Kyriacou v Makis [2021] NSWSC 60 | Case summary

Kyriacou v Makis [2021] NSWSC 60 | Case summary | Zoe

Judgment

The plaintiff in these proceedings is Mr Kyriacos Kyriacou, who is employed as a kitchen cabinet maker.
The first defendant, and now the only active defendant, is Ms Andrea Makis. She is a primary school teacher.
It will be convenient to note the other significant witnesses.
Mr Ioannis Papatheodotou is the former husband of Ms Makis.
Ms Maria Sinanis is a solicitor who acted for Mr Kyriacou and Ms Makis on a number of relevant real estate transactions, and provided certain legal services to Mr Kyriacou.
The parties and the witnesses are members of the Australian Greek Cypriot community. Mr Kyriacou and Ms Makis came from the same village in Cyprus before they immigrated to Australia.
For many years, Mr Kyriacou, Ms Makis and Mr Papatheodotou were very close friends and invested together in real property and business investments in New South Wales and Cyprus. It is clear that, until the falling out that occurred between Mr Kyriacou and Ms Makis, they conducted their affairs with a high level of mutual trust guided, as will be seen, by the business acumen and experience of Mr Papatheodotou.
Mr Kyriacou's primary objective in these proceedings is to obtain an order for specific performance of an agreement that he claims was made by Mr Papatheodotou on behalf of Ms Makis with Mr Kyriacou in about June 2012 to split the investments held by Mr Kyriacou and Ms Makis between them so that their investments would thereafter be separate. Although Mr Kyriacou denies that the relationship between the group was one of partnership, the document prepared by Mr Papatheodotou and given to Mr Kyriacou was called a "Partnership Dissolution Agreement" (the PDA). I will set out the material terms of the PDA below. The PDA provided, in broadly expressed language, how the investments held and liabilities owed by Mr Kyriacou and Ms Makis would be divided.
However, it was not signed by either party. Mr Kyriacou contends that the PDA is enforceable notwithstanding that it was not signed. In the manner that I will elaborate below, Mr Kyriacou contends that his obligations have been performed, but Ms Makis has refused to perform hers.
The subject of the allegedly unperformed obligation of Ms Makis under the PDA is the transfer of Ms Makis' half interest in a block of eight home units at an address in Sydney (which the parties have called the "MacDonald Street Units") to Mr Kyriacou, subject to an existing mortgage to the Australia and New Zealand Banking Group Ltd (the ANZ).

[3]

Amended Statement of Claim

It will be appropriate to consider the relevant aspects of Mr Kyriacou's amended statement of claim (the ASOC) filed on 14 June 2019.
The primary relief sought by Mr Kyriacou are declarations claimed in prayers 1 and 2 that the PDA has been partly performed and is valid and binding, and that Ms Makis holds her interest in the MacDonald Street Units on trust for Mr Kyriacou.
By prayer 5, Mr Kyriacou seeks an order that the PDA be specifically performed, and by prayer 6 seeks orders and directions for the implementation of order 5.
By prayers 3 and 4, Mr Kyriacou seeks declarations that charges granted by Ms Makis to the persons named as the second and third defendants were breaches of the PDA or breaches of trust.
Mr Kyriacou seeks by prayers 7 and 8 damages for breach of the PDA or for breach of trust in the alternative.
Finally, as against Ms Makis, Mr Kyriacou seeks by prayer 9 an order that Ms Makis indemnify him from any liability in respect of a loan made by Bank of Sydney jointly to Mr Kyriacou, Ms Makis and the third defendant, who is named Sam Pambris. That is called the "Commercial Loan Facility" in the ASOC.
It is not necessary to deal with Mr Kyriacou's claims against the second and third defendants. Those claims were made in prayers 12 to 15 of the ASOC and concerned the priority of charges claimed by those defendants over Ms Makis' share in the MacDonald Street Units and the removal of caveats lodged to protect those unregistered interests.
By orders made by the Court on 15 September 2020, by consent of the relevant parties, Mr Kyriacou's claims against the second and third defendants were discontinued on certain terms.
Mr Kyriacou pleaded a series of agreements made between him and Ms Makis between 2004 and 2007 for the purchase of investments in real property and shares. Those investments were the MacDonald Street Units, a home unit at Yerrick Road in Lakemba, a home unit at Wangee Road in Lakemba, a one third interest in a motel at Cessnock, various property and shares located in Cyprus, and a commercial venture between Mr Kyriacou, Ms Makis and Sam Pambris "relating to property investment and property development", which Mr Kyriacou called 'the Pambris Venture'.
Mr Kyriacou set out further details concerning the various investments in pars 4 to 9 of the ASOC. As to the Pambris Venture, Mr Kyriacou alleged in par 9 that it comprised an agreement between the three investors to enter into the Commercial Loan Facility in order to pursue property investment and development activities in relation to a property at Canterbury in Sydney in which Mr Pambris had an interest.
Mr Kyriacou then alleged the making and the terms of the PDA in pars 10 and 11 of the ASOC. It will be convenient to defer consideration of the terms of the PDA until I set them out below.
Mr Kyriacou alleged that the agreement "was partly oral and partly in writing, [or] alternatively it was oral and evidenced in writing, in a document described as "Partnership Dissolution Agreement a copy of which was provided" to Mr Kyriacou by or on behalf of Ms Makis.
Then, in par 12, Mr Kyriacou alleged that, relying upon and in performance of the terms of the PDA, on various dates, he transferred his interest in the Yerrick Road unit, the Wangee Road unit and the Cessnock Motel at the direction of Ms Makis, and that he "has complied with all requests" of Ms Makis to facilitate transfer of the Cyprus investments and remains ready willing and able to do such further things as may be necessary. Finally, Mr Kyriacou alleged that from 1 July 2012 he has assumed liability for the mortgage due in respect of the MacDonald Street Units and received the rents thereof.
Mr Kyriacou then alleged in par 13, that from 1 July 2012 Ms Makis has held her interest in the MacDonald Street Units on trust for Mr Kyriacou.
Mr Kyriacou then alleged certain requests made on behalf of Ms Makis to defer the transfer of her interest in the MacDonald Street Units to Mr Kyriacou, as well as refusals to do so.
Then, in pars 17 to 21, Mr Kyriacou made a further claim, that in performance of the matters alleged in par 12 of the ASOC, being his performance of the alleged PDA, Mr Kyriacou "assumed that he and [Ms Makis] had concluded and were bound by the terms of the Partnership Dissolution Agreement and that they would each distribute the assets in accordance with thereof": par 17. He then alleged in par 18 that Ms Makis induced him to hold the assumption, and that he suffered a detriment by reason of Ms Makis' failure to transfer her interest in the MacDonald Street Units to him: pars 18 and 19. Mr Kyriacou alleged in par 20 that "it would be unconscionable, and would occasion detriment to [Mr Kyriacou] for [Ms Makis] to deny the truth of [Mr Kyriacou's] assumption as to his entitlement to receive [Ms Makis'] interest in the MacDonald Street Units". Finally, Mr Kyriacou alleged in par 21 that Ms Makis "is liable in equity to reverse the detriment occasioned under paragraph 19 above to [Mr Kyriacou]".
It is not necessary to address the balance of the allegations in the ASOC, which principally concerned the caveats lodged to protect charges claimed to have been granted by Ms Makis over her interest in the MacDonald Street Units.

