Kyriacou v Makis

These proceedings (on a cross claim filed by the defendant, Andrea Makis against the plaintiff, Kyriacos Kyriacou) arise out of a judgment published by Robb J on 9 February 2021 as Kyriacou v Makis [2021] NSWSC 60 in which he determined (on a statement of claim) that an unsigned document styled “Partnership Dissolution Agreement” (described by the parties as “the PDA”) ostensibly made between the plaintiff and the defendant (providing, inter alia, for a division of properties held by the plaintiff and the defendant in co-ownership) was not an enforceable contract (because not signed as contemplated by the document and the defendant had not authorised entry into an unsigned agreement), reserving to the defendant an opportunity (subsequently taken up by a cross claim) to advance a case for the existence, terms and dissolution of a partnership, or partnerships, and for an accounting for partnership property.

The defendant filed a statement of cross claim on 12 May 2021 (to which a defence was filed on 23 June 2021) which was the subject of an unreported interlocutory judgment of Black J published on 18 July 2023, and “post-judgment” supplementary judgments published by Robb J as Kyriacou v Makis (No 2) [2021] NSWSC 802, Kyriacou v Makis (No 3) [2023] NSWSC 1098 and Kyriacou v Makis (No 4) [2023] NSWSC 1261.

A judgment published by Robb J as Kyriacou v Makis [2020] NSWSC 1068 on 14 August 2020 is mentioned here for completeness. It related to interlocutory arrangements for dealing with rent to be received and mortgage payments to be made in respect of a property known to the parties as “the MacDonald Street units”, the core subject matter of these proceedings.

The respective reasons for judgment of Robb and Black JJ are before the Court subject to the constraints of the Evidence Act 1995 NSW, section 91. A finding of fact made in those judgments is not evidence of the fact in these proceedings.

For convenience, the parties are described in the current judgment by their original designations as “plaintiff” and “defendant” although, on the cross claim, the defendant was the moving party.

The pleadings which govern the current proceedings comprise the defendant’s amended statement of cross claim filed on 27 November 2023 and the plaintiff’s defence to that cross claim filed on 21 December 2023. No reply to the defence was filed.

The parties articulated their respective cases in “opening” and “closing” written submissions, with supplementary tables (with leave) filed after judgment was reserved. The plaintiff’s tables reflected a revision of Exhibit D3; the defendant’s tables reflected a revision of Exhibit D5. For convenience, the plaintiff’s revision of Exhibit D3 is designated as MFI P3A and the defendant’s revision of Exhibit D5 is designated as MFI D5A.

Apparent from the pleadings is a dispute as to the existence and terms of competing versions of a “partnership” or the like.

In her cross claim the defendant contends that in December 1995 the parties and their respective spouses entered a partnership agreement (which was varied in 2002 by the retirement of the spouses from the partnership), contemplating a broad range of investment activities, continuing up to the present time.

By his defence to the cross claim, the plaintiff contends that there was no such partnership but that, in 2002 following his divorce, he, the defendant and her husband agreed that he and the defendant would establish a partnership (to carry on a business of property investment in Australian real estate) commencing with the purchase of a unit in Darling Island Road, Pyrmont, with a view to making profit.

What appears to be common ground between the parties is that some form of accounting is, or may be, required for disengagement of their affairs. It is in this context that the plaintiff, in his defence to the cross claim, pleads that the defendant is estopped from asserting that there should be an accounting otherwise than in accordance with representations he alleges were made to him closely aligned with the terms of the PDA.

By her cross claim the defendant seeks, in summary terms:

The relief claimed in the cross claim is limited to orders directed to enforcement of the partnership agreement allegedly made in December 1995 (as varied in March 2002), and the ancillary loan agreement, by way of a taking of accounts. There is no separate claim for relief.

By his defence to the defendant’s cross claim, the plaintiff pleads a case in estoppel to the effect that their affairs should be separated on the basis of a division of their Australian real estate investments (and an apportionment of associated liabilities) and mutual releases.

As a practical matter, it is common ground between the parties, that their ultimate dispute is about competing entitlements to a residential block of eight units (said to be the residual asset of a partnership), located at Lakemba in Sydney which the parties describe as the “MacDonald Street units”, presently registered in the names of the plaintiff and defendant as tenants-in-common in equal shares, subject to a mortgage to the Australia and New Zealand Banking Group Ltd (“the ANZ Bank”).

The defendant contends, and the plaintiff does not dispute, that there are no outstanding creditors of “the partnership” (however defined) other than the ANZ Bank.

Land Title Searches of the MacDonald Street Units, Lots 1-8 in Strata Plan 31426 (effected on 16 September 2024 and 25 August 2025) are consistent with this. They record the plaintiff’s caveat (Dealing No AM589674) over the interest of the defendant in the units, ranking only behind the ANZ Bank’s mortgage (Dealing No AH18846).

The plaintiff’s caveat claimed (in respect of the defendant’s interest in the Units) “an equitable interest pursuant to agreement to transfer subject land to caveator by virtue of Dissolution of Partnership Agreement” between the defendant and the plaintiff to which was attributed the date 1 July 2012.

The caveat has remained on title undisturbed since recorded on 25 July 2017. Its fate, in substance, must abide the outcome of these proceedings.

In passing, I note that as recorded in a title search dated 24 September 2018 and an historical title search, the caveat was preceded by one caveat (Dealing No AM479619 recorded on 15 June 2017) and followed by another (Dealing No AN223063 recorded on 28 March 2018), each claiming an unquantified debt against the defendant’s interest in the units, not the interest of the plaintiff. One was withdrawn on 8 November 2019. The other on 11 September 2020.

The first of the two third-party caveats was lodged by George Georgiou, the second by Sam Pambris.

The Georgiou caveat claimed an equitable charge by virtue of an alleged “agreement [by the defendant] to charge property” dated 7 June 2017.

The Pambris caveat claimed an equitable charge by virtue of an alleged “loan agreement” of unspecified date between Sam Pambris and the defendant. An anomaly in Mr Pambris’ caveat is that his statutory declaration in support of the caveat is dated “23/11/18”, ostensibly 23 November 2018 but possibly 23 February 2018. The caveat was withdrawn when challenged, but, it can be noted, Sam Pambris was a long standing friend of, and lender to, John, if not also the defendant. At one point he did a deal with the Commonwealth Bank to take over the mortgage on the defendant’s house and, at the time of the hearing before Robb J, he was her mortgagee.

Several problems attend any definition of the parties’ legal relationship and working out a disengagement of their affairs following a breakdown in their relationship.

In so far as they relate to the case the defendant seeks to make on her cross claim, those problems include the following:

The case sought to be made by the plaintiff is not without its own problems, including the following:

The determination of a single issue in the principal judgment Robb J, with the agreement of the parties (namely, whether the unsigned PDA was an enforceable contract), in the absence of a cross claim (seeking an order for dissolution of a partnership and an accounting for partnership property) foreshadowed but not filed by the defendant, gave rise to a question (noticed by Robb J in paragraph [225] of his judgment) whether the plaintiff had “abandoned his conventional estoppel case”.

In paragraph [26] of his judgment his Honour summarised paragraphs [17]-[21] of the plaintiff’s amended statement of claim filed 14 June 2019 in which what he described as the plaintiff’s “conventional estoppel case” was then pleaded:

By her Amended Defence filed 16 August 2019 the defendant denied paragraphs 17-21 of the amended statement of claim and asserted that there never was a “Partnership Dissolution Agreement” signed by the plaintiff and herself; between 2011-2017 she never met in person or discussed over the telephone with the plaintiff in relation to a “Partnership Dissolution” with the plaintiff; and she never “authorised anyone to negotiate a Partnership Dissolution with the plaintiff on her behalf”.

Robb J’s determination that the PDA was not an enforceable contract was made in the current proceedings, implicitly as the determination of a separate question (but, in fact, not attended by an order under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW for definition of a “separate question”) presented for consideration in circumstances in which the defendant was in default of orders for the filing of a cross claim so that (in conformity with section 63 of the Supreme Court Act 1970 NSW) “all matters in controversy between the parties [could not] be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”.

Robb J was conscious of the limited nature of his determination and the need for directions to be given, in the context of ongoing proceedings, to ensure that the Court could determine “all matters in controversy”.

His Honour was particularly careful to leave open the possibility that the Court might be called upon to determine a question of estoppel.

Having noted the pleadings between the parties as they then stood (the plaintiff’s amended statement of claim and the defendant’s amended defence) his Honour (under the heading “Agreed Statement of Issues”) noted that, in paragraphs [33]-[35] of his judgment, the nature and scope of the issues submitted to him for determination:

Under the heading “Response to Agreed Issues”, his Honour in paragraph [222] answered those questions in the following terms:

No formal orders were made or entered embodying these answers or consequential upon them. A search of the Court’s Justice Link website suggests that none were made. The parties agree that none were made.

There were no orders ever made for dismissal of the plaintiff’s amended statement of claim or any part thereof.

The parties appear to have proceeded on the basis that their ongoing disputation (in a context in which no formal steps appear to have been taken, pending the filing of a cross claim to dissolve the “partnership” alleged by the defendant) would be dealt with on a hearing of the defendant’s foreshadowed cross claim, leaving any undetermined balance of the amended statement of claim undetermined.

On 1 July 2021 Robb J (for reasons published as Kyriacou v Makis (No 2) [2021] NSWSC 802) caused the following entry to be recorded on Justice Link:

This is consistent with no orders having been made dispositive of the statement of claim.

As manifested in his supplementary judgments, published as Kyriacou v Makis (No 2) [2021] NSWSC 802, Kyriacou v Makis (No 3) [2023] NSWSC 1098 and Kyriacou v Makis (No 4) [2023] NSWSC 1261, the business conducted by Robb J after the publication of his principal judgment on 9 February 2021 was directed to multiple applications of the defendant, after she filed a cross claim on 12 May 2021, to amend that pleading, and costs orders made in respect of those applications.

Although his Honour traversed a broader question (as to whether John had authority to enter into a contract on behalf of the defendant) the critical factor in his determination that the PDA was not an enforceable contract was that the document specifically contemplated that it would not operate as an agreement unless and until signed. That critical factor was reinforced by an understated impression that there was no contract because the parties, had they signed the PDA, nevertheless intended that there would be no contract without the solicitor Ms Sinanis attending to formalities.

That appears in paragraphs [128]-[132], [158]-[162] and [211]-[215] and (under the heading “Future of the proceedings”) paragraphs [223]-[225] with emphasis added:

In his supplementary judgment Kyriacou v Makis (No 2) [2021] NSWSC 802 (published on 1 July 2021) Robb J made the following observations about the course of the proceedings before him:

I note, in passing, that the plaintiff’s “Defence to Cross Claim” then before Robb J (filed on 23 June 2021) included an estoppel pleading in the same terms (in paragraphs [221]-[228]) pleaded in the “Defence to Cross Claim” filed on 21 December 2023, the operative pleading the subject of this judgment of mine. Nothing in any of the judgments of Robb J suggests that the plaintiff was precluded, by reason of his principal judgment, from advancing that estoppel case.

In his supplementary judgment Kyriacou v Makis (No 3) [2023] NSWSC 1098 (published on 14 September 2023) at paragraph [2] Robb J summarised his principal judgment in the following terms (emphasis added):

Paragraphs [223]-[225] of the principal judgment demonstrate his Honour’s consciousness that all of the issues between the parties had not been determined by him.

That was confirmed by his criticism of the failure of the defendant to file a then proposed cross claim, as appears in paragraphs [228]-[231]; his criticism of the defendant in observations in Kyriacou v Makis (No 2) [2021] NSWSC 802 about costs; and by his criticism in Kyriacou v Makis (No 3) [2023] NSWSC 1098 of the defendant’s manoeuvres in reformulation of her cross claim, noting (in paragraph [9] of that judgment) that the “basic reason” for the defendant to have sought leave to amend her cross claim was that John had “provided evidence in support of a number of claims that were plainly outside the issues that were pleaded in the cross claim”.

At paragraph [38] his Honour noted that “the objective of [the defendant] in seeking leave to amend her cross claim [was] to obtain declarations from the Court as to the existence of a partnership in the form claimed by her [a “Global Partnership”], and declarations that, in historical terms, certain assets were partnership assets and certain liabilities were partnership liabilities” rather than a conventional order for dissolution of a partnership and a consequential order for the taking of partnership accounts.

In paragraphs [229]-[231] of his principal judgment his Honour contemplated that he may have been “part heard” in the proceedings generally:

As earlier noted, no orders appear to have been made by Robb J, other than directions for and on the defendant’s cross claim, based on his Honour’s reasons for judgment. No pleading objection appears to have been taken, by way of a reply or otherwise, to the plaintiff’s inclusion in his Defence to Cross Claim of the defence of estoppel on which the proceedings before me were conducted.

