr Abirached’s failure to directly answer propositions put by counsel meant that in many respects his evidence did not assist me. Unfortunately, at times his discursive style resulted in greater ambiguity. His apparent lack of objectivity impacted on the weight of his evidence, though not to the same degree as Dr Kotob. Dr Kotob 692 There were some technical issues with the audiovisual link to Dr Kotob which at times was interrupted and delayed. However, sometimes through the process of repetition of question and answers I was then able to see and hear -- 142 of 251 -- [2026] SASC 107 Stein CJ 139 Dr Kotob. At times Dr Kotob protested that the interpreter was not interpreting accurately. For example, Dr Kotob wanted to refer to Mr El Masri “connecting” him with Mr Issa, but the interpreter referred to Mr El Masri being a “mediator”. 693 Dr Kotob answered some questions directly, such as questions about the preparation of his reports and the correspondence with Mr Issa. However, Dr Kotob also failed to answer the majority of questions either directly or at all, even when questions were repeated. Dr Kotob also generally gave long and discursive answers, which were, at times, not responsive to the question asked and had the flavour of speeches. For example, his long responses about a professional and a consumer for the purposes of the Consumer Protection Law (which I address below) did not relate to the questions asked of him. 694 Dr Kotob conceded certain matters, such as that Article 166 of the Code of Obligations and Contracts was not mentioned in his report. 695 Dr Kotob maintained composure under vigorous cross-examination but towards the end of cross-examination he appeared agitated. 696 The Bank submits that I ought not place any weight on Dr Kotob’s opinions given his personal and political views expressed in his Facebook pages, drawing attention to his evidence that “I am, as an expert, I’m with the depositors and I want to defend, to get the rights”. The Bank highlights Dr Kotob’s answer in cross-examination about one of his Facebook posts that the government’s behaviour had resulted in chaos, backwardness and the dominance of abhorrent mafia-like practices and that this was “a fact”. Further, the Bank drew my attention to the statement in Dr Kotob’s report to the effect that banks seek to undermine the judicial work leading to restoration of depositor’s rights.155 The Bank submits that Dr Kotob is an academic with no practical experience and cannot assist the court in relation to matters involving the conduct of litigation. 697 Mr Hani contends in response that Dr Kotob is not detached but that does not preclude independence. Mr Hani submits Dr Kotob’s views are consistent with those expressed by the International Monetary Fund and are views which are not about banks, but rather consistent with Western democratic values. Mr Hani also contends that Dr Kotob’s views relate to the rights of depositors generally and are not about partisanship against the Bank. While I agree that they may not be views expressed in relation to the Bank, that does not detract from the potential impact Dr Kotob’s personal and political views about the conduct of banks vis-à-vis depositors and his desire to stand with the depositors may have had upon his independence and objectivity. 698 Dr Kotob did not seem to think there was an issue with his Facebook posts on the basis they reflected his political opinion, rather than his legal opinion. Dr Kotob stated he wants to defend depositors’ rights and expressed passionate 155 CB1803. -- 143 of 251 -- [2026] SASC 107 Stein CJ 140 views about the state of the Lebanese banking system and the impact on depositors. Dr Kotob denied partisanship saying that he needs the banking system to work. While Dr Kotob appeared genuine in his belief that his political views did not impact his legal opinions, it is difficult to accept that the strength of his support of depositors and dislike of the behaviour of banks in dealing with depositors did not, at least subconsciously, impact on his opinions. Dr Kotob was undoubtedly passionate about the topics on which he was giving evidence and had very firm and strongly-held beliefs. However, he appeared unwilling to countenance any other point of view. His Facebook posts made his position on banks very clear. His clear, stated position on support for depositors detracted from his independence and objectivity as did his overall style of giving evidence, including failures to directly engage with questions and proffering unresponsive speech like answers. 699 When answering some questions about legal topics such as the basis for jurisdiction, Dr Kotob answered in a way that appeared determined to emphasise Mr Hani’s position. His implicit disagreement with conclusions in the decision of the Second Chamber of the Court of Appeal of Bekaa, Decision No 13 of 2023, also had that flavour. When asked questions about the purposes of the Consumer Protection Law, Dr Kotob raised his voice and appeared frustrated or possibly angry. 700 During re-examination, counsel for Mr Hani unsuccessfully endeavoured to keep Dr Kotob to “yes” or “no” answers. For example, when asked about Article 166 of the Code of Obligations and Contracts, Dr Kotob again proceeded to refer to the Consumer Protection Law and counsel’s attempts to stop him were unsuccessful. 701 I accept that Dr Kotob has expertise in law through the study in which he has engaged. In assessing his evidence, I have taken into account the context of his experience as an academic rather than through the practice of law. 702 I have also taken into consideration the manner in which Dr Kotob, at least to some extent, ascertained the facts himself rather than by receipt of assumptions. Dr Kotob was initially instructed expressly on the basis that it was crucial to satisfy the court it would be inappropriate or there would be no practical utility in commencing legal proceedings in Lebanon156 and correspondence from Mr Hani’s solicitor in relation to a draft report asked him to address his emotive and adjectival language and remove hearsay without supporting material.157 Further, I formed the view that both Mr El Masri and Dr Kotob sought to downplay the extent to which Mr El Masri may have been involved in the process of obtaining Dr Kotob’s report. I was unable to form any views about the extent of any influence Mr El Masri may have had. The dealings with Mr El Masri and Dr Kotob’s 156 CB1899. 157 CB1937. -- 144 of 251 -- [2026] SASC 107 Stein CJ 141 approach, including to assessment of facts in combination with his personally held views, cast doubt over his level of detachment. 703 The Bank contended that Dr Kotob’s expertise did not extend to the financial and economic aspects of the Lebanese financial crisis. Dr Kotob does not have formal accounting or economic qualifications. He has taught courses on public finance, banking and monetary economics, written books on public finance and delivered seminars and workshops in auditing and financial controls. His degree from the National Institute of Administration included aspects on economics. I consider that experience provides sufficient foundation for him to give general opinion evidence on the financial crisis. I have not determined whether his expertise would extend to the evidence concerning the concept of financial engineering. While I note that Dr Kotob’s evidence of such a concept is supported by reference to financial engineering in the International Monetary Fund Report,158 I have not considered it necessary to make specific findings on that topic for the purposes of addressing these applications. 704 Dr Kotob’s failure to directly answer propositions put by counsel also meant that his evidence did not assist me and his discursive style also at times resulted in greater ambiguity rather than clarity. 705 As a consequence, I have been left in the position of having in some respects little expert assistance in determining questions of Lebanese law relevant to the Bank’s application. 706 Despite the matters above, I did not form the view that the expert evidence of either Mr Abirached or Dr Kotob was so tainted by lack of independence or objectivity to justify complete disregard of it. I have taken into account the matters to which I have referred above in my assessment of the experts’ respective evidence on each topic. I have considered carefully the submissions, the nature of each topic, the existence, or otherwise, of potentially relevant authorities and texts and potential lack of independence or objectivity arising from the positions of the experts in determining what evidence of each expert to rely upon in determining each issue. In each case I have considered closely how the position put by each expert on the issue is justified. 158 International Monetary Fund IMF Country Report no 23/237. -- 145 of 251 -- [2026] SASC 107 Stein CJ 142 PART 7 – LEBANESE LAW AND STATUTORY CONSTRUCTION PRINCIPLES Lebanese law 707 I find that in Lebanese law there is a Consumer Protection Law, Code of Money and Credit, Code of Commerce, Code of Obligations and Contracts, and Code of Civil Procedure. 708 For the most part, the parties did not draw attention to differences in the translation of the documents and authorities. I accept Mr Hani’s submission that everyone was aware of differences in translation. However, I do not necessarily accept the submission that there were no material differences, or perhaps more importantly, no potentially material differences. I address translation differences separately below. 709 The meaning and effect of a foreign law is a question of fact to be determined by expert evidence.159 Where expert evidence is lacking or indecipherable, the court may interpret the law for itself according to the rules of statutory construction normally applied.160 Lebanese statutory construction principles 710 I accept Dr Kotob’s evidence on the relevant principles which bear some resemblance to Australian principles. In summary, the start point is the clear meaning of the text, which is to be applied without extrapolation if clear. When ambiguous, the interpretation that best reflects the intention of the legislator is to be preferred. The meaning is to be interpreted in the light of the whole text, preferring a construction that ensures the effectiveness of the provision. The text is interpreted to achieve the intended purpose, taking into account evolving social and economic conditions. 711 Dr Kotob’s report161 concerning the principles of statutory interpretation was not challenged by the Bank. However, the Bank submitted that Dr Kotob’s report understated the importance of considering external circumstances in the process of construction, referring to Decision 13 of 2023 of the Second Chamber of Court of Appeal of Bekaa, Kaadi v Byblos Bank SAL (“Kaadi”),162 as finding that the circumstances of the financial crisis bear upon depositors’ claims. 712 In that case, the appellant, Mr Kaadi, appealed to contest the decision in favour of Byblos Bank SAL by Judge of Urgent Matters Zahleh on 159 Waung v Subbotovsky [1968] 3 NSWR 499 at 503 (Sugarman AP), 509 (Asprey JA), 511 (Hardie AJA) citing Temilkovski v Australian Iron & Steel Pty Ltd [1966] 1 NSWR 279 at 291 (Moffitt AJA); see also Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 (Powell J); Idoport Pty Ltd v National Australia Bank Ltd [No 12] (2000) 50 NSWLR 640 at 657; Mills v Commonwealth [2003] Aus Torts Reports 81-714 at [28] (Master Malpass). 160 Mills v Commonwealth [2003] Aus Torts Reports 81-714 at [28] citing Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 324-325. 161 Exhibit A10. 162 Exhibit R31. -- 146 of 251 -- [2026] SASC 107 Stein CJ 143 20 December 2021 dismissing the case for lack of jurisdiction. The appellant had a number of accounts with the bank, including in US dollars and in Euros. There were internal and external transfers of funds from those accounts, which the appellant argued demonstrated evidence of established commercial custom prevailing from 2016 to 2020. The appellant asserted that the Code of Commerce compelled the bank to return the deposit on the request of the depositor and the bank’s refusal to make the transfer justified the intervention of the Court of Urgent Matters. Among other things, the appellant argued there was a manifest infringement of contractual rights and the bank had previously been fulfilling transfer requests and abruptly ceased doing so. The appellant argued that any restriction on the movement of capital violated constitutional and legal principles and force majeure circumstances did not exist. 713 The bank contended that the account opening agreement did not contain any clause relating to international transfers and it was beyond the Urgent Matters Judge to delve into banking customs. The bank contended that the primary condition to the jurisdiction of the Judge of Urgent Matters is the presence of the right to transfer the deposit abroad and there were no such rights. 714 The Court of Appeal said the appellant’s case was founded on the provisions of Article 579 of the Code of Civil Procedure which grants the Urgent Matters Judge the power to take measures to stop any manifest violation of a right or a legitimate condition. That article requires the right or condition to be apparent and unambiguous in its realisation or legitimacy and not subject to a serious dispute that would remove the case from the jurisdiction of the Judge of Urgent Matters. 715 The Court of Appeal continued to say that, while the Court considered force majeure was absent: It is evident that since 2019, the country has been experiencing an unprecedented economic crisis, and that in similar countries, it has been customary to enact legislation aimed at safeguarding rights and establishing a comprehensive plan to govern the management of deposits, whether regarding their blockage, withdrawal, transfer or any other actions deemed necessary to preserve the public interest. However, despite the severity of the crisis, the legislator has not taken such measures whatsoever. Whereas the legitimate conditions, rights and characteristics before the jurisdiction of Urgent Matters have become subject to considerations related to customary professional practices on one hand, prevailing norms and applicable laws, including the execution of transfers, payments of cheques upon demand, unrestricted withdrawal of deposits, and other emergent developments that have altered the nature of banking transactions and customary professional practices between banks and clients over the past period. Consequently, matters that were once self-evident necessitated deeper examination and scrutiny amidst the escalating crisis. Whereas the facts reflect this reality, and upholding the principles of dealing that were prevalent during the pre-crisis period to be applicable in the current period without any limitations would transform the jurisdiction of Urgent Matters into a legally accessible avenue for transferring deposits from Lebanon to abroad, which could be accessible to -- 147 of 251 -- [2026] SASC 107 Stein CJ 144 certain individuals while excluding others, based on their capacities to open external accounts or other reasons. 716 The Court of Appeal continued to contrast rights which could not be delayed, the violation of which becomes an unequivocal breach of human rights, such as the right to healthcare or prevention of irreversible harm, with matters necessitating legal scrutiny that did not align with the concept of the jurisdiction of Urgent Matters. 717 The Court of Appeal said that the transfer amount (exceeding US$500,000) raised several questions such as whether the prevailing banking custom between the bank and the client recommended the execution of transfers irrespective of their value, or if the bank has the right to refuse to process such transfers beyond a specific threshold due to the prevailing circumstances, and the resort to alternative payment methods since the bank had offered to pay the debt with a bank cheque. Furthermore, the appellant was making the request of the Court, which could not overlook its mission to pursue social justice and safeguard its principles and so to consider if the request was intended to “truly free the deposit from any block, whether [such a] block is legal, permissible, unjust or impermissible”. The Court said those crucial matters were inherent in the file and necessitated the determination of the trial Court to ensure the realisation of rights in light of these uncertainties. It followed that the competency of the Urgent Matters Judge was not established and, accordingly, the appealed decision had to be ratified and the appeal dismissed. 718 I consider the decision stands for the proposition that the Judge of Urgent Matters lacks jurisdiction in a matter where consideration must be given to the details of the agreement, the banking relationship and banking custom. The relevance of the prevailing circumstances related to the question which would ultimately have to be determined on the merits, that is, whether the bank had the right to refuse to process transfers beyond a specific threshold in light of prevailing circumstances. I accept Mr Hani’s submission that the decision concerns the competence of the Urgent Matters Judges rather than construction of a statute to take into account changing circumstances. 719 That said, the interpretation principles to which Dr Kotob referred encompass a judge taking into account current conditions providing the judge does not create new legal rules beyond the spirit of the text. 720 I also pause to observe that any submissions on the impact of prevailing circumstances in the context of Mr Hani’s claims for transfers will fall for determination in the trial of the merits. 721 I now turn to address the specific expert evidence and the parties’ arguments on the interpretation and validity of Article X, the jurisdiction clause in the banking agreements. -- 148 of 251 -- [2026] SASC 107 Stein CJ 145 PART 8 – IS THE BANKING AGREEMENT AN ADHESION CONTRACT AND IS ARTICLE X AN EXCLUSIVE JURISDICTION CLAUSE? 722 I accept Mr Hani’s contention that the banking agreements were adhesion contracts, being contracts a customer could take or leave. Mr Hani relied on that submission in respects I address separately below. The general banking agreement is an adhesion contract 723 I find that the banking agreements between the Bank and Mr Hani are adhesion contracts.163 724 Ms Saade’s translation of Article 172 of the Code of Obligations and Contracts is that:164 A contract is deemed to be formed by mutual consent, when its conditions are freely discussed, negotiated and established by the parties (ordinary sale, leasing, exchange, loan). When one of the parties simply adheres to a standard draft which is merely submitted to him and whose content he would not be authorised to discuss, as a matter or law or of fact, the contract is deemed to be formed by adherence (transport contract concluded with a railway company; insurance contract). 725 Ms Rjeily’s translation is that:165 A consensual contract is one whose terms are discussed and bargained and are freely established between the contracting parties (such as ordinary sale, rent, barter, and lending). When one of the two parties is limited to accepting a regulatory project that is content with present it to him, and he is not legally or actually permitted to discussed what it includes, the contract is then called the deed of arrangement (such as a transportation contract with a railway company or a warranty contract.) 726 In oral closing submissions, the Bank submitted there was a material difference in translation and submitted that the concept of an adhesion contract is not as broad as put by Mr Hani. This is an example of an instance in which differences in translation had potential impact on conclusions I may reach. The difference was not referred to by either expert. In circumstances where there is a genuine conflict, I am entitled to prefer one over the other translation or use the translations as a starting point to construe the article myself.166 727 Dr Kotob considers that the banking contract entered into by Mr Hani was a contract of acquiescence, not negotiation, as the negotiating power between the parties was unequal. Dr Kotob refers to a Court of First Instance decision No. 247 dated 29 June 2009 in which the Court stated a contract of acquiescence is a contract in which one of the parties is limited to accepting a contract organised in advance by the other party and lacks the possibility of discussing or amending its 163 Art 172 Code of Obligations and Contracts. 164 CB308. 165 CB1149. 166 Waung v Subbotovsky [1968] 3 NSWR 499 at 504 (Sugarman AP), 509 (Asprey JA agreeing); Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315, 323-325; Mills v Commonwealth [2003] NSWSC 794 at [28]. -- 149 of 251 -- [2026] SASC 107 Stein CJ 146 terms. Dr Kotob says consent is different, because it is an agreement to what is imposed in the contract through conditions set in advance. Dr Kotob refers to another decision of the Civil Court of Appeal No. 34 of 20 February 2013 which described a contract of acquiescence as made by the stronger party and presented to the other party who accepts it, almost compelled without having the right to discuss its contents or make amendments. The Court in that case also referred to legislation limiting the extent of that kind of contract by nullifying or revoking arbitrary clauses included in them on the basis they violate fundamental principles. In cases of uncertainty, the contract will be interpreted in favour of the submitting, weaker party. Arbitrary clauses will be annulled or deemed invalid. 728 According to Dr Kotob, a contract of acquiescence is not void. However, the stronger party can include unfair clauses which affect fundamental rights. Dr Kotob considers the banking contract is a contract of acquiescence constituting pre-prepared contracts that suit the Bank. The fields to be filled in manually relate only to personal data and the customer’s signature. 729 Dr Kotob was not cross-examined to contradict his opinion that the nature of the contract was one of adhesion, rather than negotiation. Dr Kotob relied on a text concerning the Civil Code by Moutsafa Al-Awji.167 Dr Al-Awji’s text states that when one party is limited to accepting a contract previously prepared by the other party without the possibility of negotiating its terms, it is a contract of adhesion. The party wishing to enter the contract has to either accept or reject the terms. 730 Mr Abirached accepted that in the banking sector most contracts are adhesion contracts which parties do not fully negotiate. I proceed on the basis that Mr Abirached’s understanding is consistent with Ms Saade’s translation. 731 I accept that neither Mr Hani nor Mr El Masri fully read the banking agreements. I accept that they signed the agreements certifying the details were correct. However, that does not impact on the conclusion whether the agreements were adhesion contracts. 732 The Bank’s general banking agreement was a standard form contract. The only details to be completed were those about the specific customer. The Bank rightly points out that the proposition that Mr Hani could not negotiate different terms was not put to Mr Obeid. However, Mr El-Khoury accepted he did not have authority to alter the terms and Mr Hani could not negotiate different terms. The Bank also relies on the fact that while Mr Hani did not seek to negotiate different terms, he did negotiate the deposits. In my view, there is a difference between negotiating terms of the contract and negotiating the timing of a term deposit of monies with the Bank to maximise the interest rate offered by the Bank that is conditional on the size of the deposit and the length of the term. 167 SCB814. -- 150 of 251 -- [2026] SASC 107 Stein CJ 147 733 I conclude the banking agreements are adhesion contracts. 734 Adhesion contracts are prima facie valid and enforceable under Lebanese law which provides for freedom of contract.168 Jurisdiction in Lebanese law 735 The jurisdiction clause in the banking agreement was Article X. Article X 736 Ms Saade’s translation of Article X is as follows: Without prejudice to the provisions of Paragraph 1 of Article 1 of Chapter Six of this Agreement, this Agreement shall be governed by and construed in accordance with Lebanese laws. Beirut Courts shall exclusively have jurisdiction over any dispute that may arise of this agreement and its annexes or of the Accounts of the Client and all matters related to or resulting from the Accounts. However, the Bank shall be entitled to take legal actions against the Client … before any other courts in Lebanon or abroad. 737 The translation prepared by Ms Rjeily set out Article X in slightly different terms as follows: Without prejudice to the provisions of Paragraph 1 of Article 1 of Chapter Six of this Agreement, this Agreement shall be governed by and construed in accordance with Lebanese laws. Beirut Courts shall exclusively have jurisdiction shall have the right to look into any dispute that may arise of this agreement and its annexes or of the Accounts of the Client and all matters related to or resulting from the Accounts. However, the Bank shall be entitled to take legal actions against the Client … before any other courts in Lebanon or abroad. 738 The final section of the general agreement states that: I the undersigned, declare that I have read all the provisions of the present Agreement consisted of 12 pages including Article XI of chapter Six. Our signature on the last page of the Agreement shall be considered as my signature on all its pages and my approval thereof. Therefore, I shall not be entitled to object to any of the pages of this Agreement on the basis of its non-signature. Mr Abirached’s evidence 739 Mr Abirached says that a choice of forum clause will be enforceable to the extent it does not contravene the requirements of public policy, morals and other mandatory legal provisions. Articles 96, 97, 100 and 101 of the Code of Civil Procedure are relevant to assessing whether the choice of forum clause contravenes any mandatory provisions of Lebanese law. 740 He explained that the Code of Civil Procedure provides for two types of territorial jurisdiction.169 One is ordinary or optional and the other is exceptional or mandatory. Ordinary jurisdiction takes into account the conditions of the 168 Art 166 Code of Obligations and Contracts. 169 Art 96 of the Code of Civil Procedure. -- 151 of 251 -- [2026] SASC 107 Stein CJ 148 parties, does not relate to the public order and is optional. Generally, jurisdiction is granted to the court where the effective residence of the defendant or its chosen domicile is located.170 In the case of contractual matters, jurisdiction lies with the courts of the actual or elected domicile of the defendant, where the contract was concluded and one of its main obligations is to be performed, or the place where the contract was to be entirely performed.171 Where the defendant is a legal person, jurisdiction lies with the courts of the location of the person’s main place of business.172 741 Mr Abirached says parties to an agreement may confer jurisdiction on the court of their choice to hear disputes that may arise in the relationship and the choice is considered valid. 742 Mr Abirached said the mandatory jurisdiction rules are special rules which apply in particular cases such as insolvency, life insurance and accident and fire insurance matters. 743 Mr Abirached considers in this case the position is governed by Articles 100 and 101 of the Code of Civil Procedure which fall in the category of ordinary territorial jurisdiction. Mr Abirached considers Article X is valid and does not contravene any mandatory legal provisions. In his view, there are no exceptional rules in connection with a banking agreement of this kind and no special rules apply to bank account opening agreements or bank agreements generally. There are no reasons to believe Article X contravenes any public policy or morals and Article X is a valid and enforceable contractual provision that binds Lebanese courts. Mr Abirached considers his opinion is reinforced by the fact that if the banking agreement did not include a forum selection choice or the clause was deemed unenforceable, Lebanese courts would apply the usual territorial competence rules giving rise to a conclusion that the courts of Beirut, being the main place of the business of the bank, would be competent. Mr Abirached takes the view that the Lebanese courts are well-placed to decide matters related to Lebanese banks, especially in the context of current economic and financial crises. 744 In Mr Abirached’s opinion, by Article X of the banking agreement, the parties unequivocally agreed to the exclusive jurisdiction of the Beirut courts. In his view, a provision entitling the Bank to take action against Mr Hani in other jurisdictions does not impair the effectiveness of the exclusive jurisdiction clause which is valid and enforceable in accordance with Lebanese law. 745 Mr Abirached says that jurisdiction clauses which are non-exclusive specify a jurisdiction competent to hear a dispute without precluding the parties from commencing proceedings elsewhere. An exclusive jurisdiction clause obliges the parties to commence proceedings in the specified jurisdiction. The language of 170 Art 97 of the Code of Civil Procedure. 171 Art 100 of the Code of Civil Procedure. 172 Art 101 of the Code of Civil Procedure. -- 152 of 251 -- [2026] SASC 107 Stein CJ 149 the exclusive jurisdiction clause should exclude jurisdiction of other forums that may otherwise have jurisdiction to hear a dispute. 746 Mr Abirached considers that Article X (as translated by Ms Saade) specifies Beirut courts as competent to hear the dispute and confers exclusive jurisdiction on the Beirut courts. The language of the provision is express and covers all kinds of disputes. In Mr Abirached’s view, the parties’ intention to be bound by the exclusive jurisdiction clause is clear and does not require further interpretation. 747 Mr Abirached does not believe that the part of the forum selection clause entitling the Bank to take legal action against the client in Lebanon or abroad impacts the meaning to be given to the first part of the article. The fact one part of the clause favours one party does not mean the other part does not apply. Mr Abirached agrees with the Bank’s understanding of the forum selection clause as consistent with his view of the expressed intention of the parties and it gives effect to the provision in its entirety when the Bank is a defendant and not a claimant with the right to refer the dispute to a different forum. 748 Mr Abirached said in his experience, for practical reasons, banks endeavour to centralise to the greatest extent the jurisdiction where matters may be brought, usually the main place of business of the Bank. 749 Mr Abirached also considered Ms Rjeily’s translation of Article X. The difference between the translations is the use of the word “exclusively” in Ms Saade’s translation and “alone” in Ms Rjeily’s translation. The latter translation states that Beirut courts “alone” shall have the right to look into any dispute. Mr Abirached considers the word “alone” restricts parties to one particular jurisdiction and is sufficient to designate the selected forum as the sole competent jurisdiction and, accordingly, there is no difference between the translations. Mr Abirached considers the translations accurately reflect the meaning of the Arabic text. Dr Kotob’s evidence 750 Dr Kotob says that Article X reflects inequality between the two parties to the contract. Dr Kotob received as an assumption that the KYC form stated Mr Hani’s country of taxable authority as Australia. Dr Kotob says Article 366 of the Code of Obligations and Contracts states that the Judge should consider the true intention of the covenant, if it had unilateral effect, or of all the contracted parties, and not only focus on the literal meaning of the text. Dr Kotob then refers to a number of decisions of courts of first instance. Dr Kotob says one such decision requires the court to determine the intention and purpose of the contract to apply the correct legal description rather than the description given by the parties. Another states that it is for the court to interpret the legal acts by determining the true intention of the parties rather than the literal meaning of the contract. Accordingly, Dr Kotob considers Mr Hani should be treated with the status of an Australian client living outside of Lebanon. -- 153 of 251 -- [2026] SASC 107 Stein CJ 150 751 Dr Kotob agrees with Mr Abirached’s view that Article X, literally read, provides for exclusive jurisdiction. However, he does not agree that the article does not impair the effectiveness of the exclusive jurisdiction clause. 752 When asked under cross-examination to agree that Mr Hani has a right to commence proceedings in Lebanon against the Bank, Dr Kotob responded that Mr Hani had a right to resort to the judicial system, both in Lebanon and abroad. He reiterated that response when asked the question again. In response to the proposition that, pursuant to Articles 100 and 101 of the Code of Civil Procedure, Mr Hani has a right to commence proceedings in Lebanon against the Bank, Dr Kotob responded that Mr Hani could resort to the Lebanese judicial system, but the jurisdiction was not exclusive. Article X is an express exclusive jurisdiction clause 753 I have concluded that Article X constitutes an express exclusive jurisdiction clause. 754 I did not understand Mr Hani to dispute the proposition that Article X provides for the exclusive jurisdiction of the courts of Beirut in the case of proceedings brought by Mr Hani. Dr Kotob agreed that literally read, Article X provides for exclusive jurisdiction. 755 Mr Hani did not submit that Ms Rjeily’s translation of Article X should be preferred. Irrespective of which interpretation is used, I accept Mr Abirached’s view that Article X is clear and unambiguous in providing for the courts of Beirut to have exclusive jurisdiction in respect of claims by Mr Hani. The parties referred to the aspect of the article permitting the Bank to issue proceedings abroad as “asymmetrical” and I adopt the same terminology. 756 The first part of Articles X reflects the position in relation to jurisdiction under Lebanese law. In respect of claims by Mr Hani, Articles 100 and 101 of the Code of Civil Procedure provide that jurisdiction lies: • at the location of the defendant’s head office, that is, Beirut; • at the location where the contract was concluded and one of its principal obligations was to be performed, that is, Beirut; or • the court within whose jurisdiction the contract was to be entirely performed.173 757 However, Articles 100 and 101 of the Code of Civil Procedure do not exclusively grant jurisdiction in the sense that they do not and cannot address whether jurisdiction would also be vested in a foreign court. 173 Mr Hani did not plead that the contract was to be entirely performed in Australia. -- 154 of 251 -- [2026] SASC 107 Stein CJ 151 Exclusive jurisdiction clauses have been upheld by Lebanese Courts 758 Parties may contractually agree to modify the standard position set out by the Code of Civil Procedure in relation to ordinary territorial jurisdiction. In addition, where an agreement clearly designates a court with territorial jurisdiction it will not constitute a breach of Article 221 of the Code of Obligations and Contracts. 759 In the Lebanese Court of Cassation decision 77/05.05.2005,174 the Court considered a question of jurisdiction. The Court said that Articles 96 to 106 of the Code of Civil Procedure pertain to ordinary territorial jurisdiction and relative territorial jurisdiction may be contractually modified by agreement between the parties, which is a legally sound principle and does not constitute a violation of legal provisions. The Court of Cassation said the contested decision did not violate Article 221 of the Code of Obligations and Contracts (which stipulates that contracts must be interpreted and performed in good faith with regard to equity and customary practices), nor Article 366 (which stipulates that when interpreting legal Acts, the judge must ascertain the true intent over the contracting parties rather than rely solely on the literal wording of the text). This was because the agreement was clear in designating the court of territorial jurisdiction and one party could not unilaterally withdraw from the agreement without the other party’s consent. 760 The proposition that the parties can agree between themselves to resort to the jurisdiction of the Beirut courts is also supported by Bank of Beirut S.A.L vs Maasri – Court of Cassation decision number 66/2009, issued on 20 October 2009.175 In that case, the Court rejected a submission that the jurisdictional rules established under Articles 100 and 106 of the Code of Civil Procedure could not be annulled by a jurisdiction clause in the contract between the parties. 761 These decisions did not address the Consumer Protection Law. 762 Similarly, in Al-Asadi v BLOM Bank SAL decision 98 of 2020,176 a Judge of Urgent Matters in Saida (Sidon) dismissed the plaintiff’s claim for lack of territorial jurisdiction. In that case, the account opening agreement contained a clause that specified the jurisdiction of the courts of Beirut in respect of a claim by the customer, while agreeing that the bank could choose the jurisdiction in respect of any claim by the bank. The decision upheld the validity and enforceability of a clause similar to Article X. There was no discussion about the potential impact, if any, of the Consumer Protection Law or Article 85 of the Code of Obligations and Contracts. 