[6]

The Partnership Issue

Early in the hearing, it appeared to me that the Court may have difficulty completing the hearing in the four days that had been allowed. That was because of the form of much of the evidence and the time that was being taken to deal with numerous objections.
In essence, Mr Kyriacou and Ms Makis had engaged in mutual investments over a period commencing in around 1997, and the parties asserted that many events and transactions were relevant to the determination of the present dispute. A considerable amount of evidence concerning relevant facts and transactions was given in the form of bare assertions or conclusions, unsupported by relevant documentation.
Furthermore, Ms Makis had not filed any cross claim to support positive aspects of her case against Mr Kyriacou.
It became apparent during the course of the opening by Ms Makis' counsel that her case was, in effect, that she was not bound by the PDA, but the relationship between Ms Makis and Mr Kyriacou was one of partnership, and the proper course to be taken was for the partnership to be dissolved and a partnership accounting take place.
Counsel for Ms Makis said: [1] So there was a business simultaneously going on between the plaintiff and the defendant in Cyprus and the plaintiff and the defendant here in Australia and it's these transactions that we say form the origin of the partnership, and my learned friend denies the partnership. I think this case will require your Honour to make a determination at some point whether or not there was a partnership. I say there was a partnership because the activities of the plaintiff and the defendant satisfied the requirement under the Act that a business is carried on in common with a view to profit, both the business in Cyprus and the business here in Australia of property purchase an investment. If your Honour accepts that there was a partnership that will have further consequences of which no doubt I'll take your Honour to at the appropriate time…
Later, counsel said: [2] Thank you, your Honour. If I could also raise one further issue about something your Honour raised with me before the lunch adjournment. Your Honour raised this issue of an accounting. I've received instructions over the lunch adjournment that if your Honour would entertain such an application I will bring it, that is for an accounting of the partnership which presumably will also include a dissolution order if that's necessary. I'm not sure if your Honour would entertain that, that it would need to be made by cross-claim. It may even be able to be made by notice of motion. Just seeking an order in these proceedings.
I made a response, without dealing with the matter, that if Mr Kyriacou failed in his claim that the PDA was binding and enforceable, Ms Makis may have a right to an accounting, but the accounting was not something that would be litigated at the hearing. I said further that, subject to submissions that may be made on behalf of Mr Kyriacou, I might be open at the end of the hearing to make an order for an accounting.
The Court was told by counsel for Mr Kyriacou that, at an earlier stage of the proceedings, an allowance had been made for Ms Makis to file a cross claim. I note that an order was made by consent on 7 March 2019 that Ms Makis was to provide a draft cross claim to Mr Kyriacou on or before 23 April 2019, with supplementary orders to deal with the filing of the cross claim depending upon whether or not consent to its filing was given.
Ms Makis did not ultimately file a cross claim in which she sought a declaration as to the existence of a partnership, dissolution of the partnership, and an order for an accounting.
The failure by Ms Makis to file a cross claim will be a significant issue in these proceedings if Mr Kyriacou fails to establish the validity and enforceability of the PDA. In that case, the entitlement of the parties to the mutually owned investments will remain undecided. The fact is that certain of the investments have been sold and the proceeds applied in particular ways. The ultimate application of the proceeds of sale has not generally been disclosed by the evidence. The parties retain ownership of the MacDonald Street Units, which is subject to a substantial mortgage. The proper means of dealing with the completion of the investment arrangements between Mr Kyriacou and Ms Makis will have to be addressed.

[8]

Credibility of Witnesses

It is necessary to deal with the parties' contentions concerning the credibility of the evidence that the witnesses have given.
I accept the submission of counsel for Ms Makis that the present is a case where the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 apply. His Honour said: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case…
In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, Hammerschlag J observed at [94]: Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
I have already noted that the dispute arises out of a relatively complicated series of investments made over a period starting from about 1997. It is plain that there were innumerable discussions between relevant persons over that period. It is inevitable that the evidence given concerning the effect of those discussions will be distillations that are effectively statements of the witness' belief or understanding as to the collective effect of conversations.
This is an obvious case where the passage of time and self-interest will distort the parties' recollections.
A significant proportion of the relevant facts concerns commercial activities such as transactions involving the borrowing and payment of money. Those ought to have been evidenced in writing, given that this is not a case where the parties claim that substantial cash transactions were involved. There was a dearth of conventional transactional evidence, including bank records, even in relation to primary transactions.
The Court was therefore asked to accept the witnesses' competing assertions as to the effect of many transactions in the absence of supporting documentary evidence.
This is a case where the guidance of Gleeson CJ and Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22 is, with respect, salutary (footnotes omitted): Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

[9]