With the benefit of later experience of the proceedings his Honour made the following observations in paragraphs [5]-[6] of Kyriacou v Makis (No 3) [2023] NSWSC 1098 which evidence a shift in perspective on the question whether he was “part heard”:

From the outset of pleadings on the defendant’s cross claim (filed after the publication of Robb J’s principal judgment) the plaintiff has asserted an estoppel case substantially in the form pleaded by him in the current pleadings. The defendant’s original statement of cross claim was filed on 23 June 2021. The plaintiff’s Defence to that pleading (filed on 23 June 2021) contained (in paragraphs [221]-[228] and [229]-[230]) a pleading substantially the same as that found in equivalent paragraphs of his current Defence (filed on 21 December 2023) to the defendant’s current statement of cross claim (filed on 27 November 2023).

No notice of motion was ever filed to strike out the plaintiff’s estoppel pleading. No formal objection was taken by the defendant to the plaintiff relying upon his estoppel case.

Counsel for the defendant did not address the plaintiff’s estoppel case in his opening submissions, written or oral. Nor did he address the case in his oral closing submissions.

The parties’ closing written submissions only briefly (and without exposition of any authorities) addressed the entitlement of the plaintiff to rely upon his estoppel case.

In the defendant’s written closing submissions (MFI D51.1) the following appears in paragraph [60], the penultimate paragraph of the submissions:

In the absence of any detailed reference to authority by counsel, I record that I apprehend that this submission on behalf of the defendant alludes to cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (dealing with a subcategory of estoppel by judgment); Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 at 531-533 and Jackson v Goldsmith (1950) 81 CLR 446 at 466-467 (in relation to issue estoppel, a subcategory of estoppel by judgment); and Reichel v McGrath (1889) 14 App Cas 665 and Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (in relation to an abuse of process falling short of an issue estoppel).

In his closing written submissions responsive to those of the defendant (MFI P52.1), at [37]-[39] the plaintiff advanced the following contentions:

The defendant’s written closing submissions in reply (MFI D51.4), at paragraph [19], simply responded to the following effect:

The judgment of Young J here cited draws attention (by reference to the then recent judgment of the High Court of Australia in Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387) to the historical distinction between common law estoppel (based on an assumption about an existing state of affairs, including an assumption induced by representation) and an equitable estoppel (based on a representation about a future state of affairs).

In my assessment, no estoppel of record (including issue estoppel) precludes the plaintiff from maintaining his estoppel claim in his defence to the defendant’s cross claim.

Neither, in my assessment, is it an abuse of process for the plaintiff to plead and maintain his estoppel case despite the fact that Robb J found against him on the specific question whether John had actual authority to enter into a contract on behalf of the defendant in the terms of the unsigned PDA, an issue substantially different from the plaintiff’s estoppel case (which case, under Robb J’s continuing case management of the proceedings, remained unlitigated and undetermined pending the defendant’s foreshadowed filing of a cross claim). If there has been any abuse of process in these proceedings it has been in the defendant’s failure to file a cross claim in a timely manner and then to recast her cross claim substantially, allowing the cross claim to be heard without taking an early, formal objection to litigation of the plaintiff’s estoppel case as an answer to relief claimed in the cross claim.

Nor, in my assessment, do the “principles in Anshun” operate to defeat the plaintiff’s estoppel claim bearing in mind, particularly, the limited nature of the questions stated for Robb J’s determination and the reasonableness of deferring any broader questions to a later phase of the very same proceedings under the ongoing case management of the Court.

It was open to the defendant, relevantly, to apply for an order that the plaintiff’s statement of claim (including an estoppel claim) be dismissed. She never did so. Any entitlement she may have had to object to the plaintiff’s entitlement to maintain his estoppel case might be said to have been waived by a failure to object in a timely manner. That said, the plaintiff advanced no submission of waiver and I have no occasion to consider the question.

In my opinion, the plaintiff is entitled to maintain his estoppel case as pleaded in his Defence to Cross Claim and the interests of a due administration of justice point in the direction of allowing that case to be determined on its merits .

The fact that, on the hearing of the stated questions, the parties lacked discipline in confining their evidence and submissions to those questions does not mean it was unreasonable for the plaintiff to proceed on the basis that any determination of his estoppel case should await the defendant’s belated filing of a cross claim. It was the defendant’s case on a foreshadowed but delayed cross claim that was the subject of an estoppel claim.

In any event, the defendant’s characterisation of Robb J’s determination is inaccurate. His Honour did not find “that John did not have any capacity to bind Makis in relation to those negotiations”. His finding was much more precise: that John had no actual authority to enter into a contract on behalf of the defendant in the terms of the unsigned PDA. He did not find that John had no actual or apparent (ostensible) authority to make representations by reference to the unsigned PDA. Nor was he required to address the elements of the plaintiff’s estoppel case, whether it be characterised as a “conventional” or “promissory” estoppel or, as it seems to me, an estoppel by encouragement. The focus of attention before Robb J was on the question whether the (unsigned) PDA constituted a contract.

A determination (such as was made by Robb J) that John had no actual authority to enter into a contract on behalf of the defendant in the terms of an unsigned PDA does not preclude a determination that John had actual or apparent (ostensible) authority to make representations pleaded in the plaintiff’s Defence to Cross Claim or to give instructions to Ms Sinanis referable to those representations.

The question whether any estoppel could operate against the defendant as alleged by the plaintiff could not, in any event, be determined in the absence of the foreshadowed cross claim of the defendant for an order that the “global partnership” alleged by the defendant be wound up. In essence, the plaintiff’s claimed estoppel operates against the defendant at a time (after the PDA would have been made had it been attributed contractual force) when, on the hearing of her cross claim, the defendant contended for the existence of a partnership and an order that it be wound up. The estoppel case is based not upon an assertion that the PDA was a contract, or that John had authority to enter into the PDA as a contract, but upon conduct and knowledge of the defendant after John provided a copy of the PDA to the plaintiff and Ms Sinanis.

The plaintiff’s estoppel case does not challenge the correctness of Robb J’s finding (at its highest in favour of the defendant) that “John did not have the defendant’s authority to make an agreement on her behalf in terms of the unsigned PDA without her explicit agreement”.

Even if John had no authority to “negotiate” with the plaintiff, or to make representations to the plaintiff, on behalf of the defendant (which I find he did) that fact would not be determinative of the plaintiff’s estoppel case. If (as I find) the defendant had knowledge of the PDA and the plaintiff’s reliance on it at the time he gave up property rights in the interests of the defendant (whether the defendant’s knowledge was actual or imputed to her by reason of the knowledge of her agents, John and Ms Sinanis), and (as is plain) she allowed him to give up rights in her interests without disabusing him of what she now suggests was an erroneous assumption on his part, that would be sufficient to ground an estoppel.

The principal significance of the PDA on the hearing of the defendant’s cross claim is its evidentiary value as a fact material to the factual matrix bearing upon:

Nothing in the principal judgment of Robb J deprives the PDA document of its status as evidence of a fact.

The plaintiff’s estoppel case points both to the central role played by John in orchestrating dealings between the plaintiff and the defendant in the management of their financial affairs and to the evidentiary significance of the PDA.

In the course of these proceedings the “estoppel” relied upon by the plaintiff has been characterised as both “estoppel by convention” and “promissory estoppel”. As pleaded, it is open to characterisation as an “estoppel by encouragement”. The precise characterisation appears to be of no significance. Nor does it seem important to distinguish between the historical origins of the different concepts of estoppel at common law and in equity.

In these proceedings, although the defendant has contended that it is not open to the plaintiff to maintain his estoppel case (which she contends was pre-empted by Robb J’s principal judgment), the defendant has not submitted that:

The primary focus of the defendant’s substantive (as distinct from procedural) challenge to the plaintiff’s estoppel case appears to be that:

Paragraphs [221]-[228] of the Defence to Cross Claim are in the following terms:

Implicit in this pleading is an allegation that John, in making representations “on behalf of” the defendant had her actual or apparent authority to do so and to provide the parties’ solicitor (Ms Sinanis) with a copy of the PDA as the basis of her retainer to act (as she did act) for all parties on conveyancing transactions contemplated by the PDA. Ultimately, however, the focus for attention is not on John’s authority to make representations but on the fact that he did so, and her conduct and knowledge after he had done so.

In presentation of his case, the plaintiff emphasised a contention that John had “apparent authority” to act on behalf of the defendant (a contention which dovetails with the plaintiff’s case of an estoppel by encouragement and accommodates a forensic difficulty associated with proving communications between John and the defendant) but I do not understand that an allegation of “actual authority” was not pressed by the plaintiff. In any event, it remains open on the pleadings.

The plaintiff’s closing written submissions (MFI P52.1) encapsulate his estoppel case, in paragraph [39]:

That case was twice articulated by counsel for the plaintiff in the course of the defendant’s cross examination so that (genuflecting towards Browne v Dunn) she and her lawyers would be fairly apprised of the estoppel case being advanced against her. On the first occasion, near the beginning of her cross examination, she was asked to step outside as I invited counsel for the plaintiff to explain the plaintiff’s estoppel case. On the second occasion, the plaintiff’s case (including his estoppel case) was expressly put to her in propositional form.

On the first occasion (recorded at transcript pages 73-74) the following exchange between bench and bar occurred:

Towards the end of the defendant’s cross examination (at transcript pages 317-318), counsel for the plaintiff put Browne v Dunn questions to the defendant which, in the presence of the defendant, led to an exchange that included the following explanation of the plaintiff’s estoppel case (with editorial adaptation):

The objection of counsel for the defendant was not to the case advanced by the plaintiff, but to the form of counsel’s cross examination.

Understandably, although the form of cross examination articulated the plaintiff’s estoppel case it did not elicit a productive response from the defendant as a witness. As I understand her case, as pleaded and confirmed as an abstract proposition in cross examination, she gave authority to John to conduct “the business of the partnership” on her behalf and in her name subject to her prior consent to any investments: cross claim, paragraphs 28(c)(i) and 29(a); transcript page 39 lines 47-50.

In practice, the defendant appears to have left all business decisions relating to dealings between the plaintiff and her to John without communicating to the plaintiff any limitation on John’s authority to act on her behalf.

In the course of cross examination of the defendant, counsel for the plaintiff drew her attention to a bank statement in the name of the plaintiff and herself. The following exchange took place (with editorial adaptation), recorded at transcript page 296:

The evidence is replete with statements made by the defendant that John had acted on her behalf in the conduct of business she characterised as partnership business. To the knowledge of both the plaintiff and the defendant John generally spoke for the defendant in dealings with the plaintiff. That was the ordinary course both before and after the marriage of John and the defendant was dissolved and during John’s bankruptcy.

John was a conduit between the plaintiff and the defendant (on the one hand) and (on the other hand) the solicitor (Maria Sinanis of Constantine & Co, Lawyers) who acted for the plaintiff, the defendant and the children of the defendant and John in real property transactions that closely aligned with the terms of the PDA, save for a want of a contemporaneous transfer of the MacDonald Street units into the name of the plaintiff alone, which the plaintiff had expected when given a copy of the PDA by John shortly before that time.

A resolution of these proceedings necessarily requires an assessment of the credit and credibility of the four central personalities (the plaintiff and his former wife, Anastasia, the defendant and her former husband, John) in a drama buried in a mass of disordered and controversial documentation.

In resolving conflict between the competing case theories of the parties, it is necessary to endeavour to engage in a fact-finding process that is objective in character and identifies facts that are material to questions in dispute; and to do so with due regard to context, mindful of the principle associated with Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363 embodied in the Evidence Act 1995 NSW, section 140:

The plaintiff (in 1956) and the defendant (in 1961) were born in the same village (Asha) in Cyprus. They knew each other as children.

They both emigrated to Australia in 1976.

They reconnected in Sydney through social events enjoyed by the local Cypriot community.

The plaintiff is sometimes known by the Anglicised name “Kerry”. The defendant was known as “Androulla” before she adopted the name “Andrea”. She might also have been known at times by the names “Anastou” and “Anastasia”, although the evidence on this point is not clear. The Cypriot version of John’s name is “Ioannis”.

The defendant knew the plaintiff’s wife Anastasia before her marriage to the plaintiff because her mother was an employee of the defendant’s parents dressmaking business.

Anastasia was born in Nicosia, Cyprus in 1962. She emigrated to Australia with her family in 1976.

John was born in Cyprus in 1959. He met the defendant there in 1981. They became engaged to be married in about September 1983, about which time John emigrated to Australia.

John met the plaintiff in about late 1983 through social events of the Cypriot community in Sydney. They bonded through a common love of soccer, they played in the same team and they became the best of friends, quasi-family.

In retrospect, the starting point in the deterioration of the close relationship between the plaintiff and John might be the encounter between the two men recorded in paragraph [36] of the affidavit affirmed by the plaintiff on 25 September 2018 under the heading “Separation of the Investments”:

In her cross examination before Robb J the defendant acknowledged that in 2012 various people were looking for John, making demands for the payment of money and that she and John needed to sell property to pay pressing debts, including a mortgage over their former matrimonial home.

Further discussions took place between John and the plaintiff in the first half of 2012 culminating in John’s provision of a copy of the PDA to the plaintiff (and Ms Sinanis, the solicitor acting for all parties to conveyancing transactions) in about May or June 2012, followed by property transfers closely aligned with the text of the PDA, followed in turn by controversy arising from the plaintiff’s unfulfilled expectation that the MacDonald Street units would be transferred into his name alone.