174 SCB23. 175 SCB29. 176 Exhibit R30. -- 155 of 251 -- [2026] SASC 107 Stein CJ 152 PART 9 – IS ARTICLE X INVALID AS AN ABUSIVE CLAUSE CONTRARY TO THE CONSUMER PROTECTION LAW? 763 I now turn to address the specific expert evidence and the parties’ arguments on the validity of Article X. Mr Hani opened on a broader basis but confined his closing submissions to arguments that Article X is invalid as abusive within Article 26 of the Consumer Protection Law and as potestative pursuant to Article 84 of the Code of Obligations and Contracts. Consumer Protection Law 764 Mr Hani’s challenge to the validity of Article X is based on the asymmetrical aspect of that article. 765 For the reasons I explain below, I conclude that the Consumer Protection Law applies to the agreements; Mr Hani is a consumer and Article X constitutes an abusive clause contrary to Article 26 of the Consumer Protection Law. Article 26 of the Consumer Protection Law 766 I was provided with two translations of the Consumer Protection Law which differed. The overall import of the translations may be the same. However, given the importance of text in statutory construction principles, there is the potential that different translations could give rise to different conclusions. 767 Ms Saade’s translation of Article 26 is as follows. The clauses aiming at or leading to the creation of an imbalance between rights and obligations of a supplier and a consumer in the favour of the supplier, shall be considered abusive. The abusive aspect of a clause shall be evaluated on the basis of the date, clause and annexes, except for the price-related annexes, of the contract. The following clauses shall be, inter alia, considered abusive: • The clauses that exempt the supplier from his liabilities. • The consumer’s waiver of any of his rights prescribed by laws and regulations. • The clause that places the burden of proof on the consumer, in cases other than those prescribed by the Law. • The supplier’s unilateral entitlement to modify one or all of the clauses of the contract, especially in terms of price, date and place of delivery. • The supplier’s entitlement to rescind an open-ended contract, without notifying the consumer about his desire to rescind it, within a reasonable period. • The consumer’s obligation – if he breaches any of his contractual obligations – to overcompensate the damage caused to the supplier. • The supplier’s entitlement to interpret the provisions of the contract. -- 156 of 251 -- [2026] SASC 107 Stein CJ 153 • The consumer’s obligation to carry out his commitments, while the supplier abstains from carrying out his commitments. • The clause that does not allow mediation or arbitration for dispute settlement in accordance with the provisions of this Law, or those that burden the consumer with the expenses due on following such processes. Abusive clauses shall be deemed completely void, while all other clauses of the contract shall remain applicable. 768 Ms Rjeily’s translation referred to clauses falling foul of Article 26 as “arbitrary” whereas Ms Saade referred to such clauses as “abusive”. I have adopted the latter terminology in my reasons. 769 I accept that it is necessary first to determine whether the Consumer Protection Law applies, then determine whether there has been a breach and then consider the question of relief. 770 The Bank submits that Lebanese law protects freedom of contract and enforces contracts on their terms, pointing to Article 202 of the Code of Obligations and Contracts, which sets out circumstances in which contracts may be avoided. I accept those submissions and I also accept Mr Hani’s submissions that those principles do not detract from the operation of the Consumer Protection Law. Mr Abirached’s evidence on the Consumer Protection Law 771 Mr Abirached considers the application of the Consumer Protection Law is limited in the banking sector in accordance with Article 17. The limits of the article are not clear and have not been subject to interpretation by courts. Article 17 provides the provisions of the Law are applicable to the extent they do not conflict with regulatory law governing the liberal professions, banks and insurance companies. In the banking and insurance sectors most contracts are adhesion contracts which parties do not fully negotiate. Nevertheless, they are still valid because they serve the needs of particular sectors which would not otherwise be able to operate. Mr Abirached says clauses similar to Article X are frequently included in financial agreements allowing the party with an option, usually the bank, to pursue the debtor’s assets more effectively. 772 In Mr Abirached’s view, the Consumer Protection Law does not apply to Mr Hani. Mr Abirached points to the statement in Mr Hani’s affidavit that he has various business interests including in management of retail shopping centres, post office businesses, leasing commercial premises as well as being heavily involved in stock market investment, and that in September 2018 he became aware of investment opportunities in the Lebanese banking and finance sector. 773 Mr Abirached says if the Court applies the Consumer Protection Law, Article X is not an abusive clause. Article 26 of the Consumer Protection Law states that clauses that aim or may lead to disruption of the balance between the rights and -- 157 of 251 -- [2026] SASC 107 Stein CJ 154 obligations of the professional and the consumer are considered abusive clauses, are void, and cannot be enforced. The article provides examples of abusive clauses including clauses where the consumer waives rights granted by the Law or giving the professional the right to unilaterally amend provisions of the contract, examples which do not apply to Article X. Mr Abirached says the definitions given by Dr Kotob (which I set out below) do not apply. In Mr Abirached’s view, Article X is a forum selection clause which gives the Bank the option to choose between courts in Beirut or courts abroad, whereas Mr Hani is only given one option, the courts in Beirut. Mr Abirached does not accept Dr Kotob’s view that the Bank’s option creates an imbalance and should be invalidated. Mr Abirached’s view is that contractual terms are abusive only when they are extremely unjust and one-sided in favour of one party and not contractual terms that are simply unequal or not entirely mutual. He considers if Dr Kotob’s understanding was adopted it would lead to annulment of many clauses which have a business rationale. Article X protects the Bank’s interests, usually as a lender, to allow it to pursue the debtor’s assets more efficiently and conveniently. In his view, there is nothing abusive in the context of a forum selection clause in granting one party an additional advantage and that additional advantage does not disrupt the balance of the contract. 774 Article 18 of the Consumer Protection Law provides that agreements should be interpreted in favour of the consumer. To assess the extent of the consumer’s consent, the circumstances surrounding the entry into the agreement, the benefits granted to the consumer and the balance between the rights and obligations of the parties should be taken into account. Mr Abirached considers Mr Hani entered the agreement willingly and knowingly, the agreement was not obtained by fraud or duress, Mr Hani is a sophisticated businessman and investor who did not lack alternatives and he was not solicited in Australia. Mr Abirached’s view is that Mr Hani appears to have chosen the best investment he could find, signed the relevant agreement in the presence of his lawyer and then decided on different dates to transfer large sums of money from an Australian bank to his account with the Bank to benefit from interest rates reaching 10 percent. Mr Abirached refers to Mr Hani transferring further amounts to benefit from high interest rates and top-ups in July 2020 after the banking crisis started when it was clear Lebanese banks were not making international transfers. In Mr Abirached’s view, the circumstances do not support an argument of absence of consensus or imbalance between the rights and obligations of the parties. Mr Abirached says Article X does not deprive Mr Hani of rights nor leave him without recourse. Absent the clause, Mr Hani would have had the right to sue the Bank in its place of domicile, Beirut, and the Bank would have the right to sue Mr Hani in Beirut or South Australia by reason of the provisions of the Code of Civil Procedure. As the clause does not put Mr Hani in a less favourable position, Article X cannot be considered abusive. 775 Dr Abirached applies the same reasoning to other clauses of the contract which Dr Kotob appears to consider abusive. Mr Abirached takes the position that -- 158 of 251 -- [2026] SASC 107 Stein CJ 155 each contractual clause has to be understood and interpreted in the context of the nature of the agreement and the services provided, the specificities of the parties, the circumstances of signature and the impact of implementation of the clause. 776 Mr Abirached considers that if a Lebanese court were to decide Article X giving the Bank the right to sue Mr Hani abroad is abusive, there are three possible remedies. Mr Abirached takes the view that to construe the unilateral clause to make it bilateral would substantially modify the article. Under Lebanese law, a judge may not re-write clauses and to do so would deprive the exclusive jurisdiction clause of its purpose. Mr Abirached considers the contract cannot be annulled in its entirety because doing so would be inconsistent with decisions of Lebanese courts and/or Article 26 of the Consumer Protection Law. The second hypothetical remedy is partial annulment of the unilateral part, leaving the exclusive jurisdiction of Beirut courts. The third possible remedy is annulment of the article in its entirety leaving the court to apply Articles 100 and 101 of the Code of Civil Procedure. This would lead to a conclusion that the courts of Beirut were competent and the appropriate forum of the dispute. 777 Mr Abirached observes that Dr Kotob relies on writings of Dr Mustafa Al-Awji to state that arbitrary clauses in contracts of submission should be voided. Dr Abirached notes that Dr Al-Awji states there are several conditions to be taken into account, including whether the party subjected to arbitrary and onerous conditions is compelled to submit to them due to necessity or monopolisation of the service. In his view, those conditions do not apply to Mr Hani. 778 Under cross-examination, Mr Abirached said he did not teach Consumer Protection Law at University but came across it during his practice as a lawyer. 779 As there were no cases decided by a Lebanese court on the interpretation of the Consumer Law, Mr Abirached said he analysed the texts of the Law and provided his interpretation. He considers the text is very clear. When asked whether he agreed that the Consumer Protection Law of Lebanon applies to contracts between Lebanese banks and their customers, as found by Picken J in Manoukian, Mr Abirached responded that he needed to provide a nuanced distinction and that Article 17 of the Consumer Protection Law specifies clearly that the provisions of the Law must not contradict the text of laws and rules that apply to banks.177 Mr Abirached said the question then becomes whether Mr Hani is a consumer when he says he is heavily concerned with the markets. 780 I pause to note that Article 17, as interpreted by Ms Saade, states that the provisions of the Law relating to contracts between suppliers and consumers shall be enforced without prejudice to provisions of the laws governing the liberal professions, banks and insurance companies. 177 TT271. -- 159 of 251 -- [2026] SASC 107 Stein CJ 156 781 When asked about the purposes of the Consumer Protection Law, Mr Abirached said in addition to referring to protection of consumers and the safety and quality of goods and service, Article 1 also refers to fraud, misleading advertising and other matters. Mr Abirached said he asked himself the question whether there had been fraud, misleading conduct or the Bank had exploited the claimant. 782 The full text of Article 1 is set out in Attachment 2. The purposes of the Law are, among other things, to set out general rules concerning consumer protection and safety and quality of goods and services; guarantee transparency of transactions; and protect consumers from fraud and misleading advertising and prevent their exploitation. 783 Mr Abirached agreed a Lebanese judge applying the Law would need to consider the first two stated purposes. He said if one of the objectives of the Consumer Protection Law is not reached, then one goes on to determine if there is an abusive clause. Mr Abirached said he did not mention the first two purposes of the article in his report because Mr Hani signed the contract in the presence of his lawyer and was heavily involved in investment in the market. The services offered met Mr Hani’s interests, there was transparency and no culpable action and therefore no vice of consent which would give rise to application of the Consumer Protection Law. 784 When asked if he agreed that a Lebanese judge would have regard to Article 3, including the right to sue for damages or the assertion of his rights, Mr Abirached responded that the Consumer Protection Law does not provide a right to sue. I observe that Article 3 sets out various rights including the right to sue for damages or for the assertion of rights, individually or collectively through consumer protection associations. Mr Abirached said the Bank cannot take away the claimant’s right to bring an action as that is guaranteed by the Code of Civil Procedure. Mr Abirached agreed that Article 3 grants rights to consumers but said that cannot extend the Consumer Protection Law beyond what it addresses. In this case there was clear agreement between the parties to award jurisdiction to the courts of Beirut and that right was also guaranteed to Mr Hani. 785 Mr Abirached was taken to the words in Article 2 of the Consumer Protection Law. That article defines consumer to mean a person who buys, rents, utilizes or benefits from goods or services “which are not directly related to his professional activity”. Mr Abirached was asked whether that means under Lebanese law a person will be a consumer in their personal affairs even if they otherwise conduct a business. Mr Abirached said the purpose must not directly relate to the person’s professional activity. He did not think the term “consumer” was exact and there must be a direct link between the profession and the consumer. In his view, Mr Hani is indirectly related to the activities of the Bank. Mr Abirached agreed a Lebanese judge would have to decide as a factual question whether the transaction was part of a person’s professional activities but he “insist[s]” that Mr Hani has not been denied the right to sue. Thus, a professional would still be a consumer -- 160 of 251 -- [2026] SASC 107 Stein CJ 157 under Lebanese law when they bought a washing machine because that would not be linked directly to their professional activity. Mr Abirached said if a lawyer took out professional indemnity insurance, they would be a consumer because their activity is not directly linked to insurance, but Mr Hani said he was heavily involved in the markets. Mr Abirached agreed the focus for Lebanese courts will be on whether the transaction is for a personal purpose but then continued to say that Mr Hani wanted to derive profit by accepting the interest rate offered by the Lebanese bank at a rate he could not find anywhere else. 786 Mr Abirached did not agree that Article 17 makes it clear the Consumer Protection Law applies generally to banks. He said Article 17 reserves the application of legislation governing banks because contracts with banks are adhesion contracts which are considered valid as long as they do not contain abusive clauses. He then agreed that the Consumer Protection Law applies unless there is a contrary provision in a banking law and Picken J so found in Manoukian, and agreed his report did not identify any banking law conflicting with the application of the Consumer Protection Law. He said he did not do that comparison because his main problem was to identify in the contract if there was a clause which was suspected to be abusive. 787 When asked if he agreed that Article 17 does not say the Consumer Protection Law does not apply because of the needs of the banking sector, Mr Abirached said it has not been the subject of case interpretation. However, the reference to banks establishes the legislature insisted on banks as a profession. When asked again to agree with the proposition that he had not identified a source to support his view that the Consumer Protection Law does not apply because of the needs of the banking sector for a jurisdiction clause, Mr Abirached answered by reference to the choice given to the Bank. He said the Bank could not escape from the exclusive jurisdiction clause and the clause complies with the principle that jurisdiction is enlivened by the residence of the defendant. The election given to the Bank is merely a response to a legitimate need to be able to pursue a contractor to a foreign address and the clause is legitimate. When asked the same question again, Mr Abirached referred to a number of examples involving loans and mortgages by reference to which he said one could not say the clause was abusive under the text of the Consumer Protection Law. 788 When asked to agree that his report did not identify any banking law conflicting with the application of Article 26 of the Consumer Protection Law, Mr Abirached said he did not see in the contract the option for the professional to modify the provisions of the contract unilaterally, nor any possibility reserved to terminate the contract, nor an obvious obligation to indemnify, nor a claim reserved for the professional, nor a right to interpret the provisions. 789 Mr Abirached agreed a Lebanese court would consider the examples in Article 26 in determining the meaning and effect of an imbalance between the rights and obligations of the professional and the consumer. Mr Abirached said the list is by way of example and, to be abusive, the clause must be as serious in -- 161 of 251 -- [2026] SASC 107 Stein CJ 158 its limitations on the rights of the consumer as the examples in Article 26. Mr Abirached then continued to refer to Article X, reiterating that it was legitimate, saying the Bank is given the choice and had not exercised the option. He continued to say that Mr Hani was accompanied by his lawyer, saw the clauses and, in considering imbalance, Mr Hani was hoping to derive a 10 to 12 percent interest so there was an equivalency and there was no victim. Mr Abirached then agreed the examples were not exhaustive, but he said they must be of the same kind of seriousness or gravity to qualify and, in particular, they must deprive the consumer of a right, which was not the case here. 790 Mr Abirached agreed that Article 26 does not say in its words or examples that imbalance must be extremely unjust or one-sided but said it was obvious the examples dealt with very pronounced imbalances which are unjust for the consumer in favour of the professional party and, accordingly, are unacceptable, abusive clauses. He reiterated that the banking contract was a balanced contract, Mr Hani was promised 10 to 12 percent interest and he could have gone to another bank or chosen another investment if he thought the clauses were unjust. Mr Abirached said that Mr Hani, as a man who professed to be very heavily involved in the markets, made a careful calculation about what he was to earn and this was balanced by other clauses in favour of the Bank protecting its part of the investment. When asked if he agreed that there was no case or textbook to support the view that the imbalance must be extremely unjust or one-sided, Mr Abirached said it was his reading of the law and he did not need confirmation. 791 Mr Abirached was taken to a part of his report in which he asserted that the reference to balance in Article 26 is a criterion for assessing consensus to the agreement. He was asked if he agreed that Article 26 in fact says the imbalance is between the rights and obligations of the parties. Mr Abirached said he was not sure that Article 26 is talking about a lack of balance in terms of abusive clauses or as a result of lack of balance and it is necessary also to refer to Article 366 of the Code of Obligations and Contracts, that is, when analysing contracts, it is necessary to look at the contract as a whole and to determine whether, as a whole, there is a lack of balance. In his view, each clause in favour of one party may be balanced by a clause in favour of the other party. He then said he must insist again that Mr Hani was not only consenting but excessively sure he had made a good investment and it must be remembered that when he signed the contract, he was accompanied by his lawyer. Mr Abirached reiterated that adhesion contracts are valid unless there is an absence of free consent. 792 Mr Abirached did not agree that the issue is not one of evaluation of the contract as a whole, but of looking at clauses which are aiming at or leading to creation of an imbalance, because one should evaluate balance looking at the entire contract and seeing what benefit flows from each part of the contract. He said if you just read the first sentence of Article 26, you would condemn all bank, and adhesion, contracts. -- 162 of 251 -- [2026] SASC 107 Stein CJ 159 793 When asked whether he agreed that in referring to the balance between rights and obligations of the parties, Article 26 is not limited to the presence or absence of consensus to the agreement, Mr Abirached responded that his personal view was that balance inherent in the contract can serve as a criterion in asking if there was a defect in consent, but there needs to be a clear, striking imbalance. In the course of his response, Mr Abirached referred to contracts with banks as take it or leave it agreements. 794 When asked whether the purpose of an article like Article 26 was to protect consumers from unfairness in adhesion contracts, Mr Abirached said “yes” but then said he wanted to pose a question, which was “how could the non-exercise of a right ever be abusive”? In his view the answer was never, and in this case the Bank had not used the right to sue abroad. When asked whether he agreed that his question whether a right which is not exercised can be abusive is answered in the words of Article 26, which refers to clauses “aiming at or leading to the creation” of an imbalance, Mr Abirached answered “yes” but then continued to pose an example of Mr Hani taking out a loan. 795 Mr Abirached’s attention was drawn to an example in Article 26 referring to a supplier’s entitlement to interpret the provisions of the contract and asked whether that example suggested it is not necessary to exercise the right for it to be declared null and void. Mr Abirached answered by saying that a particular example englobed all of the other examples in its meaning because it really meant the professional could unilaterally amend or modify the contract or its clauses because that is how the professional wants to interpret it. 796 When asked whether in assessing imbalance in a jurisdiction clause, a Lebanese judge would consider the actual impact of the implementation of the clause, Mr Abirached responded to say that one cannot interpret a contract by isolating a single clause which does not create an unbalanced contract; the whole contract is unbalanced or not. It is necessary to look at all of the benefits and obligations of the contract and, if there is full imbalance, whether there was real consent. If there is a problem in performance, then it is a question of good or bad faith in performance. 797 When asked whether a Lebanese court assessing whether there was imbalance in a jurisdiction clause would need to consider whether parties were resident and what the other party knew about that, Mr Abirached said residence of the applicant is not a relevant criterion for determination of jurisdiction. When asked the question again, Mr Abirached said the Bank knew that the applicant was a Lebanese/Australian businessman and his main place of business was in Australia as well as domicile, but he did not think that was relevant. 798 When asked why he took into account the interests of the Bank as a lender when Article X is in a deposit contract, Mr Abirached responded that the Bank had nothing to reproach itself for, giving an example of a borrower changing their residence and shifting their assets. In the case of Mr Hani, the Bank does not want -- 163 of 251 -- [2026] SASC 107 Stein CJ 160 to exercise the choice of forum and the domicile of the applicant is not taken into account. When asked whether he considered the interests of the Bank as a lender in concluding Article X was not abusive, Mr Abirached said he was taking into account the interests of none of the parties and he was engaging in legal analysis of an asymmetrical choice of forum clause. If the Bank exercised the option, they would have to exercise it in good faith. He said a banking contract, especially a deposit contract, benefits both parties: the client gets interest and the Bank receives fees and commissions and high interest rates were being paid by the Lebanese State. When asked whether there was no rationale for a depositor to have different rights as to where they may sue, Mr Abirached said he did not think he understood the question completely but the contract was signed, Mr Hani was present, was assisted by his lawyer and there was an exclusive jurisdiction clause which Mr Hani necessarily accepted. 799 Mr Abirached agreed that Article 26 contains the remedy for an abusive clause such that the clause is null and void. If the whole clause is cancelled, then Beirut courts would apply Articles 100 and 101 of the Code of Civil Procedure to determine jurisdiction. 800 Mr Abirached said he did not agree that where Article 26 provides that an abusive clause shall be deemed to be completely void that has the result that the entirety of the exclusive jurisdiction clause must be annulled. He considers only the asymmetrical part would be cancelled, which is the option reserved for the Bank which is not a right. Mr Abirached said both the parties contracted and agreed to award exclusive jurisdiction to Beirut courts and this could not be ignored. Mr Abirached said there was no case or textbook supporting his view that annulment can leave part of the parties’ agreement about jurisdiction valid while invalidating another part, but there were scholarly articles. His analysis is that the option to be exercised is not of itself abusive; the exercise of the right may be abusive, not the right itself. 801 When asked to agree that a Lebanese court would not re-shape the bargain and pick one part of the clause over another, Mr Abirached said one part of the clause is symmetrical and gives rise to equivalent obligations to both parties. This was to be compared with the asymmetrical part. Mr Abirached referred to scholarly articles of Professor Najar and Professor Nasri which he said supported his view there is no abusive clause if a choice given to one party is not exercised. Mr Abirached agreed that Professor Najar’s article concerns French law and potestative rights, not Article 26 of the Consumer Protection Law, but maintained that a right cannot be abusive if it is not exercised. Mr Abirached agreed that Articles 100 and 101 of the Code of Civil Procedure grant jurisdiction to Lebanese courts to determine a civil or contractual dispute. Mr Abirached was asked whether he agreed there are no words in Articles 100 or 101 to the effect that conferral of jurisdiction of Lebanese courts is exclusive of a foreign court determining a dispute if it otherwise has jurisdiction, Mr Abirached said those articles are not mandatory and the parties can depart from the selection of jurisdiction. When asked if he agreed that a Lebanese judge would find nothing -- 164 of 251 -- [2026] SASC 107 Stein CJ 161 in Article 100 to exclude a foreign court from determining the dispute if it had jurisdiction, Mr Abirached said “no”, Lebanese courts do not have that jurisdiction and it is necessary to look at the rules that foreign jurisdictions apply to award themselves jurisdiction. 802 When asked if the question whether a foreign court has jurisdiction in the event of invalidity of an exclusive jurisdiction clause is outside his expertise, Mr Abirached said “no”, but as he had taught conflict of laws for many years, he believed he had sufficient expertise in private international law. He said a foreign court would not burden itself with the provisions of the articles of the Civil Procedure Code and the sole question it would ask itself was whether the exclusive jurisdiction clause was desired, consented to and placed in the contract by both parties and, as Mr Hani was aided by his lawyer, it took away all doubt. 803 Mr Abirached was asked to assume a foreign court finds the exclusive jurisdiction clause is invalid, in which case whether the foreign court had jurisdiction would depend on the competence rules of the foreign jurisdiction. Mr Abirached said a foreign court could ignore the exclusive grant of jurisdiction in which case there would be two jurisdictions, the Lebanese and Australian jurisdictions, but said the advantages of awarding exclusive jurisdiction to Lebanese courts means the courts of a single country awarded jurisdiction apply their own laws. When asked again, on the assumption Article X is invalid, whether jurisdiction of a foreign court will depend on the competence rules of the foreign jurisdiction, Mr Abirached said he could answer that question and if the Australian court declared it had jurisdiction, there would be a conflict about jurisdiction. When asked the question again, Mr Abirached responded “yes, obviously”. Dr Kotob’s evidence on the Consumer Protection Law 804 Dr Kotob referred to Article 26 of the Consumer Protection Law and to the Guide to Consumer Protection Law which describes “arbitrary item” as those that aim at, or may lead to, a disturbance of the balance between the rights and obligations of the professional and the consumer other than in the interest of the latter. 805 Dr Kotob considers Article X creates an imbalance because it gives a right to one party and prevents the other party from having that right, making it an arbitrary clause. As the deposit contract is a contract of compliance, in his view an arbitrary clause is an absolute nullity. 806 Dr Kotob considers Article X violates the rights of the customer, creating an imbalance giving the Bank the right to resort to courts outside of Lebanon but depriving the customer of that right without legal justification. Accordingly, Dr Kotob considers Article X an arbitrary clause and is of the opinion that a judge in Lebanon would have the right to invalidate it. 807 Dr Kotob did not agree that none of the purposes in Article 1 of the Consumer Protection Law are relevant to Article X of the general agreement. He said -- 165 of 251 -- [2026] SASC 107 Stein CJ 162 Article 1 is important because it outlines general rules concerning the protection of consumers and the safety and quality of goods and services. In this case, there was a question of safety of services, making the depositor safe, giving him the right to go to the suitable court and therefore was included in Article 1. In response to the proposition that none of the consumer rights in Article 3 of the Consumer Protection Law are relevant to Article X, Dr Kotob pointed to the right to receive fair and non-discriminatory treatment. When it was pointed out that the fair and non-discriminatory purpose related to supplies of goods intended for local consumption or exportation, Dr Kotob responded that the article also contains a right to establish and adhere to a consumer protection association. 808 Dr Kotob denied that Mr El Masri suggested he consider Article 26 of the Consumer Protection Law. He said they thought about Article 26 when talking about adhesion contracts. 809 Dr Kotob agreed he did not address Articles 1, 3, 17 or 18 of the Consumer Protection Law, but continued to say that when dealing with a Law, one should not insert all articles, but only the essential articles, and those articles did not affect his legal points. 810 Dr Kotob agreed that Article X of the general agreement was clear but said it was not balanced. When it was put to Dr Kotob that, as a matter of Lebanese law, there is no requirement that contracts must contain equal rights and obligations as between the parties, Dr Kotob said in the Lebanese legal system the contract relies on a principle of balance between rights and obligations. He referred to a scholar, Dr Mustafa, who says the principle of balance in contracts is important. For that reason, any contract which includes a clause which is not in balance between rights and obligations is abusive and arbitrary and Article 26 says an abusive clause is null and void. When asked the question again, Dr Kotob said there were different kinds of contracts. Consent contracts require strict equality between rights and obligations. Adhesion contracts are contracts where one party has the power and the other party is weak. In those contracts, if there is an imbalanced clause, the clause will be abusive and void. When asked again whether, as a matter of Lebanese law, there is no requirement for equality between rights and obligations, Dr Kotob said that was not right. When asked if he understood the question related to the word “equality”, Dr Kotob responded that if there was no strict equality it was an adhesion contract. 811 Dr Kotob did not think he mentioned Article 166 of the Code of Obligations and Contracts in his report and then said he did not refer to Article 166 because that article relates to freedom of contract. 812 When it was put to Dr Kotob that he was not given instructions to suggest Mr Hani was the victim of fraud, Dr Kotob responded that Mr Hani made an agreement and the agreement included an abusive clause. When he was asked the question again, Dr Kotob said it is not a matter of fraud but a matter of abusive clauses. When asked the question again, Dr Kotob responded that he was an -- 166 of 251 -- [2026] SASC 107 Stein CJ 163 independent legal expert and he did not take instructions from anybody. When it was put to Dr Kotob that he was not given instructions that Mr Hani was misled, Dr Kotob responded that he deals with legal matters and with contracts and it is not a matter of fraud but a matter of a balanced contract and protection of the consumer. Dr Kotob agreed that he was not given instructions that Mr Hani was the victim of deceit. When it was put to Dr Kotob that he formed his opinions on the assumption Mr Hani was a weaker party, Dr Kotob responded “yes, I considered Mr Hani the weaker party because they gave him the banking contract and told him to sign”. Dr Kotob said Mr Hani only had the power to write his name and the date and sign the contract and, consequently, it was an adhesion contract in which the consumer is the weaker party. Dr Kotob said the professional is the stronger party and should not include in the contract an abusive clause. 813 Dr Kotob agreed that Mr Hani transferred money to the Bank several months after signing the general agreement. When asked whether he considered the second of the general agreements, Dr Kotob said from the facts there was a dual account with Mr Hani and Mr El Masri and he took that contract into consideration when forming his opinions. When asked how he did so, he said it was a fact in his report and he took it into consideration. When it was put to Dr Kotob that he was not given any instructions or assumptions about Mr Hani’s experience in business and as an investor, Dr Kotob said Mr Hani engaged in commercial activity and was a trader in real estate and in that respect was a professional. To save money and to make a personal investment one or two times was not an activity that made Mr Hani a professional. Mr Hani’s main activity was not banking and so, in opening an account, Mr Hani was not engaging in professional activity. Dr Kotob referred to the definition of consumer in Article 2 of the Consumer Protection Law and said that, in opening an account, Mr Hani was a consumer. When asked again about instructions or assumptions about Mr Hani’s business background, Dr Kotob responded that Mr Hani was not a professional. 814 Dr Kotob was taken to an email dated 24 April 2019 from Mr Hani to Mr El-Khoury178 which Dr Kotob said he had seen in the Court Book. Dr Kotob said the Court Book was huge and he tried to read what he could because it was his duty as an expert to read the Court Book as it was important to read the file related to the case before giving evidence. It was put to him that having read the Court Book, he was now aware of facts which he was previously unaware of when preparing his reports. Dr Kotob responded that Mr Abirached referred to this email and he read Mr Abirached’s report. 815 Dr Kotob responded “no comment”179 when the proposition was put to him that the email set out Mr Hani’s knowledge and experience of financial matters. Dr Kotob said the email did not change any legal point of view. Dr Kotob said the email asks about the best exchange rate and, in personal investments, everybody wants the best return. Dr Kotob said this was normal in personal financial dealings 178 CB1592. 