Mr Kyriacou

Insofar as his demeanour was concerned, Mr Kyriacou gave his evidence in a satisfactory way. He appeared to be responding to questions asked of him in cross-examination candidly, he gave relatively immediate answers, and he did not appear to prevaricate.
However, a significant factor in the credibility of Mr Kyriacou's evidence was that he had substantially relied upon the activities of Mr Papatheodotou to organise investments, transactions, records, banking, borrowing and accounting in respect of the various investments. Mr Papatheodotou was, until he lost his employment in 2011, a senior employee with Laiki Bank and then the Bank of Cyprus. Mr Papatheodotou generally found suitable subjects for investment and negotiated the terms of purchase. He facilitated the necessary borrowing, which generally was obtained from Laiki Bank until, following the loss of his employment and the loss of his influence, the mortgage over the MacDonald Street Units was transferred to the ANZ.
Mr Papatheodotou's significance to the parties' investments appears from the observation made by Mr Kyriacou in cross-examination, [8] in response to a question as to why, between June 2012 and September 2016, he did not speak to Ms Makis about the PDA: "Mr Papatheodotou was running the show".
Although this observation can only be made as one of impression, it was my impression that Mr Kyriacou had formulated in his mind his own view as to the events that had occurred and he insisted upon the occurrence of those events when giving his evidence. The version of events that emerged was essentially in Mr Kyriacou's own interests and often did not conform to events that could objectively be proved.
For example, Mr Kyriacou asserted in par 35 of his first affidavit that, if there was a shortfall in funding for the purchase of an investment property as the amount able to be borrowed was less than the price, the balance was provided by Ms Makis' "own savings". However, Mr Kyriacou said in cross-examination [9] that shortfalls were funded by foreign currency dealings by Mr Papatheodotou.
I will refer later to a draft contract of sale prepared by Ms Sinanis for the sale of Ms Makis' interest in the MacDonald Street Units to Mr Kyriacou for a price of $825,000. Mr Kyriacou first denied and then was forced to admit that he collected the draft contract from Ms Sinanis. [10]
The investment relationship between Mr Kyriacou and Ms Makis, which was largely mediated through Mr Papatheodotou, was a highly informal one. As stated, Mr Kyriacou largely left arrangements to Mr Papatheodotou. Consequently, it is not surprising that Mr Kyriacou did not, in giving his evidence, have an entirely reliable recollection of what was said and done.
Mr Kyriacou acknowledged that he travelled within Australia and overseas many times with Ms Makis and Mr Papatheodotou in circumstances where they paid his costs and even on occasion gave him pocket money. [11]
For many years, Mr Kyriacou acknowledged, Ms Makis and Mr Papatheodotou paid him weekly sums, which may have initially been $50 and ended up at $350, or perhaps $250 according to Mr Kyriacou. [12] The evidence did not disclose whether the source of these funds was the parties' investments, or whether it was only largesse on the part of Ms Makis and Mr Papatheodotou.
Mr Papatheodotou's evidence was that Mr Kyriacou had never made any contribution to the funding of any of the investments that he entered into with Ms Makis.
Mr Kyriacou's evidence was that, out of his divorce settlement with his ex-wife, in late 2002 or early 2003, he gave Mr Papatheodotou a bank cheque for an amount that "was certainly more than $200,000 and I believe less than $250,000" as his contribution for future investments. [13]
Mr Papatheodotou entirely denied this evidence, saying: "I have no recollection of the receipt of a cheque for the money referred to… and note the Plaintiff has not supplied a copy of the relevant cheque or bank statement…" [14]
Mr Kyriacou acknowledged in cross-examination that $182,213.93 of his money was used to purchase a property in Matraville in late 2002 or early 2003. [15]
Mr Papatheodotou did offer the concession, in his evidence in response to Mr Kyriacou's claim concerning his contribution of capital: "I may have deposited the sale proceeds in an account in the name of Ms Makis and the Plaintiff for later investment purposes". It is not clear whether this concession refers to the sale of the Matraville property.
Nonetheless, it is a significant factor in this case that, while Mr Kyriacou may have made an initial contribution of capital of an indeterminate amount into the series of investments he made with Ms Makis, he did not make any separate contributions after that date save for some payments in relation to the MacDonald Street Units, which will be discussed below.

[10]

Ms Makis and Mr Papatheodotou

It is necessary, for the purpose of discussing the credibility of the evidence given by Ms Makis and Mr Papatheodotou, to interpose briefly a consideration of the evidence relating to what Ms Makis alleged were partnership debts and how the proceeds of sale of the properties that were sold with Mr Kyriacou's agreement were applied.
It is a major plank in Ms Makis' case that she, from her own funds, and borrowings in her name arranged by Mr Papatheodotou, made substantial contributions over the years to shortfalls in funds for the investments that were not matched by Mr Kyriacou. These shortfalls arose where the investment properties were negatively geared, and where income was not sufficient to pay all outgoings.
Apart from Ms Makis' denial that she was bound by the PDA, it is clear that the primary source of her resistance to the Court ordering her to transfer her interest in the MacDonald Street Units to Mr Kyriacou is that such an order would free him from the need to account for his fair share of all of the shortfall in funds over the years.
Ms Makis insisted in cross-examination that she was meeting all of the expenses not covered by earnings on the investments. [16] But the evidence given by both Ms Makis and Mr Papatheodotou was almost entirely devoid of detail or documentary support in relation to amounts of shortfalls, how they had been funded, and how they had been repaid from the sale of the investment properties that were sold.
This is particularly significant in respect of the proceeds of sale of the Yerrick Road unit, the Wangee Road unit and the sale of the parties' joint one third share in the Cessnock Motel. Although Mr Kyriacou signed the documents necessary for these sales to take place, and although they were consistent with the terms of the PDA, Mr Kyriacou did not receive any of the proceeds of sale, save for an amount of $98,000 from the sale of the Cessnock Motel (which will be considered further below).
Mr Kyriacou's lawyers made a concerted effort, by seeking to obtain bank records on subpoena, to trace where the proceeds of sale that were not received by Mr Kyriacou went. Their success was limited. Generally, they established on the balance of probabilities that, even where proceeds of sale were initially paid into accounts in the joint names of Mr Kyriacou and Ms Makis, most of the funds were paid out to accounts in the name of Ms Makis.
The evidence did not establish in any clear or reliable way that the proceeds of sale were used to repay lenders who had funded aspects of the investments held by Mr Kyriacou and Ms Makis, in circumstances where Mr Kyriacou was responsible for repayment of a share of the debts.
This is a circumstance that, in my view, is relevant to the issue of the credibility of the evidence given by Ms Makis and Mr Papatheodotou.
Both witnesses gave their evidence in a generally satisfactory way in respect of their demeanour and their response to questions in cross-examination.
Mr Papatheodotou gave his evidence of conversations with Mr Kyriacou in a more detailed and formally correct way than Mr Kyriacou's evidence.
The evidence of neither witness was significantly undermined in cross-examination.
However, both witnesses claimed that it was legitimate for almost all of the proceeds of sale of the investments that were sold to be paid to Ms Makis because it was necessary to defray what they called "partnership" debts. But neither witness made any real attempt to explain how those debts had arisen or to establish that the money was not used for Ms Makis' own purposes and instead was applied in repayment of partnership debts. As Ms Makis and Mr Papatheodotou between them controlled the application of the funds, they ought to have been in the position to have given at least detailed descriptive evidence of how the funds were applied. They did not attempt to do so.
When it was put to Ms Makis in cross-examination, on the basis of the bank statements that were in evidence, that she had "created a maze of transactions to disguise the fact that you've obtained the sale proceeds", Ms Makis' response was: "This is going to be shown at the account balancing" [17] . The evidence of Ms Makis and Mr Papatheodotou did not make clear what would be involved in the proposed accounting.
Ms Makis included in her evidence [18] an unquantified list of 20 types of expense, including "personal holidays", "$600 for his divorce costs", "the purchase of a car for his daughter", "weekly deposits to his personal account from 2000 to 2010", "the purchasing of shares in Cyprus", and "foreign currency investments in Cyprus". These, and the other items listed, suggest that Ms Makis' counterclaim against Mr Kyriacou, though unpleaded, is that he must give credit for all of the money that he received during the whole course of his dealings with Ms Makis and Mr Papatheodotou, as if all of the dealings were part of a single partnership.
If Ms Makis' claim that the parties made the various real property investments the subject of these proceedings in partnership is correct, then in due course Ms Makis will be required to account strictly for the proceeds of sale of the partnership properties that were paid to her account. Time will tell whether she is able to do this. In my view, the issues raised in these proceedings called for a clear explanation by Ms Makis as to what was ultimately done with the proceeds of sale of the properties. That would have enabled the Court to judge whether, inconsistently with Mr Kyriacou's case, properties were sold in order to pay alleged partnership debts. Alternatively, did Ms Makis enjoy the proceeds of sale personally, in a manner that would be more consistent with the terms of the PDA?
Apart from identifying an amount that was received by Mr Kyriacou, Ms Makis went no further than showing that the proceeds of sale were initially paid into joint accounts. The Court was left with substantial uncertainty and grounds for doubting that the proceeds of sale were applied in the repayment of alleged partnership debts, rather than the proceeds of sale being retained by Ms Makis as part of a 'self-help' attempt to reverse the benefits received by Mr Kyriacou from the various ventures, which Ms Makis' claims were enjoyed without a fair contribution from Mr Kyriacou.
Consequently, I consider that the credibility of the evidence given by Ms Makis and Mr Papatheodotou is also suspect.
This is not a case, in my view, where there is likely to be any advantage to the Court in the resolution of the dispute in attempting to determine whether one witness' version of conversations with the others ought to be preferred on the basis that the particular witness is a witness of credit whose uncorroborated evidence should be accepted to prove the particular fact.
The preferable, and indeed only viable, course is for the Court to have regard to the objective evidence, particularly the available documents, and to use that approach as the foundation for resolving the questions that must be answered.