Whatever the correct characterisation of the business relationships between the plaintiff and the defendant (and various people from time to time characterised by John as members of a “global” partnership), John played a dominant role in initiating, organising, managing and keeping records of business transactions.

Some insight into John's role, his assumption of authority in business dealings concerning others, and the culture in which he conducted business can be found in paragraphs 24-26 of an affidavit sworn by him on 20 July 2022, speaking about events reaching back to 1995 or thereabouts:

In relation to dealings ostensibly on behalf of the plaintiff and the defendant John commonly identified investment opportunities, negotiated a deal with third parties, arranged finance for the acquisition of property in the names of the plaintiff and the defendant, and kept records concerning transactions with the property. That much was confirmed by the defendant in her cross examination before Robb J.

John’s access to loan funds (a core feature of his business model) was enhanced by his status and employment with the Laiki Bank of Cyprus (by whatever name known) between May 1993 and January 2011 or thereabouts.

During that time he orchestrated investments on multiple fronts, for multiple persons and involving multiple personalities (including companies, the plaintiff and the defendant) in the deployment of borrowed funds.

His informal way of conducting business appears to have caught up with him when, between about 2011-2013, his world was disrupted by losses incurred in trading in shares and foreign exchange and in Cyprus; separation and divorce from his wife whilst maintaining a close business connection with her; a loss of regular income; and bankruptcy.

The fact of his bankruptcy appears not to have diminished his enthusiasm for business activity involving locating investment opportunities and arranging finance to exploit them.

When, between late 2011 and mid 2012 or thereabouts, the plaintiff wanted to bring his business relationship with John (and the defendant) to an end, John continued to play a dominant role in arranging for that to happen. In mid 2012, on behalf of the plaintiff, the defendant and the children of the defendant and himself, John retained a solicitor (Ms Maria Sinanis, the principal of Constantine and Co Lawyers) to act on behalf of all parties associated with him; gave her instructions by reference to the PDA (drafted by him); and provided the PDA, at least, to the plaintiff and Ms Sinanis as a template for the separation of the business interests of the plaintiff and the defendant. Even in this, as from the beginning, John was a dominant personality in management of the affairs of the plaintiff and the defendant.

The plaintiff married Anastasia, in Sydney, in or about November 1981.

There were two children of their marriage:

The plaintiff and Anastasia were divorced in or about May 2002 and, save for separate attendance at family events involving their daughters, made a clean break of their marriage. There was no formal property settlement but the matrimonial home at Earlwood (which was not mortgaged at the time) was sold for $386,000 in November 1999 and, in effect, the parties’ joint property was thereafter split, more or less equally.

Anastasia says that when she and her two daughters left the family home in January 2002 she received about $200,000 from the proceeds of sale of the matrimonial home and about $55,000 in savings from a St George Bank account.

Anastasia worked full time as a typesetter between 1982 and 1988, after which she took some time off when she had her second child. She re-entered the workforce on a part time basis in about 1990 as a Personal Assistant when she joined Laiki Bank Ltd (now known as Bank of Sydney). She resumed work on a full time basis in 2001. She continues to be employed by the Bank of Sydney as a Credit Operations Manager.

Throughout her marriage to the plaintiff Anastasia was the family “bookkeeper”. In her affidavit affirmed 29 November 2022 (upon which she was cross-examined without displacing her affidavit evidence) she says that she and the plaintiff were financially secure, having paid off most or all of their mortgage over the matrimonial home and having held various saving accounts and term deposits prior to any relationship with the defendant and John, with a balance estimated as being in excess of $100,000. She kept an eye on the family finances and, in that realm, the plaintiff deferred to her.

The plaintiff is, by trade, a kitchen cabinet maker. That is, and always has been, a full time job.

When he arrived in Australia in December 1976 he worked for three months in a cake shop as a dishwasher. Then, for 14 years between 1977-1991, he was employed as a leading hand at “Corinthian Doors”. Between 1991-2016 he was employed by “CMK Joinery” as a cabinetmaker. Since 2016 he has been employed by Golden Eagle Pty Ltd as a cabinetmaker.

Upon his divorce from Anastasia (when they effectively divided their financial assets) he received about $200,000 which, he says, funded a payment he says he made, by way of a bank cheque, as a contribution to joint investments with the defendant in real estate.

The plaintiff’s evidence about the timing and amount of the bank cheque he says he gave to John is not entirely consistent, reflecting the absence of primary records available to him and the passage of time.

In an affidavit affirmed on 25 September 2018 he said that he handed John a bank cheque (for an unquantified sum estimated to have been between $200,000-$250,000) in late 2002 or early 2003. In an affidavit affirmed on 31 January 2020, with the benefit of records made available to him in the course of these proceedings, he identified a debit entry for $224,475.13 against the date 27 January 2004 recorded in his Bank of Sydney “cash management account” as a “closing transaction” funded by deposits made on or about 3 June 2003 ($39,600), 2 December 2003 ($19,252.38) and 5 December 2003 ($162,501.77).

The available bank records do not, of themselves, evidence a transaction effected by means of a bank cheque or the destination of the amount of $224,475.13. But, in the absence of identification of a transferee of the funds a fair inference is that the bank paid out that sum by means of a bank cheque. (That analysis is no less correct in light of evidence that the deposit of $39,600 recorded on 3 June 2003 may have been the proceeds of an insurance payout rather than the plaintiff’s family law settlement. In substance, the plaintiff’s evidence is that he gave substantially all the monies standing to the credit of his cash management account to John for investment in real estate.)

The defendant married John, in Sydney, in about November 1983.

There were two children of their marriage:

The defendant and John divorced in or about June 2012 but maintained a close business relationship and, the plaintiff says, continued to present themselves as a couple in the Cypriot community. In cross examination before Robb J the defendant explained that she and John had separated in 2010 and, at that time, agreed (for the sake of the children and the shame in the Greek community) that they would “pretend to live as a family” until the children got engaged. The children became engaged to be married in “2011, 2012”. The matrimonial home was rented out in 2012 (to the Canadian embassy for five years), the defendant moved in with her mother and John moved to live with their daughter.

In about 2016 the defendant commenced “Family Court proceedings” against John for a property settlement. She says that, until those proceedings, she was unaware of aspects of John’s financial dealings.

In a Financial Agreement (made under section 90C of the Family Law Act 1975 (Cth) dated 18 January 2010 they recorded January 2010 as the date of their separation.

The Agreement provided, inter alia, for John to transfer his share of the matrimonial property (in Fowler Crescent, Maroubra) to the defendant but with a right of residence reserved to him.

Paragraphs “F”, “G” and “H” of the preamble to the Agreement were to the following effect:

The defendant, by profession, is a primary school teacher. She began work in that capacity in about 1990. She continues her work as a teacher.

John was made bankrupt (apparently on his own petition) in July 2013. He was discharged from bankruptcy in November 2019. Apart from less than complete versions of a Statement of Affairs prepared by John there is before the Court no concrete evidence (such as a Report to Creditors) detailing the course of John’s bankruptcy or the administration of his bankrupt estate.

From his earliest days, John has pursued an interest in commerce, accounting and finance. At high school he studied commercial and accounting subjects. Upon graduation from high school he studied accounting and bookkeeping at the London Chamber of Commerce and Industry. He later completed a course with TAFE NSW leading to the award of a Diploma of Business (Banking and Finance).

In about May 1993 he commenced employment, in Sydney, with the Laiki Bank of Cyprus. In about September 1993 he opened a representative office of the Bank in Marrickville and remained working in that office until about April 2001, at which time he moved to a retail branch office of the Laiki Bank Australia (formerly the Laiki Bank of Cyprus and later, in July 2011, renamed the Beirut Hellenic Bank) at other premises in Marrickville. In about May 2007 he was promoted to Manager of Treasury at the Laiki Bank Australia and moved to an office in Castlereagh Street in the city.

In about January 2011 John resigned from employment with the Bank (the plaintiff contends he was dismissed) and began a business of mortgage broking (as a licensed mortgage broker) with another person under the name of Alpha Choice Finance Solutions at an office in Bardwell Park. In a form of statement of affairs dated 16 October 2016 (Exhibit “P12”) he described his occupation as “loan(s) writer”. He presently describes his occupation as that of a “Mortgage Processing Officer”.

In an undated draft statement of affairs (Exhibit “P10”) written in his hand (in which he named the plaintiff, said to be a friend, as a contact person) he described his occupation as that of a “bank manager/mortgage broker”; attributed his insolvency to “non-business related … excessive use of credit facilities [etc]”; and stated that he first had difficulty paying his debts in January 2011, a date consistent with cessation of his employment with the Laiki Bank Australia.

A copy of his statement of affairs, as submitted to his trustee in bankruptcy, is not in evidence. He says the statement of affairs was “completed” on 26 November 2016 and submitted electronically. For whatever reason, a copy of the document is not in evidence.

What is in evidence is a two page document (Exhibit “P9”) headed “Unsecured Creditors” upon which John has, in his own hand, written 40 names in a column headed “Creditor Name” with each entry accompanied by contact details of the named creditor, dates and amounts owing and a notation as to whether or not each debt was “related” or a “joint debt”. What are ostensibly recorded as debts on the two pages total $19,967,100. John’s evidence is that there was another, third page which brought the total to around $31 million. It is not evidence.

John disclaims the three pages on the basis that he wrote them (in 2013 or 2014) as “a joke” in response to rumours that he had stolen $30 million and left Australia. The evidence does not address whether “the joke” was directed to a particular audience or not, or why John evidently spent a considerable time in preparation of such documentation for no obvious purpose than to compile a list of creditors.

Whatever the veracity of the information recorded in Exhibit “P9” (and the missing third page) John’s explanation of it evidences a consciousness on his part that, rightly or wrongly, he had developed a reputation as a thief. His consciousness of that (no later than 2013 or 2014) is consistent with the plaintiff’s evidence that in late 2011 (and in the first half of 2012) he had discussions with John about disengaging their affairs and with John’s bankruptcy in July 2013.

Although the evidence adduced on both sides of the record in these proceedings invited minute consideration of multiple events and contentious documents, and vain attempts to reconstruct accounts (or, perhaps more accurately, to offer adversarial calculations) from incomplete or contentious records, each party has a relatively simple case theory.

An understanding of those case theories and how they relate to each other requires some preliminary observations.

First, as has been noted, the core commercial concern of each party is, in these proceedings, beneficial ownership of the MacDonald Street units, subject to a subsisting ANZ Bank mortgage, the provenance of which mortgage lies in the discharge in 2012, of mortgages then held by Beirut Hellenic Bank Limited (formerly Laiki Bank (Australia) Ltd, John’s former employer) over properties known as the Wangee Road property and the Yerrick Road property which were sold to the children of the defendant and John unencumbered by debt effectively transferred to the MacDonald Street units.

Secondly, the personal relationships between the plaintiff and the defendant go back to the days of their youth in Cyprus and (however one characterises their business association between 1995 and the present time) a dominant personality in facilitating, managing and recording business with which each of the party’s names have been associated was the defendant’s (now former) husband, John.

The business dealings with which the names of the plaintiff and the defendant have been associated have essentially comprised two classes of business (leaving aside, for the moment, the complication of participation of each party’s (now former) spouse and the question whether the parties’ relationships were ever really those of a “partnership” strictly so-called):

The defendant contends that both classes of business were conducted by a partnership (formerly comprising the plaintiff, the defendant and their respective spouses) of which the plaintiff and the defendant are said to be the continuing members after the retirement of their spouses from the partnership.

The plaintiff contends that he was not in partnership with either the defendant or John in relation to the first class of business, that the trading activities described by reference to that class were conducted by and on the account of John alone and that, to the extent that his name was associated with those activities, he was acting at the request and under the direction of John, as (in my words) a proxy for John.

The second class of business involved the purchase and (with the exception of the MacDonald Street units) the sale of land purchased in the names of the plaintiff and the defendant as tenants-in-common in equal shares. The defendant contends that this class of business was conducted by the same (disputed) partnership that, she submits, conducted the first class of business. The plaintiff denies this and contends that the only partnership he had, or may have had, with the defendant was limited to the second class of business.

A business dealing that does not fit neatly into the two classes of business described is an aborted endeavour on the part of John to involve the plaintiff and the defendant in the acquisition of an interest in land in Canterbury.

The first of the two categories of business was, on the whole, not profitable. In essence, and effect, the defendant seeks (by classifying the plaintiff’s involvement in that category of business as that of a partner) to impose on the plaintiff a substantial liability for business losses, all the greater because the defendant claims a substantial amount of interest on “contributions”, she contends she made to a partnership even though (as she deposed in an affidavit sworn on 10 May 2022, paragraph 219), she herself made “drawings” from “partnership accounts” in an uncertain sum.

The second class of business was profitable, at least to the extent that it left a residual property (comprising the MacDonald Street units), subject to a mortgage in favour of the ANZ Bank, with equity ownership available for one or other or both of the parties.