179 TT538.12. -- 167 of 251 -- [2026] SASC 107 Stein CJ 164 and did not mean someone is a professional. He also considered it normal that Mr Hani gave instructions about the amount of money he wished to deposit. 816 Dr Kotob said he had not read an email dated 29 July 2019 from Mr Hani to Mr El-Khoury when he read the Court Book. That email stated that the money to be deposited was coming from an account in the name of Woodcroft Town Centre. Dr Kotob responded to the proposition that this was Mr Hani’s shopping centre business account by saying this was a current account for Mr Hani and he had unified the accounts as a matter of accounting. When asked on what basis he gave that answer, Dr Kotob responded that Mr Hani gave an instruction to transfer money from a business account. Dr Kotob said to consider whether the transaction can be considered professional activity one looks at the contract which generates the interest which is between a consumer and a professional. In his view, if Mr Hani transferred money to a business account, that was a matter of accounting separate from the contract and did not make it professional. When it was put to Dr Kotob that he did not have instructions to enable him to give evidence that Mr Hani’s transfer of funds was an internal re-organisation for accounting purposes, Dr Kotob said “no, we cannot consider it like this”. 817 When asked whether it was correct that there was no case in Lebanon in which Article 26 has been applied to void or set aside a jurisdiction clause, such as Article X of the general agreement, Dr Kotob said “no”, but he wanted to explain. He then continued to say that he did not want to explain. When then invited to explain, he said when an adhesion contract includes an abusive clause, the clause will be null and void; a clause is arbitrary and abusive because it includes imbalance between the depositor and the bank. If the bank had a right to choose a court in Lebanon and outside Lebanon, but the depositor can only choose the Beirut court, this restricts the choice and gives the bank an open choice which is imbalanced. The Consumer Protection Law applies to banks 818 I have concluded for the reasons below that the Consumer Protection Law applies to banks and to the banking agreements with Mr Hani if he is a consumer. I address the latter point separately below. 819 The Bank submits that Article 17 of the Consumer Protection Law reads down the Consumer Protection Law by reference to banking laws. 820 Mr Abirached said that the application of the Consumer Protection Law is limited in the banking sector. Mr Abirached said most banking contracts are adhesion contracts which are valid because they serve the needs of the sector which otherwise would not be able to operate. 821 The Bank submits that none of the purposes of the Consumer Protection Law set out in Article 1 readily apply to Article X. I agree that Article X does not raise a question about the safety and quality of goods and services, transparency of economic transactions, nor is there suggestion of fraud or misleading advertising. -- 168 of 251 -- [2026] SASC 107 Stein CJ 165 However, the first purpose in Article 1 of the Consumer Protection Law is to outline the rules concerning the protection of consumers and the safety and quality of goods and services. The text on its face does not limit itself to the protection of consumers vis-à-vis the safety and quality of goods and services. The experts did not opine that the statements of purpose in Article 1 confine the scope of the Consumer Protection Law in that manner although that may have been implicit in Mr Abirached’s approach. 822 Mr Abirached did not address the balance of Article 1, identify any banking law in conflict with the Consumer Protection Law or provide any authorities to support his views concerning the needs of the banking sector. 823 Mr Abirached did not consider Mr Hani was a consumer the Law intended to protect because nothing indicated any fraudulent or deceptive advertising by the Bank. Mr Abirached said that Mr Hani was not a consumer because he was heavily involved in stock market investment and signed the banking agreement on the basis Mr Hani would benefit from interest rates of between 8.25 and 12 percent. 824 Dr Kotob did not address Article 17 in his reports and was cross-examined on that basis, but it was not put to him that the effect of Article 17 is that the Consumer Protection Law does not apply to banks. Dr Kotob referred to Manoukian180 in the context of his conclusion that Mr Hani falls within the Consumer Protection Law. In Manoukian,181 Picken J addressed the Bank’s reliance on an exclusion clause in a banking agreement which provided that the Bank shall not be liable for the unavailability of foreign currency.182 Justice Picken referred to the Bank’s decision to abandon reliance on an argument based on that clause of the agreement as a “realistic concession” for a number of reasons, including that Mr Manoukian was classed as a consumer under the Consumer Protection Law. After setting out Article 26 of the Consumer Protection Law, Picken J continued to refer to the example of clauses exonerating a professional from liability as one of the non-limitative examples set out in Article 26. Justice Picken did not find at all persuasive the reasoning of one of the experts to the effect that Article 26 did not apply to banks by reason of Article 17. 825 The decision of Picken J in Manoukian refers to decisions of Urgent Matters Judges which precede the decision of the Court of Cassation in Kaadi,183 in which the Court concluded that the Urgent Matters Judge lacked jurisdiction to determine questions about international transfer rights. The applicability of Manoukian in any particular context must be considered carefully. However, the decisions to which Picken J referred did not address the interpretation or application of the Consumer Protection Law. 180 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 181 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 182 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB) at [69]. 183 Kaadi v Byblos Bank SAL; Exhibit R31. -- 169 of 251 -- [2026] SASC 107 Stein CJ 166 826 I accept the Bank’s submission that Picken J’s consideration of the Consumer Protection Law occurred in the context of potential application of a clause exonerating the Bank from liability. Given the express example of an exclusion of liability clause in Article 26, it does not necessarily follow that Article 26 would apply to a jurisdiction clause. However, I am also not persuaded by Mr Abirached’s view that Article 17 has the effect that the Consumer Protection Law does not apply to banks. 827 I conclude that the Consumer Protection Law may apply to agreements between Mr Hani and the Bank if Mr Hani is a consumer for the purposes of the Law. Mr Hani is a consumer 828 I have concluded Mr Hani is a consumer because he is a natural person benefiting from services that do not relate directly to his profession, which is real estate management. 829 The Bank contends that Mr Hani was not a consumer for the purposes of the Consumer Protection Law because he was investing his funds with the Bank in the course of his business and investment activities. There is potential inconsistency between this submission and the Bank’s position that Mr Hani was investing for his retirement in Lebanon. The Bank submitted that Mr Hani was not a consumer because the source of funds was Woodcroft Town Centre Management Pty Ltd and Mr Hani asked for the funds to be returned to that entity’s bank account. Mr Abirached did not refer to the source of funds as a relevant consideration, rather he drew upon Mr Hani’s stock market investment and desire to obtain high interest rates. I accept Mr Hani’s submissions that the source of the funds is not relevant to the question of characterisation of Mr Hani as a consumer or professional. The deposits with the Bank were in Mr Hani’s name and did not constitute investments of a business entity. I accept also the submission that whether Mr Hani applied skill in choosing a term deposit investment is not relevant to the question of whether he is a consumer for the purposes of the Consumer Protection Law. 830 Dr Kotob said Mr Hani was a consumer as the weaker party to an adhesion contract and so should be protected by the Consumer Protection Law.184 He did not articulate why the fact the contract is an adhesion contract bears upon the definition of consumer in the Consumer Protection Law. 831 The exception to the definition of consumer carves out services which directly relate to the person’s activities as a professional. Mr Abirached appeared to accept that the link had to be a direct link. He agreed a judge would have to decide a factual question whether the transaction was part of a person’s professional activities. He accepted that a lawyer acquiring insurance for their firm 184 TT532. -- 170 of 251 -- [2026] SASC 107 Stein CJ 167 would be a consumer, because their activity is not related to insurance.185 By analogy, it should follow that a person engaged in real estate management would obtain banking services as a consumer because their professional activity of real estate management is not directly related to the business of banking. 832 Based on the findings I have made above, the banking agreement(s) were made between the Bank and Mr Hani for the provision of banking services in the form of deposit/term deposit contracts. The accounts were opened in Mr Hani’s name, not that of his corporate business entity. The source of the funds was stated as “professional from business” but the stated purpose for the account on the first KYC form was “saving”. On the second and third forms the source of funds was “savings” and the purpose was “personal operations”. In my view, contrary to the Bank’s position, these findings support the conclusion that the purposes of the bank accounts were not directly related to Mr Hani’s professional activities. 833 I have disregarded what I consider to be assumptions or submissions by both experts on the circumstances in which Mr Hani entered the banking contracts which had the appearance of advocating for the respective parties’ positions on whether Mr Hani fell within the Consumer Protection Law. Article 26 of the Consumer Protection Law applies to Article X 834 I have concluded that Article X is a clause which leads to the creation of an imbalance between the rights of the Bank and Mr Hani. 835 The language of Article X on the one hand limits Mr Hani to bringing proceedings in Beirut but leaves the Bank free to issue proceedings in whichever jurisdiction it chooses. The Bank’s right in the Article is unconfined. 836 Mr Hani submits that the purpose of Article X is to prevent the depositor from suing in his or her own jurisdiction if such jurisdiction exists. He makes the point that a deposit contract, as distinct from a loan contract, does not require the Bank to be able to sue in the location of the depositor’s assets. The Bank submits that the asymmetric part of the article is not enlivened as the Bank has neither utilised it nor benefited from it. Article 26 of the Consumer Protection Law requires assessment of the abusive aspect of a clause at the time of entry into the contract at which point the Bank would not have exercised any such right. Mr Abirached did not explain why the fact the Bank had not sought to exercise the right ought to be a relevant consideration. 837 I was not taken to any cases which support or reject the position that a clause such as Article X would be considered abusive by a Lebanese court. Dr Kotob accepted that there is no Lebanese authority supporting the position that an exclusive jurisdiction clause is void under Article 26. 185 TT276. -- 171 of 251 -- [2026] SASC 107 Stein CJ 168 838 The Bank relied on the Court of Cassation decision No. 77 of 2005186 and Court of Cassation decision No. 66 of 2009187 as upholding exclusive jurisdiction clauses and on BLOM Bank SAL v Attias, a decision of the Court of Appeal of Paris,188 which dealt with an asymmetric clause. I agree that the first two authorities uphold exclusive jurisdiction clauses. However, they do not address the application of the Consumer Protection Law to an asymmetric jurisdiction clause. 839 In BLOM Bank SAL v Attias,189 which I consider separately below in the context of potestative clauses, the Court of Appeal of Paris considered an appeal by the bank against a decision in favour of Mr Attias. Mr Attias was a French national residing in Portugal who had entered into a bank account agreement with BLOM Bank providing for the opening of two current accounts in Euros and other accounts and governed by Lebanese law. Following Mr Attias’ request in 2021 to transfer the funds held in his accounts, the bank closed his accounts and organised a tender and consignment process by issuing a cheque delivered to a Lebanese notary. The bank then filed proceedings against Mr Attias seeking validation of the tender and consignment procedure. Mr Attias was authorised by an order of the Execution Judge dated 16 March 2022 to proceed with a preventative seizure of the bank’s accounts held in its French subsidiary. 840 Mr Attias then filed proceedings against BLOM Bank before the Judicial Court of Paris seeking payment of the balance of his bank accounts. BLOM Bank invoked the lack of jurisdiction of French courts and requested a stay of proceedings pending the outcome of the proceedings in Beirut. The pre-trial Judge of the Judicial Court of Paris dismissed the jurisdiction plea and the stay following which BLOM Bank appealed. 841 The jurisdiction clause contained in the account opening agreement in question was as follows: Any dispute or litigation that may arise between your bank and ourselves, on any grounds whatsoever, falls under the jurisdiction of the courts of Beirut, and we abstain from raising any objection to jurisdiction based on the fact that our domicile is located elsewhere and we hereby accept in advance the jurisdiction of any court chosen by your bank to adjudicate any dispute or action arising from this agreement. We hereby waive our right to challenge the jurisdiction of the court chosen by your bank. 842 I pause to observe that the clause is relevantly similar to Article X. 843 On appeal, the Court of Appeal considered regulations of the European Parliament on jurisdiction and the recognition and execution of judgments in civil and commercial matters. It concluded that jurisdiction was not determined by regulations addressing jurisdiction over consumer contracts. The Court of Appeal stated that clauses conferring international jurisdiction are, in principle, valid 186 SCB23. 187 SCB29. 188 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. 189 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. -- 172 of 251 -- [2026] SASC 107 Stein CJ 169 provided they do not contravene the mandatory territorial jurisdiction of a French court and are invoked in a dispute of an international character. Accordingly, the Court of Appeal concluded from reading the clause that, by agreeing to recognise the jurisdiction of the courts and by undertaking not to contest jurisdiction on the grounds of his domicile in another location, Mr Attias expressly and unambiguously consented to waive the privilege of jurisdiction. 844 The Court of Appeal then continued to say that Mr Attias did not contest the validity of the jurisdiction clause except on the grounds that it would be abusive within the meaning of the Consumer Code. That Code provides that in contracts concluded between professionals and consumers, clauses which have the object or effect of suppressing or hindering the exercise of legal actions or means of redress, in particular by requiring the consumer to resort to alternative dispute resolution, are presumed to be abusive. The Consumer Code provides that the consumer may not be deprived of the protection of the provisions about unfair terms in contracts concluded with consumers where the contract has a close connection with the territory of a member State. 845 The contract sent to Mr Attias contained numerous references to Lebanese law, was governed by Lebanese law at the will of the parties and included a jurisdiction clause attributing jurisdiction to the courts of Beirut. The contract was devoid of any close connection with any member State of the European Union. In the absence of a close connection between the contract and the territory of a member State, Mr Attias could not rely on the provisions to object to the application of the choice of forum clause. The prorogation of jurisdiction clause therefore validly designated the courts of Beirut which Lebanese domestic law allowed to be determined. The jurisdiction clause did not fall within the scope of the Consumer Code provisions. 846 The Court annulled the order under appeal, declaring the Judicial Court of Paris incompetent to adjudicate the legal action brought by Mr Attias. 847 The decision is relevant to my separate analysis below whether Article X is potestative. However, it does not assist in determining whether Article X is abusive within the meaning of the Consumer Protection Law because the Court concluded the Consumer Code did not apply because of a lack of a close connection with any member State of the European Union. 848 Mr Abirached expressed as a personal view his opinion that contractual terms would be abusive only where extremely unjust and one-sided. Dr Kotob considers it is sufficient to demonstrate imbalance per se to render a clause null. His position also was not based on authorities. Mr Abirached’s opinion is that if Dr Kotob’s opinion were adopted, it would lead to invalidity of many clauses with a business rationale. However, Mr Abirached did not articulate the basis upon which a Lebanese court would take into account the business rationale of a clause in assessing whether it is abusive. Read literally, Article 26 focusses on imbalance -- 173 of 251 -- [2026] SASC 107 Stein CJ 170 between consumer and supplier rather than the business purpose underlying contractual clauses. 849 Mr Abirached said the examples in Article 26 are illustrative and, to be abusive, a clause must be serious in its limitations as contained in those examples. While agreeing the article does not refer to extremely one-sided or unjust imbalance, he took the position that was obvious in the examples. He then reverted to reference to the interest rate offered to Mr Hani, reiterating that this was a balanced contract. 850 The Bank submits that the kinds of clauses listed in Article 26, while not exhaustive, make it clear the nature and extent of the imbalance must be of particular seriousness, there is a high threshold for intervention and Article 26 is not intended to avoid any clause which creates the slightest imbalance. The Bank seeks to distinguish Article X from the examples in Article 26. I accept the Bank’s submission that Article X does not fall within any of the examples of abusive clauses in Article 26. However, the examples are non-exhaustive. Neither Mr Abirached, nor the Bank, articulated further detail in support of the argument that the nature of the examples in Article 26 of themselves demonstrate the seriousness of the imbalance required for a clause to be considered abusive. In my view, on a literal reading of Article 26, the seriousness of the imbalance in the examples in Article 26 may depend on the particular circumstances and terms of the contract in question. For example, a supplier’s entitlement to modify a clause of the contract in relation to date of delivery would enable a supplier to alter a delivery date by one day or a year or ten years. The obligation to overcompensate damage caused to a supplier in the case of breach by a consumer may be an obligation to overcompensate to a very small or extremely large extent. A clause that does not allow mediation may relate to a contract for a very small sum, with little potential consequence, or a large amount with significant potential consequence. The Bank’s position is not supported on a close review of the examples in Article 26. 851 The Bank referred to an article by Dr El Aouji190 as illustrating the high threshold required for a clause to be considered abusive. Dr El Aouji’s article contains a discussion about cases addressing the Consumer Protection Law issued on 10 January 1978. That is a reference to the French Consumer Protection Law. The Lebanese Consumer Protection Law is dated 4 February 2005. Dr El Aouji refers to a 1991 Court of Cassation decision which Dr El Aouji described as expanding the concept of an arbitrary law which merely included an exaggerated benefit for one party who occupies a superior economic position enabling it to impose its will on the other party. The article states that a Consumer Protection Law was enacted in France in 1995 which defined the concept of an abusive clause as a clause in a contract concluded between a professional and a non-professional 190 SCB1347. -- 174 of 251 -- [2026] SASC 107 Stein CJ 171 or a consumer that would create a clear imbalance between the rights and obligations of the parties for the non-professional or consumer. 852 Dr El Aouji refers to a clause negating liability as not applying if it exempts the debtor from essential obligations in the contract because such a clause disrupts the economics of the contract, freeing one of the parties from the responsibility to fulfill obligations, compliance without which the contract would not have been concluded. After referring to Article 138 of the Code of Obligations and Contracts which provides that no one can exonerate himself from the consequences of fraud or grave error by negating or mitigating liability, Dr El Aouji continues to address concepts of deception and gross error. 853 I do not accept the Bank’s submission that the El Aouji text supports the high threshold for which the Bank contends. The discussion I have set out above relates expressly to clauses which negate liability. Further, a footnote in the article sets out the Consumer Protection Law text as follows: In contracts concluded between professionals and non-professionals or consumers, clauses which have the object or effect of creating, to the detriment of the non-professional or the consumer, a significant imbalance between the rights and obligations of the parties are abusive. 854 The word “significant” does not appear in the translations of the Lebanese Consumer Protection Law provided to me. Accordingly, extrapolation from the French Law and authorities is not necessarily apposite. I therefore do not accept the Bank’s submissions based on the text of Dr El Aouji. 855 It is clear from Lebanese statutory interpretation principles set out above that a clause in a code is interpreted in the context of the text of the code as a whole. I was not provided with the entirety of the text of the Consumer Protection Law. I was provided with translations of specific articles which may have potential relevance in determining the ambit of Article 26. For example, Article 18 refers to balance between the rights and obligations of the parties. Mr Abirached referred to Article 18 before saying there was no doubt Mr Hani entered voluntarily and willingly into the agreement. Dr Kotob also referred to Article 18 in the context of his conclusion that Article X is abusive, appearing also to utilise the concept of consent. Neither he nor Mr Abirached articulated the parallels or links, if any, between the concepts embedded in Articles 18 and 26. Neither party made any submissions drawing upon Article 18 in their respective positions on Article 26 and accordingly I draw no conclusions from that article. 856 Mr Abirached said he was unsure whether Article 26 was talking about lack of balance in abusive clauses or as a result of lack of balance. I understood him to be distinguishing between balance within a clause and overall balance in the contract. This is because he continued to refer to Article 366 of the Code of Obligations and Contracts which requires assessment of the contract as a whole and Mr Abirached expressed the view that each clause favouring one party may be balanced against a clause favouring the other. -- 175 of 251 -- [2026] SASC 107 Stein CJ 172 857 Dr Kotob was cross-examined to the effect that there is no requirement as a matter of Lebanese law for a contract to contain equal rights and obligations as between the parties. Dr Kotob was not directly cross-examined about Mr Abirached’s opinion that serious imbalance is required for a clause to be considered abusive. 858 Article 3 of the Consumer Protection Law gives a consumer specific rights to be exercised in accordance with the provisions of the Law. None of the rights enumerated in the article expressly address a right to sue in any particular jurisdiction. The Bank relied on Article 3 as demonstrating that the Consumer Protection Law is not intended to apply to Article X if that Law applies. Mr Abirached did not opine that the scope of operation of the Consumer Protection Law is confined by Article 3 or that Article 26 is otherwise to be read down in light of the rights in Article 3. 859 Dr Kotob was cross-examined to the effect that none of the rights in Article 3 are relevant to Article X. Dr Kotob’s assessment that some of those rights are relevant is not persuasive when the words of each right are considered. 860 It is not immediately apparent why any level of imbalance, however small, should result in invalidity of a contractual clause. Nevertheless, Article 26 read literally (on either translation) does not provide for any threshold or necessary minimum imbalance before a clause is considered abusive. Its breadth encompasses not only clauses resulting in creation of imbalance but also clauses aiming at that end. It refers only to an imbalance, not a serious imbalance nor a significant imbalance.191 The purposes expressed in Article 1 do not assist in assessing the intention of the legislature beyond the literal words of the text. 861 I have difficulty accepting Mr Abirached’s opinion that Article 26 does not apply in the face of the literal wording of the section and in the absence of cogent reasons against a literal reading of the text. There is imbalance which favours the Bank 862 For the reasons below, I have concluded that Article X aims at or may lead to imbalance between the rights and obligations of the professional and consumer/supplier and consumer because it limits Mr Hani to issuing proceedings in Lebanon while leaving the Bank unrestricted in its choice of forum. 863 I accept there is no allegation of any fraud, deceit, misrepresentation or misleading conduct by the Bank in the entry into the agreements. I also accept the Bank’s submissions that Lebanese law provides for freedom of contract, enables parties to enter into binding adhesion contracts and provides for jurisdiction in the manner I have set out above. 191 In contrast to the provisions of the French Code. -- 176 of 251 -- [2026] SASC 107 Stein CJ 173 864 Dr Kotob’s references to imbalance at least to some extent appear predicated on the fact that adhesion contracts are inherently imbalanced. It is not clear why that would be sufficient in light of the principles of freedom of contract and acceptance of the validity of adhesion contracts. 865 Ms Saade’s translation of Article 26 refers to clauses “aiming at or leading to the creation of an imbalance between the rights and obligations of a supplier and a consumer in the favour of the supplier” as abusive. “The abusive aspect of a clause shall be evaluated on the basis of the date, clauses and annexures, except for price-related annexes, of the contract”. Ms Rjeily’s translation of the equivalent part of Article 26 is, “[t]he arbitrary nature of the clause is estimated at the date of the contract and by reference to the provisions of the contract and its appendices, except for those related to the price”. 866 There is a possibility that in some cases the distinction between the abusive aspect of a clause and the arbitrary nature of a clause could be important. However, I have not reached any conclusions based upon this difference in wording as no submissions were made to me about the differences in the translations. 867 Article 26 requires the abusive nature of the clause to be considered on the basis of the clauses and annexures of the contract, apart from price. Mr Abirached took the high interest rate earned by Mr Hani into account in concluding the contract as a whole was not imbalanced. Dr Kotob implicitly did not. Neither expert provided an opinion on whether an interest rate would be excluded from consideration by reason of the reference to price in Article 26. Mr Abirached did not point to any benefits of the contract in favour of Mr Hani beyond the interest rate. No submissions were put to me about the specific provisions of the agreements and the relative rights and benefits of the parties overall to assist in assessing imbalance in the context of all of the clauses, if that was the appropriate focus. 868 Article X limits Mr Hani to issuing proceedings in Beirut but leaves the Bank free to institute proceedings anywhere in the world. Mr Hani submits the Bank sought to advantage itself because this was a deposit contract with an Australian resident and there could be no business rationale to support the asymmetrical aspect of the clause as there would be no need for the Bank, as a domestic Lebanese bank, to pursue Mr Hani in Australia. Mr Hani submits that the disadvantage to Mr Hani exists even if the Bank did not know Mr Hani resided in Australia because, in fact, he is an Australian resident and therefore Article X leads to an imbalance between the rights of Mr Hani and the Bank. 869 The Bank relies on the fact the analysis occurs at the time of entry into the agreements and submits that, at that time, there was no occasion for the exercise of any power. In circumstances in which the Bank has not sought to exercise the rights, the Bank submits that the potentially abusive aspect of the clause is not engaged on the application. I accept Mr Hani’s submission that whether or not the -- 177 of 251 -- [2026] SASC 107 Stein CJ 174 Bank has exercised the rights is not relevant because the consideration of imbalance is assessed at the time of entry into the banking agreements. 870 Mr Hani disputes the position put by the Bank on the extent of required imbalance. Mr Hani nevertheless contends that the Bank’s rights to sue anywhere in a deposit contract would constitute a serious imbalance. 871 The Bank relied on the absence of Lebanese authorities applying the Consumer Protection Law in a similar context in support of its position. Mr Hani responded that such a point would be taken in an overseas jurisdiction. Nevertheless, the lack of any authorities in any context on the meaning and breadth of Article 26, the other articles referred to in submissions or the definition of “consumer” is a cause of disquiet. This is particularly so in circumstances in which an Australian court is interpreting and applying the Consumer Protection Law in what appears to be a new context without the benefit of a full understanding of the broader legal framework, including the totality of all articles of the Law. Despite that concern, I must address the submissions on the materials before me. 872 The Bank’s rights to institute legal proceedings anywhere are broader and unlimited in contrast to Mr Hani’s rights to institute legal proceedings in Beirut courts alone. This is particularly so in the context of a deposit contract involving the receipt by the Bank of funds received from overseas from a customer the Bank knew to be an Australian citizen and businessman. This is even greater in the case of a customer known to have Australian residence. Applying the text of Article 26 literally, Article X is a clause which leads to the creation of an imbalance between the rights of a supplier (the Bank) and a consumer (Mr Hani) in favour of the Bank. Mr Hani is restricted and the Bank is not in a way which gives advantage to the Bank. The fact the Bank has not sought to invoke the clause by issuing proceedings elsewhere does not negate that position. Mr Abirached’s reasoning does not sufficiently address the literal meaning to persuade me to a contrary view. 873 While I have concluded that it is not necessary to demonstrate serious imbalance, I accept Mr Hani’s submission that the imbalance is nevertheless significant in the case of an Australian customer and resident who is required to issue proceedings in Lebanon when the Bank is left free to issue proceedings anywhere it may choose. 874 The next issue is what consequences flow as a result of Article 26 applying to Article X. Article X is null and void 875 Article 26 of the Consumer Protection Law provides that an abusive clause is deemed completely void. I have concluded that leads to the complete invalidity of Article X. 876 The Bank submits that the only purported abusive aspect of Article X is the asymmetric part giving the Bank the ability to sue in a foreign jurisdiction and -- 178 of 251 -- [2026] SASC 107 Stein CJ 175 accordingly that is severable, leaving Mr Hani bound to exclusively litigate in the Courts of Beirut. The Bank relies on Mr Abirached’s opinion to that effect. The Bank submits that there is no expert evidence dealing with what constitutes the part of the clause considered abusive, and the asymmetrical part is discrete and a freestanding right. 877 While the asymmetrical part does give freestanding rights, I do not accept that the rights are not part of the jurisdiction clause. 878 Dr Kotob’s opinion is that an arbitrary clause is an absolute nullity. Mr Abirached does not agree that where Article 26 provides an abusive clause shall be deemed to be completely void that the result is the annulment of the whole clause. In his view, only the asymmetrical part would be cancelled. He considers this remedy is logical and the first part of Article X indicates the real intention of the parties and therefore should be applied, resulting in all parties accepting the exclusive jurisdiction of the courts of Beirut. Mr Abirached accepted there was no case or text supporting that view and did not provide further explanation in support of his opinion. 879 I have difficulty accepting Mr Abirached’s opinion in the face of the express language of Article X. Ms Saade’s translation of Article 26 states that abusive clauses shall be deemed completely void while all other clauses of the contract shall remain applicable. Ms Rjeily’s translation states that arbitrary clauses are considered absolutely null. Mr Abirached’s opinion failed to engage persuasively with the language of the article, irrespective of translative differences. Both translations referred to nullity or voidness in the context of the clause as a whole. Neither left room for considerations of severance. 880 It follows that pursuant to Article 26 of the Consumer Protection Law, Article X is null and void. The ordinary jurisdiction rules in the Code of Civil Procedure apply 881 In the absence of a jurisdiction clause, Articles 100 and 101 of the Code of Civil Procedure apply. These articles vest jurisdiction in the courts of Beirut for the reasons set out above. However, that jurisdiction is not exclusive. Mr Hani’s ability to bring his proceedings in this Court therefore depends on Australian law and rules. I return to address this topic below. -- 179 of 251 -- [2026] SASC 107 Stein CJ 176 PART 10 – IS ARTICLE X AN INVALID POTESTATIVE CLAUSE CONTRARY TO ARTICLE 84 OF THE LEBANESE CODE OF OBLIGATIONS AND CONTRACTS? 882 I reject Mr Hani’s contention that Article X is a potestative clause which is invalid as contrary to Article 84 of the Code of Obligations and Contracts for the reasons below. Article 84 of the Code of Obligations and Contracts 883 Ms Saade’s translation of Article 84 of the Code of Obligations and Contracts is: An obligation is null when its very existence depends on the sole volition of the obligor (it is a purely voluntary condition). However, each of the parties or one of them may reserve himself the right to declare, within a determined time limit, whether he intends to maintain the contract or terminate it. Such a reservation may not be stipulated in the acknowledgement of debt, in donation, waivers or debt and in sale for delivery known as “Selem”. Mr Abirached’s evidence on potestative clauses 884 Mr Abirached considers Article 84 concerns the parties’ obligations and not rights such as the right to bring a claim in a particular court. 885 Mr Abirached referred to several authorities, explaining why in his view they are not relevant. I address his evidence and my conclusions in relation to those authorities separately below. 886 Mr Abirached says the concept of good faith is involved in assessing the creditor’s actions, but the creditor’s right itself cannot be deemed abusive or excessive. The performance may be contrary to the requirements of good faith, but in this case the Bank did not exercise its option to sue outside Beirut. 