[12]

Cyprus investments

There was also considerable evidence concerning investments made by Mr Kyriacou and Ms Makis in Cyprus, both in their own names and through a company that was ultimately called Ozico Trading Limited, being a company registered in Cyprus. For some years, Mr Kyriacou and Ms Makis had carried on a trading business by exporting products from Australia for sale in Cyprus. To aid in the business, warehouse units were acquired in Cyprus. Shares in Cypriot companies were acquired. Mr Kyriacou said that he and Ms Makis set up some foreign currency facilities with the Bank of Cyprus. Apparently the parties' Cyprus business ventures were funded by loans made by the Marfin Laiki Bank in Cyprus.
The evidence given by both parties concerning the Cypriot venture was almost entirely indefinite as to the value of the assets acquired, the specific mode of acquisition, the amounts borrowed, and the financial affairs of the venture.
It seems that the parties accept that the value of the Cypriot venture collapsed as a result of the banking crisis that took place in Cyprus associated with the Global Financial Crisis. The business in Cyprus closed in 2010 or 2011. By 2012, lenders had sold available assets. Mr Kyriacou gave some evidence of having received correspondence from the Marfin Laiki Bank in Cyprus, which I infer concerned the making of demands in relation to unpaid loans (although the detail of the evidence given by Mr Kyriacou was rejected because it was not in proper form).
The claims that Mr Kyriacou made in his evidence concerning the Cyprus venture were not substantiated by documents capable of proving the claims. In her 20 January 2019 affidavit, Ms Makis denied many of the assertions made by Mr Kyriacou concerning her involvement in the venture.
The only finding of fact that can be made on the available evidence is that, by mid-2012, whatever the assets of the Cypriot venture were, they were unlikely to have any positive value. On the contrary, it is possible that one or more Cypriot banks have outstanding claims against the parties in respect of unpaid debts.

[15]

Mr Papatheodotou's email to Ms Sinanis

On 7 May 2012, Mr Papatheodotou sent an email in the following terms to Ms Sinanis: [22] Hi Maria Please make the following transfers/contract of sales (the minimum required): 1) [Yerrick Road unit] Sold to [Ms Makis' and Mr Papatheodotou's son] for $235,000 - settlement 20/6/2012 2) [Wangee Road unit] Sold to [Ms Makis' and Mr Papatheodotou's daughter] for $235,000 - settlement 30/5/2012 3) [Gardeners Road unit] Sold to [Ms Makis' and Mr Papatheodotou's daughter] for $400,000 - settlement 30/5/2012 4) [MacDonald Street Units] Ms Makis is selling her share 50% of each unit to Mr Kyriacos Kyriacou for $117,500 - total price $940,000 Settlement date for this deal is 1/7/2015 5) Mr Kyriacos Kyriacou is selling his 1/6 share of [the Cessnock Motel] to Ms Makis for the price of $235,000 with settlement day 1/7/2015. …
It must be noted that there was no evidence about the circumstances in which the property that I have described in the extract from the 7 May 2012 email as the Gardeners Road unit was acquired, or by whom it was acquired. There was no evidence of any discussion between Mr Kyriacou and Mr Papatheodotou concerning its sale. There was no evidence about why it was sold, why the price was $400,000, or what was done with the proceeds of sale, if the sale took place.
It is not possible for the Court to attribute any significance at all to this property or consider its relevance for the purposes of the present dispute.
It is more relevant to note that item 4 of the email provided for Mr Kyriacou to purchase Ms Makis' share in the eight units that comprised the MacDonald Street Units for $117,500 each, giving a total price of $940,000. As will be seen, this is inconsistent with the equivalent term in the PDA.
Item 5 required Ms Makis to purchase Mr Kyriacou's half of the one third interest in the Cessnock Motel for $235,000. That is also inconsistent with the PDA.
Neither the 7 May 2012 email, nor the evidence generally, contains any explanation of the reasons for the particular prices stipulated in items 4 or 5, or refers to any discussion between Mr Kyriacou and Mr Papatheodotou on that subject.
The evidence does establish that Mr Kyriacou and Mr Papatheodotou agreed to the prices in items 1 and 2 for the sale of the Yerrick Road and Wangee Road units.
While the sale of those two units was to be immediate, the sale of the interests in the MacDonald Street Units and the Cessnock Motel were to be deferred until 1 July 2015.
It is to be noted that the 7 May 2012 email made no reference to the transfer of any assets in Cyprus or to the responsibility for any loans owed by the parties in respect of the business that had been carried out there. Nor did it refer to Ms Makis taking over responsibility for the Commercial Loan Facility.
Mr Papatheodotou initially said in cross-examination that he had instructions from Ms Makis to send the 7 May 2012 email before he gave those instructions to Ms Sinanis, [23] but he later changed that evidence to say that he only had the specific authority of Ms Makis in relation to items 1 to 3. [24]
An important aspect of the 7 May 2012 email is that it contains terms for a division of the assets owned by Mr Kyriacou and Ms Makis that will be seen to be different to the terms in the PDA.