The defendant’s case is that the business arrangements between the parties (characterised by the defendant as a “global partnership") require a finding that, upon a notional (not a formal) taking of accounts between the parties for all dealings, in both categories of business, the plaintiff should be found to be liable to the defendant for a sum of money that exceeds the monetary value of the equity in the MacDonald Street units and, accordingly, the Court should dispense with any formal taking of accounts and simply declare that the plaintiff holds his interest in the MacDonald Street units on trust for her.

The plaintiff’s case is that:

The principal proceedings were commenced by a statement of claim filed by the plaintiff on 13 March 2018. The defendant’s original statement of cross claim was filed on 12 May 2021 and amended by an amended statement of cross claim filed on each of 19 October 2021 and 27 November 2023.

A logical difficulty with the defendant’s case theory is that it does not sit comfortably with findings (which I make) that:

That John even presented the PDA to the plaintiff (and the solicitor Ms Sinanis) as a fair distribution of alleged “partnership property” is inconsistent with his evidence (and that of the defendant) that the defendant’s “contributions” to the “global partnership” were so large as to totally negate any beneficial interest the plaintiff might otherwise have had in the MacDonald Street units.

The fact that John made representations to the plaintiff in support of a division of property along the lines contemplated by the PDA also casts doubt on the veracity of his reconstruction of “accounts” designed, he contends, to show that, even on an informal accounting between the plaintiff and the defendant, the plaintiff would be shown clearly to have no beneficial entitlement to the MacDonald Street units.

The “Distribution of Assets and Allocation of Liabilities and/or Debts” for which the PDA notionally provided might also be taken as consistent with, if not corroborative of, the plaintiff’s case that the first class of business with which the names of the plaintiff and the defendant have been associated was business conducted by John, or on his account, alone. That class of business is subsumed in the PDA by the paragraph under the heading “Andrea Makis”.

In the way these proceedings fall for determination (upholding the plaintiff’s estoppel claim in relation to equitable ownership of the MacDonald Street units) it may not be necessary to form a concluded view as to whether (upon a correct application of the provisions of the Partnership Act 1892 NSW, particularly sections 1(1) and 2(1) and the general law, the business relations between the plaintiff and the defendant (and John) can correctly be characterised as a “partnership” within the meaning of the Act, but, in case I am in error in dealing with the estoppel issue, I will do so.

As defined in section 1(1) of the Partnership Act 1892 NSW, a partnership is “the relation which exists between persons carrying on a business in common with a view to profit”. It has three elements: “carrying on business”; “in common”; and “with a view to profit”. The Act provides rules to which regard “shall be had” in determining whether a partnership does or does not exist.

In the context of those rules, Keith L Fletcher’s The Law of Partnership in Australia (Lawbook Co, 9th ed, 2007) at paragraph [2.35] makes the following observations (omitting footnotes):

In these proceedings doubt about the correct characterisation of the parties’ business relations and their activities in terms of partnership law (or the law governing a “joint venture” falling short of a partnership) arise, essentially, because: (a) on the findings made in this judgment, there is an absence of any explicit “partnership agreement” or the administrative paraphernalia of a partnership; (b) the parties’ activities were essentially transactional in nature; (c) the dominant role played by John in managing the parties’ activities does not sit well with the concept of a partnership; (d) there was an absence of an agreement between the plaintiff and the defendant (or John) that each person, as a member of a “firm”, could bind each other person in dealings with third parties; and (e) the co-ownership of real estate by the plaintiff and the defendant, as tenants-in-common in equal shares, does not, of itself, ground the existence of a partnership.

These observations are made in the context of the Partnership Act, sections 1(1), 2(1), 4, 5(1) and 6(1):

The transactional nature of the parties’ relationship, in particular, does not fit comfortably into the conceptual framework of a “partnership” contemplated by the Partnership Act or an analogous “joint venture”.

The fact that the parties (or John) may have labelled their activities as those of a “partnership” does not, of itself, determine that, in law, the proper characterisation of their relationship is that of “partners”. The Court must, objectively, look to the substance of the relationship to determine its true character: Lindley & Banks on Partnership (Sweet and Maxwell, 21st ed, 2022), paragraphs [5.05]-[5.09], with the First Supplement (2024) adding no additional commentary; cf Wiltshire v Kuenzli (1945) 63 WN (NSW) 47.

Even if the expression “joint venture”, as adaptable as it may be (United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1), does not do justice to the parties’ relationships which, in my assessment, are best described as “joint activities” extending (in the case of real estate acquired in New South Wales) to a relationship of co-ownership between the plaintiff and the defendant. John’s dominance of decision-making, and the lack of mutuality and responsibility for decision-making, in circumstances in which the plaintiff was often called upon by John to act (as it seems to me) as John’s “nominee” or “proxy” and at John’s direction, stand in the way of a finding of “partnership”. The relationship between the plaintiff and the defendant does not fit the description of “carrying on a business in common” within the meaning of the Partnership Act 1892, section 1(1).

A linchpin in the defendant’s case against the plaintiff is her allegation (largely dependent upon evidence of John, ostensibly corroborated by her) that in December 1995, at the instigation of John, John and the plaintiff (on behalf of themselves and their respective wives, the defendant and Anastasia) agreed:

As pleaded, the alleged partnership (and the ancillary alleged agreement to lend money to the plaintiff) was open ended in time and, in character, an arrangement in the nature of agreement on “terms of trade” authorising John to conduct an “investment business” (of broad, imprecise ambit) with plenary authority.

References in this judgment to the alleged global “partnership agreement” should, unless otherwise indicated, be taken as including a reference to the ancillary alleged “Kyriacou Loan Agreement” as pleaded in the defendant’s amended statement of cross claim.

Paragraphs 28 and 29 of the defendant’s statement of cross claim record that, in relation to the alleged “global partnership”, she:

On the defendant’s own case, John had what might fairly be described as plenary authority to act on their behalf in her dealings with the plaintiff. Her one qualification “subject to her [prior] consent to [any] investments” is consistent with John having general authority to manage an investment, once made, although she resists any finding that John had authority to sell property without consultation with her.

If that qualification on John’s authority operated as a limit on his actual authority to act in the defendant’s name and on her behalf at the commencement of business dealings with the plaintiff in 1995 it did not survive a course of conduct over the years when John ostensibly made decisions about commercial transactions on behalf of both the plaintiff and the defendant without objection on the part of the defendant.

By 2012 the plaintiff reasonably believed that John had plenary authority to act on behalf of the defendant, without limitation. On her evidence (before Robb J) the last time she met with the plaintiff before 2012 (when she and the plaintiff co-signed documents closely aligned with the PDA) was 2011. Her personal contact with him was minimal. To her knowledge, John was the one who had continuing contact with the plaintiff after 2011. Both she and the plaintiff relied upon John to represent her interests in dealings with the plaintiff.

Although the partnership agreement is said to have been negotiated by John and the plaintiff in the first instance, it is said by both John and the defendant to have been the subject of regular conversations between all four partners (John and the defendant, the plaintiff and Anastasia) during their many social engagements before the break up of the marriage of the plaintiff and Anastasia.

I do not accept that there was ever a conversation, or a series of conversations, in or about or following December 1995, in which there was, in terms, an explicit discussion of a “partnership” (or a loan agreement ancillary to a partnership) or any agreement for contributions to be made to a partnership and interest to be charged at some unidentified, open-ended time when the partnership might be wound up and a process of accounting might be conducted. If the word “partnership” was ever routinely used (as it may have been) it would more likely than not have been used as a colloquial description of a joint activity rather than a partnership within the meaning of the Partnership Act 1892 or an analogous form of joint venture.

I accept the denials of the plaintiff and Anastasia that there was ever any agreement, or agreements, of the nature pleaded in the defendant’s amended statement of cross claim. I accept the plaintiff’s evidence that any discussions between John and himself about joint activities were about particular transactions without ubiquitous references to the expressions “partnership”, “partnership agreement”; “partnership business” or “drawings” on partnership funds. I accept his evidence that he dealt mainly with John and rarely discussed any form of business with the defendant. I accept his evidence that he was never party to a discussion with John to the effect that he would be charged “interest” on “contributions” made to a partnership business by the defendant and John.

I also accept Anastasia’s denial of any entry into, or acceptance of, a “partnership agreement” of the type pleaded in the amended statement of cross claim”.

Her evidence (by way of an affidavit and cross examination) points clearly against the existence of such a “partnership agreement” or a need in the plaintiff (which John and the defendant emphasise as important) to borrow funds. She is adamant that throughout her marriage to the plaintiff they lived frugally, paying out a bank home loan secured against the matrimonial home and saving funds in excess of $100,000. Unlike her husband, she was never enamoured of John.

A problem with accepting the defendant's allegation of an overarching “global partnership” between her and the plaintiff over an extended period is the alleged fluidity of the membership of the “partnership” from time to time.

Certainly, it is not beyond the experience of the law to allow for a partnership to be dissolved upon the retirement of a partner from the partnership and, to be reconstituted with “continuing partners” or a new set of partners, or for the establishment of several subordinate or ancillary partnerships (eg Lindley & Banks on Partnership, 21st ed, 2022, paragraphs [5-106]-[5-115]); but, in the present proceedings, factors relating to changes (fluidity) in the identity of alleged partners tell against the finding of any partnership (or analogous joint-venture), properly so-called:

Talk of a partnership with Sam Pambris in relation to a property development on Canterbury Road entangled the plaintiff and the defendant for a time but ultimately came to nothing in terms of an ongoing relationship involving the plaintiff.

The dominance of John (across iterations of any alleged partnership) as the effective manager, bookkeeper and controller of business associated with joint activities (even when disclaiming personal membership of any partnership) is inconsistent with the existence of any true partnership (“carrying on business in common”) between the plaintiff and the defendant.

The membership of the “global partnership” is said to have commenced with the plaintiff and Anastasia, the defendant and John. It is said to have evolved into a partnership between the plaintiff and the defendant alone when their respective marriages came to an end. Nevertheless, it is said to have included George Christiou and George Costi for an indeterminate time (at or about the time of the purchase of the Darling Road units between February 2003 and December 2004 or thereabouts) as “silent partners”, known to John as customers of the Laiki Bank who, at the suggestion of John, sought to recover losses by entrusting him with an “investment” in the “partnership”. Whether they looked to John for recovery of their losses because they regarded him as bearing a responsibility for the losses was noticed in the course of the hearing of these proceedings, but not clearly resolved. The defendant blamed the plaintiff for the losses, as she would, consistently with her case.

John engaged in talk of further “partners” or another “partnership” in or about September 2005 when friends (Kypros Parisis and Panayiotis Panayi), known to the plaintiff and the defendant, spoke to John about investment opportunities in which, with him, they might participate.

John brought the plaintiff and the defendant into the purchase of an investment property in Dudley Street, Punchbowl with Messrs Parisis and Panayi in or about June 2006. Although there was talk of Messrs Parisis and Panayi joining a “partnership”, the defendant says that John determined that the property be purchased in the names of the plaintiff, the defendant and the new investors as tenants-in-common in equal shares, although he managed the investment. The property was sold in or about June 2011.

The alleged “global partnership” is also said to have taken the form of an interest in corporate structures in which John and members of his family had, from time to time, a role as directors and, for a time at least, the plaintiff and the defendant were shareholders. A common feature of the companies said to have been vehicles for the alleged “global partnership” is the dominant role played by John, illustrated by ASIC searches and (in the case of a company incorporated in Cyprus) John’s allocation of ownership of the company (including shares “in the name of” the plaintiff) in the unsigned PDA to the defendant.

Kyrpap Pty Ltd was incorporated on 24 January 1997. John intended it to function as a trustee of a unit trust, never established. That business structure was apparently intended to facilitate the purchase and management of the Darling Road units. Abandonment of the trust structure and John’s introduction of Messrs Christou and Costi to the Darling Road project led to the acquisition of one of the two units by Messrs Christou and Costi and the second of the two units in the names of the plaintiff and the defendant.

An ASIC search (extracted on 22 April 2022) suggests that the plaintiff and Anastasia were directors of the company between 28 January 1997 and 1 October 2001. Anastasia said she had no active involvement with the company and, when invited to resign as a director, she refused to sign any paperwork. Under John’s management of the affairs of the company, she was taken nevertheless to have ceased to act as a director.

Between October 2001 and 22 April 2022 the only directors of the company were John and members of his family: more particularly, John (between 28 January 1997 and 6 February 2015); John’s daughter (between 1 May 2014 and 13 October 2015); John’s mother-in-law (between 13 October 2015 and 22 October 2020); and John (from 31 January 2020).

I&K Pty Ltd was incorporated on 16 September 2002. The original shareholders were the plaintiff and John. The original director and secretary was the plaintiff. His residential address was said to be 46 Fowler Crescent, South Coogee, the then matrimonial home of the defendant and John.

An ASIC search discloses that the plaintiff ceased to be a director or secretary of the company on 8 August 2008. In the fullness of time, the defendant became the sole shareholder of the company and (on 31 January 2020) John became the sole director. The principal place of business of the company is recorded in the ASIC search (extracted on 6 June 2022) between 16 September 2002 and 12 October 2015 as a residential address associated with John’s place of residence, not an address associated with the plaintiff.