887 When asked whether he agreed that Article 84 of the Code of Obligations and Contracts would apply to the banking contracts in this case, Mr Abirached said “yes and no, it depends”. Mr Abirached said Article 84 applies to the consent of one party to a contract whether it is a banking contract or not. Mr Abirached did not agree that if Article 84 is breached it has the effect the clause is rendered null and void. His view is that Article 84 does not cover either the first part of the jurisdiction clause or the asymmetrical part. He said Article 84 annuls the contract in the presence of a potestative clause. He gave as an example of a potestative clause that it would be potestative for a party to undertake to enter into a contract if he wants to, as that is the same as having no obligation at all. Where the contract depends on the party’s will or on an event happening which only that party can cause to happen, there is no consent. Mr Abirached then said it is necessary to distinguish if the condition concerning the obligation is potestative and, if this consideration is essential to the contract, the entire contract is void. If the condition -- 180 of 251 -- [2026] SASC 107 Stein CJ 177 affects the substance of the contract but is not determinative for the parties’ consent, then only that part is void. However, he could not provide an example. 888 When asked if he agreed that a Lebanese judge reading Article X would find the Bank has choice at its will as to where it can sue, Mr Abirached said that this is a misreading of Article 84. Only an obligation can be potestative within the meaning of Article 84, never a right and, even less so, an option. When asked again if he agreed a Lebanese judge would interpret Article X as giving the Bank the choice at its will where it can sue, Mr Abirached said Article X was not in question. A judge will find the parties freely agreed and gave exclusive jurisdiction to the Lebanese court and the court cannot touch the contract because if there is no defect in consent, the court cannot derogate from the will of the parties. When it was put to Mr Abirached that the Bank had an unconstrained choice where it could sue, Mr Abirached disagreed and said the Bank had an option to sue which cannot be potestative, a right cannot be potestative because the holder can decide not to exercise it, therefore, the exercise can be qualified as abusive, not the right. When asked whether he agreed under the contract the Bank could sue Mr Hani in Lebanon, Australia or England, Mr Abirached said if the Bank exercised its option to start an action before UK courts, in his opinion, the courts would refuse jurisdiction. He did not see there being any abusive clause as long as the choice depended on the rules of the foreign system. Mr Abirached agreed the Bank had reserved itself the right to sue a depositor at least where the depositor has assets. He considers the choice made, if made by the Bank, is legitimate and conditional in its effectiveness on the rules of jurisdiction of the foreign system. 889 When asked if he agreed that if the Bank exercised its rights to sue a depositor overseas that would impose an obligation on the depositor to respond to the claim wherever the Bank chose, Mr Abirached said he did not see how the hypothesis applied in this case. When the question was put again, Mr Abirached responded by reference to the lawyer opposing jurisdiction if the lawyer formed the view the laws of that country would not award jurisdiction which represented the counterbalance to the freedom of election of forum. When asked whether or not he agreed that in Lebanese law the exercise of a right by one party can give rise to obligations to be performed by the other, Mr Abirached responded with another example to the effect that if a foreign court to which the Bank had applied found it was competent under its own rules then, despite the exclusive jurisdiction clause, it would place the obligation on the customer to respond. 890 Mr Abirached did not agree that if the exercise of a right which gives rise to an obligation is at the will of a party, Article 84 may apply to the resulting obligation. He continued to say that when a party is joined in an action they do not have an obligation put upon them; they might have an obligation to respond to the allegations but if they do not respond they will have judgment entered against them. That is not an obligation covered by Article 84. He said he could not answer the question because the question concerned the actions of a court, not contractual matters. -- 181 of 251 -- [2026] SASC 107 Stein CJ 178 891 Mr Abirached did not agree that Article 84 does not say it is limited to obligations only in the performance of a contract, saying that Article 84 is situated in time at the signing of the contract. An obligation is null if a party undertakes and enters into the agreement only if it wants to or there is an event which makes it conditional and only that party can cause that event to happen. Mr Abirached was asked again whether he agreed Article 84 does not say it is limited to an obligation in the performance of the contract. Mr Abirached responded by saying that the potestative nature only concerns obligations and then provided examples he said illustrated his position. 892 Mr Abirached agreed he did not cite any Lebanese case stating that Article 84 is limited to an obligation arising in performance of the contract and could not apply to a jurisdiction clause. He said that a Lebanese court cannot extend Article 84 to rights. When it was put to him that he did not cite a Lebanese case, Mr Abirached said it cannot exist and cannot have happened as Article 84 only applies to obligations and not to a clause. Counsel put to Mr Abirached that his explanation that a condition is potestative only if the obligation is concerned with performance was based on a different provision in the French Civil Code. Mr Abirached responded that the article he cited is a classic article of civil law distinguishing between rights and obligations. When asked if he agreed that even in French decisions, exclusive jurisdiction clauses have been held to be potestative because of the obligation on one party imposed by reason of the unconstrained selection of jurisdiction by the other, Mr Abirached agreed and referred to the case of Rothschild,192 but said that decision has been criticised because a right cannot be potestative. Dr Kotob’s evidence on potestative clauses 893 Dr Kotob says it is customary to distinguish whether or not fulfilment of a condition depends solely on the will of the creditor or debtor in determining whether a condition is potestative. 894 Dr Kotob says that if the fulfilment of a purely potestative condition depends purely on the creditor’s will, it is valid. However, recognising the validity of a purely potestative condition on the part of the debtor would be contrary to the binding force of agreements and put the creditor at the mercy of the goodwill of the debtor. Dr Kotob says the choice of destination of the competent court to hear disputes is left to the latter’s discretion as the Bank can bring the dispute before any jurisdiction without identification because there is no criteria addressing the exercise of the option granted to the Bank (by Article X). Dr Kotob considers Article X is arbitrary, unusual and excessive in giving the Bank rights of which it deprives the depositor and thus it should be annulled. Dr Kotob says that Article X leads to the suspension of one party’s rights, that is, to resort to a judiciary outside Lebanon. He states that as Mr Hani holds foreign nationality and is not a Lebanese resident, the clause must be annulled as it deprives Mr Hani of a 192 X v Banque Privée Edmond de Rothschild, CASS, First Civ, 26 September 2012, No. 11-26.022. -- 182 of 251 -- [2026] SASC 107 Stein CJ 179 fundamental right to resort to an independent and impartial court and consequently, in Dr Kotob’s view, the contract is unbalanced in terms of the parties’ rights. The clause gives the Bank privileges to resort to both national and international judiciary systems while depriving Mr Hani of his right to resort to a court outside Lebanon. 895 Dr Kotob agreed under cross-examination that, to his knowledge, there was no decision in Lebanon in which a clause such as Article X was found to be void and set aside by reason of Articles 84 or 93 of the Code of Obligations and Contracts. When asked to agree that there was a decision where such a clause had been upheld as valid and binding, Dr Kotob said there was no such decision to his knowledge. 896 Dr Kotob was asked whether he considered all the provisions of the general banking agreement when expressing the opinion that Article X was potestative. Dr Kotob responded that Article X was potestative because it gave the Bank the right to choose the court but the depositor could not choose. The condition was chosen without criteria and that is potestative. Dr Kotob said he knew there was one case contradicting his point of view, but there were two cases adopting it and his point of view was stronger than the other point of view. Dr Kotob agreed that he only referred to cases supporting Mr Hani’s contention that Article X is invalid and agreed that in a claim by Mr Younis against BLOM Bank SAL, there was an exclusive jurisdiction clause and the claim was dismissed for lack of territorial jurisdiction. I pause to observe that in re-examination, Dr Kotob agreed that in his report193 he referred to the decision of the French Court of Cassation in Apple Sales194 and agreed that the Apple Sales decision upheld the validity of a jurisdiction clause. 897 Dr Kotob also agreed that the decision of the Court of Cassation No. 77 of May 2005 addresses the jurisdiction of the courts in Lebanon and the Court of Cassation found that jurisdiction may be contractually modified by agreement between the parties. Dr Kotob added that the parties can agree to derogate from ordinary jurisdiction, but that does not prohibit a party going to a court outside Lebanon. 898 When Dr Kotob was asked whether a particular clause in the general banking agreement dealing with interest rates would be potestative and thereby void, Dr Kotob said he could not directly say if it is potestative or not and he wanted to examine the clause. When it was put to Dr Kotob that there were numerous clauses in the general agreement that, on his analysis, would be potestative and void, Dr Kotob responded that the clauses should be examined on a clause-by-clause basis. In response to the proposition that Dr Kotob’s position was utterly absurd 193 CB1830. 194 CASS, First Civ, 7 October 2015, No. 14-16.898. -- 183 of 251 -- [2026] SASC 107 Stein CJ 180 because it would result in the contract being wholly unworkable and totally uncommercial, Dr Kotob said he did not evaluate all of the clauses. Why Article X is not potestative 899 In essence, Dr Kotob’s view is that Article X is potestative because it is customary to distinguish whether the fulfilment of the condition depends solely on the will of the creditor or debtor. In his view, the choice of designation of the foreign court to hear any disputes is left to the Bank’s free discretion and there are no criteria that provide for any precise and objective criteria in relation to the exercise of the option given to the Bank. 900 I understood Mr Abirached to accept that Article 84 applies to banking contracts and his position is based on the application of it to Article X. Mr Abirached takes the view that Article 84 is concerned with obligations not rights. A right to bring a claim in a particular court is not within Article 84. The Bank submits that Article X does not give the Bank the option to determine whether Mr Hani must perform an obligation, nor is it a clause imposing any obligations. Accordingly, on the Bank’s position, Article 84 does not apply. 901 Under cross-examination, Mr Abirached gave an example of a potestative clause as one in which a person undertakes to enter a contract only if they want to, which amounts to no obligation at all. This depends on the person’s own will which only the person can cause to happen. Mr Abirached said that if a condition which is potestative is essential to the contract, then the consequence will be that the whole contract will be void. During cross-examination, Mr Abirached did not accede to the proposition that Article 84 does not say that it is limited to an obligation which arises in the performance of a contract. Counsel put to Mr Abirached that his explanation that the condition is potestative only if the obligation is concerned with performance is based on an article of the French Code and that Code contains a limit about the obligation being in performance of the agreement which is not found in Article 84. 902 The sections of Mr Abirached’s report addressing three Court of Cassation cases were before me. However, as a result of negotiations between the parties about objections, sections of Dr Kotob’s report which addressed the three Court of Cassation decisions were not. During closing submissions, Mr Hani sought to tender the specific pages of Dr Kotob’s report addressing those authorities. This was on the basis that Dr Kotob was cross-examined on the French decisions and to address an attack by the Bank on Dr Kotob’s credit arising from Dr Kotob agreeing in cross-examination that he had only referred to cases supporting Mr Hani’s position. Mr Hani sought to point to that part of Dr Kotob’s report to establish that he had referred to decisions contrary to Mr Hani’s position, in particular, Apple Sales.195 I have determined to receive the parts of Dr Kotob’s report addressing the French Court of Cassation decisions which demonstrate 195 CASS, First Civ, 7 October 2015, No. 14-16.898; CB1830. -- 184 of 251 -- [2026] SASC 107 Stein CJ 181 Dr Kotob referred to the Apple Sales decision which is contrary to Mr Hani’s position. 903 I have not been provided with the cases and translations. My observations below are based on the experts’ references to the decisions. 904 The first decision to which Dr Kotob referred is that of the French Court of Cassation decision X v Banque Privée Edmond de Rothschild (“Rothschild”).196 Dr Kotob states the French Court of Cassation prohibited a jurisdiction clause it held to be potestative. It appears from Dr Kotob’s description that the case involved an asymmetrical jurisdiction clause in which the bank reserved the right to bring proceedings in any competent court, whereas the client was required to bring proceedings in the Luxembourg courts. This was said to have a potestative character and was contrary to Article 23 of the Brussels I Regulation.197 According to Dr Kotob, the French Code of Obligations and Contracts provides that a potestative condition is one which makes the execution of the agreement depend upon an event that one or the other of the contracting parties has the power to bring about or to prevent. Dr Kotob referred to the Regulation in question as having been replaced after the decision, but that a view remains that the same reasoning will continue to apply. 905 Mr Abirached does not agree that the Rothschild case198 is relevant. According to Mr Abirached, in that case the French Court of Cassation held an agreement providing an option to one party to choose between various jurisdictions was void as a potestative clause contrary to the objectives and finality of the prorogation of jurisdiction provided by Article 23 of the Brussels I Regulation. Mr Abirached says the French decision was heavily criticised. Mr Abirached considers that in French law, an obligation is concluded under a potestative condition when it makes the performance of the agreement subject to an event the occurrence of which only one party can provoke or prevent. In Mr Abirached’s view, that definition does not apply to the option in Article X. 906 Dr Kotob refers to the decision in Danne v Credit Suisse199 which also addressed an asymmetrical jurisdiction clause which the French Court of Cassation held violated the principles of foreseeability and legal certainty under the Lugano Convention. Dr Kotob observes that the French Court of Cassation does not mention the potestative principle.200 Mr Abirached’s view is that the decision is not relevant. Mr Abirached says it was based only on breach of the convention on jurisdiction and recognition and enforcements of judgments in civil and commercial matters (the Lugano Convention). 196 CASS, First Civ, 26 September 2012, No. 11-26.022. 197 Council Regulation (EC) No 44/2001 of 22 December 2020 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1 art 23. 198 CASS, First Civ, 26 September 2012, No. 11-26.022. 199 CASS, First Civ, 25 March 2015, No. 13-27.264; CB1830. 200 Apple Sales CASS, First Civ, 7 October 2015, No. 14-16.898; CB1830. -- 185 of 251 -- [2026] SASC 107 Stein CJ 182 907 Dr Kotob also refers to the Apple Sales201 decision in which the French Court of Cassation ruled that a unilateral jurisdiction clause was valid under the Regulation. Dr Kotob says the Court did not refer to the potestative nature of the clause. Mr Abirached states that the French Court of Cassation gave effect to a clause that offered the beneficiary a choice between Irish courts, a court of France or any jurisdiction where harm is occurring, based on the Lugano Convention, considering the option permitted the identification of the jurisdictions before which action could be brought. 908 Mr Abirached’s views is that all three cases are irrelevant as those decisions were made by reference to particular European regulations which cannot be applied in Lebanon. Further, in his view those decisions denote an evolution in the position of the French Court of Cassation to being more accepting of unilateral jurisdiction clauses. 909 Mr Hani submits that no law is cited in support of Mr Abirached’s position and that French case law which operates on identical principles does not draw a distinction between an obligation and a right. Mr Hani does not provide further support for that proposition. Mr Hani also contends that if the Bank exercises its right to determine the place of suit, it imposes a corresponding obligation on the other party to respond to the claim where it chooses and that point is made in Rothschild. 910 I accept Mr Abirached’s evidence that the French decisions relied on by Dr Kotob address different European regulatory regimes. 911 Taking the experts’ descriptions of the Court of Cassation cases at face value, the only authority of the three directly addressing the potestative nature of an asymmetrical jurisdiction clause is the Rothschild case, a Court of Cassation decision which addresses the French Code of Obligations and Contracts and an article of the Brussels I Regulation of the European Union. The jurisdiction clause in Rothschild was an asymmetrical jurisdiction clause relevantly similar to Article X. 912 The experts’ respective descriptions of what is a potestative condition under the French Code refer to one party being able to provoke or prevent the occurrence of an event to which performance/execution of the agreement is subject. 913 Article 84 of the Lebanese Code of Obligations and Contracts, read literally, attaches itself to an obligation which is solely dependent on the will of the obligor. The descriptions given of the French definition of a potestative condition refer neither to obligations nor rights. This may explain the absence of a distinction between a right (that may create an obligation) and an obligation in the French decisions. I am unable to address that argument further without the relevant French law, the French decisions and sufficient submissions upon them. 201 Apple Sales CASS, First Civ, 7 October 2015, No. 14-16.898; CB1830. -- 186 of 251 -- [2026] SASC 107 Stein CJ 183 914 Mr Hani submits that the Court of Appeal of Paris decision of BLOM Bank SAL v Attias (“BLOM Bank”)202 was not referred to by either Mr Abirached or Dr Kotob, is a decision at an inferior level than the Court of Cassation and the experts instead in their reports dealt with the three French Court of Cassation decisions (which I have addressed above).203 915 The Bank relied upon BLOM Bank,204 which I have discussed above in the context of whether Article X is invalid as an abusive clause contrary to the Consumer Protection Law. In BLOM Bank,205 the jurisdiction clause in question was relevantly similar to Article X. 916 On appeal, BLOM Bank submitted that the jurisdiction clause was valid under French law, it was valid and not abusive under Lebanese law, it did not fall within the scope of French consumer law as there was no close connection between the disputed contract and France within the meaning of the Consumer Code, and, in any event, it did not have an abusive character under French law. BLOM Bank submitted that the order under appeal wrongly held that the clause was null for potestativity as it contained no asymmetry to the benefit of the bank alone which could not act wherever it pleased and the articles of the French Civil Code on which the finding was made were unrelated to the pleaded potestative nature of the jurisdiction clause. 917 Mr Attias submitted he benefited from jurisdictional privilege in France under the Civil Code; he did not waive his privilege as the contractual jurisdiction clause was invalid due to its abusive and potestative nature; the close link required to benefit from the Consumer Code was present; the jurisdiction clause was abusive as it was unbalanced to his detriment under both French and Lebanese law; the clause was also potestative as BLOM Bank may act wherever it pleases at its own discretion given that Mr Attias waived the right to challenge the jurisdiction of the chosen courts; and even if the clause was valid, it would not deprive him of the jurisdictional privilege as the waiver must result from a certain intention which was absent due to the imprecise nature of the clause. 918 The Court of Appeal observed that national procedural rules apply to determine the validity of the jurisdiction clause invoked and clauses conferring international jurisdiction are, in principle, valid provided they do not contravene the mandatory territorial jurisdiction of a French court and are invoked in a dispute of an international character. The court concluded Mr Attias had expressly and unambiguously consented to waive the privilege of jurisdiction under the French Civil Code. 202 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. 203 CB971-972; CB1824, 1828-1831. 204 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. 205 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. -- 187 of 251 -- [2026] SASC 107 Stein CJ 184 919 After concluding that the clause did not fall within the scope of the European consumer protection provisions (as discussed above), the Court of Appeal continued to say of the jurisdiction clause: [I]t is finally in vain that Mr Attias alleges its invalidity by claiming that it is a of a “potestative” nature, whereas the clause unequivocally states the jurisdiction of the courts of Beirut to hear disputes arising from the performance of the contract, so that the bank, which did not initiate the legal proceedings in France but was the defendant in the action brought by Mr Attias, is entitled to invoke it against him, regardless of the fact that it also includes a prohibition against Mr Attias challenging the jurisdiction of another court that may have been seized by the bank, which is a hypothetical and non-contentious matter.206 920 The Court annulled the order under appeal, declaring the Judicial Court of Paris incompetent to adjudicate the legal action brought by Mr Attias. 921 The Bank relies upon this decision as establishing that an asymmetrical jurisdiction clause such as Article X is not an invalid potestative clause pursuant to Article 84 of the Code of Obligations and Contracts. 922 Mr Hani observes that the Court of Appeal sits lower in the court hierarchy and the decision does not mention Rothschild,207 Credit Suisse208 or Apple Sales.209 Mr Hani submits that there was no reason for the Court to do so because BLOM Bank210 is a case about waiver and not about potestative clauses. Mr Hani’s position is that the Court’s reference to the plaintiff’s inability to rely on a claim that the jurisdiction clause was potestative was a consequence of the question being hypothetical and non-contentious in circumstances in which the plaintiff waived jurisdiction. Accordingly, Mr Hani maintains that BLOM Bank211 has nothing to say about potestative clauses. 923 I agree that the Court of Appeal did not refer to the three Court of Cassation decisions discussed above, nor analyse the clause in the context of the French Code provisions. However, I have difficulty in accepting Mr Hani’s submission that the case has nothing to say about potestative clauses. Mr Attias’ waiver of jurisdiction was contained in a jurisdiction clause that is relevantly similar to Article X by which Mr Attias agreed to the exclusive jurisdiction of Beirut courts, agreed to abstain from raising objections to the jurisdiction of Beirut courts, and left the Bank free to issue proceedings elsewhere. 924 I do not understand the Court’s reference to the argument being “in vain” as saying that the potestative argument was irrelevant. I rather understand the Court to be saying the potestative argument could not succeed. This is because the focus was upon the aspect of the clause by which Mr Attias agreed to the exclusive jurisdiction of Beirut courts. The fact the Bank could institute proceedings 206 Emphasis in original. 207 CASS, First Civ, 26 September 2012, No. 11-26.022. 208 CASS, First Civ, 25 March 2015, No. 13-27.264. 209 CASS, First Civ, 7 October 2015, No. 14-16.898. 210 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. 211 Exhibit R29; Cour d’appel de Paris [Paris Court of Appeal], RG 23/14956, 25 September 2024. -- 188 of 251 -- [2026] SASC 107 Stein CJ 185 elsewhere was irrelevant; Mr Attias was not objecting to the Bank instituting elsewhere as Mr Attias was the plaintiff seeking to issue outside Beirut. 925 This is directly analogous to Mr Hani’s case. In Mr Hani’s case, Mr Hani agreed by Article X to submit to the exclusive jurisdiction of Beirut courts. He has brought proceedings in this court in which he contests the validity of Article X. The Bank seeks to invoke Article X against Mr Hani in these proceedings. In this case, the Bank has not commenced proceedings here to which Mr Hani objects. Applying the Court of Appeal’s reasoning, the asymmetrical aspect of Article X is neither invoked nor impugned and is therefore hypothetical, precluding a potestativity argument by Mr Hani in a directly analogous context. In any event, this reasoning transpired in the context of French law. 926 It thus appears that there is a 2012 French Court of Cassation decision which concluded an asymmetrical jurisdiction clause was potestative under the French Civil Code and Brussels Regulation and a 2024 French Court of Appeal decision in which a potestative argument under the French Civil Code failed in relation to an asymmetrical jurisdiction clause. However, it also appears that the French Civil Code does not directly mirror the Lebanese Code of Obligations and Contracts in relation to potestative obligations. The French decisions therefore are of limited assistance in determining whether Article X is potestative under Article 84. 927 The Bank cross-examined Dr Kotob about other clauses of the agreements, pointing to the clauses which entitle the Bank at its sole discretion to calculate the interest on accounts at the interest rate set by the Bank. The Bank put to Dr Kotob that his analysis would render the banking agreements wholly unworkable and uncommercial to which he responded that he did not evaluate all the clauses of the agreement. 928 It appears to follow that the application of Dr Kotob’s analysis would result in the interest clauses of the agreements being potestative as their fulfilment would depend on the Bank’s will without stated criteria. Application of Mr Abirached’s analysis would conclude otherwise given the clauses relate to rights or entitlements of the Bank rather than obligations. 929 While I accept Mr Hani’s argument that a right of one party may equal a corresponding obligation on the other party, that does not overcome the reference to obligation in Article 84. That article attaches to an obligation that is dependent on the will of the party under the obligation, i.e. the obligor. It does not attach to a right which imposes a corresponding obligation on the other party. Read literally, the article applies to obligations which are attached to the free will of the obligor. 930 If the requirement in Article X for Mr Hani to institute proceedings in Beirut is property characterised as an obligation, it is not an obligation the existence of which is dependent on Mr Hani’s will. It would be otherwise if the clause provided for the exclusive jurisdiction of Beirut courts subject to Mr Hani’s determination to issue in that jurisdiction. In such a case the obligation would be rendered -- 189 of 251 -- [2026] SASC 107 Stein CJ 186 pointless. The Bank has the entitlement under Article X to issue in any jurisdiction, but I do not consider that entitlement can be properly construed as an obligation by viewing it from the perspective of Mr Hani’s obligation to respond to any proceedings so issued. 931 I therefore prefer Mr Abirached’s reasons for concluding that Article X is not potestative. Mr Abirached’s reasoning mirrors the language of Article 84. 932 Reading Article 84 as encompassing rights and/or entitlements rather than just obligations would significantly broaden its application to an extent that casts doubt on whether such a construction and, by extension, such a broad application would have been intended by the legislature. There are obvious benefits in preventing a party from being able to freely avoid a contractual obligation at their sole choice. To allow that may enable a party to avoid a primary obligation underpinning the parties’ consensus, thereby rendering the contract inutile, or otherwise significantly impacting the commercial benefits of an agreement. That reasoning does not apply in the same way to a party’s entitlement to exercise or not exercise contractual rights. 933 I therefore accept the Bank’s submission that Article X is not an invalid potestative clause within the meaning of Article 84 of the Code of Obligations and Contracts. -- 190 of 251 -- [2026] SASC 107 Stein CJ 187 PART 11 – EXERCISE OF DISCRETION 934 In case I am wrong in my conclusion that Article X is invalid by reason of the application of Article 26 of the Consumer Protection Law, I proceed to address Mr Hani’s submissions that the Court ought to exercise its residual discretion to refuse to grant a stay. Mr Hani relied principally on arguments based on radical change in circumstances and prejudice. 935 I have concluded that if, contrary to my conclusion, Article X is a valid exclusive jurisdiction clause, the Court ought to exercise the discretion to refuse to grant a stay on the basis that Mr Hani has established strong reasons for not enforcing Article X. Those strong reasons are principally the radical change in circumstances in Lebanon that were not foreseen at the time Mr Hani entered into the banking agreements with consequential impact on the banking and judicial system in Lebanon and associated prejudice flowing to Mr Hani in conducting his proceedings in Lebanon in consequence of those changes. 936 Before turning to the authorities on the exercise of discretion, I address the additional factual findings necessary for consideration of the question of discretion and forum non conveniens. Further factual findings 937 I make the following additional findings for the purposes of considering the remaining issues. 938 The financial crisis commenced in late 2019. 939 All Lebanese banks closed between 18 October and 31 October 2019. After banks re-opened on 1 November, there was a run on all banks as depositors sought to withdraw deposits in local and foreign currencies. As a result of clashes between customers and bank employees, the banks closed again for a period and the Lebanese syndicate of bank employees called for a strike over safety concerns. Lebanese banks re-opened on 19 November 2019 following that strike. 940 After November 2019, various limitations on cash withdrawals of foreign currency and transfers abroad were imposed. 941 The Banque du Liban issued various circulars. The first of the circulars was released on 17 November 2019.212 I have not found it necessary to make specific findings about the date or content of each issued circular beyond that circulars were issued by Banque du Liban which were/are binding on banks, unlike ABL circulars which are not. 942 Mr Hani sought findings concerning the proper interpretation of the circulars, including that the circulars do not restrict the transfers sought by him. I have not 212 CB604. -- 191 of 251 -- [2026] SASC 107 Stein CJ 188 made any such findings as, in my view, that is a matter properly to be determined in the substantive trial on the merits. 943 From 1 November 2019, the Bank imposed restrictions on international transfers, which were permitted only for personal expenses. The Bank thought the crisis would be short lived and that this was a temporary measure. The Bank over time tightened its policies and transfer limits. This occurred in eight phases, each phase resulting in successively tighter restrictions than the previous phase. In 2022 when Mr Hani sought the transfer of his funds, the tightest policy (phase 8) was in place. 944 The only law enacted by the Lebanese government concerning foreign currency transfers is Law No. 193 of 202 which imposes on banks the duty to transfer in foreign currency up to US$10,000 for payment of tuition for Lebanese students studying overseas for the 2020-21 academic year. 945 In March 2020, Lebanon defaulted on its Eurobond debt. 946 On 4 August 2020, there was a significant explosion at the Port of Beirut. 947 As a consequence of the financial crisis, the Lebanese pound depreciated markedly and inflation rates significantly increased. These issues worsened during the COVID 19 pandemic and after the explosion at the Port of Beirut. The World Bank reported that Lebanon’s real gross domestic product contracted by over 20 percent in 2020 and the reduction in capital inflows and large current account deficit implied a steady depletion of foreign currency reserves at the Banque du Liban.213 The International Monetary Fund IMF Country Report No. 23/237 reported, among other things, that Lebanon was facing an unprecedented sovereign banking currency crisis, the economy had contracted about 40 percent, the Lebanese lira had lost 98 percent of its value, inflation was triple digit and the Banque du Liban had lost two thirds of its foreign exchange reserves. 948 In 2022, judges went on strike which impacted the number of decisions delivered. 949 In 2024, hostilities between Israel and Hezbollah resulted in armed conflict which impacted Beirut.214 A ceasefire was announced in November 2024. 950 DFAT advice as at April 2025 warned that the situation remained volatile and dangerous, that strikes could occur without notice and Beirut’s airport may close without notice leaving travellers stranded. DFAT travel advice advised Australians not to travel to Lebanon. 213 CB596-600. 214 CB1615-1758. -- 192 of 251 -- [2026] SASC 107 Stein CJ 189 951 On 15 April 2024, the Bank received a letter from the Banque du Liban indicating the Bank was not permitted to repay subordinated loans provided to it by the International Finance Corporation.215 952 In April 2025, Israeli airstrikes in Beirut killed and wounded individuals.216 953 At the time of the trial, Mr Hani was 72. He suffers a number of medical conditions. Those medical conditions may cause him risk if he were to travel to Lebanon and then be unable to leave and unable to obtain appropriate medical treatment for an extended period. 954 Litigation has been commenced against the State of Lebanon by a group of banks forming the ABL’s board, including the Bank, alleging a significant debt owed by the State to the Banque du Liban. 955 On 12 April 2025, the Lebanese Republic Presidency of the Council of Ministers approved a draft law related to reforming the banking sector in Lebanon and restructuring it. As at the date of the trial, this was the only Bill addressing banks and the banking sector and no general capital control law had been proposed or passed. I do not consider that the draft law relating to banks can be properly characterised as a proposed capital control law. It relates to restructure of banks. If passed, it will have impact upon depositors if the bank of a depositor becomes subject to the provisions of the draft law. However, I accept Dr Kotob’s evidence that the draft law, if passed, will not generally address the position of depositors seeking to recover their deposits via international funds transfer. 956 From October 2022 until January 2025, Lebanon did not have a President. 957 Prior to April 2025, the Court of Cassation was not quorate. That position was addressed in April 2025 when appointments were made to the Court of Cassation. 958 The Bank has not previously been a party to legal proceedings in Australia. 959 All of the Bank’s employees, witnesses and records are located in Lebanon. 960 Mr El Masri, Mr Ladki and Dr Kotob are residents of Lebanon. 961 There has been a significant increase in claims by depositors against banks in Lebanon arising from the consequences of the financial crisis including the inability to transfer foreign currency overseas. It is likely more than 1,000 cases have been instituted which must be addressed by the Lebanese courts. At the time of the trial, no binding Court of Appeal or Court of Cassation decisions had been delivered in relation to the merits of claims by depositors seeking international transfers. 215 CB811. 216 SCB1418-1420. -- 193 of 251 -- [2026] SASC 107 Stein CJ 190 962 It would be significantly more expensive for the Bank to conduct the proceedings in Australia than in Lebanon. 