[16]

Changes in management of MacDonald Street Units

There were in evidence letters and forms signed by both Mr Kyriacou and Ms Makis between 9 May 2012 and 15 June 2012 in which they jointly gave instructions to the managing agent of the MacDonald Road Units, the ANZ as mortgagor, Energy Australia, Sydney Water, the Council, and GIO as insurer, to change their records to record Mr Kyriacou's home address, where he lived with his mother, as the address for the sending of accounts and other notices relevant to the MacDonald Street Units. [25]
Importantly, the 25 May 2012 letter of instructions to the managing agent instructed that, until further notice, the rental income was to be credited to an identified account at the ANZ solely in the name of Mr Kyriacou (instead of the former account in the joint names of Mr Kyriacou and Ms Makis). [26]
The 15 June 2012 joint letter of instructions to the ANZ required, among other things, for loan instalments to be paid out of the ANZ bank account that was in the sole name of Mr Kyriacou. [27]
Mr Kyriacou said of these letters simply that the letters were prepared by Mr Papatheodotou and Ms Makis and he countersigned them and they were sent to the addressees. [28]
Mr Papatheodotou responded to this evidence [29] by giving detailed evidence of a conversation that he says that he had with Mr Kyriacou to the effect that the reason for the documents being sent out was that Mr Kyriacou insisted upon changing the current managing agent on the basis that Mr Kyriacou could no longer deal with him. Mr Papatheodotou said that he resisted the suggestion because the agent was the son of Sam Pambris, but Mr Kyriacou was persistent and Mr Papatheodotou ultimately agreed. Ms Makis gave evidence to similar effect. [30] Ms Makis said: "The agent he chose was Bruno Sylvia, of Ralph First National, Lakemba. In order to effect this, I signed the letters referred to".
Mr Kyriacou made the bare assertion in response that the replacement of the managing agent was because he had agreed with Ms Makis that the MacDonald Street Units would be transferred to him. [31]
It is difficult for the Court to resolve this dispute on the basis of the evidence before it. It may be noted, however, that the 25 May 2012 joint letter of instruction to the agent is addressed "Dear Evan". Evan was the name of the original managing agent, not the replacement agent referred to by Ms Makis. This evidence is therefore inconsistent with the claim made by Ms Makis and Mr Papatheodotou that the reason for the letters being sent was only that Mr Kyriacou wanted to change the managing agent.

[17]

The Partnership Dissolution Agreement

Mr Kyriacou's evidence was that Mr Papatheodotou gave him the PDA in around June 2012, at which time Mr Papatheodotou said to him: "Here is the contract that shows how we agree to split the properties…" [32] Mr Kyriacou said that he read the document and told Mr Papatheodotou that he agreed. He asked whether Ms Sinanis had done all the contracts and said that he would see her to sign.
Ms Sinanis' evidence was that Mr Papatheodotou attended her in her office "shortly prior to 7 May 2012" without an appointment and gave her the PDA [33] . Ms Sinanis said Mr Papatheodotou said to her, among other things: This is how Kyriacos and Androulla are going to split the properties. Kyriacos is to get the block of units and Androulla is going to get the other properties. I will send you an email with the order in which it will occur so you can prepare the documents.
It will now be appropriate to consider the relevant aspects of the terms of the PDA. [34]
It is to be noted that Mr Papatheodotou gave evidence that this was a draft and that there were a number of other drafts of the document that he prepared. He said that there were four or five different versions. [35] The evidence included one such draft. [36] This draft only provided for Mr Kyriacou keeping ownership of the MacDonald Street Units and Ms Makis keeping ownership of the Cyprus investments. It did not deal with the Yerrick Road or Wangee Road units or the one third interest in the Cessnock Motel.
The most significant aspect of the PDA is that it was not signed by either party to it, being Mr Kyriacou and Ms Makis.
The absence of signatures was made more significant by reason of the fact that the PDA commences with the following words: By signing this agreement ("Agreement") the Partners [Mr Kyriacou and Ms Makis] henceforth known as "Partnership" acknowledge and consent to dissolving said Partnership on the 30th day of June Two Thousand and Twelve.
After the names of the supposed partners were set out, the PDA then stated: The previously listed Partners undersign this Agreement and acknowledge and agree to the following provisions…"
At the end of the PDA, the document states: By signing below, the Partners, [Mr Kyriacou and Ms Makis] agree to dissolve partnership between them, freely and willingly, according to the terms listed above.
The document provided for Ms Sinanis to be the witness.
In relation to the distribution of assets and the allocation of liabilities and debts, the PDA stated: Kyriacos Kyriacou Kyriacos will keep ownership of the block of eight units [being the MacDonald Street Units] with the current debt on the property with ANZ bank.
It is notable that, unlike the 7 May 2012 email, the PDA did not provide for any price either for the transfer of Ms Makis' interest in the MacDonald Street Units to Mr Kyriacou or, as it will be seen, the sale of Mr Kyriacou's 1/6 interest in the Cessnock Motel to Ms Makis. That would mean that, if the PDA were binding, there would be a straight swap, without any attention being given to the possible disparity in the value of the property interests being exchanged.
The PDA then provided: Andrea Makis Andrea will 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 Kyriacos Kyriacou in the portfolio held with Marin Laiki Bank in Cyprus and all the joint accounts held in Cyprus with Marfin Laiki Bank in Cyprus. Andrea will also keep the shares of the partners in the [Cessnock Motel] with the current loan with Beirut Hellenic Bank, Marrickville Branch, in the names of Andrea Makis, Kyriacos Kyriacou and Sam Pambris currently at $981,421.41.
As noted above, the PDA provided for the transfer of assets and liabilities in the Cyprus venture to Ms Makis, while the 7 May 2012 email made no mention of this subject.
Not only is there no indication of the financial effect of such a transaction in the PDA, there is nothing in the evidence that enables the Court to make an objective judgment as to the nature of that financial effect.
All that can be said is that there are good grounds for suspicion that the financial effect would be to transfer a net debt from Mr Kyriacou to Ms Makis, although the evidence does not permit a positive finding to that effect.
It is at least inherently improbable that Ms Makis would agree to such a transaction without careful thought as to the consequences.
As mentioned, and unlike the 7 May 2012 email, the PDA does not deal with the cost of the transfer of Mr Kyriacou's interest in the Cessnock Motel to Ms Makis.
As I understand it, the reference to the current loan of $981,421.41 is to the Commercial Loan Facility as defined in prayer 9 of the ASOC that related to the Pambris Venture.
The evidence is virtually devoid of explanation about that venture. Nothing that is in the evidence or the submissions made on behalf of Mr Kyriacou supports any explanation that could give the Court an understanding of any commercial reason why Ms Makis would agree to take over Mr Kyriacou's liability, whatever it may have been, under the Commercial Loan Facility.
Returning to the terms of the PDA, it then states: Other Property [Yerrick Road unit] would be sold to [Ms Makis' and Mr Papatheodotou's son] for $235,000. [Wangee Road unit] would be sold to [Ms Makis' and Mr Papatheodotou's daughter] for $235,000. Both Properties would be sold on 1 July 2012.
The PDA makes no provision for what would be done with the proceeds of sale of the two units. This aspect of the transaction is not dealt with under the heading "Andrea Makis", so, from the structure of the PDA, it does not appear that it was contemplated that Ms Makis would enjoy the proceeds of sale in her personal capacity.
While the evidence establishes that the transfers took place, and Mr Kyriacou did not receive any part of the proceeds of sale, and the net proceeds of sale were ultimately received by Ms Makis, it does not necessarily follow that the proceeds were intended to be for Ms Makis' personal benefit, or that they were applied for that purpose.
As I have explained above, in the course of considering the credibility of the evidence given by the witnesses, there is no objective evidence that establishes how the proceeds of sale of the two units were ultimately disbursed. Ms Makis' and Mr Papatheodotou's evidence contains assertions that the proceeds of sale were applied in either repaying debts or reimbursing Ms Makis for liabilities disproportionately paid by her. The evidence does not permit any sound findings on this subject.
It can only be said that the structure of the PDA is consistent with Mr Papatheodotou's evidence that the two units had to be sold to meet liabilities of one sort or another.
Furthermore, insofar as Mr Kyriacou relies upon his participation in the sale of the two units as being part performance of an agreement evidenced by the PDA, the total absence of evidence as to whether the proceeds of sale were applied for the benefit of Ms Makis, or alternatively were applied to pay or reimburse debts of Mr Kyriacou and Ms Makis, has the effect of undermining Mr Kyriacou's argument that his participation in the transfer of the two units was an act of part performance. I will return to this issue below.
The PDA also contained terms dealing with the tax obligations of the parties, releases, indemnification, the determination of disputes, severability of unenforceable terms, undertakings to sign documents necessary to give effect to the agreement, and as to choice of law and jurisdiction.