PK Tiger Investments Pty Ltd was incorporated on 4 September 2006. An ASIC search extracted on 1 June 2022 records the plaintiff and the defendant as shareholders, the address of the plaintiff being that of John’s then matrimonial home. The plaintiff is shown as having been a director and secretary between 4 September 2006 and 8 August 2008.

Other directors, from time to time, have been John’s son Paul (between 8 August 2008 and 4 March 2009), his daughter Ioanna (between 4 March 2009 and 20 February 2012), John himself (between 18 February 2012 and 1 May 2014), John’s daughter again (between 1 May 2014 and 13 October 2015) and John’s mother-in-law (between 13 October 2015 and 7 September 2020).

John is recorded as the sole director as at 1 June 2022, having been appointed on 31 January 2020.

The plaintiff's address is recorded as that of the former matrimonial home of John and the defendant, as is the address of their children between 8 August 2008 and 20 February 2012.

AP&KK Pty Ltd was incorporated in Cyprus. On about 19 November 2004 it changed its name to Ozico Trading Ltd. The unsigned PDA expressly contemplated that the defendant would “keep ownership of all the property acquired in Cyprus and debts whether that is in the personal names or in the name of OZICO TRADING PTY LTD, with the current debt on the properties with Marfin Laiki Bank in Cyprus, together with all the shares currently in the name of [the plaintiff] in the portfolio held with Marfin Laiki Bank in Cyprus and all the joint accounts held in Cyprus with Marfin Laiki Bank” in Cyprus.

An ostensible impediment to accepting the plaintiff’s denials of John’s assertion of a global “partnership agreement” is John’s production of documents, apparently signed by the plaintiff, acknowledging the existence of such a partnership and an accumulating indebtedness of the plaintiff to “the partnership” for drawings. Primary examples are, first, a document styled “Kyriacou and Papatheodotou Partnership, Capital Account for the financial year ending 30th June 1996” (ostensibly recording “contributions” made by John and “drawings” made by the plaintiff) and a similar document headed “Makis and Kyriacou Partnership, Capital Account as at 30 June 2008”, purportedly recording the defendant’s “contributions” and the plaintiff’s “drawings”.

The earlier document purportedly bears the signatures of the plaintiff and John, who says he witnessed the plaintiff’s signature. The later document bears what purports to be the signature of the plaintiff alone. That signature appears under the typewritten word “agree”. Both documents refer to an interest rate of 8.5 percent per annum on “drawings” and on “contributions” or “capital”.

The plaintiff denies ever signing these or any similar documents. He also denies engaging in transactions the subject of entries on the two contentious documents, particularly trading in foreign currency and loans to third parties, transactions he attributes to John trading on his own account. He explains what appear to be his signatures by saying that, from time to time, at the request of John he signed blank pages and, at some stage, provided John with his electric signature, explanations which John denies.

That John was implicitly trusted by the plaintiff is illustrated by the fact that on 10 September 2004 (John says in the context of the plaintiff travelling to Cyprus) the plaintiff executed an enduring power of attorney in favour of John and John accepted his appointment as an enduring attorney. The significance of this instrument, if any, was not explored in cross examination of any witness before me but, in cross examination before Robb J, the defendant gave equivocal evidence suggesting that she might also have given a power of attorney, but whether it was in favour of John or the plaintiff is not clear on the face of the transcript. Nevertheless, that the plaintiff executed a power of attorney in favour of John is consistent with the plaintiff’s case that he allowed John to conduct business in his name.

As a warning against accepting John’s records as authentic, regular and accurate, the plaintiff’s counsel points to a discrepancy between the 2008 document (Exhibit “D6”) and a spreadsheet prepared by John (Exhibit “D5”) in the sums attributed to “contributions” made by the defendant. Even after judgment was reserved, the defendant (under cover of a letter dated 5 November 2024), with the leave of the Court, presented fresh calculations (MFI D5A) bearing upon the respective “contributions” said to have been made by the defendant to the global partnership and the “drawings” said to have been made from the partnership by the plaintiff, together with revised calculations of interest.

A problem in taking John’s documentation at face value (in the context of the admittedly informal and irregular business procedures he routinely employed) is that, before his fall from grace in or about January 2011 (when his employment with Laiki Bank Australia came to an end in controversial circumstances):

In my assessment the plaintiff is an honest man but is also naive enough to have lent his name to John in the conduct of transactions from which John, as a manager of the bank funding such transactions, preferred to distance himself. Working for Laiki Bank allowed John access to loan funds for projects he promoted or was otherwise involved in. The preparedness of the plaintiff to act at his direction in pursuing projects allowed him to advance projects in his own interests, at the same time distancing himself from them within the offices of his employer.

In contrast with the plaintiff, John was a person given to ostensibly advantageous, speculative opportunities (such as foreign currency exchanges) and, in my assessment, he used the plaintiff’s blind admiration for him as a cover for his own, personal business, disguised as business of the plaintiff.

In my assessment, John is not a person of great credit. He is a domineering person, naturally inclined to bend others to his will. This is evident, in my assessment, in his insistence in the giving of his evidence upon attaching the word “partnership” to every transaction and in his presentation of reconstructed accounts (including presentation of a spreadsheet as a “cashbook” when it was essentially an adversarial instrument rather than a contemporaneous record of receipts and expenditure).

I discount much of the evidence of the defendant because, in my assessment, she has been heavily influenced by John in his determination to impose the burden of his business failures on the plaintiff, and her evidence appears to have been calculated to achieve an outcome, disingenuous. On her evidence, she was not personally involved in the management of accounts. She left that to John.

John was authorised by her to transact business in her name. And, even if (which I accept) she never signed the PDA or, in express terms, adopted it in communications with the plaintiff, she was aware of the transactions ostensibly the subject of the PDA, including transfer of management of the MacDonald Street units to the plaintiff; and she stood by, allowing the plaintiff to enter each PDA transaction favourable to her interest (and ostensibly to his detriment) believing that, if he did so, he would keep ownership of the MacDonald Street units and his business arrangements with John and her (to use a neutral expression) would be at an end.

Her denial of contemporaneous knowledge of the PDA strains credulity. Her interests were inextricably bound up with the imposition on the plaintiff of an obligation to assume responsibility for the ANZ Bank mortgage over the MacDonald Street units.

That mortgage was granted as part of a suite of documents executed in mid-2012. They provided for the ANZ Bank to fund the discharge of “Laiki Bank” mortgages over the Wangee Road and Yerrick Road properties. That allowed John’s ties with the Laiki Bank to be cut and enabled the children of John and the defendant to buy the Wangee Road and Yerrick Road properties unencumbered (save for fresh mortgages they entered with other lenders). That, in turn, provided proceeds of sale appropriated by the defendant (and John) in payment of debts (including a mortgage over the defendant’s home) which they were then, but for the sales, struggling to pay.

The provision in the PDA for the plaintiff to assume responsibility for the ANZ mortgage was a key factor in enabling the defendant to pay down her debts by transferring (as between the parties) the primary obligation to service the ANZ mortgage debt to the plaintiff. It is difficult to accept that the defendant, an intelligent woman, did not know and understand the process by which she and John could secure funds to pay down their debts.

The objective sequence of events concerning property transfers in favour of the defendant’s interests (including those of her children) in 2012-2013, following presentation of the unsigned PDA to the plaintiff and the parties’ solicitor (Ms Sinanis), and John’s interposition of himself between the plaintiff and the defendant, lend support to an acceptance of the plaintiff’s evidence, over that of John and the defendant, about the circumstances in which their business relationship unravelled.

Objectively, that sequence of events followed upon (to use a neutral expression) the termination of John’s employment with the Laiki Bank Australia in January 2011, community concerns about John’s personal liability for the loss of investor funds throughout 2011 and his descent into bankruptcy in July 2013.

Although John was the person who primarily instructed Ms Sinanis in relation to the property transactions of note in mid-2012, he did so on behalf of both the plaintiff and the defendant, both of whom signed documents prepared by Ms Sinanis on John’s instructions to Ms Sinanis.

Although the defendant disclaims contemporaneous knowledge of the PDA (prepared by John and shown, at least, to both the plaintiff and Ms Sinanis), in her cross examination before Robb J she agreed that she knew that John had asked Ms Sinanis to prepare documents for the sale of the Wangee Road and Yerrick Road properties.

When asked whether she was aware that John had made contact with Ms Sinanis to prepare documents (initially those relating to the Wangee Road property) she responded: “Yes, because she was a young solicitor; we were trying to help her, give her business” (emphasis added).

The defendant also confirmed that she knew, at least, that John had instructed Ms Sinanis to prepare sale documents in relation to the Wangee Road and Yerrick Road properties and that he had done so with her approval.

Having been provided by John with a copy of the PDA, Ms Sinanis prepared documents for the sale of the Wangee Road and Yerrick Road properties, believing that those transactions were part of a suite of transactions which included a “sale” of the defendant’s share in the MacDonald Street units to the plaintiff and that he proceeded to facilitate a sale of the Wangee Road and Yerrick Road properties on the understanding that he would own the MacDonald Street units in a manner consistent with the PDA.

In her evidence before Robb J, Ms Sinanis deposed to knowledge that the proceeds of sale of the Wangee Road and Yerrick Road properties were received and managed by John, disclaiming any direct knowledge of how John applied those monies.

Although an affidavit affirmed (on 20 September 2018) by Ms Sinanis was read without objection it was subsequently withdrawn, leaving in evidence her business records exhibited to the affidavit together with a transcript of her evidence before Robb J.

Ms Sinanis’ records are consistent with a copy of the PDA having been given to the solicitor by John at or about the time he (via an email timed at 10am on 7 May 2012) gave her instructions (regarding the subject of “Kyriacou and Makis”). That email was in the following terms (so far as material):

In another email later that day (timed at 2.55pm on 7 May 2012) John confirmed his instructions to Ms Sinanis that the projected dates for settlement of items 4 and 5 was 2015:

The title to each of the Yerrick Road, Wangee Road and MacDonald Street properties was registered in the names of the plaintiff and the defendant as tenant-in-common in equal shares. Each of the plaintiff and the defendant held a 1/6 share in Lot 1 Deposited Plan 841518 (the Cessnock Motel) as a tenant-in-common with other parties.

The property known as 22/289 Gardeners Road (folio identifier 22/SP1270) was registered in the name of the defendant alone. There is no suggestion that the plaintiff ever had any interest in that property. John’s instructions to Ms Sinanis on 7 May 2012 provided for it to be sold to the daughter of the defendant and himself, Yianna. In final submissions the defendant produced a copy of Transfer AH141431 (dated 20 July 2012) recording a transfer of the property from the defendant to the daughter for a stated consideration of $400,000, the amount specified in John’s email.

Each of the other properties (Yerrick Road, Wangee Road, the MacDonald Street units and the Cessnock Motel) was the subject of a mention in the PDA. The only real estate not transferred as contemplated by the PDA was the MacDonald Street units.

File notes of Ms Sinanis dated 18 November 2013, 13 December 2013, 9 March 2015 and 5 June 2017 are consistent with the plaintiff’s evidence that he understood that, by giving up property entitlements in favour of the defendant’s interests, he was entitled to full ownership of the MacDonald Street units, subject to the ANZ mortgage secured over the title to the units.

Ms Sinanis’ handwritten file note dated 18 November 2013 is in the following terms:

Ms Sinanis’ handwritten file note dated 13 December 2013 (timed at 5.36 pm) is in the following terms:

Ms Sinanis’ handwritten file note dated 9 March 2015 (timed at 2pm) is in the following terms:

Ms Sinanis’ handwritten file note dated 5 June 2017 (timed at 4.55pm) is in the following terms:

I infer from that this file note that the “email” to which it refers is John’s email to Ms Sinanis dated 7 May 2012; that it was John and the defendant telling the plaintiff (in 2017) that he was only going to get half (of an ownership interest) in the MacDonald Street units; and that Ms Sinanis had earlier given the plaintiff documents intended to be signed for “them” (the defendant and John) to sign, but the documents were never returned to her.

For the sake of analysis, I adopt the plaintiff’s classification of the various categories of business the subject of the defendant’s amended statement of cross claim. The analytical convenience of that approach is that it treats the parties’ dealings as a series of separate transactions not subsumed in the defendants’ allegation of an overriding partnership agreement, which I have determined is not to be accepted.

Business conducted in Cyprus is in a special category. The defendant and John blame the plaintiff for the failure of that business, but John was the architect and the moving mind for it.

At the outset of the Cyprus business (before 2004) John went to Cyprus and rented some units to conduct a business, supposedly because the plaintiff wanted to return to live there (which the plaintiff denies). The Cyprus business had ceased by about 2010 or 2011, adding to John’s other woes of that year. If there was any arrangement between the plaintiff, the defendant and John in the nature of a partnership or joint venture regarding business in or with Cyprus it may be taken to have been abandoned no later than 2011.

The plaintiff analyses the parties’ dealings under four category headings.

The first is share trading, which the plaintiff contends involved only him and John (and did not involve either of their wives or former wives), ceasing no later than about 2011. I accept the plaintiff’s evidence on this point.