963 Mr Hani seeks a finding that prior to the financial crisis, the Bank was seeking deposits of foreign capital. Based on Mr Obeid’s evidence, I find that before the crisis, the Bank attracted deposits from core clients who were Lebanese, whether residing in Lebanon or expatriates. It was part of the Bank’s banking operations to seek to attract such deposits. The Bank offered rates of interest of 6 to 8 percent depending on the amount deposited, the market trend and investments which the Bank could make. The interest rates on US dollars were available to all Bank customers, whether residing in Lebanon or overseas. 964 Mr Hani sought findings to the effect that deposits were associated with financial engineering to attract foreign currency. I have not found it necessary to make findings on this topic for the purposes of determining these applications. 965 The Bank continues to trade but it no longer provides interest bearing accounts and loans. I cannot make findings about the precise impact on the Bank or on its foreign currency holdings of consequences of the financial crisis, including Banque du Liban circulars and limitations placed on repaying subordinate loans. I also cannot make findings about the liquidity of the Bank or the ability of the Bank to satisfy any judgment in favour of Mr Hani if there were any such judgment. Principles relevant to exclusive jurisdiction clauses and the exercise of discretion to not stay proceedings brought in breach of such a clause 966 The authorities favour holding parties to their bargain. The starting point in addressing an exclusive jurisdiction clause is that where a plaintiff sues in breach of an exclusive jurisdiction clause, the Court is not bound to grant a stay but has a discretion whether or not to do so.217 A stay will usually be granted if strong cause for not doing so is not established.218 Thus, the parties will be held to their bargain to litigate elsewhere, other than if there are strong countervailing circumstances.219 Where a plaintiff issues proceedings in breach of an exclusive jurisdiction clause and the defendant applies for a stay, the burden lies on the plaintiff to establish strong grounds to refuse the stay.220 In exercising the discretion, the court will consider all the circumstances of the particular matter.221 Each case depends on its own facts and the categories of circumstances are not closed.222 217 The Eleftheria [1970] P 94 at 99-100 (Lord Brandon). 218 The Eleftheria [1970] P 94 at 99-100 (Lord Brandon). 219 Incitec Ltd v Alkimos Shipping Corporation (2004) 206 ALR 558 at [43] (Allsop J); Huddart Parker Ltd the The Ship “Mill Hill” (1950) 81 CLR 502 at 508-9 (Dixon J); Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224 (Brennan J); Akai Pty Ltd v People’s Insuranc Co Ltd (1996) 188 CLR 418 at 380-381 (Dawon and McHugh JJ); 394 (Toohey, Gaudron and Gummow JJ). 220 The Eleftheria [1970] P 94 at 99-100 (Lord Brandon). 221 The Eleftheria [1970] P 94 at 99-100 (Lord Brandon). 222 Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297 at [100] (Hargrave J) -- 194 of 251 -- [2026] SASC 107 Stein CJ 191 967 The discretion not to grant a stay is not a matter of mere convenience and requires substantial grounds.223 Forensic or financial consequences which flow to the party which bound itself to the clause are generally seen as the direct result of the bargain entered into by the parties.224 968 Countervailing circumstances which may be strong enough to justify refusing a stay include where there has been an unforeseeable change in the procedure of the foreign courts or where the general political situation of the foreign country has altered radically since entry into the contract containing the exclusive jurisdiction clause.225 969 Another sufficiently strong countervailing circumstance is where the plaintiff would be prejudiced by having to sue in the foreign court including because for political, racial, religious or other reasons the plaintiff would be unlikely to get a fair trial.226 Where the plaintiff seeks the exercise of the discretion on the basis they will not receive a fair trial, it is generally necessary to show the preponderance, in weight and cogency, of the evidence demonstrates it is likely the agreed forum will not provide a fair trial.227 970 The strong reasons test requires more than assessment of forum non conveniens factors.228 However, there is an overlap in relevant factors including where the evidence is situated, the impact of that upon the convenience and expense of trial, whether the law of the foreign court applies and the connection of the parties to each country.229 I address forum non conveniens separately below. 971 Factors weighing against the operation of the exclusive jurisdiction clause include the effect on the due administration of justice, other appropriate public policy considerations and potential inconvenience to third parties.230 The possibility of duplicated litigation is a cogent consideration in assessing the impact of an exclusive jurisdiction clause given the cost and inconvenience of litigation and the importance of avoiding different courts reaching different conclusions.231 223 Incitec Ltd v Alkimos Shipping Corporation (2004) 206 ALR 558 at [42]-[43] (Allsop J). 224 Incitec Ltd v Alkimos Shipping Corporation (2004) 206 ALR 558 at [49] (Allsop J); 225 Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297 at [100] (Hargrave J) citing Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228. 226 The Eleftheria [1970] P 94 at 100 (Lord Brandon); Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297 at [100] (Hargrave J) citing Ellinger v Guinness, Mahon & Co [1939] 4 ALL ER 16 at 24. 227 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 at [143] (Henshaw J). 228 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 at [111] (Henshaw J); Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297 at [99] (Hargrave J). 229 The Eleftheria [1970] P 94 at 100 (Lord Brandon). 230 Incitec Ltd v Alkimos Shipping Corporation [2004] 206 ALR 558 at [49] (Allsop J). 231 Incitec Ltd v Alkimos Shipping Corporation [2004] 206 ALR 558 at [62] (Allsop J). -- 195 of 251 -- [2026] SASC 107 Stein CJ 192 972 An important purpose of an exclusive jurisdiction clause is ensuring all disputes are determined by a single jurisdiction, recognising the parties have agreed in advance that the chosen jurisdiction is acceptable.232 Radical change in circumstances and prejudice factors 973 Mr Hani relies principally on the radical change in circumstances and prejudice factors. 974 In this case, if Article X is characterised as a valid enforceable exclusive jurisdiction clause, Mr Hani accepts that strong reasons must exist to justify exercise of the discretion. He points to the fact this was a contract of adhesion and submits that in exercising the residual discretion, the degree of requisite strength of the factors may depend on the circumstances in which assent was given, including whether the contract was an adhesion contract. Mr Hani did not cite authorities in support of that proposition. 975 In Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD),233 Henshaw J referred to a number of English decisions which addressed, in different ways, the potential significance of an exclusive jurisdiction clause being contained within a standard term contract as opposed to a freely negotiated express term.234 Justice Henshaw considered the better view is that there is no freestanding significance arising from the contractual environment being standard form rather than a 0negotiated bargain in considering whether to exercise the discretion to grant a stay, providing the party had a choice whether or not to contract on the terms which included the jurisdiction clause.235 976 The Bank accepts for the purposes of this application that the Lebanese financial crisis constitutes a material change in circumstances. Despite its concession about the change in circumstance, the Bank links the change in circumstances factor with a requirement for Mr Hani to establish that the circumstances in Lebanon are such that he would not receive a fair trial. The Bank contends that, despite the changes in circumstance, the relevant enquiry is whether the financial crisis specifically affects the enforcement of Article X and makes it appropriate for the court to assert jurisdiction notwithstanding the exclusive jurisdiction clause. 977 The Bank points to matters such as the numerous claims being pursued in Lebanon, that Lebanese courts have addressed claims with mixed outcomes, the Court of Cassation is quorate, a new government has been appointed. Further, 232 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 267 ALR 144 at [67] (Spigelman CJ, Giles and Tobias JJA agreeing). 233 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 (Henshaw J). 234 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 at [147]-[153] (Henshaw J). 235 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 at [154] (Henshaw J). Justice Henshaw considered there may be potential relevance of a party’s lack of awareness of an exclusive jurisdiction clause to questions of foreseeability of an unfair trial in the case of non-parties to the relevant contract. -- 196 of 251 -- [2026] SASC 107 Stein CJ 193 the Lebanese system is suited to accommodating a plaintiff who is not resident or able to travel as ordinarily parties are not required to give evidence and, if required, there is a procedure for taking evidence from Australia. 978 In my view, the evidence does not reach the threshold of the preponderance of evidence which would be required to substantiate an allegation that Mr Hani will not obtain a fair trial in Lebanon.236 It was not put to the Lebanese lawyers, Mr Zein and Mr El Masri, that Mr Hani as a depositor could not receive a fair trial. The evidence rather focussed on matters relevant to delay and potential associated prejudice including the volumes of claims and backlogs of claims, the absence of binding Court of Cassation decisions on international transfer rights, the extent of appeals and lack of enforcement of judgments. 979 However, in my view, the failure to establish Mr Hani will not receive a fair trial is not the end of the enquiry. 980 In Babcock & Brown (“Babcock”),237 Hargrave J addressed a question of radical change in circumstances. Justice Hargrave did not articulate the radical change in circumstances factor by reference to demonstrating that an applicant would be unlikely to receive a fair trial. Justice Hargrave referred to Carvalho v Hull, Blyth (Angola) Ltd (“Carvalho”)238 in support of the radical change in circumstances factor. In Carvalho,239 at the time of entry into the contract, Angola (the country of the exclusive jurisdiction clause) was a province of Portugal and the law which applied was Portuguese law, with a procedurally and substantively Portuguese legal and judicial system. Since that time, Angola had become an independent sovereign state with a new constitution. Relevant changes included the system for appointing judges, the potential for the previous law not to be applied and loss of rights of appeal to the Supreme Court in Lisbon. What was previously a Portuguese court was now an Angolan court operating within the framework of the Angolan constitution and legal system.240 The Court of Appeal upheld the decision of Donaldson J to refuse the stay. The decision in Carvalho241 was not based on the inability of the plaintiff to obtain a fair trial. Rather, the impact of the changes upon the legal and judicial system were relevant. In particular, the changes had resulted in the system being significantly different from that which existed at the time of entry into the contract. 981 Mr Hani submitted that the rationale underpinning the radical change in circumstances factor was that it impacted upon the quality and significance of the contracting party’s assent to the exclusive jurisdiction clause. The fact the parties have agreed in advance that a particular jurisdiction is acceptable to them is a 236 Zephyrus Capital Ltd v Fidelis Underwriting Ltd (KBD) [2024] 4 WLR 47 at [143] (Henshaw J). 237 Babcock & Brown DIF III Global Co-Investment Fund v Babcock & Brown International Pty Ltd (2016) 338 ALR 297. 238 [1979] 1 WLR 1228. 239 Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228. 240 Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228 at 1237 (Browne LJ); 1240-1241 (Geoffrey Lane LJ). 241 Carvalho v Hull, Blyth (Angola) Ltd [1979] 1 WLR 1228. -- 197 of 251 -- [2026] SASC 107 Stein CJ 194 significant reason for holding parties to their exclusive jurisdiction bargain. The rationale underpinning the radical change in circumstance factor could be described in terms of impact on the quality of assent or as reflecting recognition by the Court that when circumstances change markedly, good reasons exist to not hold a party to the bargain into which they entered. Irrespective, in my view, the evidence in Mr Hani’s case supports the conclusion that there has been a radical change in circumstances in Lebanon by reason of the financial crisis and that change has impacted in a number of unforeseeable but relevant ways. Significantly, the justice system has been impacted by increased numbers of cases commenced by depositors, appeals, litigation against the State, backlog and delays. I return to address the matters relied on by Mr Hani further below. 982 Mr Hani also relies on prejudice both in itself and cumulatively upon the radical change of circumstances. Mr Hani contends that the prejudice factor should not be limited to the notion of a fair trial including because of the close connection to the radical change in circumstances in this case. 983 In The Eleftheria,242 Lord Brandon referred to prejudice to the plaintiff in having to sue in the foreign court in a number of contexts, including because the plaintiff would be deprived of security, be unable to enforce a judgment, be faced with a time-bar, or for political, racial, religious or other reasons be unlikely to obtain a fair trial. In my view, properly read, the reference to a fair trial is associated with the last such reference, that is, to political, racial or religious reasons. The inability to enforce judgment, the existence of a time-bar and the inability to obtain security would not usually be said to result in the inability to obtain a fair trial. Consequently, and consistent with the statements in the authorities to the effect that the classes of categories are not closed and must be considered in the particular circumstances, in my view a strong case of prejudice could be demonstrated relying on circumstances which are not directly attached to obtaining a fair trial. 984 Mr Hani contends that an unforeseeable outcome of the crisis is that it has caused the Bank to rely on the tender and deposit procedure contrary to the banking agreement and in bad faith and by determining for itself when it would allow international transfers. 985 The Bank has adopted limitations on transfers in eight phases. The extent of restriction has increased during those phases, generally reflecting limitations in Banque du Liban circulars. The experts accepted those circulars are binding on the Bank. However, as referred to above, there is a dispute whether the circulars, properly interpreted, legally prevent banks from conducting international transfers of the kind sought by Mr Hani. There was no expert evidence before me to the effect that the circulars should properly be construed as directly or implicitly prohibiting or restricting international funds transfers and no authorities to that effect were drawn to my attention. I do not consider I must reach a conclusion on 242 [1970] P 94 at 100. -- 198 of 251 -- [2026] SASC 107 Stein CJ 195 the merits on that question, which will be a matter for a trial. For present purposes it is sufficient to observe that the parties’ competing contentions about the proper interpretation of the circulars do not appear to be devoid of any merit. 986 Mr Hani submits that the Bank had no basis to rely on the contractual account closing clause both in the circumstances and on the proper interpretation of the clause. The Bank rightly points out that, even assuming the Bank acted in breach of the banking agreements in closing the account, that would not warrant concluding that the Bank could thereby not rely on the exclusive jurisdiction clause. However, Mr Hani’s argument was not simply that the Bank could not rely on Article X as a result of the Bank breaching the banking agreements in closing the accounts and invoking the tender and deposit process. Mr Hani submitted that the Bank’s conduct informed the exercise of the residual discretion because, among other things, it impacted on the radical change in circumstances factor because the Bank was using the tender and deposit process as a way of seeking to return depositors’ funds in diminished value in the absence of a capital control law. 987 Mr Hani did not seek a finding from me that the Bank’s resort to the tender and deposit process was in bad faith but submitted that it was done in breach of the terms of the banking agreements, was unsatisfactorily explained and it was strongly arguable that the Bank did so in bad faith. The proposition that the resort to the tender and deposit process in Mr Hani’s case was in bad faith was not put to Mr Obeid. Mr Obeid said the Bank uses the tender and deposit procedure in the ordinary course when there is a dispute with a customer. 988 In Fransabank v Traboulsi,243 the Beirut Court of Appeal stated that requesting a balance transfer practically means closing the account and the bank therefore could not be accused of abuse in closing the accounts when the depositor sought that outcome. The method of transfer was said to not alter the depositor’s intention to cease dealing with the bank by closing accounts. The Court of Appeal observed as notable the fact that the depositor was not seeking the nullification of the tender and consignment in order to reinstate the funds into the accounts to maintain the banking relationship. Rather, the depositor sought international transfers. The Court of Appeal considered the bank’s action in closing the accounts aligned with the depositor’s intention and did not constitute an abuse even though the bank did not follow the requested method of returning the deposit. The Court of Appeal also examined whether the return of the deposit through cheques drawn on the Banque du Liban was lawful. The request for a transfer by the depositor was dismissed in light of closure of the accounts based on the tender and consignment which occurred before the case was filed. The Court of Appeal accepted the International Monetary Fund report of June 2023 established that Lebanon was undergoing a systemic banking crisis. That crisis was reported as adversely impacting the total levels of foreign currency deposits in the country. The Court of Appeal concluded that the associated consequences, which the banks could not avoid, absolved the bank from the consequence of failing to execute the 243 Civil Court of Appeal Beirut, decision 398 dated 21/5/2024; SCB147. -- 199 of 251 -- [2026] SASC 107 Stein CJ 196 transfer order in US dollars and Euros under Law 81/2108 (the Electronic Transactions law). 989 As set out above, Fransabank v Traboulsi244 relates to the application of the Electronic Transactions law and, in my view, does not conclusively determine that banks in all cases will be absolved of the consequences of failing to comply with a transfer order. Further, there are factual differences between the cases. Mr Hani in his Beirut proceedings seeks the reinstatement of the funds but does not do so in these proceedings. Mr Hani also contends in these proceedings that the Bank’s actions were in contravention of the banking agreements. 990 Mr Hani’s argument was based in part on the proper interpretation of the article in the banking agreement governing closing an account. In summary, that article entitles the Bank to close the account at any time it deems appropriate. In such a case, the client undertakes to settle the account and provide the Bank with all the means available to him to “activate the account”245 to liquidate and provide the Bank with “all delivered means to move them”.246 In case the account has not been closed by the client after ten days from the date the Bank has informed the client, the Bank shall be entitled to withdraw the entire balance of the account, close it and deposit the funds in the name of the client at a public notary by means of the formal offer and deposit according to applicable legal proceedings. 991 The essence of Mr Hani’s argument is that he asked for the account(s) to be closed and provided the Bank with the instructions for transfer. Accordingly, the Bank had no grounds to resort to the account closing term and the tender and deposit process. This is another issue upon which I do not need to reach conclusions. It suffices to observe that Mr Hani’s argument on the proper interpretation of the article in the banking agreement does not appear unarguable but is also not beyond defence. 992 Equally, the question of good/bad faith and the matters to which Mr Hani point are not for determination in these applications. It suffices to observe that there are matters which support the conclusion the Bank will have arguable defences to allegations of bad faith. These include, without being exhaustive, arguments about the proper interpretation of the banking agreements, the Banque du Liban circulars and asserted appropriate and reasonable reliance on Article 824 of the Code of Civil Procedure in accordance with the requirements of that article. 993 Mr Obeid was aware that the Bank has sought to rely on the tender and deposit procedure when international transfers are sought. Mr Hani submits that the English decisions in Manoukian247 and Bitar v Bank of Beirut SAL248 support the proposition that the tender and deposit procedure is not comparable to a transfer 244 Civil Court of Appeal Beirut, decision 398 dated 21/5/2024; SCB147. 245 Ms Saade’s translation. 246 Ms Rjeily’s translation. 247 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 248 [2022] EWHC 2163 (QB). -- 200 of 251 -- [2026] SASC 107 Stein CJ 197 right. In Manoukian,249 Picken J stated that there was a mismatch between the obligation to carry out an international transfer and tendering a deposit in Lebanon. In Bitar v Bank of Beirut SAL,250 Freedman J followed Picken J in concluding the tender and deposit could not assist a bank under an accrued obligation to transfer. In those cases, the banks accepted that the use of Article 822 of the Code of Civil Procedure would not be appropriate. The Bank does not make the same concession in this case. 994 In determining these applications it is not necessary for me to determine the merits of the allegation that the Bank’s resort to depositing bank cheques with the notary public does not amount to return of equivalent value to the funds deposited by Mr Hani. On the one hand, Mr Obeid gave evidence that the Bank processes cheques for their face value. On the other, Mr Abirached’s evidence supports Dr Kotob’s evidence that bank cheques have lost value. Manoukian251 predates the decisions which conclude Urgent Matters Judges do not have jurisdiction to determine international transfer rights. Manoukian does not represent a complete statement of Lebanese law rendering the Bank’s potential defence unarguable. Both parties’ contentions in relation to the validity of the tender and deposit procedure have some support and neither appear to be devoid of any merit. 995 Returning to the question of radical change in circumstances, the combination of the financial crisis, the impact of it upon foreign currency reserves, the introduction of restrictions on transfers of such currency and resulting ongoing instability in Lebanon represent radical changes in circumstances which were unforeseen in 2018. 996 That radical change has impacted the judicial system. Numerous claims have been brought by depositors against banks before Lebanese courts. While Mr Zein’s evidence is that some matters have resolved, banks have appealed decisions and sought stays. Many claims previously addressed in the Urgent Matters jurisdiction were successful at that level. The determination that Urgent Matters Judges lack jurisdiction to address questions of international transfer rights means any such claims should be brought in, and addressed by, civil courts of first instance. The determination also gives rise to the potential there may be further litigation through the civil courts of first instance of matters previously addressed by Urgent Matters Judges but not yet finally resolved. It is reasonable to infer that this will increase the load on the civil courts of first instance with impact on timing of outcomes. 997 At the date of trial, there were no final decisions at Court of Appeal/Court of Cassation level, which may be a consequence of a range of factors, including general delays and the incidence of appeals. Litigation has been commenced 249 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB) at [130]. 250 [2022] EWHC 2163 (QB) at [147]-[48] (Freedman J). 251 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). -- 201 of 251 -- [2026] SASC 107 Stein CJ 198 against the State of Lebanon by a group of banks including the Bank. The potential impact of that litigation is unclear. 998 The absence of a general capital control law is relevant because the position of depositors remains uncertain and consequently claims are likely to continue. 999 Instability and advice against travel to Lebanon has impacted Mr Hani’s ability to travel to Lebanon. DFAT advice advised against travelling to Lebanon. If Mr Hani was unable to leave Lebanon, his health would be at risk given his medical conditions. Based on the evidence of Mr Abirached and Dr Kotob, the usual procedure would not require a party to attend the trial. Mr Hani sought a finding that there is a real prospect a Beirut Court would initiate interrogation. I do not consider there to be sufficient evidence before me on which to base such a finding. I am unable to make findings about the likelihood Mr Hani would be required to attend in person given the nature of his amended claim. If his interrogation were required, the experts’ evidence supports the conclusion that could be facilitated via request to this Court. I am unable to reach any conclusion whether such a process would entail any prejudice to Mr Hani in the presentation of his case in Lebanon. 1000 The evidence supports, and there does not appear to be any dispute, that the crisis has resulted in extraordinary economic and social impact including upon the banking sector, with periods of political instability. At its heart, Mr Hani’s complaint is the unforeseen consequence of the financial crisis including the introduction of limits on international transfers of foreign currency by the Bank, the resort to the tender and deposit procedure and his ability to obtain an outcome in litigation commenced in Lebanon within a reasonable timeframe. The changes which have taken place since Mr Hani entered into the banking agreements have altered neither the law nor the legal system itself. Mr Hani’s inability to travel to Lebanon does not impact the way in which a trial in Beirut of Mr Hani’s Beirut proceedings would be conducted. The change in circumstances could be described as impacting upon the efficiency and speed of delivery of justice. This is a result of matters including the number of claims by depositors, strikes by the judiciary and the lack of appointment of judges to the Court of Cassation for a lengthy period. As at the date of trial, there were no rulings on the merits by the Court of Cassation even though the crisis started in 2019. It is not possible to assess the extent to which any matter pointed to by Mr Hani has resulted in backlog or the extent to which it will impact on future delay. Nevertheless, the evidence supports the conclusion there is delay and a backlog of cases to be addressed. One factor relevant to delay has been addressed because the Court of Cassation is now quorate. It can be inferred that the number of claims and past delays have impacted on backlog, but the evidence does not enable me to draw any precise conclusions on the extent of backlog and delay nor when rulings on the merits of claims by depositors seeking international transfers will be reached at the level of the Court of Cassation. -- 202 of 251 -- [2026] SASC 107 Stein CJ 199 1001 Even though I cannot make specific findings on those matters, I consider the combination of the matters to which I have referred above is sufficient basis to conclude there been a radical change in circumstances and that radical change in circumstances has adversely impacted the justice system in a manner relevant to the exercise of the discretion. The change has particularly impacted upon the potential timeframe within which Mr Hani may obtain final determination of his claim and, if successful, enforcement of judgment. I have concluded that Mr Hani has demonstrated countervailing circumstances which would justify not holding Mr Hani to the jurisdiction clause in Article X if it were binding. 1002 In reaching this conclusion, I have also considered the factors which overlap with determination of the Bank’s application for a stay on forum non conveniens grounds which I address separately below. 1003 It follows that if I had concluded that Article X was valid and enforceable, I would have concluded Mr Hani met the threshold of establishing strong grounds for the Court to exercise the discretion not to grant a stay on the assumption Article X is enforceable. -- 203 of 251 -- [2026] SASC 107 Stein CJ 200 PART 12 – FORUM NON CONVENIENS 1004 The Bank has sought a stay of the proceedings, or alternatively the dismissal of the proceedings, on forum non conveniens grounds. For ease of reference, throughout this section I have referred only to a stay, without overlooking the alternative relief sought. 1005 I have determined to refuse the Bank’s application on the basis that the Bank has not established that this Court is a clearly inappropriate forum. Forum non conveniens principles 1006 The Court may make an order to dismiss or stay the proceedings if the Court is an inappropriate forum for the trial of the proceeding.252 The UCR uses the phrase “inappropriate forum”. However, the test applied at common law in the exercise of the inherent jurisdiction depends on the party establishing that the Court is a “clearly inappropriate forum”. In Regie Nationale des Usines Renault SA v Zhang,253 the High Court held that because the power to stay a proceeding is an aspect of the Court’s inherent jurisdiction, the principles governing the exercise of the inherent jurisdiction apply in the same way when considering an application for a stay brought under the New South Wales rule (relevantly analogous to the UCR). Accordingly, the less emphatic articulation in the UCR does not detract from the application of the forum non conveniens principles to which I now turn. 1007 The starting point for consideration of forum non conveniens is that a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie entitlement to insist upon its exercise. The traditional power to stay regularly commenced proceedings on grounds of inappropriate forum is to be exercised in accordance with the general principle empowering a court to stay proceedings which are oppressive, vexatious or an abuse of process. The rationale for the exercise of the power to stay is to avoid injustice between parties. The mere fact that another jurisdiction would provide a more appropriate forum does not justify granting a stay. The jurisdiction to grant a stay is to be exercised “with great care” or “extreme caution” and only in a clear case.254 1008 The focus is upon “the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”.255 252 Uniform Civil Rules 2020 (SA) Sch 1, r 4. 253 (2002) 210 CLR 491 at [45]. 254 In respect of all four propositions above: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554-555 (Mason CJ, Deane, Dawson and Gaudron JJ) citing Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 (Deane J); See also Henry v Henry (1996) 185 CLR 571; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 389-391; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 502-504. 255 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 (Mason CJ, Deane, Dawson and Gaudron JJ). -- 204 of 251 -- [2026] SASC 107 Stein CJ 201 1009 In applying the principles, consideration is to be given to “connecting factors” and “legitimate personal or juridical advantage”.256 1010 In determining whether the Australian court is a “clearly inappropriate forum” to hear and determine the matter the Court considers whether the proceedings would be oppressive and vexatious to the defendant. The words “oppressive” and “vexatious” are a description of the objective effect the continuation of the proceedings will have on the defendant.257 The words mean “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging” to the defendant.258 1011 The Court may more readily conclude it is not an inappropriate forum if the determination of forum is complex and finely balanced.259 1012 The onus lies on the respondent to satisfy the court that it is a clearly inappropriate forum unless it is a case in which leave to serve the proceedings outside the jurisdiction is required.260 1013 Where there are proceedings both in this jurisdiction and in a foreign jurisdiction, the Court must consider the foreign proceedings in deciding whether to stay its own proceedings on forum non conveniens principles.261 Where the identical issue is the subject of both sets of litigation, prima facie, the continuation of one or the other is considered oppressive or vexatious in the Voth sense.262 However, where different issues are involved in the two sets of proceedings, even if they arise out of the same sub-stratum of fact:263 [T]he question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”. 256 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564-565 (Mason CJ, Deane, Dawson and Gaudron JJ) referring to the discussion by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 482. 257 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 (Deane J). 258 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554-555 (Mason CJ, Deane, Dawson and Gaudron JJ) citing Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247 (Deane J); See also Henry v Henry (1996) 185 CLR 571; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 389-391; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 502-504. 259 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558 (Mason CJ, Deane, Dawson and Gaudron JJ). 260 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 (Mason CJ, Deane, Dawson and Gaudron JJ); Whung v Whung (2011) 258 FLR 452 at [31]; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; Uniform Civil Rules 2020 (SA) Sch 1, r 3. 261 Henry v Henry (1996) 185 CLR 571; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 399. 262 Henry v Henry (1996) 185 CLR 571; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 399. 263 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 400-401. -- 205 of 251 -- [2026] SASC 107 Stein CJ 202 1014 In Colosseum Investments Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd,264 Palmer J helpfully set out a list of non-exhaustive factors relevant to the exercise of the Court’s discretion to stay proceedings on the ground of forum non conveniens including the following:265 i) a consideration of the true nature and full extent of the issues involved in proceedings in the local court and in the foreign court; ii) whether, in the light of that consideration, the foreign court has jurisdiction to deal with the same subject matter as is before the local court; iii) the degree of connection which both proceedings share with the law of the foreign court and the law of the local court; iv) where the relevant acts or omissions occurred; v) where the parties reside and carry on business; vi) whether local professional or other standards of care have a bearing on the legal quality of the relevant acts or transactions or the liability of the parties; vii) where and how the damage was suffered; viii) where the relevant evidence in the action is to be found; ix) whether the application to the local court for a stay or dismissal has been made with reasonable promptness; x) the stage which proceedings in the foreign court have reached in comparison with the stage of proceedings in the local court; xi) the order in which the two sets of proceedings were instituted and the costs which have been incurred in each; xii) whether each court recognises the orders and decrees of the other; xiii) which court can provide more effectively for the complete resolution of the whole of the controversy between the parties; xiv) that a party properly invoking the jurisdiction of the local court has a prima facie right to insist upon the exercise of that jurisdiction, so long as that prima facie right is not given undue emphasis; xv) that considerations of comity and restraint should be taken into account where a defendant carries on business in a foreign country and the jurisdiction of the courts of that country would be recognised under local conflict rules; 264 [2005] NSWSC 803. 265 [2005] NSWSC 803 at [69]-[70], referring to Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 570-571; Henry v Henry (1996) 185 CLR 571 at 578-579, 588-589, 590, 592-593; Agar v Hyde (2000) 201 CLR 552 at [42]-[43]; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 399, 401. -- 206 of 251 -- [2026] SASC 107 Stein CJ 203 xvi) the undesirability of allowing two independent actions involving the same question of liability to proceed contemporaneously in the courts of different countries; xvii) whether the dominant purpose of a party in commencing proceedings in one jurisdiction or another is to prevent another party from pursuing remedies available in the courts of another country having jurisdiction. These factors are not given any particular order of priority. 