[18]

Did Ms Makis authorise the Partnership Dissolution Agreement?

Based upon Mr Kyriacou's own evidence, he does not appear ever to have attributed any significance to the fact that Ms Makis had not signed the PDA.
As mentioned above, Mr Kyriacou admitted in cross-examination that he never spoke to Ms Makis about the terms of the PDA or whether she had agreed to be bound by it. [37]
Mr Kyriacou also accepted that he renegotiated the ANZ mortgage over the MacDonald Street Units with Ms Makis on two occasions in July 2015 and September 2016, and thus allowed Ms Makis to reaffirm her personal liability to the ANZ in respect of the loan, without saying to her that he considered that Ms Makis held her interest in the MacDonald Street Units on trust for Mr Kyriacou. [38]
Perhaps more significantly, the following exchange occurred in cross-examination of Mr Kyriacou: [39] Q. Could [Mr Papatheodotou] have said, I will let Ms Makis know and see what she says: is that possible? A. Yeah.
Mr Papatheodotou gave detailed evidence of his conversation with Mr Kyriacou at the time he presented the PDA to Mr Kyriacou, as well as the conversations leading up to the preparation of the PDA. [40] In essence, Mr Papatheodotou's version of the conversations was that he informed Mr Kyriacou that he could no longer support the investments made by Mr Kyriacou and Ms Makis, and that Ms Makis could no longer carry shortfalls in revenue needed to support the investments. He said that there could be a dissolution of what he called the partnership "as long as all loans are repaid in full, the capital invested plus the cost of capital refunded and an adjustment for all the funds you have received is made together with the cost of these funds and an agreement is reached so both parties would receive equal value". [41] He claimed that he told Mr Kyriacou that, if Mr Kyriacou wished to keep the MacDonald Street Units, he would have to increase the loan by $300,000 to repay Ms Makis to cover her additional contributions to loan repayments. Mr Papatheodotou said that Mr Kyriacou persistently refused to entertain that suggestion. In the absence of Mr Kyriacou's agreement to increase the ANZ mortgage by $300,000, it would be necessary to sell the Yerrick Road and Wangee Road units "and to do it quickly as you need funds urgently".
Mr Papatheodotou claimed that, in his conversations with Mr Kyriacou, he specifically said that he would not put the proposal to Ms Makis until a suitable agreement was reached between Mr Kyriacou and Mr Papatheodotou.
Mr Papatheodotou's final position was: [42] "The said document was never amended, finalised or signed as [Mr Kyriacou] has never agreed to the details, or to any separation of the properties".
Ms Makis' evidence was that she never made any agreement with Mr Kyriacou to separate their properties, in 2012 or at all. [43]
I find that, although the evidence establishes that Ms Makis agreed to the sale of the Yerrick Road and Wangee Road units, because she signed the documents necessary to effect the transfers, she at no time gave her consent to be bound by the terms of the PDA.
I also find, on the balance of probabilities, that Mr Papatheodotou did not discuss the PDA specifically with Ms Makis at the time it was prepared because Mr Kyriacou had not first agreed to those terms. Mr Papatheodotou and Ms Makis must have had some discussion about the need or desirability of selling some of the properties, but there is no evidence that he discussed the particular PDA upon which Mr Kyriacou relies in these proceedings, particularly insofar as that document deals with the Cyprus investments and the Commercial Loan Facility. The Court simply does not have a sound evidentiary foundation to make any positive findings of fact concerning the terms of relevant discussions between Mr Papatheodotou and Ms Makis.
I find that Mr Papatheodotou did not have Ms Makis' authority to make an agreement on her behalf in the terms of the PDA without her explicit authority. There was no positive evidence that Ms Makis had ever given Mr Papatheodotou such authority. At the time Mr Papatheodotou and Ms Makis had been separated for a number of years, and although Mr Papatheodotou continued to provide assistance to Ms Makis in respect of her financial affairs, it is inherently improbable that Ms Makis would have agreed to give Mr Papatheodotou authority to enter into binding contracts on her behalf in respect of subjects as significant as those dealt with in the PDA.
I make no findings of fact concerning what was specifically said in the discussions between Mr Kyriacou and Mr Papatheodotou in relation to the PDA. Mr Kyriacou has acted as if he understood that the PDA, or some similar agreement, was binding between him and Ms Makis notwithstanding that the PDA was not signed by the parties to it. I do not consider it to be likely that Mr Kyriacou would have acted in the manner that he has if he had been explicitly warned that the PDA would not be binding until it was either specifically agreed by Ms Makis, or signed by the parties. Mr Kyriacou appears to have acted on the basis of his understanding as to the terms of the agreement and on the basis that Mr Papatheodotou had the authority to bind Ms Makis. In doing so, he took the risk that the unsigned PDA, which expressly required the signature of the parties, would not bind Ms Makis.
Given the authority to the effect that it is improbable that parties who make informal agreements to sell real estate intend to be legally bound until they have agreed and exchanged formal contracts for sale, it would be difficult for the Court to find that the parties intended to be immediately bound by the PDA, even if they had executed it: see G R Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634 per McHugh JA (as his Honour then was). However, it is not in the circumstances necessary to decide that question.
It is necessary to consider a number of events from the perspective of whether or not they were consistent with the implementation of the PDA.