Under this category heading the plaintiff places a Commonwealth Bank loan, CommSec Trading and a CBA Direct Investment account.

The second category comprises “investment activities” (which the plaintiff disclaims and attributes to John personally) involving foreign exchange trading and loans negotiated by John, the plaintiff contends (and I accept), for John’s own purposes.

The foreign exchange trading activities involved accounts with Ord Minnett (1996-2002 and 1997-2002); Fimat Australia (2000-2005), Marfin Popular Bank (2005-2008) and Global Electronic Trading.

The loans negotiated by John are identified as loans from Chrystonou (2007-2008), Goodger (via PK Investments Pty Ltd) and Andreou (2005).

A loan is said to have been charged to “the partnership” for the payment of stamp duty in respect of the units at Darling Island Road, Pyrmont.

Three loans are associated with a friend of John, Sam Pambris. One was associated with I&K Pty Ltd (in respect of an import and export business).

Another was said to be associated with a loan to PK Tiger Investments Pty Ltd, with a loan from both Mr Pambris and another from James Lindis Goodger for the purpose of trading foreign currency in Cyprus through the Marfin Popular Bank using funds from the Goodger loan.

In a draft Statement of Affairs (Exhibit “P10”) written in John’s hand, in the context of his bankruptcy, he admitted that he had engaged in Foreign Exchange Trading as a director of PK Tiger Investments Pty Ltd.

In another form of Statement of Affairs dated 16 October 2016 (Exhibit “P12”) he said that he “became a director of the company in order to clear an Australia [sic] Taxation Office audit”, which I apprehend understates his involvement with the company.

The third loan was said to be a borrowing by the plaintiff, the defendant and Mr Pambris in relation to a loan from Laiki Bank Limited Australia in relation to a development of a property known as the Canterbury Road property.

The Goodger loan is said to relate to foreign exchange trading. The Andreou loan is said to relate to the properties at Wangee Road, Lakemba, Yerrick Road Lakemba and, possibly, the property at Maitland Road, Cessnock and the MacDonald Street units, all of which properties have been sold or (in the case of the MacDonald Street units) are unencumbered by any Andreou loan.

The third category of business identified by the plaintiff relates to two types of “support services” he says he provided to John. I accept the plaintiff’s evidence on this.

The first relates to the plaintiff’s use of a “pager” for the assistance of John (1996-2011/2012). The second relates to a subscription to a publication known as “Hubb Financial” (1997-2012), to which the plaintiff subscribed for the benefit of John’s foreign exchange trading.

The fourth category of business related to Australian property purchases, noting two subcategories. I accept the plaintiff’s evidence on this also.

The first subcategory relates to purchases of real property in the names of the plaintiff and the defendant (and no third party) as co-owners. In this subcategory are the properties known as “Unit 111” Darling Road, Pyrmont (originally to be purchased by KYRPAP Pty Ltd); the MacDonald Street units at Lakemba; the Wangee Road unit at Lakemba and the Yerrick Road unit at Lakemba.

The second subcategory comprises real property in which the plaintiff and the defendant together acquired only a share of property with others.

The first of those properties was at Maitland Road, Cessnock (in respect of which the plaintiff and the defendant acquired a one third interest). The second was a unit in Dudley Street at Punchbowl (in respect of which the plaintiff and the defendant acquired a one half share).

Each of the six properties here identified (other than the MacDonald Street units) has been sold and the whole of the proceeds of sale have been paid to or appropriated by the defendant.

The plaintiff’s case, in short, is that: (a) transactions in the first three categories were effected by or at the direction of John and for his benefit; (b) any claim made against him (if made by John personally) vested in John’s trustee in bankruptcy; and (c) any claim made against him by the defendant in respect of these transactions is “statute barred” (more correctly, extinguished) by operation of the Limitation Act 1969 NSW, sections 14 and 63.

The plaintiff does not dispute that, from time to time, John paid him a regular retainer, conferred benefits on him or allowed him to retain benefits from trading conducted by or at the direction of John. Nor does he deny that John routinely provided financial information to his accountant for the preparation of his personal tax returns. Nevertheless, he maintains (and I accept) that the trading activities which the defendant seeks to lay to his account were conducted on John’s account even when conducted in the plaintiff’s name, and that he was paid for services rendered, not as a charity.

That John provided him with a pager and a subscription to a financial magazine to alert John to market fluctuations or opportunities and paid him a regular retainer for his services is consistent with him acting at the direction, and on the account, of John rather than as a partner of either John or the defendant.

John was the dominant personality in the relationship between the two men (and in the relationship between John and the defendant). The plaintiff commonly acted as a proxy for John in business activities managed by John for John. That fact is consistent with John’s full time engagement with finance (whether with Laiki Bank or on his own account, routinely involved in locating investment opportunities, managing loan finance and mortgages) and the plaintiff’s full time job as a tradesman. It was generally John, not the plaintiff or the defendant, who arranged loan transactions, including with friends and business associates in the Cypriot community who, even if they knew the plaintiff, were closer to John than to the plaintiff. John was the dealmaker.

The plaintiff does not deny that, independently of John, he conducted a modest amount of share trading on his own account but that was independent of trading on John’s behalf, and his evidence of modest share trading was confirmed by his former wife Anastasia in her evidence. In my assessment she is an honest, intelligent woman and a credible witness.

The defendant’s analysis of the claims made against him in the defendant’s amended statement of claim also provides insight into the scheme of the PDA.

Leaving aside:

By the time of the hearing of these proceedings, all six of those properties had been sold, but for the MacDonald Street units.

Public records relating to the dealings of the plaintiff and the defendant with these properties illustrate the involvement of John and the bank with which he was then employed.

In her cross examination before Robb J the defendant confirmed that, following an “unpleasant” year in 2011 (when John lost his job, the Cyprus business failed, and gossip within her community was that various people were looking to John for the payment of money), in 2012 she and John were having difficulty in meeting mortgage payments on their former matrimonial home and they had to sell properties to pay out loans. It was at about that time, in 2012, that the former matrimonial home was rented, the defendant commenced living with her mother, and John commenced living with their daughter.

The properties purchased in the names of the plaintiff and the defendant between January 2005 and September 2007 or thereabouts were (with the exception of the MacDonald Street units) sold between January 2011 and January 2014 or thereabouts. In sequence, the Dudley Street property was sold between January-June 2011; Unit 111/3 Darling Island Road was sold in August 2011; and each of the Wangee Road and Yerrick Road properties were sold on 20 July 2012; and the Maitland Road property was sold in January 2014. All those properties were sold, and proceeds of sale were available for the payment of debts of the defendant and John before he completed his bankruptcy statement of affairs in 2016.

Of central concern in relation to the plaintiff’s estoppel case are the sales of the Wangee Road and Yerrick Road properties, co-ordinated with a refinancing of Laiki Bank debt with an ANZ Bank mortgage over the MacDonald Street units.

The Dudley Street property and Unit 111/3 Darling Road were sold (and proceeds of their sale were distributed between the plaintiff and the defendant) before John, in or about June 2012, provided a copy of the PDA to the plaintiff. Those properties are not mentioned in the PDA.

The Maitland property is mentioned in the PDA for the purpose of recording an intention that the defendant keep “the (one third) share” of the plaintiff and herself in the property. John’s instructions to Ms Sinanis on 7 May 2012 contemplated a deferred sale by the plaintiff of his (1/6th) share in the property to the defendant.

As events unfolded, the Maitland property was sold (in November 2013) and I am satisfied that the proceeds of sale of the plaintiff’s 1/6th share in the property were received by the defendant. In treating appropriation of the proceeds of sale of the Maitland property notice needs to be taken that at the time of that sale the plaintiff was managing the MacDonald Street units (including collecting rents and paying expenses) under the belief that the units were to be transferred to him under the PDA.

On completion of the sale of the Maitland property separate bank cheques dated 12 November 2013 were drawn in favour of the plaintiff and the defendant, each in the sum of $227,016.75 representing their respective shares of the sale proceeds, not including an accounting for a 10% deposit paid by the purchaser. I infer that on 13 November 2013 separate cheques were drawn on a solicitor’s trust account in favour of the plaintiff and the defendant for $24,500, representing their respective shares of the deposit. The bank cheques drawn in favour of the parties and the trust account cheque drawn in favour of the plaintiff, were all cheques payable to the payee “or bearer”.

It is common ground that the defendant retained her two cheques. Bank records produced by the Bank of Sydney (the Laiki Bank by another name) on subpoena establish that the plaintiff’s two cheques were deposited in accounts of which the defendant was the beneficiary. In the event, therefore, the defendant received the whole of the proceeds of sale of the interests of the plaintiff and the defendant in the Maitland property. That is consistent with the PDA.

It appears to be common ground that, out of the proceeds of sale $98,000 was the subject of an adjustment which the defendant contended was a “payment” to the plaintiff (Exhibit D5) or “drawings” made by the defendant (MFI D5A); and the plaintiff contends was a reimbursement made by the defendant of funds received by her from the ANZ Bank refinance of the Laiki Bank mortgage over the MacDonald Street units in May 2012, associated with the sales of the Wangee Road and Yerrick Road properties at about that time.

The evidence appears not to include a tracing of the payment of $98,000. However, in John’s reconstructed and revised schedules the adjustment (to use a neutral expression) is accorded an entry dated 12 November 2013. A bank statement of the account of the defendant into which the bank cheque for $227,016.75 drawn in favour of the plaintiff was deposited on 15 November 2013 records a debit entry, drawing on that deposit, for $98,000, dated 20 November 2013.

I am not satisfied that the sum of $98,000 was paid to the plaintiff personally unrelated to the PDA. It is consistent with the defendant receiving the whole of the proceeds of sale of the Maitland Road property (as contemplated by the PDA), acknowledging that the refinance of the Laiki Bank mortgage over the MacDonald Street units by the ANZ Bank provided an opportunity for the defendant to pay pressing personal debts owed by her (and John). In my assessment, the fact that a $98,000 “adjustment” was made at or about the time the sale of the Maitland Road property was completed does not detract from a finding, which I make, that the defendant received the whole of the proceeds of sale of the Maitland Road property.

Although not the subject of a sale, the MacDonald Street units were connected with arrangements for the sale of the Wangee Road and Yerrick Road properties on or about 20 July 2012 because, simultaneously, the Laiki Bank debt secured over the units was refinanced with the ANZ Bank (which took a mortgage over the units), enabling the Wangee Road and Yerrick Road properties to be sold unencumbered and for the proceeds of sale to be applied by the defendant and John.

The context in which these conveyancing transactions occurred includes dramatic changes in the personal circumstances of the defendant and John, not unrelated to their financial circumstances.

On 18 January 2010 they executed a Financial Agreement in which they recorded January 2010 as the date of their separation “on terms”.

In January 2011 John ceased his employment with the Laiki Bank and first experienced difficulty in paying his debts. Sales of property occupied 2011 and 2012, during which time the plaintiff pressed John to bring the business relationship between himself, John and the defendant to an end.

In or about early May 2012 John provided to the plaintiff and Ms Sinanis a copy of the PDA and on 7 May 2012 provided instructions to Ms Sinanis for the sale of properties referred to in the PDA.

In June 2012 John and the defendant were divorced. In July 2013 John became bankrupt. He “completed” his statement of affairs in November 2016, in which year the defendant commenced “Family Court” proceedings against him.

The property transactions of mid-2012 arranged by John acting as an intermediary between the plaintiff, the defendant, the children of the defendant and himself and Ms Sinanis were critical to the defendant. The matrimonial home was rented out (to the Canadian Embassy for five years) in 2012, she moved in with her mother and John moved to live with their daughter.

The defendant cannot readily distance herself from the programme of property sales following John’s cessation of employment with the Laiki Bank in January 2011 in circumstances in which her personal and financial circumstances were critically connected with those sales and the reduction of debts of John and herself. That she signed the ANZ Bank mortgage and contemporaneous documents that facilitated her payment of personal debts is of critical significance. Only through wilful blindness could she have not seen the connection between each of the conveyancing transactions of mid-2012 and the plaintiff’s expectation of full ownership in the MacDonald Street units.

Kyrpap Pty Ltd was incorporated on 24 January 1997. Its directors and shareholders were the plaintiff and his wife Anastasia, the defendant and John.

In or about December 1997 Kyrpap Pty Ltd contracted to buy two units in a development of 3 Darling Island Road, Pyrmont “off the plan”. Those units (upon registration of Strata Plan 73910 on 12 November 2004) became:

As events unfolded, Unit 121 (Lot 7) was acquired and simultaneously on-sold, at the same price, to George Christou (and his wife Kerry Christou) as joint tenants as to a 50 percent share, and George Costi (and his wife Antonia Costi) as joint tenants as to the remaining 50% share, the two couples holding their respective 50% shares as tenants-in-common.

The transfer to the Christou and Costi interests occurred in circumstances the subject of controversy, previously noticed in connection with membership of the alleged “global partnership” and Kyrpap Pty Ltd.

In respect of Unit 121 (Lot 7 in Strata Plan 73910):

In respect of Unit 111 (Lot 1 in Strata Plan 73910):

The motel premises located at 300 Maitland Road, Cessnock comprise the land contained in folio identifier 1/841518.