1015 The substantive law of the forum is a significant but not decisive factor. This is in part because the courts of the forum the law of which is to be applied are prima facie best placed to apply that law and the proof of foreign law entails potential prejudice and additional cost.266 The existence of choice of law rules dictates that the identification of foreign law as the applicable law is not enough reason for an Australian court to decline to exercise jurisdiction.267 1016 The principles governing whether to grant a stay of the domestic action and whether to enjoin prosecution of proceedings in a foreign jurisdiction are not the same.268 Where an Australian court has held that it is not a clearly inappropriate forum for the trial, the Court should consider whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction.269 The Bank maintains these proceedings are oppressive and burdensome to it 1017 The Bank’s overriding submission is that the proceedings are oppressive and burdensome such that this Court is a clearly inappropriate forum. The Bank relies on the following factors: • Mr Hani’s claim relates to Lebanese law which is fundamentally different to Australian law and the process of receiving expert evidence was very difficult; • The translations in the Court Book are replete with difficulty, including difficulty in understanding the mode of expression; • There were numerous and material differences in interpretation during oral evidence and the Bank did not have instructors in the court room to deal with translation issues when they arose; • The sitting hours were burdensome; 266 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566 (Mason CJ, Deane, Dawson and Gaudron JJ); McGregor v Potts (2005) 68 NSWLR 109 at [54] (Brereton J). 267 Puttick (as Executor of the Estate of Puttick) v Tenon Ltd (formerly called Fletcher Challenge Forests Ltd) (2008) 238 CLR 265 at [31] (French CJ, Gummow, Hayne and Kiefel JJ). 268 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390. 269 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 398 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). -- 207 of 251 -- [2026] SASC 107 Stein CJ 204 • None of the Bank’s evidence about the cost or difficulty of litigating in Australia in comparison with Lebanon was challenged; • Mr Hani is not prejudiced by litigating in Lebanon taking into account matters such as: − Mr El Masri being Mr Hani’s trusted lawyer in Lebanon with authority to conduct matters on his behalf; − Having the assistance of Mr Ladki; − Mr Hani’s financial means to litigate in Lebanon; − Mr Hani already being party to the Lebanese proceedings; − Mr Hani being bilingual; having a house in Lebanon, having travelled regularly to Lebanon and continuing to travel extensively; − There is a procedure for a Lebanese court to receive evidence from Australia if Mr Hani were required to give evidence; • Mr Hani is the only witness located in Australia; • The other eight witnesses and potential witnesses are all located in Lebanon; • Interpreters will be required; • The events all took place in Lebanon; • The documents are located in Lebanon; • Translators will be required for the business records and Lebanese law; • The Bank has no operations or assets in the Asia-Pacific region; • The Bank has no in-house Australian expertise; • Voluminous expert evidence on foreign law, including further evidence not yet obtained, will be required; • It will be considerably more expensive to litigate in Australia; • The applicable law is Lebanese law which is a legal system foreign to common law; • The nature of the Lebanese financial crisis and developing jurisprudence is such that there is a clear benefit in having cases such -- 208 of 251 -- [2026] SASC 107 Stein CJ 205 as Mr Hani’s heard and determined in Lebanon within the proper context. Principles of comity militate in favour of the Lebanese judicial system being the appropriate jurisdiction; • By the time Mr Hani’s claim is addressed in this Court, it may be supposed that the law will have evolved further requiring further expert evidence, increasing the burden on the parties and the Court; • Mr Hani’s Beirut proceedings are not a countersuit given he is the moving party and seeks significant monetary relief as well as the declaration of invalidity; • Mr Hani’s Beirut proceedings were not necessary; • It is wrong to assert there is limited overlap in the proceedings which undeniably relate to the same underlying controversy; • Issues about the Lebanese financial crisis arise in the Bank’s defence in both, giving rise to material risk of inconsistent findings of fact; • Good faith is alleged in both sets of proceedings; • The relief claimed in these proceedings are contingent on the relief sought by Mr Hani in Mr Hani’s Beirut proceedings as an international transfer can only be performed if the depositor has an account containing funds; • Mr Hani and Mr El Masri knew about the Bank’s tender and deposit proceedings from June 2023 as a result of the service of Mr Ghazaleh’s affidavit; • Mr Hani should not be permitted to deflect the consequences of the multiplicity of proceedings and his failure to disclose his Beirut proceedings; • The merits of the Bank’s implementation of the tender and deposit procedure and the strength of the international transfer right claim are not matters for determination by this Court on these applications; • A defence has not yet been filed in these proceedings and pre-trial steps have not occurred; • There is no basis under Lebanese or Australian law for a conclusion that a finding in Lebanon about the validity of the tender and deposit procedure would not be determinative, binding or enforceable. -- 209 of 251 -- [2026] SASC 107 Stein CJ 206 Mr Hani contends the Bank has not met the high bar necessary to justify the grant of a stay 1018 Mr Hani contends that some of the Bank’s submissions equate to consideration of which court is more appropriate, which is not the relevant test. 1019 Mr Hani submits that: • The acts and omissions were not all in Lebanon. Mr Hani’s claim is that the Bank had the obligation to pay him in Australia, entitling him to have the action tried in this Court; • Mr Hani is Australian and transferred the money to the Bank from Adelaide; • The Bank is not correct in contending that the only connection to Australia is Mr Hani’s residence. The funds originated from Australia, the demand was for the funds to be returned to Australia, the banking agreements were to be part performed in Australia and the cause of action arose in Australia; • The Bank overstates the alleged burdensome and costly nature of proceedings being heard in Australia; • The relevant Lebanese laws are not complex, nor materially different, to the position under Australian law. Applying them does not pose any insuperable difficulty. Further, Lebanese law was applied without difficulty in Manoukian;270 • The Bank overstates the alleged impediments and logistical issues associated with the hearing and, by extension, those which would be suffered at trial. Mr Hani points to the fact the hearing was completed within time, technical AVL issues were resolved, the interpretation proceeded smoothly when interpreters of an appropriate skill were identified and the Bank’s evidence was that its lay witnesses at least would give evidence in person if the substantive application were to be heard by this Court;271 • The Bank’s evidence on costs of proceedings is of limited assistance when the Bank’s case depends on Banque du Liban circulars but the refusal to pay Mr Hani depends on its eight phase policy, the evidence of costs is one sided and from the Bank’s perspective, the extent of any evidence from witnesses and experts other than on application of 270 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 271 Mr Ghazaleh CB563; Mr Pieseiwicz CB920. -- 210 of 251 -- [2026] SASC 107 Stein CJ 207 Lebanese law is speculative, and Mr Piesiewicz considered any additional expert evidence would also be required in a Lebanese court; • These proceedings have a significant head start on the proceedings in Lebanon; • If Mr Hani is unsuccessful in the proceedings the Bank will be entitled to a costs order; • Prevailing circumstances are unlikely to be relevant to Mr Hani’s substantive claim; • There is unlikely to be any principled basis for the position being different after the start of the financial crisis from the pre-financial crisis position in the absence of a capital control law and the Bank has not identified such a basis, nor was one identified in Kaadi272 nor is force majeure reasonably arguable based on Kaadi.273 • Mr Hani relies on the prima facie right to have the case determined here if the Court’s jurisdiction is regularly invoked; • The assessment does not involve a comparison between the Lebanese courts and this Court, nor the respective legal systems; • The question is not simply whether foreign law is to apply, but to what extent and with what anticipated difficulty; • Mr Hani’s substantive claim is not complicated; • It is unlikely there will be a great deal more documentation to be tendered at trial; • There is a limited class of applicable statutory provisions most of which apply only to this application, not the trial, and the banking agreements and documents have been readily translated; • Receiving and investing money is the business of a bank. Litigation involving the Bank demonstrates it has received millions of dollars from people outside Lebanon including in the UK and USA;274 • AVL facilities reduce the time and cost of calling overseas witnesses and make their physical location less important to the assessment of the inappropriateness of the forum. Courts have observed that improved 272 Kaadi v Byblos Bank SAL; Exhibit R31. 273 Kaadi v Byblos Bank SAL; Exhibit R31. 274 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB); Khalifeh v Blom Bank [2021] EWHC 3399 (QB); Bitar v Bank of Beirut SLA [2022] EWHC 2163 (QB); Raad v Bank Audi SAL no 21-2612 (US Court of Appeals, 2D Cir, Dec 15, 2022). -- 211 of 251 -- [2026] SASC 107 Stein CJ 208 AVL technology presents no overriding barrier to making credit findings of witnesses appearing by AVL;275 • Some Bank witnesses have given their affidavit evidence in English without translation; • The Bank has not said it will call all persons who received emails from Mr Hani nor said they would need an interpreter; • Some evidence may be able to be agreed and zone difficulties can be managed; • The Bank has not identified the voluminous additional material it says it will seek to have translated; • Bank submissions reliant on comparisons between Australian and Lebanese systems should be rejected; • The Bank’s lack of in-house expertise with Australian law is irrelevant. 1020 Mr Hani contends that the Bank’s reliance on comity and the prospect of future developments in Lebanese law overlooks that Mr Hani’s cause of action arises in Australia, the Bank has not identified any credible basis for how the circumstances of the financial crisis affect Mr Hani’s substantive claim, and the question of whether this Court is a clearly inappropriate forum should not depend on hypothetical considerations. 1021 Mr Hani submits that it is inconsistent for the Bank to say the asymmetric clause was reasonably necessary to preserve the right for it to sue outside of Lebanon and simultaneously submit that Australia is a clearly inappropriate forum. Overlap between the Beirut proceedings and these proceedings 1022 Given the existence of proceedings in Lebanon, the extent of overlap between the sets of proceedings is a relevant consideration and I commence by considering that issue. 1023 For the reasons below, I have concluded that while there is overlap between the proceedings in this Court and in Lebanon, the issues are not identical, the proceedings interleave rather than completely overlap, and the proceedings in this Court will provide more complete relief than those in Lebanon. The Bank’s tender and deposit proceedings 1024 The Bank’s tender and deposit proceedings dated 30 November 2022 refer to Mr Hani’s account with the Bank; that the Bank expressed its desire to restitute the deposits in fulfilment of its obligations, but Mr Hani refused the offer and insisted 275 See for example Capic v Ford Motor Co Ltd [2020] FCA 486 at [191] (Perram J). -- 212 of 251 -- [2026] SASC 107 Stein CJ 209 on keeping the deposits in the sub-accounts. Accordingly, the Bank addressed a letter of actual tender and consignment to Mr Hani with four bank cheques drawn on Banque du Liban through the notary public in Beirut, but that was refused through Mr El Masri who rejected the actual tender and consignment. The proceedings state that the Bank submits the claim to prove the validity of the tender and consignment pursuant to Article 824 of the Code of Civil Procedure. 1025 The Bank accepts it is liable for the restitution of the deposit pursuant to Article 123 of the Code of Money and Credit and Article 307 of the Code of Commerce. It also accepts the deposit is a credit for consumption in accordance with the Code of Obligations and Contracts and that the amounts subject to the deposit become the property of the Bank, which is authorised to use it with the obligation to return an amount equal to the deposit. The Bank also refers to the obligation under Article 302 to repay the debt at the place foreseen under the contract and, in the absence of express or implied condition, in the place of domicile of the debtor. 1026 The Bank’s proceedings refer to a text book on Commercial Law for the proposition that the deposit of cash in a bank is terminated at the discretion of the bank where the bank, for any reason, such as difficulties with the customer or the closure of the branch, restitute the deposit which the customer has no right to refuse. Consequently, the Bank can pay the value at any time at its place of residence, using the legal process of actual tender and consignment. 1027 The Bank asserts the process is valid if done through a cheque drawn on the Banque du Liban in accordance with the applicable rules because a cheque is a means of debt discharge equivalent to cash. 1028 The Bank accordingly submits that the actual tender and consignment is valid and has discharged the Bank from any liability relating to the consigned amounts. 1029 The Bank seeks a declaration of the validity of the tender and consignment thus absolving the Bank from any obligation relating to the consigned deposits. 1030 The Bank’s tender and deposit proceedings thus relate solely to the question whether the tender and deposit procedure was valid so as to discharge the Bank of liability. Mr Hani’s Beirut proceedings 1031 Mr Hani’s Beirut proceedings dated 1 December 2022 were filed in the Civil Court of First Instance in Beirut, Chamber with Financial Jurisdiction. 1032 The document, described as a submission, filed on behalf of the plaintiff, Jihad Fawad Hani, against the Bank states that the applicant is a Lebanese immigrant businessman, holder of Australian citizenship, and resides in Adelaide. -- 213 of 251 -- [2026] SASC 107 Stein CJ 210 1033 The first part of the document sets out facts upon which the claim is made. Those facts include: • that the plaintiff signed an account opening agreement; • the plaintiff deposited monies; • on 30 August 2022 the plaintiff informed the defendant Bank of his desire to transfer funds to an account with the ANZ Bank in Adelaide; • the defendant rejected the transfer, invoking the economic crisis and the circulars of the Association of Banks; • on 16 November 2022, the Bank processed a tender and consignment before the notary public in Beirut which included the Bank’s acknowledgment that the amounts subject to the transfer are due on request and the Bank announced its desire to terminate the contractual relationship with the plaintiff without providing any legal justification; • the plaintiff’s accounts were closed and the balance deposited with the notary public through a cheque drawn on the notary public’s name; • the Bank considers the tender and consignment process equivalent to being discharged from any liability from the date of depositing the cheques with the notary public; • prior to the plaintiff being informed of the tender and consignment process, the plaintiff’s Australian lawyers notified the Bank of commencement of legal proceedings in Australia; • the plaintiff was notified through his Attorney in Lebanon of the tender and consignment which was rejected. 1034 The submission states that: … given this reality, the Plaintiff had no choice but to resort to the Lebanese Court to file the present case to secure and safeguard his right, and to prevent the exacerbation of damages caused and inflicted upon him as a result of the Bank’s violation of the clear and explicit instructions and, on the other hand, the unjustified and unlawful refusal to execute the transfer and the termination of the contractual relationship without legal justification, deliberate closure of the accounts, executing a tender and consignment of the entire balance of his accounts including the amount denominated in Lebanese currency, knowing he did not request any transfer, which have subjected the Plaintiff to huge financial losses as a result of the unilateral and arbitrary termination process and harmed his reputation in Lebanon and abroad. 1035 The second part of the submission addresses the law. It asserts the invalidity of the tender and consignment with the notary public on the grounds of -- 214 of 251 -- [2026] SASC 107 Stein CJ 211 unlawfulness, non-fulfillment, and violation of Article 822 of the Code of Obligations and Contracts. 1036 The submission refers to Article 123 of the Code of Money and Credit and Article 307 of the Code of Commerce which states that a bank that receives a deposit becomes its owner and shall return its equivalent amount upon maturity in instalments on the depositor’s request or in accordance with requirements provided for in the contract. After referring to a Court of Cassation decision, the submission contends that the legislator has protected the full rights of the depositor to recover funds entrusted to the bank subject to no legal provision justifying a bank’s non-compliance. 1037 The submission continues to refer to principles governing relationships between bank and depositor to the effect that the bank is the custodian of the customer’s rights and interests and that banks are compelled to adhere to instructions about the deposit in a manner aligning with the legal and contractual provisions. It also refers to the obligation to fulfil in kind such that the depositor cannot be compelled to accept anything other than the specified item. The submission recites a number of obligations within the Code of Obligations and Contracts including a contention that the requirement in Article 691 of the Code of Obligations and Contracts to return an amount of similar quality and description places a bank under an obligation to repay in US dollars. The submission asserts that refusal to release funds on request would contravene numerous legal provisions and the Bank remains liable. 1038 The submission asserts that the choice of method of returning the deposited funds must ensure actual payment and not cause harm to the depositor. After referring to obligations in the Code of Commerce and various authorities, the submission contends that delivering the cheques to the notary public in the tender and consignment did not constitute a discharge of the Bank’s liability, nor final payment, and represented a payment contingent on the condition of collecting the value of the cheque. The submission contends that the Bank was well aware of the inability of the plaintiff to obtain the equivalent cash value in foreign currency due to the financial crisis and lack of liquidity in US dollars for cheques drawn on the drawer Bank. The provision of the cheques is therefore asserted to be invalid with payment unfulfilled. The submission asserts that current banking restrictions prevent the deposit into newly opened accounts with an inability to convert cheques into cash expected at the face value of the cheque instead being converted at a significantly reduced value. The cheques therefore cannot be considered to be a discharge of the debt. 1039 The submission seeks a decision compelling the Bank to restore the previous state of affairs before closing the account, as the unilateral account closure contravenes Articles 245-247, 166 and 221 of the Code of Obligations and Contracts as well as the two principles of prohibition of abuse of rights and regular performance of contracts under penalty of a coercive fine of US$100,000 for each day of delay. -- 215 of 251 -- [2026] SASC 107 Stein CJ 212 1040 The submission refers to various articles of the Code of Obligations and Contracts said to be relevant to termination of contracts, stating that the Bank arbitrarily terminated the contractual relationship without providing grounds, acting in bad faith and closing all the accounts deliberately to avoid the execution of the transfer order. The submission contends that the right to execute the transfer order remains valid, enforceable and legally effective and is a matter subject to Australian proceedings. The plaintiff’s right to execute the transfer order which predates termination is said to remain valid, enforceable and legally effective irrespective of the Bank’s termination. It is further contended that a decision shall be rendered compelling the Bank to restore the previous state of affairs as it existed before the account closure, since the unilateral termination of the contract breaches the Code of Obligations and Contracts as well as principles of prohibition of abuse of rights and the regular performance of contracts under penalty of a coercive fine of US$100,000 per day of delay. 1041 Under a heading referring to loss and damage, the plaintiff seeks a decision compelling the Bank to pay US$2 million in compensation for loss and damage. The submission states that the Bank misused its right in bad faith and circumvented the law by terminating the contractual relationship by closing all the plaintiff’s accounts without justification, which have subjected and continued to subject the plaintiff to material and moral damage to his reputation and standing as a distinguished businessman in Lebanon and abroad, which necessitates compelling the Bank to compensate the loss and damage that shall be not less than US$2 million. 1042 The plaintiff requests a declaration of the competence of the Court to adjudicate the dispute. The plaintiff also seeks: 1. A declaration of the invalidity of the actual tender and consignment on grounds that it contravenes Article 822 of the Code of Obligations due to its lack of validity, lack of seriousness, illegality and due to the plaintiff’s insistence on the complete satisfaction of his outstanding debt undivided and in cash. 2. A decision declaring the invalidity of the termination and compelling the defendant to restore to the previous state of affairs as it was before the account closure under a penalty of a coercive fine of US$100,000 per each day of delay while retaining all rights towards the legal proceedings filed in Australia. 3. A decision compelling the defendant to pay US$2 million as compensation for damage and loss incurred due to arbitrariness in exercising the right to unilaterally terminate. 4. Costs and expenses. -- 216 of 251 -- [2026] SASC 107 Stein CJ 213 The claims in these proceedings 1043 I have summarised the revised statement of claim in these proceedings. Without repeating that summary, I reiterate some of the key aspects of Mr Hani’s revised pleadings. 1044 Mr Hani pleads representations by the Bank relevant to the banking services it could provide to Mr Hani in reliance on which he entered into the banking agreements. Mr Hani alleges certain terms in the banking agreements based on discussions with Bank representative, writing and Lebanese law and custom. Those terms are alleged to include the right of Mr Hani to the transfer of funds by international electronic transfer on closure of a term deposit. These allegations are not made in Mr Hani’s Beirut proceedings. 1045 The deposit contracts are alleged to be deposit contracts for the purposes of Article 307 of the Code of Commerce and Articles 690, 691, and 701 of the Code of Obligations and Contracts. The gist of the plea is that deposits were owned temporarily by the Bank and were required to be returned to him. 1046 The pleading also alleges the Bank was required to act in good faith based on the terms of the contract and Article 221 of the Code of Obligations and Contracts and acted in breach of its obligations in engaging in the tender and deposit procedure and failing to execute the international transfer. 1047 Mr Hani pleads that the Bank purported to rely on the tender and deposit procedure and that bank cheques tendered to the notary public were not of a value equal to the deposited funds or of a similar type or value or amount to the deposited funds. Mr Hani does not directly challenge the tender and deposit procedure, nor seek declaratory relief in relation to that procedure but pleads a breach by the Bank of the contract and Lebanese law through the use of the tender and deposit procedure. As set out above, Mr Hani seeks orders for specific performance through payment of the deposited funds to Mr Hani, in the alternative, damages to be assessed for loss of use of the deposited funds, interest, and costs. The claims interleave but do not fully overlap 1048 It is apparent from the matters set out above that there is some common factual substratum to the Lebanese and Australian proceedings. They refer to and are predicated on Mr Hani’s deposit of funds with the Bank, the request for transfer of those funds, the Bank’s response including by invoking the tender and deposit procedure, and Mr Hani’s rejection of that procedure. 1049 Mr Hani’s Beirut proceedings refer to and rely on Article 307 of the Code of Commerce and Article 691 of the Code of Obligations and Contracts. There is some overlap of the relevant legislative framework in consequence of the application of Lebanese law to the contract. 1050 Mr Hani’s Beirut proceedings claimed US$2 million in damages and he seeks damages as an alternative remedy in these proceedings. However, Mr Hani has -- 217 of 251 -- [2026] SASC 107 Stein CJ 214 filed an application to withdraw the claim for damages in his Beirut proceedings. His claim for a daily penalty remains. 1051 The trial of the proceedings in this Court will require consideration of additional matters which are not raised in the Bank’s tender and deposit proceedings or in Mr Hani’s Beirut proceedings. Mr Hani’s Beirut proceedings do not plead or require determination of the proper interpretation of, or the obligations under, the banking agreements. These proceedings will require the Court to determine the contractual terms, in particular the terms Mr Hani pleads based on the dealings between the parties, law and asserted customs. 1052 Both Mr Hani’s Beirut proceedings and these proceedings plead obligations of good faith. The nature of the asserted breach of good faith is not precisely the same, but the claims overlap. In Mr Hani’s Beirut proceedings, he asserts the Bank arbitrarily terminated the relationship and closed the accounts deliberately to avoid the execution of the transfer order. In these proceedings, Mr Hani pleads a good faith obligation, in particular, not to cause harm to Mr Hani or deprive him of the benefit of his rights including the right to an international transfer and the return of his deposits. The Bank is alleged to have breached the good faith obligation by engaging in the tender and deposit procedure, providing bank cheques worth only about 15 percent of their face value and failing to repay the deposit amounts 1053 The purpose of the Bank’s tender and deposit proceedings is to validate the tender and deposit procedure. The key issue in the Bank’s tender and deposit proceedings will be whether the tender and deposit of the bank cheques constitutes a refund in equivalent value to Mr Hani’s deposited funds. 1054 The purpose of Mr Hani’s Beirut proceedings, expressed generally, is to invalidate the tender and deposit procedure and compel the Bank to re-open Mr Hani’s accounts and refund monies representing the closing account balances. Mr Hani’s Beirut proceedings do not plead the basis for, nor seek orders compelling, an international funds transfer. If successful, Mr Hani’s Beirut proceedings would not determine the question of that asserted entitlement. Key issues in Mr Hani’s Beirut proceedings include whether the tender and deposit by the Bank of the Banque du Liban bank cheques constitutes a refund in equivalent value to Mr Hani’s deposited funds and whether the Bank acted in bad faith in closing the account and resorting to the tender and deposit procedure to allegedly avoid the requirement to transfer. 1055 The purpose of these proceedings, expressed generally, is to obtain recovery of Mr Hani’s monies by compelling an international funds transfer, or alternatively damages, together with interest and costs. The key issues in these proceedings include: • whether Mr Hani had a contractual or other legal or customary entitlement to the return of his deposits through international funds transfer; -- 218 of 251 -- [2026] SASC 107 Stein CJ 215 • whether the bank cheques the subject of the tender and deposit procedure were of equivalent value to the deposited funds; • whether the Bank breached the contract or Lebanese law, including the pleaded good faith obligation, by failing to repay the deposits and resorting to the tender and deposit procedure. 1056 From this analysis, it is evident that the issues raised in the sets of proceedings share the same underpinning common facts and intersect, including in relation to relevant legislative provisions. However, there are some differences in the content of the proceedings and they do not seek identical relief.276 They are not duplicates: they interleave rather than fully overlap. 1057 As discussed above, the determination of the pleaded allegations is a matter for trial, and both parties have positions to put on the pleaded issues which do not appear to be without any merit. These proceedings have progressed further 1058 The Bank did not serve its tender and deposit proceedings until November 2024, despite filing the proceedings in November 2022. 1059 No steps have been taken in the Bank’s tender and deposit proceedings or Mr Hani’s Beirut proceedings other than the Bank’s application to consolidate the proceedings and Mr Hani’s application to withdraw the damages claim. 1060 The service and stay applications in these proceedings have entailed considerable time, effort and cost. The Bank has not yet filed a defence and the Bank’s Australian solicitor gave evidence to the effect that consideration is still to be given to the defences. Discovery and any other interlocutory steps will have to be completed. In that sense, the action is still in its infancy. However, the significant work performed to address the service and stay applications has meant that some, although not all, preparation which will be required for the substantive trial of these proceedings has been performed. This includes locating relevant documents; translating documents, legislation and authorities; preparing some affidavit evidence and preparing some expert evidence. These proceedings are therefore more advanced than those in Beirut in which no substantive steps have been taken despite their institution in late 2022. 1061 I cannot determine when the proceedings in Beirut would be heard and finally determined. As referred to above, Mr Hani points to the vast number of claims by depositors against banks, the substantial burden on the Lebanese courts associated with those claims, lengthy delays resulting from the combination of various issues including strikes, the inability to appoint cassation judges for a lengthy period, the absence of a functioning government for a period, and the determination that Urgent Matters Judges do not have jurisdiction as factors increasing the burden on 276 Subject to the withdrawal of the claim for damages in Mr Hani’s Beirut proceedings. -- 219 of 251 -- [2026] SASC 107 Stein CJ 216 the justice system. Again, I cannot make specific findings such as how many unresolved claims are progressing, what percentage of matters involving banks are the subject of appeal and suspension of judgment pending appeal, the extent to which matters have been and will be delayed in the future as a result of backlog, and the impact of those matters on the timing of the Bank’s tender and deposit and Mr Hani’s Beirut proceedings. Irrespective, the position remains that, as at trial, there were no rulings by the Court of Cassation or Court of Appeal on the merits of an analogous claim by a depositor against a bank for the transfer of electronic funds. The substantial number of claims brought by depositors and likely progressing through the courts (as referred to by Mr Zein) remain unresolved and have been unresolved for about six years since the commencement of the financial crisis. These proceedings were instituted first but are likely to cost more 1062 The evidence of Mr Zein and Mr Piesiewicz supports the conclusion that the costs which are likely to be incurred by the Bank in conducting proceedings in Beirut will be significantly less than the costs it will incur in defending these proceedings. 1063 These proceedings were instituted first. Mr Hani’s Beirut proceedings were instituted after these proceedings and one day after the Bank issued its tender and deposit proceedings, but at a time when the Bank’s tender and deposit proceedings had not been served. There is no evidence that Mr Hani’s representatives were aware of the Bank’s tender and deposit proceedings when Mr Hani’s Beirut proceedings were issued. The Bank’s tender and deposit proceedings were not served until November 2024. No steps were taken by the Bank thereafter other than the application for consolidation in April 2025. 1064 Article 824 of the Code of Civil Procedure, as translated by Ms Saade,277 provides that the debtor [the Bank] “must file a lawsuit” within ten days of notification of the creditor’s [Mr Hani’s] rejection of the actual tender. The creditor “may also file a lawsuit” within ten days of rejection to prove the invalidity of the tender and deposit. I was not assisted by evidence about the purpose of the second part of Article 824, that is, concerning a creditor seeking to invalidate a tender and deposit as opposed to a debtor seeking to validate that procedure; the circumstances in which that might be utilised; whether there is any difference between a creditor bringing separate proceedings or defending the debtor’s proceedings; whether there are procedures which would enable a creditor to bring a cross-claim in tender and deposit proceedings; and the appropriateness or consequences of additional claims for relief beyond orders concerning validity of the tender and deposit procedure. Mr Ladki and Mr El Masri said it was necessary for Mr Hani to bring proceedings. Neither of the experts gave direct evidence about whether Article 824 obliged Mr Hani to issue proceedings. When presented with Mr Hani’s Beirut proceedings, Dr Kotob said that Article 824 277 No translation from Ms Rjeilly was provided. -- 220 of 251 -- [2026] SASC 107 Stein CJ 217 provides that when the creditor wants to seek invalidity the proceedings should be brought within 10 days. He was not asked directly whether there was a requirement to do so. 1065 The distinction between “must” and “may” supports the Bank’s position that it was not necessary for Mr Hani to commence his Beirut proceedings. Mr Hani did not elucidate the basis of his submission that despite the word “may” the proper construction of the article is that filing a countersuit is required. Article 824 does contain a 10-day timeframe for Mr Hani to bring proceedings. Thus, while it is arguable that Mr Hani was not required to issue those proceedings given the reference to “may” as opposed to “must” in Article 824, Mr Hani still had a finite timeframe within which to institute a challenge. As at the date on which Mr Hani instituted his proceedings, Article 824 left him with two days to challenge the tender and deposit procedure. That is, any challenge proceedings, if brought, had to be instituted by 3 December 2022. Mr Ladki gave evidence that he relied on the advice of another lawyer to the effect that it was necessary to commence the proceedings to protect Mr Hani’s position. There was no evidence before me about what consequences would have followed if the Bank had not commenced its proceedings within time and Mr Hani had also failed to challenge the proceedings within the requisite time frame. Given the Bank had not served its proceedings when Mr Hani’s Beirut proceedings were commenced, I cannot conclude that from Mr Hani’s perspective the Beirut proceedings were not required. I also cannot conclude that those proceedings were unrelated to the Bank’s invocation of the tender and deposit procedure. I do not consider that Mr Hani can be said to have solely caused the multiplicity of proceedings given both the Bank’s tender and deposit proceedings and Mr Hani’s Beirut proceedings stem from the Bank’s resort to the tender and deposit procedure and the Bank’s tender and deposit proceedings had not been served at the time Mr Hani’s Beirut proceedings were instituted. The Lebanese court will recognise orders of this Court 1066 The conclusion that the Lebanese courts will recognise an order of this Court is supported by Mr Abirached’s evidence. Mr Abirached stated that foreign judgments will be enforced by courts in Lebanon once an exequatur (an order to enforce) is obtained in accordance with Article 1014 of the Code of Civil Procedure.278 The decision to issue an exequatur may be appealed to the Court of Appeal and the decision of the Court of Appeal may be appealed to the Court of Cassation. This Court can provide more effectively for the complete resolution of the whole controversy 1067 I have concluded that this Court can provide more effectively for the resolution of the entire dispute between the parties. 