[19]

Sale proceeds for Yerrick Road and Wangee Road units

The Yerrick Road unit was purchased in December 2007 for $146,000 and transferred to Ms Makis' son in July 2012 with a disclosed transfer value of $235,000. A contract of sale was not needed.
Ms Sinanis handled the transfer to the son but was not involved in the payment of the price. [44]
Ms Makis' evidence was that the net sale proceeds were paid into a joint account to pay ongoing expenses in respect of the other properties. [45] If there were no adjustments or agent's commission, the full price of $235,000 should have been received.
On 24 July 2012, a deposit of $202,941.30 was made into a joint account of Mr Kyriacou and Ms Makis. Mr Papatheodotou produced a deposit slip for this deposit marked "Yerrick Road". [46] Mr Papatheodotou said in evidence that the words were added later to the deposit slip and gave conflicting evidence as to whether the deposit related to the sale of the Yerrick Road unit or the Wangee Road unit. [47]
There is no explanation in the evidence of the reason for the $32,058.70 difference between the sale price of $235,000 and the amount of the deposit into the joint account recorded of $202,941.30.
On 27 July 2012, the sum of $202,930 was withdrawn from the joint account, and on the same day $133,420 was paid into one account in Ms Makis' sole name and $30,000 was credited to an ANZ credit card account in Ms Makis' name. [48] Also on 27 July 2012, the sum of $132,900 was paid out of Ms Makis' account, into which the $133,420 had been paid, into another account in Ms Makis' sole name.
The Wangee Road Unit was purchased in around July 2007 for $140,000 and apparently sold to Ms Makis' daughter in July 2012 for a contract price of $235,000.
Ms Sinanis prepared a contract for sale on Mr Papatheodotou's instructions, which recorded a deposit of $52,000. [49] Ms Sinanis' evidence was that on settlement a St George Bank cheque for $206,941.30 was handed to Mr Papatheodotou, who signed for it. [50] There is no explanation for the amount of the cheque, given that the difference between the purchase price and the deposit as described in the contract was $183,000.
Ms Makis' evidence again was that the proceeds of sale were paid into a joint account to pay ongoing expenses in respect of the other properties. [51]
Mr Kyriacou was not able to demonstrate by the subpoena served on St George Bank whether the bank cheque for $206,941.30 had been paid into any account. [52]
The evidence established that on 3 February 2016, the sum of $235,000 was credited to a bank account in Ms Makis' name with a notation of the name of Ms Makis' daughter. [53] Mr Papatheodotou said that this was an entirely unrelated transaction. [54]
Mr Kyriacou submitted that the Court should find that the sale prices for the two units were paid ultimately to Ms Makis personally, and that that was consistent with the performance by him of the PDA.
Ms Makis' assertion that the proceeds received were used to pay ongoing expenses in respect of the other properties has not been established by objective or any other credible evidence.
Mr Kyriacou's submission assumes that, on the proper construction of the PDA, the proceeds of sale of the two units were to be paid to Ms Makis personally, even though the PDA does not expressly state that result.

[21]