For a declared consideration of $965,000 the property was transferred (by Transfer AC10723, undated but registered on 23 December 2005) to the plaintiff as to a 1/6th share, the defendant as to 1/6th share, and two other people, each with a one third share, as tenants-in-common.

That Transfer was accompanied by Mortgage AC10724 (dated 20 December 2005, stamped on 22 December 2005 and registered on 23 December 2005) granted by the transferees to Laiki Bank (Australia) Ltd.

After several intermediate dealings relating to leasing of the property, mortgage AC10724 was discharged by a Discharge instrument AH55378 registered on 19 June 2012, the mortgagee being named as Beirut Hellenic Bank Limited (formerly Laiki Bank (Australia) Ltd), the bank having changed its name on 25 July 2011.

For a declared consideration of $1,470,000 the property was transferred out of the names of the plaintiff, the defendant and their co-owners by an undated Transfer AI246679 registered on 17 January 2014. Separate bank cheques drawn in favour of the plaintiff and the defendant for their respective shares of the sale proceeds (not including an accounting for the deposit) were dated 12 November 2013, which I infer was the date of completion of the sale.

The property known as 6/29 Dudley Street, Punchbowl is the land comprised in Folio Identifier 6/SP49494.

It was transferred into the names of the plaintiff, the defendant, Kypros Parisis and Panayiotic Panay, as tenants-in-common in equal shares, for a declared consideration of $160,000 by Transfer AC410390 dated 20 June 2006 and registered on 27 June 2006. It was accompanied by Mortgage AC410391 (undated but registered also on 27 June 2006) granted by the four new registered proprietors and the defendant as mortgagors in favour of Laiki Bank (Australia) Ltd as mortgagee.

An Historical Search in evidence discloses that on 10 December 2009 a Discharge of Mortgage (presumably AC410391) was registered and a new mortgage (AF18290) was registered.

On 22 June 2011 a Discharge of Mortgage (AG316461) was registered, following upon which, on the same date, Transfer AG31642 was registered, as a transfer, for a declared consideration of $245,000, by the four registered proprietors to an unrelated third party.

The instrument bears the date 31 January 2011 (the date upon which John’s employment with the Laiki Bank came to an end) and the signatures of the four transferors were witnessed by John, recording his address as that of his former matrimonial home at Fowler Crescent, South Coogee.

The related Discharge of Mortgage AF182979 (was incidentally signed by Anastasia as a representative of the Laiki Bank).

The home unit known as 12/60 Wangee Road, Lakemba is the land comprised in folio identifier 12/SP6684.

For a declared consideration of $140,000 the land was transferred into the names of the plaintiff and the defendant as tenants-in-common in equal shares by Transfer AD367633 dated 22 August 2007 registered on 24 August 2007.

By Mortgage AD400746 dated 5 September 2007 and registered on 6 September 2007, the plaintiff and the defendant as mortgagors granted a mortgage to Laiki Bank (Australia) Ltd. The same mortgage encumbered the MacDonald Street units.

That mortgage was discharged by Discharge of Mortgage AH18845 dated 23 May 2012 and registered on 30 May 2012 by Beirut Hellenic Bank Limited (formerly Laiki Bank (Australia) Ltd, funded by an ANZ Bank refinance of the Laiki Bank mortgage over the MacDonald Street units. Incidentally, Anastasia Kyriacou (as a Credit Operations Manager) was one of the signatories on behalf of the mortgagee.

The records of Ms Sinanis include a stamped copy of a contract for the sale of the property (dated 7 June 2012) by the plaintiff and the defendant to the daughter of the defendant and John (Ioanna Yianna Papatheodotou), prepared on instructions given to Ms Sinanis by John, which declares that the sale was “without the intervention of an agent” and that Ms Sinanis’ firm (Constantine & Co) was “solicitor” for both the vendors and the purchaser.

Settlement of the sale took place on 20 July 2012, the same day upon which the sale of 22/289 Gardeners Road to the daughter and the sale of 8/43 Yerrick Road to the son of the defendant and John (Polycarpos Paul Papatheodotou) were settled. Ms Sinanis appears not to have attended personally on settlement of the sales but, in her evidence before Robb J, she said:

On 30 July 2012 by Transfer AH141429 (dated 20 July 2012) the property was transferred to the daughter for a declared consideration of $235,000. Both the plaintiff and the defendant executed the Transfer as vendors.

The purchaser’s incoming mortgagee (undated Mortgage AH141432 registered on 30 July 2012) was Westpac Banking Corporation (in the guise of the St George Bank). John witnessed his daughter’s signature on the instrument, identifying his address as a property in Slade Road, Bardwell Park.

The daughter’s purchase of 22/289 Gardeners Road from the defendant was settled on the same day (20 July 2012) with the benefit of finance from the St George Bank.

The contract of sale of Wangee Road to the daughter was dated 7 June 2012. It was with the benefit of finance from the St George Bank expressed to be a sale “without the intervention of an agent”. The daughter gave her address as the address of her parents’ former matrimonial home at Fowler Crescent, South Coogee. Ms Sinanis’ firm (Constantine and Co) acted as solicitors for both purchaser and vendors. Both the plaintiff and the defendant signed the contract.

The home unit known as 8/43 Yerrick Road, Lakemba comprises the land contained in folio identifier 8/SP8803.

For a declared consideration of $146,000 the land was transferred into the names of the plaintiff and the defendant as tenants in-common in equal shares by Transfer AD634367 dated 3 December 2007 and registered on 13 December 2007.

Mortgage AD634368 (granted by the plaintiff and the defendant as mortgagors to Laiki Bank (Australia) Ltd as mortgagee), also dated 3 December 2007 and registered on 13 December 2007, was witnessed by the daughter of John and the defendant, citing her address as that of her parents’ former matrimonial home in Fowler Crescent, South Coogee.

That mortgage was discharged by Discharge of Mortgage AH137710 dated 20 July 2012 and registered on 26 July 2012, funded by the ANZ Bank refinance of the Laiki Bank mortgage over the MacDonald Street units. Anastasia Kyriacou, as a “Credit Operations Manager”, was one of the signatories for the mortgagee, Beirut Hellenic Bank Limited (formerly Laiki Bank (Australia) Ltd).

For the declared consideration of $235,000, the property was transferred to the son of the defendant and John by an undated Transfer AH137712 registered on 26 July 2012. The firm of Ms Sinanis (Constantine and Co) acted for both the vendors and the purchaser. She personally signed the Transfer instrument.

In her evidence before Robb J, Ms Sinanis deposed that there was no form of contract signed as a preliminary step before execution of the Transfer. That is consistent with the form of Transfer AH137712 which, although undated, bears an Office of State Revenue stamp dated 20 July 2012 for stamp duty of $6,715, not the nominal amount of duty which would be paid on a memorandum of transfer if duty had earlier been paid on the contract.

The sale of the property, effected by the Transfer, was completed on 20 July 2012, at the same time as the sales 22/289 Gardeners Road and 12/60 Wangee Road to the daughter of the defendant and John were settled.

Ms Sinanis may not have attended the settlement personally but she gave evidence before Robb J that after settlement she saw “a cheque payable to Andrea and Kerry that was available after settlement, after the transaction that was collected by John …”.

Whether it is not clear on the face of the transcript whether she saw one or more cheques, but the substance of her evidence is that, although the sale was completed in the names of the plaintiff and the defendant and a cheque or cheques were issued in their names, the cheques were physically collected by John.

On 26 July 2025 Mortgage AH137716 (dated 20 July 2012), granted by the son of the defendant and John to National Australia Bank Limited, was registered. The son’s signature on the mortgage was witnessed by John, whose stated address was that in Slade Road, Bardwell Park, his business address.

The eight units known as Units 1-8, 2 MacDonald Street, Lakemba are respectively Lots 1-8 in Strata Plan 31426.

All eight units were transferred into the names of the plaintiff and the defendant as tenants-in-common in equal shares by Transfer AD400745 (dated 5 September 2007 and registered on 6 September 2007) for a declared consideration of $1,290,000.

The Transfer was supported by Mortgage AD400746 (dated 5 September 2007 and registered on 6 September 2007) to Laiki Bank (Australia) Pty Ltd.

That mortgage was secured over the Wangee Road property as well as the MacDonald Street units.

The mortgage was discharged by Discharge of Mortgage AH18845 (dated 23 May 2012) registered on 30 May 2012. The outgoing mortgagee was named as Beirut Hellenic Bank Limited (formerly Laiki Bank (Australia) Ltd), one of the signatories for which was Anastasia Kyriacou as a Credit Operations Manager.

At about the same time, the plaintiff and the defendant granted Mortgage AH18846 (dated 7 May 2012 and registered on 30 May 2012) to Australia and New Zealand Banking Group Ltd. That is the mortgage still registered on the title of each of the eight units, with the plaintiff’s caveat AM589674 (registered on 25 July 2017) ranking after the mortgage. The mortgage was signed personally by both the plaintiff and the defendant. Both signatures were witnessed by the same witness, Theo Pambris.

The caveats lodged against the defendant’s interest by third parties (George. Georgiou in June 2017 and Sam Pambris in March 2018), and since withdrawn, are consistent with:

That the ANZ Mortgage AH18846 over the MacDonald Street units funded the discharge of “Laiki Bank” mortgages over the Wangee Road property (Discharge AH18845; and the Yerrick Road property (Discharge AH137710) can be seen in the dates of the respective instruments.

The whole of the net proceeds of sale of each of the Wangee Road and Yerrick Road properties were appropriated by the defendant in consultation with John. None of the proceeds were retained by the plaintiff. The defendant contends that the (net) proceeds of sale she received were applied in the payment of (disputed) “partnership” debts, which I take to be debts of John and/or herself.

Although (as Robb J found in his principal judgment) the PDA was not a contract enforceable as such against the defendant by the plaintiff, that a copy of it was given by John to the solicitor (Ms Sinanis of Constantine & Co, Lawyers) who, largely on instructions communicated by John, acted for the plaintiff, the defendant and the defendant’s children in relation to transfers of land is consistent with: (a) an intended division of property registered in the names of the plaintiff and the defendant as co-owners; and (b) consequent upon such a division, a mutual release of claims one against the other as contemplated by the PDA.

With emphasis added, the PDA was in the following terms:

The address attributed to the defendant in the PDA (in Fowler Crescent, South Coogee) is the same address attributed to both John and the defendant in their Financial Agreement dated 18 January 2010 (in Fowler Crescent, Maroubra), the former matrimonial home of the defendant and John. When John gave evidence at the hearing of these proceedings (on 10 September 2024) he was still resident there although, by that time the defendant had moved to live elsewhere.

By reference to the PDA document (which the plaintiff contends corresponds with representations made to him by John before he signed over the Yerrick Road and Wangee Road properties in favour of the defendant’s children and allowed the defendant to appropriate the proceeds of sale of their interest in the motel in Maitland Road, Cessnock):

The timing of these transactions is consistent with a finding that the defendant had knowledge of the instructions John gave to Ms Sinanis on 7 May 2012 and the terms of the PDA.

By a contract for sale dated 7 June 2012 and a memorandum of transfer dated 20 July 2012 (the date of settlement of the sale), the Wangee Road property was sold to the defendant’s daughter for a price of $235,000. The contract (and, I infer, the memorandum of transfer) bears the signatures of both the plaintiff and the defendant.

The Yerrick Road property was sold to the defendant’s son for $235,000 at about the same time. The memorandum of transfer associated with the sale bears no date but bears a stamp duty receipt dated 20 July 2012 (the date of settlement of the sale). A tax invoice signed by Ms Sinanis, addressed to the plaintiff and the defendant, under cover of a letter addressed to the defendant’s son, reporting on the sale bears the date 9 July 2012. That correspondence was addressed to a property in Fowler Crescent, South Coogee, the then residence of both the defendant and John.

By an undated memorandum of transfer registered as dealing number AI 2466796, the plaintiff and the defendant joined (with two other persons) in a sale of the Cessnock Motel for $1.47 million. Both signed the memorandum of transfer.

The documents reproduced as an exhibit to Ms Sinanis’ affidavit (left in evidence after the affidavit itself was withdrawn from evidence) include an unsigned copy of a contract for the sale by the defendant to the plaintiff of a “half share interest” in the MacDonald Street units for $825,000, together with an unsigned form of memorandum of transfer consistent with the contract document.

I infer that the declared price of $825,000 (representing one half of a valuation of the property) was nominated by John rather than agreed with the plaintiff. The PDA identifies no such price, but stipulated that the plaintiff bear the burden of the ANZ Bank mortgage on title.

An email exchange between Ms Sinanis and John on 15 June 2012 evidences that Ms Sinanis looked to John for the payment of disbursements in relation to “searches” and “valuations” relating, inter alia, to the Wangee Road, Yerrick Road, MacDonald Street and Cessnock properties, and that he undertook to provide a cheque for disbursements.