278 CB979. -- 221 of 251 -- [2026] SASC 107 Stein CJ 218 1068 The Bank’s tender and deposit proceedings and Mr Hani’s Beirut proceedings do not address Mr Hani’s asserted contractual, legal and customary entitlement to an international funds transfer. Given the withdrawal of the damages claim in Mr Hani’s Beirut proceedings, those proceedings (assuming they were to succeed) will not provide relief either by way of an order compelling an international funds transfer or an award of damages. 1069 In contrast, these proceedings are capable of providing more complete relief to Mr Hani, if he succeeds. 1070 The Bank contends that the relief sought in these proceedings is contingent upon Mr Hani succeeding in his Beirut proceedings such that funds are returned to his account upon which an international transfer order may operate. Mr Hani disputes that suggestion, contending it does not reflect Lebanese law which gives the Bank ownership of deposited monies. On Mr Hani’s case, the Bank has a contractual obligation to repay the value of the deposit, not the actual money, and specific performance will not require a funds transfer from the original account in which the monies were held. Mr Abirached construed Mr Hani’s claim for relief as a request for repayment of a debt equal to the amount of the funds in his accounts which were not transferred to Australia at his request.279 Article 307 of the Code of Commerce and Article 123 of the Code of Money and Credit appear to support Mr Hani’s position as does an authority to which Mr Hani referred.280 In the decision of the Court of First Instance in Beirut, sixth chapter, in Khalil v Lebanese Swiss Bank,281 the Court referred to Article 307, stating that a cash deposit account gives the bank ownership of the money to use for any purpose provided the bank sends a similar amount to the depositor upon request, such that the bank owes the customer the value of the cash deposit and must return it a similar amount on request. 1071 The question of relief is ultimately a matter for determination following trial if a trial proceeds here. However, as discussed below, if the Bank’s stay is refused, Mr Hani cannot seek relief in both proceedings which would result in overcompensation. There is some risk of inconsistent findings 1072 The common facts concerning the opening of the accounts, the request for closure and transfer, the Bank’s response and the use of the tender and deposit procedure are largely based on documents which are not in dispute. These are unlikely to give rise to inconsistent findings. 279 CB977. 280 Court of First Instance of Beirut in Khalil v Lebanese Swiss Bank; SCB600. 281 SCB600. -- 222 of 251 -- [2026] SASC 107 Stein CJ 219 1073 These proceedings plead alleged discussions giving rise to asserted contractual terms which are not pleaded in issue in the proceedings in Beirut as presently framed. 1074 The main risk of inconsistency lies in conclusions to be drawn about whether the bank cheques which were the subject of the tender and deposit procedure were of a value equivalent to the deposited funds and the application of principles in relation to good faith. The undesirability of allowing two independent actions involving the same question to proceed internationally 1075 While I have concluded that questions in issue in these proceedings and the Beirut proceedings are not the same, it would be undesirable for overlapping issues to proceed in both this Court and in the courts of Beirut. If these proceedings are not stayed, it would amount to abuse for Mr Hani to continue to prosecute both sets of proceedings maintaining overlapping relief. In particular, it would be an abuse for Mr Hani to seek the return of funds to his account in his Beirut proceedings and also to seek an international funds transfer or damages in these proceedings. However, that does not necessarily lead to a conclusion that these proceedings should be stayed. Rather, if a stay is refused, consideration of potential injunctions must follow.282 While Mr Hani referred to that potential in his submissions, the Bank did not. 1076 There is no suggestion the dominant purpose of either party in commencing proceedings in one jurisdiction or another is to prevent another party from pursuing remedies available in the courts of another country having jurisdiction. Some, but not all, of the relevant factors assist the Bank’s position 1077 I turn now to address other factors which are relevant to considering whether the Bank has established the continuation of these proceedings is vexatious and oppressive in the Voth sense.283 Lebanese courts have jurisdiction 1078 As set out above, the courts of Beirut have (non-exclusive) jurisdiction to deal with the same subject matter pursuant to Articles 100 and 101 of the Code of Civil Procedure. The substantive law is that of Lebanon 1079 There is no dispute that the relevant law is the law of Lebanon. This is significant but not decisive. 282 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 398 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). 283 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 (Mason CJ, Deane, Dawson and Gaudron JJ). -- 223 of 251 -- [2026] SASC 107 Stein CJ 220 1080 The proof of foreign law will give rise to additional cost both in the requirement for translation of legislation and other relevant source materials and the need to call expert evidence. As the proof of foreign law is a question of fact it impacts upon rights of appeal. 1081 As set out above, this Court has already received significant volumes of translated legislation, source materials and authorities. The materials relevant to the question whether Article X is a valid, exclusive jurisdiction clause will cease to be relevant in the substantive trial. The costs associated with the production of translations and at least some expert evidence which will be relevant at trial have already been incurred. Similarly, the banking agreements, email correspondence and other documents have already been translated and addressed in filed evidence. The Bank has not yet identified its defences, the witnesses it would seek to call or the additional relevant materials which would require translation. It is, however, reasonable to assume additional material will be required, including translations of Lebanese authorities at additional cost. Many, but not all, of the acts occurred in Lebanon 1082 Based on the findings I have made, many, but not all, of the acts occurred in Lebanon when Mr Hani was present in Lebanon. Mr Hani engaged by email with Mr El-Khoury while in Australia, including corresponding with Mr El-Khoury in relation to the interest rates to be applied to potential term deposits. The funds were transferred from Australia to Lebanon. Mr Hani’s claim in these proceedings asserts an entitlement to repayment of the funds to Australia at Mr Hani’s direction from Australia. The Bank is resident in Lebanon while Mr Hani is resident in Australia 1083 Mr Hani’s primary place of residence and place of business is in South Australia. The Bank’s domicile is in Lebanon. It does not carry on business in South Australia nor the Asia Pacific region. 1084 Mr Hani points out the Bank’s attempt via the asymmetric jurisdiction clause to maintain entitlement to issue proceedings in Australia. This does not detract from the Bank’s lack of presence in South Australia. However, it is consistent with the potential that the Bank contemplated it may conduct proceedings abroad if it chose. The example given by Mr Abirached of the application of the asymmetric aspect of Article X also envisaged the Bank issuing proceedings overseas. Mr Hani has established a good arguable case that damage was suffered in Australia 1085 As set out above, Mr Hani has established a good arguable case that damage was suffered in Australia. -- 224 of 251 -- [2026] SASC 107 Stein CJ 221 Most original documents and witnesses are located in Lebanon 1086 The original documents are predominantly located in Beirut. The majority of the lay witnesses and the expert witnesses are resident in Lebanon. The only witness in South Australia is Mr Hani. 1087 The Bank made much of the difficulties associated with the conduct of the hearing, including issues with AVL, interpretation and time differences, while Mr Hani took the position the Bank overplayed those problems. In my view, while obstacles were encountered, they did not produce consequences as extreme as those portrayed by the Bank. 1088 There is no doubt that those issues increased the inconvenience and the complexity of the hearing. Attitudes in relation to receipt of oral evidence through the medium of AVL have changed in the post-COVID world, as reflected in authorities to which Mr Hani referred. Nevertheless, in the hearing of these applications, my task would have been easier if the witnesses had given evidence in person. As set out earlier, I experienced increased difficulty in assessing credit when witnesses gave evidence via AVL, exacerbated by issues with interpretation. Those difficulties reduced to some extent once the third Arabic interpreter commenced. 1089 The receipt of expert evidence was more difficult than may usually be expected. To some extent this resulted from the need for interpretation. To some extent, it was an unavoidable consequence of two experts disagreeing on almost every issue. It is difficult to assess the extent to which individual communication styles of the experts, including that of an advocate, and lack of familiarity with the procedures and expectations of this Court relating to expert evidence exacerbated the difficulties. The practical consequence was a reduction in the assistance provided to me, thus increasing the difficulty of my task. However, it did not create insurmountable barriers. 1090 The most complex issues of Lebanese law related to the arguments concerning the unenforceability of Article X on the basis it was contrary to the Consumer Protection Law or potestative. The complexity was in part a consequence of an absence of directly relevant Lebanese Court of Appeal or Court of Cassation authority. Those issues will not arise again in the trial of the action. 1091 The time differences were accommodated by hearings which started later and ran into the evening, with witnesses giving evidence outside of usual business hours. Instructors from the Bank, and occasionally Mr Hani’s instructing solicitor, attended the hearing by Webex link. While the Webex link dropped out repeatedly during closing submissions, the link generally remained in place for much of the hearing. Instructors on both sides of the bar table raised issues with interpretation contemporaneously during the hearing. 1092 Recording of AVL evidence commenced part way through the evidence of the first witness when issues with interpretation were raised by instructors from -- 225 of 251 -- [2026] SASC 107 Stein CJ 222 the Bank. On one occasion the recording was replayed to enable the interpreter to clarify and correct interpretation of an important answer. 1093 Court staff worked extended hours to facilitate the hearing. Mornings were largely used for submissions and hearing evidence from Mr Hani, interrupted in the afternoons by evidence from overseas witnesses by AVL. While undoubtedly inconvenient, the parties and the Court worked together to ensure the hearing progressed as smoothly as possible and finished within the allotted time, apart from closing submissions. 1094 In considering these matters, the relevant issue is not the increase in inconvenience or difficulty for the Court, but rather whether the consequence for the Bank is that the proceedings will be vexatious or oppressive in the Voth sense. I do not consider that the difficulties I have set out in the practical conduct of the hearing of the stay/service applications resulted in prejudice to the Bank. 1095 Having experienced the issues which arose in the hearing of the applications, the parties and the Court will be better equipped to anticipate and address similar issues which may arise in hearing the trial. The stay application was brought promptly 1096 There is no suggestion that the application for a stay was not brought with reasonable promptness. Comity and restraint are relevant 1097 The Bank conducts its business in Lebanon. The Code of Civil Procedure and Lebanese law recognise the jurisdiction of Beirut courts. Consequently, considerations of comity and restraint are relevant. 1098 Mr Hani submits that the financial crisis, economic circumstances and interests of other banks and depositors are of little to no relevance to his claim. 1099 Mr Abirached cited the Court of Appeal of Beirut decision 398 in support of his view that political, economic and third-party interests will be relevant in determining these proceedings. Court of Appeal decision 398,284 which I have discussed earlier in my reasons, specifically related to provisions of the Electronic Banking Law. I do not understand the references by the Court to the systematic nature of the banking crisis as being relevant in all cases to the determination of requests by customers for transfers of international currency irrespective of the nature of the pleaded issues. I do not consider that the decision in Kaadi,285 relied on by the Bank, establishes how the systematic nature of the banking crisis will be taken into consideration in cases involving transfer requests. As discussed earlier in my reasons, the conclusion reached by the Court of Appeal in Bekaa in Kaadi286 284 SCB146. 285 Exhibit R31. 286 Exhibit R31. -- 226 of 251 -- [2026] SASC 107 Stein CJ 223 is that Urgent Matters Judges do not have jurisdiction to take measures in cases involving transfers as they necessitate legal scrutiny on the merits. The Court of Appeal accepted that force majeure was not established. The Court pointed to the fact that no legislation had been introduced at that time to address the management of deposits. In the context of Urgent Matters jurisdiction, the Court of Appeal referred to considerations concerning customary banking practices and prevailing norms and then continued to refer to emergent developments (implicitly, the financial crisis) and its impact on the nature of customary banking practices such that “previously self-evident” matters required deeper scrutiny. The Court of Appeal concluded that cases involving requests for transfers will have to be addressed on the merits given the emergent developments (financial crisis) such that transfer questions lie beyond the jurisdiction of the Urgent Matters Judges. However, the Court of Appeal did not reach any conclusions about whether and, if so, in what way the emergent developments were relevant in that case to the bank’s refusal to implement the transfer. The decision does not establish how the issues raised by the financial crisis will be relevant in determining individual cases. A refusal to transfer or offer to pay by alternative methods must still be assessed in each case to determine whether it is legal and permissible or unjust and impermissible (using the language employed in Kaadi). 1100 Some Lebanese courts have concluded that the financial crisis does not constitute force majeure.287 1101 It is apparent from submissions that the Bank will rely on systematic impacts of the financial crisis. However, the Bank has not yet filed a defence and has not articulated in detail its proposed defences to Mr Hani’s substantive claim. 1102 The Bank has pointed to the draft law288 which provides for the restructuring of banks. Consequences will flow for depositors in the event a bank becomes subject to the provisions of the draft law (assuming it is passed). As set out above, the draft law does not purport to be a comprehensive capital control law and does not address how funds deposited by overseas entities before the financial crisis should be treated, nor introduce express legislative preclusions or limitations on the repayment of foreign currency deposits made before November 2019. 1103 The state of flux in Lebanese law supports the Bank’s contentions concerning comity and restraint. However, there is some element of conjecture because the Bank’s precise defences and manner of reliance on systemic issues have not yet been articulated. At trial, the parties will be in a position to make submissions on any recent decisions of Courts of Appeal or the Court of Cassation relevant to the matters pleaded by either party, which may include the systemic nature of the financial crisis, the proper interpretation of Banque du Liban circulars and banking custom. 287 Including Khalil v Lebanese Swiss Bank SCB600; proceedings against Byblos Bank SCB546. 288 Exhibit R28. -- 227 of 251 -- [2026] SASC 107 Stein CJ 224 Lebanese banking custom will be relevant 1104 Mr Hani pleads reliance on banking custom in Lebanon in support of international transfer rights which will give rise to the need for evidence on the topic. Banking custom in relation to electronic transactions and international transfers has been addressed in some of the authorities, including Manoukian289 in which Picken J found support for such custom. However, further Lebanese decisions have been delivered since Manoukian. The reference in Kaadi290 to “other emergent developments that have altered the nature of banking transactions and customary professional practices between banks and clients over the past period” (which gave rise to the conclusion that Urgent Matters Judges lack jurisdiction) suggests there is potential for argument about the state of any relevant custom. The Bank has not yet indicated what position it will put on the question of banking custom. Mr Hani has a prima facie right to insist on the exercise of the jurisdiction 1105 Mr Hani has a prima facie right to insist upon the exercise of this Court’s jurisdiction subject to that matter not being given undue emphasis. The proceedings are not seriously and unfairly burdensome, prejudicial or damaging to the Bank 1106 I have taken into account all of the matters which I have addressed above. 1107 I have concluded that the Bank has failed to establish that this Court is a clearly inappropriate forum for the trial because the continuation of these proceedings will be seriously and unfairly burdensome, prejudicial or damaging to the Bank in the Voth sense. 1108 This is a case in which the determination of forum has been complex and finely balanced. There is no doubt that there are more connecting factors with Lebanon than Australia. There is also no doubt that the conduct of the service and stay hearing in South Australia was attended with greater inconvenience and complexity compared with proceedings involving local, English speaking lay and expert witnesses and the application of Australian law. However, a stay application is not addressed by reference to inconvenience or difficulty for the Court, nor by whether the courts of Lebanon are a more appropriate forum, nor by whether the balance of convenience favours one court. Without detracting in any way from my consideration of all of the factors to which I have referred above, those which have the greatest potential for vexation and oppression vis à vis the Bank are the consequences of the application of Lebanese Codes and developing case authority, the receipt of expert evidence about that law, witnesses giving evidence via interpreter by AVL and the difficulties associated with translation of texts and interpretation of evidence. However, these difficulties did not prove insurmountable during the hearing of the applications and should not do so in a 289 Manoukian v Societe Generale de Banque au Liban SAL [2022] EWHC 669 (QB). 290 Exhibit R31. -- 228 of 251 -- [2026] SASC 107 Stein CJ 225 trial at which the parties will have greater ability to anticipate and address the issues which arose in the hearings before me. I do not know how many witnesses will be called by the Bank at trial, how many will require the assistance of an interpreter, whether they will give evidence in person or by AVL, what volume of additional material will require translation, what additional expert evidence will be required and whether translations can be agreed. I am ultimately not persuaded that the Bank has established that the proceedings ought to be stayed or dismissed on the basis this Court is a clearly inappropriate forum for the trial. I do not consider continuation of the proceedings would work injustice to the Bank on the basis the proceedings would be seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment to the Bank in the Voth sense. The bar is a high one as the jurisdiction to stay is exercised with extreme caution. I am not persuaded that Mr Hani’s prima facie right has been displaced taking into account all of the matters to which I have referred above. 1109 I therefore have determined to dismiss the Bank’s application. Orders 1110 On FDN 25: • I declare that leave to serve the originating process was not required in relation to the claims made concerning the first and second deposit contracts and the originating process was validly served with effect from 10 October 2023. • Insofar as is required in relation to the balance of the originating process, I grant leave to serve nunc pro tunc to 10 October 2023. 1111 On FDN 3: • I dismiss the application. 1112 I will hear the parties in relation to the question of costs and any consequential orders which may need to be made. -- 229 of 251 -- [2026] SASC 107 Stein CJ 226 ATTACHMENT 1 – Summary of general banking agreement 1. Introduction Definitions: The following words and expressions as used herein shall have the following meanings: PRIMARY ACCOUNT: means the Account chosen by the Client and accepted by the Bank to be the principal Account that any of the Electronic Banking Services are related to. SECONDARY ACCOUNT: means the Account chosen by the Client to be the Secondary Account that all Electronic Banking Services are related to. ELECTRONIC BANKING SERVICES: means the Electronic Transaction Services, the Electronic Payment Services, the Electronic Services, the Card and/or any other new Electronic Banking Service or any service that is modified by the Bank, who has the right to do so in its sole discretion, without the authorization of the Client, provided it notifies the latter via any Notification Mean of the new service, the modifications and any new condition. The Electronic Banking Services include transactions executed in Lebanon or abroad. 1. ELECTRONIC TRANSACTION SERVICE: means the transaction service through Electronic Means such as Internet and/or any other means of communication such as mobile phone and/or landline and/or ATM and/or any means of communication via video conference. 2. ELECTRONIC PAYMENT SERVICE: means payment service via Card using Point of Sale and/or Internet and/or via a means of communication such as a phone using NFC technology and/or via any other Electronic Means. 3. ELECTRONIC SERVICE: means the service provided via any Electronic Means, such as a mean of communication or through an Internet website for instance email service (to get an E-Statement), the presentation of a request through Electronic Means for obtaining a banking service or any other product offered by the Bank such as credit card or personal loan or insurance products. … ELECTRONIC MEANS: means any Electronic Means used by the Client to perform Electronic Payment transactions or electronic transfers of cash, fully or partially, including, but not limited to withdrawals, cash deposits and the remote activation of the Account. 2. First Chapter, First Paragraph CHAPTER ONE: GENERAL TERMS AND CONDITIONS RELATED TO THE ACCOUNTS I – CREDIT ACCOUNT OPENING APPLICATION AND ACCOUNT NUMBER -- 230 of 251 -- [2026] SASC 107 Stein CJ 227 The Client requests the Bank to open in his/her name one or several credit Accounts under one identification number and required designation (hereinafter referred to as the “Account” or “Accounts”), to which all the Electronic Banking Services are connected. The Client may have one or more other identification numbers in case he/she opens joint and/or collective accounts with third parties. The Accounts, the ordinary banking services, Electronic Banking Services and the Site are governed by the terms and conditions set forth in the Agreement and in any application, document or annex whether it is attached herein or signed separately. The Client acknowledges that he/she has been informed of the said terms and conditions and agrees to the same. The Accounts and the banking services are governed by any terms and conditions notified to the Client, the Cardholder or the Secondary User by any of the Notification Means and also are governed by any applicable laws in all matters that are not stipulated in the present Agreement. 3. First Chapter, Fourth Paragraph CHAPTER ONE: GENERAL TERMS AND CONDITIONS RELATED TO THE ACCOUNTS IV: ACTIVATING THE ACCOUNT … 2. Transfers a. The Client confirms the right of the Bank to credit his/her Account with the value of any amount transferred in favour of the Client to it in case his/her IBAN number (International Bank Account Number) is affixed on the Transfer, without being obliged to check the validity of the mentioned number. In case the IBAN mentioned on a transfer belonging to a client other than the client owner of this IBAN, the Bank shall not be held liable in case the transfer is not Credited to the Client’s Account. On the other hand, the Client irrevocably and unconditionally authorizes the Bank given the latter’s interest to withdraw the value of any transfers deposited by mistake to his/her Account. b. The Client exempts the Bank from any liability in case of delay in crediting the amounts transferred in the favour of the Client to his/her Account or in case of delay in performing a transfer from his/her Account upon his/her request, for reasons related to compliance verification of the transfer. Rjeily translation: First chapter: General conditions and provisions of the accounts Fourth: account movement … 2. Transfers a. The client agreed the bank has the right to record any value of any transfer to the whose identification number IBAN is included in this transfer -- 231 of 251 -- [2026] SASC 107 Stein CJ 228 (international bank account number) and the bank is not obliged to verify the mentioned identification number. If IBAN on the transfer is not for the client holder of such a number whose name is mentioned on this transfer. The bank is not responsible for not recording the transfer in the account of this latter. On the other hand, the client delegates to the bank definitively and irrevocably, because the bank has the right to do so, to withdraw the value of the transfer deposited wrongly in his account. b. The client exonerates the bank from any responsibility in the event of a delay in recording the transfers in favor of the client in his account or the delay in issuing the transfers from his account upon his request for reasons related to verifying these transfers regarding compliance. [Mr Hani submits the Rjeily translation should be preferred as the word “movement” is apt, in context, in comparison to “activating”.] 4. First Chapter, Fifth Paragraph CHAPTER ONE: GENERAL TERMS AND CONDITIONS RELATED TO THE ACCOUNTS V: ACCOUNTS COMPENSATION, SET-OFF, FUSION AND CONSOLIDATION … 4. In execution of the above, the Client accepts as of now that the Bank is entitled to carry out all withdrawals, deposits, set-off, clearing, fusion, compensation and consolidation operations, currency conversion from and to his/her individual Accounts at the exchange rate prevailing on the date of conversion as adopted by the Bank at that time and that without referring to the Client. The Client approves and ratifies all the operations mentioned above and any other operation carried out by the Bank in execution of the above, acknowledges the authenticity of the records of the Bank’s books and waives any right to discuss and object thereto. 5. First Chapter, Sixth Paragraph CHAPTER ONE: GENERAL TERMS AND CONDITIONS RELATED TO THE ACCOUNTS VI: INTEREST RATE AND CALCULATION … 2. Savings and Deposit Accounts at sight The Bank shall be entitled, at its sole discretion, to calculate the credit interest on the account at sight at the interest rate set by the Bank. 3. Term Savings and Deposit Account -- 232 of 251 -- [2026] SASC 107 Stein CJ 229 Interest shall be calculated at maturity date at the interest rate set by the Bank. The interest shall be added to the principal or to another account, after deduction of commissions, charges and legal tax. No less than four days prior to the maturity date, the Client shall inform the Bank of his/her wish either to free the Account or to block the same for a given period at the interest rate set by the Bank. Otherwise, the Bank shall have the right to consider the Account blocked for a similar period at the terms it deems appropriate. The Bank shall be entitled at any time to modify the date of calculation of interest as well as the maturity date of the Account. 6. First Chapter, Seventh Paragraph CHAPTER ONE: GENERAL TERMS AND CONDITIONS RELATED TO THE ACCOUNTS VII: CLOSING THE ACCOUNT The Bank shall be entitled to close the Account(s), any time it deems appropriate and at its sole discretion. In such case, the Client undertakes to settle such Accounts immediately and provide the Bank with all the means made available to him/her to activate such Accounts as well as cancel the Electronic Banking Services. In case the Account has not been closed by the Client after a period of ten (10) days from the date the Bank informed him/her of the same, the Bank shall be entitled to withdraw the entire balance of the Account, to close it and to deposit the funds in the name of the Client at a public notary by the means of a formal offer and deposit according to the applicable legal proceedings. Rjeily translation: First chapter: General conditions and provisions of the accounts Seventh: Closure of the account The bank has the right to close the account(s) at any time at its absolute discretion. In this case, the client shall undertake to liquidate immediately these accounts and provide the bank with all delivered means to move them plus the cancellation of e-banking services. In the event, the client does not close the account after ten days of his notification by the bank, this latter has the right to withdraw the entire balance of the account, close it, perform a real offer in the mentioned balance in the name of the client through the notary public in accordance with legal regulations. [Mr Hani submits the Rjeily translation should be preferred as the word “move” is apt, in context, in comparison to “activate”.] 7. Second Chapter, First Paragraph CHAPTER TWO: TERMS AND CONDITIONS RELATED TO CERTAIN TYPES OF ACCOUNTS I: CURRENT ACCOUNT -- 233 of 251 -- [2026] SASC 107 Stein CJ 230 1. Nature of the Account The Client may open with the Bank one or several Current creditor Accounts that shall be activated by cash withdrawals and deposits or by checks, transfers, debit Cards, Electronic Banking Services or any other means adopted by the Bank. Rjeily translation: Second chapter: the conditions and provisions of some types of accounts First: Current account 1. Nature of the account The client could open at the bank one or more current credit accounts moved by withdrawal and deposit cash or through cheques, transfers, electronic payment cards, electronic e-banking services, or any other means adopted by the bank. [Mr Hani submits the Rjeily translation should be preferred as the word “moved” is apt, in context, in comparison to “activated”.] 8. Second Chapter, Third Paragraph CHAPTER TWO: TERMS AND CONDITIONS RELATED TO CERTAIN TYPES OF ACCOUNTS III: DEPOSIT ACCOUNT 1. Nature of the Account The Client may open with the Bank one or several creditor deposit Accounts to be either at sight or term deposits. He/she may block such Accounts as a pledged Account in the favor of the Bank, to cover a debt due by him/her or by third parties. Such Accounts may also be blocked for special purposes such as escrow account or fiduciary account. The block of the Account shall be done by virtue of a special agreement signed with the Bank for this purpose. 2. Activating the Account a. The Client shall be entitled to activate the terms deposit Account only at its maturity date as agreed upon between the Bank and the Client. However, the Bank may at its sole discretion and according to the conditions set by the Bank, authorize the Client to make deposits in and withdrawals from the account before its maturity date. Such leniency does not grant the Client a vested right to repeat such transaction. b. The deposit Account shall be activated by cash, transfers or any Electronic Banking Service the Bank decides to link it to the deposit Account. Rjeily translation: -- 234 of 251 -- [2026] SASC 107 Stein CJ 231 Second chapter: the conditions and provisions of some types of accounts Third: Deposit account 1. Nature of the account The client may open one or more credit deposit accounts on demand or for a determined term. He could freeze this account as a pledge account in favor of the bank covering a debt owed by him or by others. In addition, this account is freezing for specified objectives (Escrow account, fiduciary account) and freezing account should be made by signing a relevant private agreement with the bank. 2. Movement of the account a. The client has no right to move the term deposit account unless upon maturity of the term between the bank and the client. According to his absolute discretion and at the determined conditions, the bank allows the client to deposit and withdraw the amounts from the account before its maturity; however, this tolerance does not grant the client an acquired right to repeat this operation. The deposit account is moved cash, through transfers, or any e-banking service that the bank decides to link to the deposit account. [Mr Hani submits the Rjeily translation should be preferred as the words “Movement”, “move” and “moved” are apt, in context, in comparison to “activating”, “activate” and “activated”.] 9. Second Chapter, Fourth Paragraph CHAPTER TWO: TERMS AND CONDITIONS RELATED TO CERTAIN TYPES OF ACCOUNTS IV - DEBTOR ACCOUNTS The debtor Accounts opened with the Bank in the name of the Client shall be activated by cash withdrawals and deposits, ordinary or banker checks or Electronic Banking Services the Bank decides to link to such Accounts. The activation of debtor Account by any other means whatsoever shall be made with the Bank’s prior approval. Rjeily translation: Second chapter: the conditions and provisions of some types of accounts Fourth: Debit accounts The debit accounts opened in the name of the client are moved in withdraw, deposit cash, ordinary or banking cheques, or through e-banking services that the bank decides to link to these accounts and the movement of any debit account was made by prior consent of the bank. -- 235 of 251 -- [2026] SASC 107 Stein CJ 232 [Mr Hani submits the Rjeily translation should be preferred as the words “moved” and “movement” are apt, in context, in comparison to “activated” and “activation”.] 10. Fourth Chapter, First Paragraph CHAPTER FOUR: GENERAL CONDITIONS RELATED TO THE ELECTRONIC BANKING SERVICES I: GENERAL PROVISIONS … 2. The Client, the Cardholder and the Secondary User shall use all the Electronic Banking Services in accordance with (i) the terms and conditions of use determined by the Bank in the present Agreement, (ii) any application or other written document signed by any of them, and (iii) the terms and conditions notified to the Client through any Notification Means including without limitation the type of the authorized transactions, the value date of the withdrawals, transfers, currency conversion made on the Account via Electronic Means, provided the Client has been informed by any Notification Means and that he/she will bear the liability of such use and all the risks resulting thereof, especially regarding the transfer of information between the Bank and the Client, the Cardholder or the Secondary User. 11. Fourth Chapter, Fourth Paragraph CHAPTER FOUR: GENERAL CONDITIONS RELATED TO THE ELECTRONIC BANKING SERVICES IV: SUSPENSION OF THE ELECTRONIC BANKING SERVICES … 2. The Bank shall be entitled to suspend any Electronic Banking Services without informing the Client in the following cases: a. Entry of any incorrect PIN three (3) consecutive times. b. At the Bank’s sole discretion and without prior notice. c. Execution of suspicious or illegal transactions or if the Bank suspects that the use of the service was invalid or illegal. In case of suspension of the Electronic Banking Service or loss of the PIN or the pager, the Client should, at its sole discretion, visit the appropriate branch in order to re-activate the service or receive a new Machine/Device or PIN. As for the Card, its reactivation shall be done three months after the suspension date. 12. Fourth Chapter, Fifth Paragraph Chapter Four: General Conditions related to the Electronic Banking Services V-TERMINATION OF THE ELECTRONIC BANKING SERVICES -- 236 of 251 -- [2026] SASC 107 Stein CJ 233 … 2. The Bank shall be entitled to cancel any of the Electronic Banking Services for the following reasons: a. At any time and at its sole discretion. b. Misuse of the Electronic Banking Service. c. Non-settlement by the Client at their maturity dates of any fees, commissions and charges imposed by the Bank. d. Closure of the Accounts related to the Electronic Banking Service. e. Non execution of any transaction through the Electronic Banking Service during any consecutive one hundred eighty (180) days period. f. Suspension of the Service for three (3) consecutive months. g. Existence of a conflict between the Bank and the Client, the Cardholder or the Secondary User for any reason. h. Breach of any provisions of the present Agreement. The clauses “e” and “f” do not apply to the Card service and clause “f” does not apply to the electronic banking service via mobile phone. The Electronic Banking Service shall be canceled after the signature of the Client on the termination application form adopted by the Bank and during the period and as per the conditions decided by the latter, without closing the Client’s Accounts. The cancelation of the Electronic Banking Service shall not affect the Bank’s rights accrued to the date of termination, nor it shall affect the Client’s liabilities and obligations. As for the Client’s rights, the Bank may cancel any request presented by the Client or execute it, provided that the Bank is able to do so, at its sole discretion and without any liability from its part. The Bank shall be entitled at its sole discretion to approve the reactivation of any cancelled Electronic Banking Service upon the Client’s re-subscription to such service. 13. Sixth Chapter, First Paragraph CHAPTER SIX: GENERAL CONDITIONS RELATED TO THE CREDITOR ACCOUNTS AND TO THE ELECTRONIC BANKING SERVICES LINKED TO THEM I: FOREIGN LAWS AND OBLIGATIONS The Client declares that he/she consents to all ordinary or electronic banking transactions having foreign elements when executed in accordance with foreign laws and/or banking practices which are applicable to such transactions, or executed in accordance with the terms and conditions of contracts and/or agreements signed between the Bank and any person or any local or foreign public authority or administration and/or in accordance with the treaties signed between Lebanon and any other country; for the purpose of the execution of such banking transactions and the sound continuity of the banking activities and relationships, both internally and externally. 13. Sixth Chapter, Tenth Paragraph X – GOVERNING LAWS AND COMPETENT JURISDICTION -- 237 of 251 -- [2026] SASC 107 Stein CJ 234 Without prejudice to the provisions of Paragraph 1 of Article I of Chapter Six of this Agreement, this Agreement shall be governed by and construed in accordance with Lebanese laws. Beirut courts shall exclusively have jurisdiction over any dispute that may arise of this Agreement and its annexes or of the Accounts of the Client or the other Account holders and all matters related to or resulting from the Accounts. However, the Bank shall be entitled to take legal actions against the Client, the Cardholder, the Secondary User or their successors before any other courts in Lebanon or abroad. Rjeily translation: Tenth: Applied laws and jurisdiction of courts Without prejudice to the provisions of Paragraph 1 of Article 1 of Chapter Six of this Agreement, this Agreement shall be governed by and construed in accordance with Lebanese laws. Beirut courts alone shall have the right to look into any dispute that may result of this Agreement and its annexes or of the Accounts of the Client or the other Account holders and all matters related to or resulting from the Accounts. However, the Bank shall be entitled to take legal actions against the Client, the Cardholder, the Secondary User or their successors before any other “courts in Lebanon or aboard”. -- 238 of 251 -- [2026] SASC 107 Stein CJ 235 ATTACHMENT 2 – Summaries of Codes 1 The summaries below are those produced by the translators and use their language. Consumer Protection Law No. 659 promulgated on 4/2/2005291 2 Article 1 states the purpose of this law is to: • Outline the general rules concerning the protection of consumers and the safety and quality of goods and services. • Assert consumer rights and guarantee transparency of economic transactions in which the consumer may engage. • Protect consumers from fraud and misleading advertisements and prevent their exploitation. • The provisions of this Law shall not apply to relations that connect suppliers. 3 A consumer is defined as a natural or legal person who buys, rents, utilises or benefits from goods, or services, for purposes which are not directly related to his professional activity. A supplier is defined to mean a natural or legal person, from the private or public sector, engaged in the distribution, sale, or rent of goods or in the provision of services, on his behalf, or in the interest of someone else. A supplier is also defined as a person who imports goods with the aim of selling, renting or distributing such goods, within the scope of his professional activity. 4 Article 3 provides that the consumer shall have the following rights that shall be exercised in accordance with the provisions of this Law: • The right to protect his health and safety when using under proper conditions, goods and services with respect to their quality and type. • The right to receive fair and non-discriminatory treatment from the supplier of goods intended for local consumption or for exportation. • The right to receive clear, exact, and sufficient information about goods or services and about the price, description and methods of use of such goods and services and the potential risk that they may pose. • The right to exchange or repair the goods or to get a refund of the prices already paid for a service if such goods or service, when used under proper conditions, do not comply with the applicable or agreed 291 CB263. -- 239 of 251 -- [2026] SASC 107 Stein CJ 236 standards or with the purpose for which the goods or services are acquired. • The right to obtain an appropriate and full compensation for damage resulting from the consumption of goods or the use of services, when used under proper conditions. • The right to establish and adhere to Consumer Protection Associations. • The right to sue for damages or for the assertion of his rights, on his own or collectively through Consumer Protection Associations. 5 According to Ms Saade, Article 17 states that the provisions of this Law treating of contracts concluded between suppliers and consumers shall be enforced, without prejudice to provisions of the laws governing the liberal professions, banks and insurance companies. Ms Rjeily’s translation is that the provisions of this law relating to contracts between the professional and the consumer shall be applied in everything that does not conflict with the legal texts that govern the work of the liberal professions, banks and insurance companies. 6 Ms Saade states that Article 18 provides that contracts shall be interpreted in the favour of a consumer. The contract’s circumstances, the benefits to the consumer resulting there from and the balance between the rights and obligations of both parties, should all be taken into consideration in order to determine the extent of a consumer’s consent. According to Ms Rjeily, Article 18 states that contracts must be interpreted in the interest of the consumer, taking into account, to determine the extent of the consumer’s satisfaction, the conditions of the contract, the benefits that the contract grants him, and the balance between the rights and obligations of the two parties. 7 Article 26 provides as follows: The clauses aiming at or leading to the creation of an imbalance between rights and obligations of a supplier and a consumer in the favour of the supplier, shall be considered abusive. The abusive aspect of a clause shall be evaluated on the basis of the date, clause and annexes, except for the price-related annexes, of the contract. The following clauses shall be, inter alia, considered abusive: • The clauses that exempt the supplier from his liabilities. • The consumer’s waiver of any of his rights prescribed by laws and regulations. • The clause that places the burden of proof on the consumer, in cases other than those prescribed by the Law. • The supplier’s unilateral entitlement to modify one or all of the clauses of the contract, especially in terms of price, date and place of delivery. -- 240 of 251 -- [2026] SASC 107 Stein CJ 237 • The supplier’s entitlement to rescind an open-ended contract, without notifying the consumer about his desire to rescind it, within a reasonable period. • The consumer’s obligation – if he breaches any of his contractual obligations – to overcompensate the damage caused to the supplier. • The supplier’s entitlement to interpret the provisions of the contract. • The consumer’s obligation to carry out his commitments, while the supplier abstains from carrying out his commitments. • The clause that does not allow mediation or arbitration for dispute settlement in accordance with the provisions of this Law, or those that burden the consumer with the expenses due on following such processes. Abusive clauses shall be deemed completely void, while all other clauses of the contract shall remain applicable. Code of Money and Credit and the establishment of Banque du Liban Decree No. 13513 of 1 August 1963292 8 Article 156 provides that in their use of funds received from the public, banks must observe norms designed to safeguard the latter’s rights. They must notably adapt the period of such use to the nature of their resources. 9 Article 207 provides as follows: Without prejudice to the penal or administrative penalties applicable, any bank which does not, within the time-limits, meet the obligations prescribed under articles 146, 147, 175 and 176, or which obstructs Banque du Liban’s control, referred to in article 149, is subject to a penalty for delay which may reach 100 Lebanese Pounds per day. The same penalty is incurred by financial institutions which do not satisfy the obligations referred to in article 182. This provision does not preclude the imposition of additional punitive sanctions or administrative penalties to which it is exposed. The penalty for delay is set by the Banque du Liban and is due for computation the next day following the date of the formal notice it shall have addressed by registered mail to the concerned bank or financial institutions. 10 Article 208 provides as follows: Whether a bank has infringed its articles or the provisions of the present law or the measures prescribed by the Banque du Liban by virtue of the powers deriving under this law, or it has furnished incomplete or inaccurate statements or statements non-conforming to reality, the Banque du Liban is entitled to implement the following administrative actions against the concerned bank: a) Issuing a warning b) Reducing or suspending credit facilities granted to it 292 CB274. -- 241 of 251 -- [2026] SASC 107 Stein CJ 238 c) Imposing restrictions on certain operations or other limitations in the exercise of the profession d) Appointing a supervisor or a temporary manager e) De-listing from the list of banks. This does not preclude the imposition of fines and punitive sanctions to the violating bank. Lebanon Code of Commerce Legislative Decree No 304 of 24 December 1942293 11 Article 4 provides that in his assessment of the effects of a commercial operation, the judge shall apply well established customs, unless it becomes apparent that the parties had agreed to derogate them, and unless such customs run counter to imperative legal provisions. Special or local customs are presumed to override general customs. 12 Article 304 provides that before the closing of a current account neither party shall be considered the other’s debtor or creditor. Only the closure of the account fixes the state of their legal relations, produces as a matter of unstinted right the global set-off of the debit and credit items and determines the creditor and the debtor. 13 Article 305 provides that the account is closed and wound up on maturities set down by contract or by local usages and, otherwise, at the end of each semester. The remaining balance constitutes a net debt due for payment and which, from the day of winding up, produces interests at the rate fixed by the current account, when the balance is transferred to another account, or otherwise at the legal rate. Actions in redress of an account for error, omissions, duplications or other rectifications must be initiated within six months. 14 Article 306 provides that the contract is terminated at the end of the period set in the agreement and, failing an agreed time-limit, at the will of one of the parties. It equally comes to an end through the death, incapacity or the insolvency of one of them. 15 Article 307 provides that the bank which receives a sum of money as deposit acquires ownership thereof. It must refund it in one or several instalments of equivalent value on the depositor’s first request or within the terms of time-limit or prior notice laid down in the contract. All deposit or refund operations must be stated in writing. In the absence of agreement to the contrary, interests, if any, are due as from the working day following each deposit, unless it is a holiday, and up to the eve of the day of each refund. 16 Article 314 provides that the bank operations which are not referred to in the present Chapter are governed by the provisions of the Code of Obligations 293 CB284. -- 242 of 251 -- [2026] SASC 107 Stein CJ 239 concerning the different contracts to which they give rise the agreements to the provisions of which these operations are subject. Code of Obligations and Contracts Law of 9/3/1932294 17 Article 84 provides that obligation is null when its very existence depends on the sole volition of the obligor (it is a purely voluntary condition). However, each of the parties or one of them may reserve [to] himself the right to declare, within a determined time limit, whether he intends to maintain the contract or terminate it. Such a reservation may not be stipulated in the acknowledgement of debt, in donation, waivers of debt and in sale for delivery known as “Selem”. 18 Article 142 provides that restitution is due by the enriched person solely up to the amount of the enrichment which survives to his profit on the day of the claim except for contrary provisions of the law. The matter may take a different course, however, if the enriched person had bad faith at the time of the enrichment for the whole of which he shall then be accountable, whatever events such as loss, transfer of property or dilapidation may have subsequently occurred; in this case he bears all risk and is bound to return all the benefits earned or that he should have earned. He may only claim the necessary disbursements for refund. 19 Article 165 provides that a covenant is any agreement of intents designed to produce judicial effects; when this agreement tends to create obligatory relations, it takes the name of contract. 20 Article 166 provides that right in contracts is dominated by the principle of contractual freedom; individuals regulate their judicial relations as they choose, provided it is subject to requirements of public order and morality, and to the legal provisions of an imperative character. 21 Article 172 provides that a contract is deemed to be formed by mutual consent, when its conditions are freely discussed, negotiated and established by the parties (ordinary sale, leasing, exchange, loan). When one of the parties simply adheres to a standard draft which is merely submitted to him and whose content he would not be authorised to discuss, as a matter of law or of fact, the contract is deemed to be formed by adherence (transport contract concluded with a railway company; insurance contract). 22 Article 213 provides that deceit consists in a discrepancy, a lack of equilibrium between the obligations set in favour of a party, and the obligations imposed on the other party in onerous contracts. 23 According to Ms Saade, Article 214 provides that, in principle, deceit does not vitiate the consent of him who is its victim; tile case is otherwise and the contract is liable to cancellation: 294 CB304. -- 243 of 251 -- [2026] SASC 107 Stein CJ 240 • When deceit is sustained by a party under age; • When sustained by a party of full age, it presents the double peculiarity of being at once shocking and abnormal in respect of current usage, then of findings its justification, according to its beneficiary in his intent to exploit the discomfort, the frivolity or inexperience of its victim. Within the above context, aleatory contracts are themselves subject to cancellation due to deceit. 24 Ms Rjeily’s translation of Article 214 is that, in principle, the iniquity does not vitiate the consent of the person who is the victim; it is otherwise and the contract becomes voidable: 1. When the iniquity is suffered by a minor; 2. When, suffered by an adult, it presents this double particularity: first of being shocking and abnormal about current practices and second of being explained, on the part of its beneficiary, by the desire to exploit the embarrassment, the lightness or the inexperience of his victim. To the extent just indicated, random contracts themselves are liable to be cancelled due to iniquity. 25 Article 221 provides that contracts concluded according to regulations are binding on those who are party to it. They must be understood, interpreted and carried out in conformity with good faith, equity and usage. 26 Mr Hani relies on the translation by Ms Rjeily. That provides that legally established contracts bind the contracting parties. They must be understood, interpreted, and executed by good faith, fairness, and custom. 27 Article 244 provides that when the contract is dissolved as a result of the impossibility of performance, there is no obligation to award damages to the party who finds himself sacrificed and on whom the risks of the event are placed. 28 Article 245 provides that in principle, contracts may not be terminated except by the unanimous consent of all who had concluded them, due reservation being made for covenants which are brought to an end by the death of one of the parties and independently of termination proper. Such consent may be expressly or tacitly manifested as it may occur on the maturity of an extinction term. 29 Article 246 provides that unilateral termination is efficient when provided for either in the contract or in law. Thus it is that, on the one hand, the lease contract may be concluded for a determined period with possibility for both party or of one of them to bring it to a premature end, and that, on the other hand, certain contracts, such as power of proxy or the association of persons, are capable of unilateral dissolution by the will of one of the parties. -- 244 of 251 -- [2026] SASC 107 Stein CJ 241 30 Article 247 provides that when termination occurs, the contract ends only on the day of its dissolution and without retroactivity: the effects it had previously produced remain definitively acquired. 31 Article 248 provides that the party who terminates the contract may be liable to pay damages and losses if he abuses the right to termination, meaning if it was exercised contrary to the spirit of the law or the contract. 32 Article 249 provides that to the extent possible, discharge of obligations must occur in kind, as the creditor has an acquired right to the direct fulfilment of the obligation itself. 33 Article 366 provides that the judge must, in legal actions, to investigate the true intention of the obligor (in unilateral commitments) or the mutual intention of the parties (in contracts), rather than adhering solely to the literal interpretation of the terms. 34 Article 367 provides that if a text can be interpreted in two ways, the interpretation that best reflects the spirit of the contract and its intended purpose must be adopted. In any event, the interpretation that gives effect to the text is preferred over one that renders it ineffective. 35 Article 368 provides that the clauses of a single agreement are coordinated and interpreted one by the other in view of the overall contract. 36 Article 369 provides that, when in doubt, a clause is interpreted in favour of the debtor and against the creditor. 37 Article 370 provides that when the agreement contains gaps in its provisions, the judge must fill them, either by applying provisions stipulated by law if it concerns a named contract or, in the absence thereof, by resorting to the rules established for the transaction that bears the closest analogy to the contract in question. 38 Article 371 provides that the judge must also, of their own volition, consider the clauses observed by custom, even if they are not explicitly stated in the content of the contract. 39 Article 690 provides that the deposit is the contract by which the depositary receives a thing moveable from the depositor with obligation to keep it and make restitution of it. The depositary is entitled to no remuneration for custody unless the contrary has been stipulated by the parties. 40 Article 691 provides that if the deposit has for its object a sum of money or other fungible things, and if the depositary has been authorised to use it, the contract is considered as a loan for consumption. -- 245 of 251 -- [2026] SASC 107 Stein CJ 242 41 Article 701 provides that the depository may not, except for a legitimate motive, compel the depositor to take back the deposit before the agreed term. But he is required to make restitution of it as soon as the depositor requires it, even though a subsequent date should have been set for restitution. 42 Article 711 provides that the depository is required to make restitution of the very thing exactly as he received it, together with accessories that were remitted him with it, in the state where it stands, except for application of the provisions of Article 714. 43 Article 754 provides that the loan for consumption is a contract by which one of the parties remits another person money or other fungible things, on condition that the borrower make restitution to him as much as the same kind and quality at the expiry of the time-limit agreed. 44 Article 755 provides that the loan for consumption also exists when a creditor of a sum in cash or of a quantity of fungible thing, by reason of a deposit or any other title, authorises the debtor to retain, by way of a loan, the sums or things that he owes. 45 Article 761 provides that the borrower is required to return a thing similar in quality and quantity to what he received. The Lebanese Code of Civil Procedure Legislative Decree No. 90 of 16/9/1983295 46 Article 100 provides that for disputes arising out of the performance of a civil or commercial contract, jurisdiction is granted to the court where the effective residence of the defendant or its chosen domicile is located, where the contract was concluded and one of its principal obligations was to be performed or the court within whose jurisdiction the contract was to be entirely performed. 47 The choice of venue extends to the heirs of the contracting parties. 48 Article 101 provides that for disputes relating to legal entities, the court where the legal entity’s head offices are located is competent, whether the lawsuit is against the legal person or filed by it against one of its members, or by one of its members against another. A lawsuit may be filed with the court within whose jurisdiction a branch of a legal entity is situated in disputes arising from contracts with this branch or related to its operations. 49 Article 223 provides that the decision to question the person to be questioned shall be communicated to the person to be questioned at least three days prior to the scheduled date of their appearance, unless they are present at the trial and immediately accept their questioning, or the case is of extreme urgency. 295 CB371; CB1322; SCB350-385. -- 246 of 251 -- [2026] SASC 107 Stein CJ 243 50 Article 225 provides that if the litigant to be questioned resides outside the court’s jurisdiction, the court may delegate another court to question them in the presence of their opponent. A court from a foreign country may also be delegated to conduct their questioning. 51 Article 226 provides that the questioning of the litigant shall take place in the presence of their opponent, unless circumstances require that each be questioned in the absence of the other. A subsequent meeting between the litigants shall take place at the request of one of them or if the court deems it necessary. The failure of one litigant to appear does not prevent the questioning of the other. 52 Article 229 provides that the presiding judge or the assigned judge shall direct questions related to the subject of the interrogation. He shall also pose questions he deems relevant and which one party requests he direct to the other party. 53 Article 231 provides that a record of the questions posed and the answers given shall be signed by the presiding judge, the judge assigned to conduct the interrogation, the singe judge and the parties being interrogated. If the party being interrogated refuses to answer or to sign, the record shall state his refusal and the reason for it. 54 Article 232 provides that if a party fails to appear for interrogation without an acceptable excuse or refuses to answer without legal justification, the court may use this absence or refusal as grounds for considering the facts about which the party is to be interrogated as established. 55 Article 373 provides that the judge must, in any case, adhere to the principles of adversarial proceedings. He may not base the ruling on reasons or clarifications presented by one litigant or documents submitted without giving the other litigant an opportunity to address them in presence. Additionally, the judge must not introduce legal reasoning on his own volition without inviting the litigants to provide their observations on it beforehand. 56 Article 579 provides that the single judge, in his capacity as judge of urgent matters, may examine requests to take urgent measures in civil and commercial issues without prejudice to the origin of the right, while retaining the special authority assigned to the head of the execution department. In the same capacity, the judge may take measures to eliminate the apparent infringement of legitimate rights or conditions. In the case where the existence of the debt is not subject to a serious dispute, the judge of urgent matters may grant the creditor a temporary advance at the expense of his right. 57 Article 741 provides that the State may be sued regarding liability resulting from the actions of the judge, whether he is one of those who are in charge of ruling, investigation or public prosecution, in all cases in which a special text permits such a lawsuit and in the following cases: denial of justice; deception or -- 247 of 251 -- [2026] SASC 107 Stein CJ 244 fraud; bribery; gross negligence that a judge who is paying ordinary attention to his duties is not supposed to commit. 58 Article 743 provides that the General Assembly of the Court of Cassation shall consider the lawsuit filed against the State in the aforementioned cases. 59 Article 745 provides that the lawsuit shall be filed by means of a summons addressed to the State, and it must include a statement of the judgment or action of which the plaintiff complains, the reason or reasons on which he bases the lawsuit, and the supporting evidence. The prevailing parties must be included in the trial 60 Article 749 provides the submission of the summons against the State shall not result in the suspension of the execution of the judgment complained of, but it is up to the General Authority to decide to suspend the execution or to allow it in accordance with the rules and conditions stipulated in Article 723. 61 Article 753 provides that in the event that the claim based on denial of justice is ruled valid, the defendant shall be ordered to compensate the plaintiff for the damage caused to him and to refer the main case to another judge to consider it. 62 Article 754 provides that in the event that the claim based on deception, fraud, bribery or gross negligence is ruled valid, the judgment or procedure complained of shall be invalidated and the plaintiff shall be compensated for the damage caused to him. 63 Article 755 provides that the invalidation of the judgment or procedure complained of shall return the case to the state it was in immediately before the judgment or procedure complained of, and the proceedings shall be resumed based on a list of demands. 64 Article 756 provides that the judge whose judgment or procedure was invalidated shall not participate in examining the main case and shall be removed from examining it by order. If the lawsuit has arisen regarding a judgment or procedure issued by a chamber of the court, the main case shall be referred to another chamber after the judgment or procedure is invalidated. 65 Article 757 provides that if the judgment or decision complained of is executed before the issuance of the decision in the lawsuit filed against the State, and then a contrary judgment or decision is issued that cannot be executed for any reason, the injured party may resort again to the court that issued the judgment or decision that could not be executed, requesting compensation against the other party, for the damage caused to him and for which he was not compensated. The judgment or decision issued in the request for compensation is subject to the same methods of appeal as the judgment or decision that could not be executed. 66 Article 758 provides that in the event that a judgment is issued against the State for compensation, it has the right to refer it to the judge before the General Assembly of the Court of Cassation. The State may also return to the party in -- 248 of 251 -- [2026] SASC 107 Stein CJ 245 whose favour the judgment or decision that was annulled and referred to in Article 757 was executed, to the extent of the compensation it has incurred as a result of this execution in application of Article 754. The lawsuit shall be filed before the General Assembly of the Court of Cassation. 67 Article 759 provides that if a judgment is issued against the State, it may, in the cases specified in paragraphs 2, 3, 4 of Article 741 to file a lawsuit against the judge before the General Assembly of the Court of Cassation, within the deadline and according to the procedures stipulated in this section and with the consideration of the State as a plaintiff, with the aim of annulling the aforementioned ruling and then reviewing the case again in accordance with the provisions of Articles 755 and 756. The State may demand from the judge, in the same lawsuit, appropriate compensation in the event of annulling the judgment and it has the right to refer to the other party in accordance with the provisions of Article 757. 68 Article 822 provides that a debtor seeking to discharge his liability to a creditor has the right to consign the thing or amount he considers himself indebted to the creditor through a notary. He may deposit it with the notary or, if it is a sum of money, deposit it in an acceptable bank or the treasury box through and in the notary’s name. If the tendered item cannot be transferred to the notary, the debtor may propose to the creditor a specific place for delivery, and the notary grants the necessary authorisation for delivery. The notary prepares a report documenting the actual tender and consignment, including clear identification of the tendered item and its location in such a way that avoids any ambiguity, and immediately notify the offeree with a copy of the said report. 69 Article 823 provides that the creditor must respond by accepting or rejecting the tender within a maximum of forty-eight hours from the date of notice, either through written statement on their notice document or by submitting a statement to the notary. Acceptance cannot be conditioned on any terms or reservations. If the tender is rejected, the notary must inform the debtor. If the creditor accepts the offer, the notary may deliver the deposited item or amount deposited with him or in his name or that is deposited in the specified place for tender. If he does not request its receipt, he bear the risk of loss, and the debtor in this case would be discharged of the debt. 70 If the creditor rejects the actual tender and the tendered item is not with the notary and it was moveable, the debtor may request the urgent matters judge, within two days of receiving the rejection notice of the creditor, to deposit it in a designated place. If the item is to remain where it is, the debtor may request the judge to place it under guard. 71 Article 824 provides that the debtor must file a lawsuit within ten days of being notified of the creditor’s rejection to prove the validity of the actual tender and consignment, under penalty of forfeiting the effects of the said tender and consignment. The creditor may also file a lawsuit within ten days of rejection to -- 249 of 251 -- [2026] SASC 107 Stein CJ 246 prove the invalidity of the tender and consignment. The lawsuit filed to validate or annul the tender and consignment shall be filed according to the standard rules for filing lawsuits and may include an urgent request in an original lawsuit as per urgent request procedures. 72 Article 825 provides that the judgment ruling on the validity of the tender and consignment declares the debtor discharged from the obligation as of the date of the tender and consignment. From the date of the consignment, interest on the debt amount ceases to accrue, the debtor is released from liability for delay in payment, and the costs and risks are transferred to the creditor. 73 Article 826 provides that the debtor may make the tender in the hearing before the court without additional formalities if the person to whom the tender is addressed is present. 74 If the tender is refused, the court shall order the deposit of the tendered amount in the treasury fund against a receipt in its name. The clerk shall record a report establishing the deposit and the statements made in the hearing minutes regarding the tender and its refusal. 75 If the tendered item in the hearing is not money, the offeror must request the court to appoint a custodian for it. The judgment appointing the custodian is not subject to any appeal. 76 The offeror may immediately request a judgment confirming the validity of the tender. Lebanese Constitution296 77 The introduction to the Constitution provides that the economic system is free and guarantees individual initiative and private property. Law 81 of 2018297 78 Article 41 provides that an electronic payment or money transfer is an operation carried out, partly or entirely, by electronic means. In order to perform such operation, the client authorises the bank, the financial institution, or any institution legally authorised or licenced by Banque du Liban to perform an electronic payment operation, electronic money transfer, or credit push/debit pull payments through their account or another account. 79 The expression “electronic means” in subsection one refers to any and all electronic means, including digital means, provided by one of the aforementioned institutions or subsidiary thereof, and used by the client to perform or instruct to perform one or several electronic payments or money transfers. 296 SCB545. 297 SCB399. -- 250 of 251 -- [2026] SASC 107 Stein CJ 247 80 Article 44 provides that the institutions stated in Article (41) herein shall notify the customer, in writing, at least 30 days prior to any amendments to the contract conditions. The customer either consents to such amendments or terminates the contract with the said institutions. 81 However, in justified exceptional cases, such as the case where the standards of protection, safety, and preserving the integrity of the customer’s account or of the electronic payment/transfer system should be met, the institutions referred to in Article (41) herein may set restrictions on electronic payments and transfers performed by the customer, provided that they promptly communicate such restrictions to the customer who bears no financial liability as a result. 82 Article 50 provides that the institutions referred to in Article 41 above shall be responsible for the non-execution or partial execution of electronic payment or transfer orders, unless they prove one of the following events: 1. The non-execution is due to an error, negligence, lack of orders or bad faith by the client. 2. The funds available in the client’s account are not enough to execute the transaction, unless otherwise agreed with the client. 3. The occurrence of force majeure or an event beyond the control of the institution, provided the latter has made every reasonable effort to avoid such event. 4. Other events defined by the Banque du Liban. In case the aforementioned institutions were proven to be liable, they should return the disputed amounts to the client and compensate him for the damage incurred where appropriate. -- 251 of 251 --

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