The documents produced by Ms Sinanis and related transactional documents are consistent with an inference (which, on the whole of the evidence, I draw) that:

That the defendant joined with the plaintiff in executing documents to effect transfers of property, and documents associated with the plaintiff assuming responsibility for management of the MacDonald Street units supports an inference of actual knowledge on the part of the defendant that, in giving up property interests and assuming responsibility for the MacDonald Street mortgage, the plaintiff believed, on reasonable grounds, that he was entitled to full ownership of the MacDonald Street units.

For her part, the defendant allowed the plaintiff to transfer property, and to assume responsibility for the MacDonald Street units without disabusing him of his expectation that he would thereby “keep ownership” of the MacDonald Street unit. She, at least implicitly, affirmed and reinforced that expectation.

No part of the net proceeds of sale of the Yerrick Road or the Wangee Road properties was retained by the plaintiff. Through the agency of John the net proceeds of sale were appropriated by the defendant, she says, in the payment of “partnership debts”, which I take to mean debts of John and/or herself.

Having secured the plaintiff’s performance of the transactions expected of him by John and the defendant, John and the defendant appear deliberately to have refrained from transferring to the plaintiff the defendant’s legal interest in the MacDonald Street units. Their conduct appears to have been directed to deferring a transfer of the defendant’s interest in the units to the plaintiff, wearing him down by resisting his claim to ownership of the units and, in the meantime, enjoying the convenience of having him manage the units and the ANZ Bank loan secured over the units.

In the instructions he gave Ms Sinanis (on 7 May 2012) John instructed her that the “settlement” of the transfer of the units was to take place on 1 July 2015. That is not a date to be found in the PDA, although the plaintiff may have acquiesced in it. The PDA simply records that the plaintiff “will keep ownership” of the units “with the current debt on the property with ANZ Bank”. This is similar to the language used in connection with the “distribution of assets and allocation of liabilities and/or debts” to the defendant (ie, “will keep ownership”) but stands in contrast with the nominated date (1 July 2012) for the sale of the Yerrick Road and Wangee Road properties to the children of John and the defendant.

The records of Ms Sinanis reflect the plaintiff’s frustration with the failure of the defendant (and John) to attend to a transfer of the MacDonald Street units to him.

They, for their part, when it suited them to do so, held out to him that he would have full title to the MacDonald Street units transferred to him. Then they told him that they would only agree to him retaining his half share of the title. As their case against him has been advanced in these proceedings, they have denied him any beneficial entitlement to the units. Viewed overall, their conduct has been calculated to terminate their business relationships with the plaintiff on terms that leave him with nothing he expected to obtain on a parting of the ways when he signed away his interest in land held in co-ownership with the defendant.

In my assessment, the correct inference to be drawn on the whole of the evidence is that, in promoting the PDA as a means of separating the interests of the plaintiff and the defendant, John acted with the actual authority of the defendant, express or implied. She left everything to him to organise with the plaintiff. If his authority in negotiations falling short of entry into a contract was constrained by a limitation that he obtain her consent to the PDA, I infer that she gave that consent.

It was in her interest to do so. The PDA arrangement (including an implicit refinancing of the Laiki Bank mortgage on the MacDonald Street units with the ANZ Bank, with the associated discharge of Laiki Bank mortgages over the Wangee Road and Yerrick Road properties) allowed her to obtain urgently needed funds to meet pressing debts of John and herself and to cut John’s ties with the Laiki Bank.

Other factors which tell in favour of a finding of actual authority include the following:

If there was a limitation on John’s authority to the effect that John could only act on behalf of the defendant with her consent, and if I am in error in concluding that she gave that consent, I am nevertheless satisfied that she held out to the plaintiff that John had plenary authority to act on her behalf in all property dealings the subject of the PDA (including the MacDonald Street units), and accounting for funds, and she did not apprise him of any limitation on that authority.

I do not regard the fact that the PDA itself was expressed not to take effect until it was signed detracts from that finding. It suited both John and the defendant that it not be signed and that the plaintiff be encouraged nevertheless to act upon John’s representation by reference to it. In my opinion, the “signature” provision of the PDA did not itself limit John’s authority or alert the plaintiff to a limitation upon his authority to make representations on behalf of the defendant. It was simply the nature of the transaction that if the PDA was to operate as a contract it was to be signed by both parties. The plaintiff trusted John (as the defendant’s agent), and the defendant, to honour the arrangement summarised in the PDA, signed or not.

In my opinion, if John did not have actual authority to act for the defendant in making representations to the plaintiff by reference to the PDA he nevertheless had apparent (or ostensible) authority to act on her behalf in that regard. The plaintiff, to the knowledge of the defendant, was accustomed to act on the basis that John (with plenary authority) was authorised to conduct business with the plaintiff on behalf of the defendant. The PDA was within the scope of the kind of business conducted by John on behalf of the defendant with the plaintiff. The PDA was presented in the usual way for real estate transactions through Ms Sinanis as John’s solicitor (and solicitor for all parties), known to and trusted by all parties to those transactions. The plaintiff reasonably believed, as he was intended by John (and the defendant) to believe, that John had authority to act on behalf of the defendant. If there was any limitation on John’s actual authority, it was not made known to the plaintiff or to Ms Sinanis.

Insofar as the PDA involved a matter of accounting, as between herself and the plaintiff, she concedes that she had no involvement, she left everything to John to organise with the plaintiff.

The records of Ms Sinanis support an inference that she knew that the plaintiff executed property transfers (as contemplated by the PDA) in reliance upon the PDA, and in expectation that he would thereby be entitled to ownership of the MacDonald Street units. Nobody disavowed the plaintiff of that expectation; not John, not the defendant, not Ms Sinanis.

Acting as solicitor for the defendant, Ms Sinanis’ knowledge of the facts can be imputed to the defendant: Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 649 and 658-659. To paraphrase Stephen J (at 649) her knowledge was acquired both for the purpose of the conveyancing transactions she was retained to implement and in the course of implementing them. To paraphrase Mason J (at 658-659), as against a third party (here, the plaintiff) the law imputes to a principal (the defendant) knowledge gained by her agent (Ms Sinanis) in the course of, and which is material to, a transaction in which the agent is employed on behalf of the principal, under such circumstances that it is the duty of the agent to communicate it to the principal; the actual knowledge of the agent is equivalent to the actual personal knowledge of the principal; this being the principle applicable to information acquired by a solicitor in the course of acting for a client in a conveyancing matter.

Unless it be argued that John committed a fraud against the defendant in making representations to the plaintiff referable to the PDA (which it has not), the same principle of imputed knowledge applies to John’s knowledge as a manager of the affairs of the defendant. He was her agent (and she was his principal) in retaining Ms Sinanis and managing Ms Sinanis’ performance of her retainer. The fact that John acted as an agent for the plaintiff as well as the defendant is immaterial. He owed a duty to communicate his knowledge to the defendant and is presumed to have done so. The fact that John acted as an agent for the plaintiff as well is the defendant is immaterial.

The principles relating to imputation of the knowledge of an agent to a principal closely relate to estoppel, but have an independent operation: Shultz v Corwill Properties Pty Ltd (1969) WN (Pt 1) (NSW) 529 at 538-539; Dixon v Winch [1900] 1 Ch 736 at 747-748; Bradley v Riches (1878) 9 Ch D 189 at 195-197.

An imputation to the defendant of knowledge of John and Ms Sinanis in relation to the business that underpins the plaintiff’s estoppel claim involves no injustice to the defendant because they were actively engaged as her agents, and with her, in the conduct of that business to the detriment of the plaintiff.

John (as manager of her affairs), and Ms Sinanis (as her solicitor) were each in a relationship with the defendant such that she was “the principal” to each of them as her “agent”. Their knowledge of the PDA and the plaintiff’s reliance upon it was acquired by them in performance of their respective undertakings to act on her behalf in connection with the business the subject of Ms Sinanis’ retainer, evidenced by John’s email dated 7 May 2012, informed by the PDA given by John to both the plaintiff and Ms Sinanis. As a “principal” to both John and Ms Sinanis the defendant was charged with their knowledge of the PDA and the plaintiff’s reliance upon it whether she had actual knowledge of it or not.

In my opinion, the plaintiff has established his estoppel case, substantially as pleaded, relying upon an equitable estoppel which arises by reason of encouragement by the making of a promise, most recently reviewed by the High Court of Australia in Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126.

In my opinion, characterisation of the plaintiff’s case as an “estoppel by convention” (Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244-245; Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 188-189; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 at [74]-[75]; TEC Desert Pty Ltd v State Revenue (WA) (2010) 241 CLR 576 at [49]) or as a “promissory estoppel” (Legione v Hateley (1983) 152 CLR 406 at 432; Bushby v Dixon Holmes Du Pont Pty Ltd (2010) 78 NSWLR 111) would not materially affect the outcome of this case. Nor would any formulation of the elements of an equitable estoppel by the High Court pre-dating the Court’s judgment in Kramer v Stone (eg Waltons Stores (Interstate) Ltd v Maker (1988) 164 CLR 387 at 428-429).

As a convenient point of reference, the majority judgment of the High Court in Kramer v Stone (published in a joint judgment of Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ) at [32] defined the ambit of their judgement in the following terms (omitting footnotes):

Under a subheading, “The requirements of equitable estoppel” the majority, in paragraphs [36]-[41] of their judgment, summarised the elements that must be satisfied on a claim to relief based upon an equitable estoppel which arises by reason of encouragement from a promise, here extracted (omitting footnotes):

By reference to the undersigned PDA John (on behalf of the defendant) represented to the plaintiff (by way of a clear and unequivocal promise) that if the plaintiff assumed responsibility for the mortgage debt secured against the MacDonald Street units and management of the units, transferred the Yerrick Road and Wangee Road properties to the children of John and the defendant and ceded to the defendant his share in the Cessnock Motel property (as well as property and operations in Cyprus), and allowed the defendant to appropriate all net proceeds of sale, he would be entitled to keep ownership of the MacDonald Street units in dissolution of any partnership between him and the defendant.

The plaintiff relied upon the defendant’s promise by acting in the general manner that would have been expected, by performing his part of the bargain proposed on behalf of the defendant, giving up property rights and assuming financial obligations that he would not have given up or assumed in the absence of the promise made by John on behalf of the defendant.

The consequence of the plaintiff’s reliance upon the defendant’s promise is that he will (continue to) suffer detriment if the promise is not fulfilled in that, having assumed responsibility for debt, transferred property to which he otherwise had an entitlement and allowed the defendant to appropriate all net proceeds of sale of property held in co-ownership, he has borne the burden, without realising the benefit, of the bargain he was offered, and upon which he had reasonably relied.

The defendant’s promise, made through the agency of John, was expected, and intended, to be relied upon. His reliance upon the promise was reasonable.

Although it may not be necessary to explore the motivation of the defendant (or John) in making a promise to the plaintiff that he could “keep ownership” of the MacDonald Street units (subject to the current mortgage debt on the property) an inference able to be objectively drawn from the course of events is that the promise was made, by reference to the unsigned PDA, for the purpose of:

The defendant’s promise was expected to be relied upon by the plaintiff. It was a promise, made deliberately and in a calculated manner, designed to bring the business relationship of the defendant (and John) with the plaintiff to an end.

If there was an element of compromise in the bargain, adjusting the parties’ respective rights so as to bring their business relationship(s) to an end without a formal process of accounting on some basis or another, the defendant’s promise was nonetheless a promise, expected to be relied upon and reasonably relied upon by the plaintiff to his detriment. Despite their protestations to the contrary, John and the defendant were not primarily motivated by a charitable desire to assist the plaintiff. In return for full ownership of the MacDonald Street units, he gave up a one half share of the proceeds of sale of the Wangee Road and Yerrick Road properties and assumed sole responsibility for an ANZ Bank debt that included debt formerly secured against the Wangee Road and Yerrick Road properties.

In my opinion, conscience requires that the defendant redress the detriment suffered by the plaintiff by submitting to orders of the Court declaring that she holds her interest in the MacDonald Street units on trust for the plaintiff and consequential orders either vesting that interest in the plaintiff or requiring the defendant to transfer it to the plaintiff.

In light of my finding that the plaintiff has established his estoppel case it is not necessary to give detailed consideration to the plaintiff’s contention that, should the Court find (as I have found) that there was no “global partnership”, or the like, governing the relationship between the plaintiff and the defendant, such, if any, claims as might have been made by the defendant (or, the plaintiff submits, John) would be “statute barred” (more particularly, extinguished) by operation of sections 14 and 63 of the Limitation Act 1969 NSW.

Suffice to say, the defendant’s claims rely upon her allegation of a partnership and do not, as pleaded, include an alternative claim in debt. Neither the defendant nor John has advanced a case in debt. Had they done so in respect of causes of action all of which appear to have accrued (if at all) six years before the commencement of these proceedings (on the facts of the case, no later than 2011) their claims would have been bound to fail.

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and costs, I propose to make orders to the following effect in disposition of these proceedings:

I invite the parties to consider whether an order for the transfer of the defendant’s interest in the MacDonald Street units should be made rather than a vesting order; whether interlocutory orders or undertakings need to be reviewed in light of disposition of the cross claim; and whether any (and, if so, what) formal orders are necessary to dispose of ancillary or residual business remaining to be done in the principal proceedings.