Changes to payment and receipt arrangements for MacDonald Street Units

Mr Kyriacou's case was that, from June 2012 until the present, he has paid the mortgage and other expenses, and collected all the rent, on the MacDonald Street Units. [55] Mr Kyriacou said that generally over that period the units have operated at a loss because the rent has been less than the expenses. Mr Kyriacou said that he made up the loss using his wages and savings. He said that Ms Makis has not made any contribution to the mortgage or expenses, or been involved in the day-to-day decisions relating to the management of the units.
Mr Papatheodotou denied this evidence. [56] He said that since 2012 the units have been positively geared. The gross rent for the financial years ending 30 June 2017 and 30 June 2018 was $132,470 and $132,860 respectively, and the loan repayments, being interest only on a loan of $1,260,000 with an interest rate under 5% was $63,000. Mr Papatheodotou claimed that, in about January 2017, Mr Kyriacou showed him a statement of the account in which the rents are deposited and expenses are paid from, and there was a balance in excess of $60,000.
Ms Makis also asserted that the mortgage repayments and other expenses have been paid from the rental income, and not paid by Mr Kyriacou from his personal funds. [57]
Ms Makis elaborated upon this claim in her affidavit sworn on 22 July 2020. She said that the last bank statement sent to her by Mr Kyriacou was dated 25 January 2017, and disclosed a credit balance of $68,981.44. [58] Ms Makis said that, until 30 September 2016, the loan repayments and other outgoings exceeded the rental income. [59] Ms Makis estimated, from the managing agent's trust ledger for the period July 2016 to July 2019, that rent for the MacDonald Street Units exceeded mortgage repayments and outgoings by $144,834.70. [60]
Mr Kyriacou answered this evidence by an affidavit affirmed on 23 July 2020. He said that, prior to the 30 September 2016 refinancing of the mortgage, the loan repayments and other outgoings since 25 May 2012 generally exceeded the rental income from the units. [61]
Mr Kyriacou exhibited to his affidavit ANZ bank statements for his bank account for the period 8 August 2012 to 1 November 2016. [62] The bank statements cover the period 8 August to 8 November 2012, 8 August to 8 November 2003, 8 May to 3 November 2014, 8 May to 3 November 2015, and 6 May to 8 November 2016. They therefore do not cover the whole of the period.
The credit balance at the end of the periods covered by each of the bank statements was $10,166.69, $10,324.66, $54,121.96, $47,608.25 and $50,654.58 respectively.
Mr Kyriacou in his affidavit identified a number of transactions as relating to receipt of rent, payment of outgoings and repayments of mortgage. Strangely, Mr Kyriacou did not specifically identify any top up payments he made. I have identified 11 unexplained transfers into the account totalling $15,585 from an account whose number ends in 256. There was an additional transfer of $3,000 from that account but it appears to have been matched by a payment out the following day that may not have been related to the MacDonald Street Units.
Although it is possible that the unexplained transfers were made from a bank account in Mr Kyriacou's name, for much of the period the credit balance in the account built up from rental payments appears to have been sufficient to pay the mortgage and outgoings.
Mr Kyriacou also exhibited to his 23 July 2020 affidavit a copy of statements from the ANZ loan account for the six month periods ending on 31 December 2015 and 30 June 2016. [63] The statements confirm Mr Kyriacou's claim that, in that 12 month period, he made 10 capital repayments on the loan of $5,000 each.
Each of these payments was made after Mr Kyriacou claims that Mr Papatheodotou said to him that it would be necessary to renew the ANZ loan and defer transferring the MacDonald Street Units until the next year, which caused Mr Kyriacou to become upset and worried that Mr Papatheodotou was lying and Ms Makis would not transfer the units to him. [64]
Mr Kyriacou agreed in cross-examination [65] that the income tax returns of Mr Kyriacou and Ms Makis that were prepared during the period when Mr Kyriacou claims to be the sole beneficial owner of the MacDonald Street Units were on the basis that he and Ms Makis remained the joint owners. Mr Kyriacou's explanation was that the tax returns had been prepared in that way on the advice of the accountant. [66]

[22]

Receipts from Cessnock Motel

Mr Kyriacou made an assertion in his 25 September 2018 affidavit concerning the beneficial ownership of his and Ms Makis' one third share in the Cessnock Motel from the time of the PDA. [67] The assertion made by Mr Kyriacou was rejected when it was tendered because of the form in which the evidence was given. However, Mr Papatheodotou had responded to Mr Kyriacou's assertion by saying that Mr Kyriacou was the beneficial recipient of his share of the rent and the proceeds of the sale of the Cessnock Motel. [68]
Mr Kyriacou in turn responded by saying that, from June 2012, the one third share of the rent for the Cessnock Motel attributable to Mr Kyriacou's and Ms Makis' share was paid wholly to Ms Makis. [69]
Mr Kyriacou said that he had exhibited at pages 217 to 228 of Exhibit KK-2 to his 31 January 2020 affidavit a copy of the bank statements for the joint account of the owners of the Cessnock Motel. Those pages [70] are in fact copies of Ms Makis' Bank of Sydney account for the period 1 January 2001 to 1 February 2014. However, it does appear from an examination of these bank statements that the bank account solely in the name of Ms Makis was used for the purposes of the joint owners. I infer that the monthly rent paid by the operator of the Cessnock Motel was paid into the account, and mortgage payments were made out of the account up until the time when the mortgage was repaid. Up until a date in May 2012 there are monthly entries for direct credit of motel rent and amounts of loan repayments. From a date in June 2012 there ceases to be loan repayments but monthly payments of $3,000 are recorded to Ms Makis and the other two owners of the Cessnock Motel. (In some instances, for reasons that are not known, multiples of $3,000 were paid out). The bank statements do not record any payments to Mr Kyriacou. Separate bank statements for a different account at Bank of Sydney in Ms Makis' name [71] show the receipt of the payments to Ms Makis. These transactions continued until a date in October 2013.
Mr Kyriacou said that he signed the documents for the sale of the Cessnock Motel in around November 2013 and he exhibited a copy of the transfer. [72] The transfer is undated. [73] It appears that part of Ms Makis' share of the proceeds of sale of the Cessnock Motel, being $220,716.75, was paid into her Bank of Sydney account that had been used to receive the rent [74] in November 2013.
There was a dispute between the parties concerning what was done with Mr Kyriacou's and Ms Makis' share of the proceeds of sale of the Cessnock Motel.
Mr Kyriacou's evidence was [75] that, when the loan on the MacDonald Street Units was refinanced in early 2012 by a loan from the ANZ, Mr Papatheodotou arranged for there to be two loans, one for $1,310,000 and the other for $90,000. The first of these loans was used to pay out the Laiki Bank loan. Mr Kyriacou said that he was told by Mr Papatheodotou that the $90,000 was needed to enable Ms Makis and Mr Papatheodotou to repay some loans that they owed, and that they would ultimately be responsible for repaying the $90,000. Mr Kyriacou further said [76] that after the sale proceeds for the Cessnock Motel had been received, he had a telephone conversation with Mr Papatheodotou in which he said that he had worked out that, as the $90,000 loan was secured on the MacDonald Street Units, he would ultimately have to repay $98,000 including interest. Mr Papatheodotou agreed that Mr Kyriacou could take the $98,000 out of Ms Makis' one third share of the proceeds of sale. On the same day, Mr Kyriacou transferred $98,000 out of the joint account into his own account.
Mr Papatheodotou responded to this evidence [77] by denying the conversation deposed to by Mr Kyriacou concerning the circumstances in which the $90,000 was borrowed. Mr Papatheodotou said that Mr Kyriacou and Ms Makis had agreed to obtain a loan for $1,400,000, and that the ANZ had demanded that "in order to keep a lower LVR for the loan, instead of one loan for $1.4 million as per the signed application for interest only repayments, they wanted $90,000 to be paid with principal and interest repayments and another loan for $1.35 m to be interest only". Mr Papatheodotou also denied [78] that he had authorised Mr Kyriacou to withdraw the $98,000 from the proceeds of sale of the Cessnock Motel. He said that Ms Makis had in fact been repaying the $90,000 loan using some of the money borrowed from the ANZ, and that the amount that was outstanding at the time was only about $70,000.
The evidence given by Ms Makis on this subject was inconsistent with that given by Mr Papatheodotou. She said [79] "that the $90,000 loan was to allow me to partially repay loans I had taken in order to pay outstanding bills and loan interest". She said [80] that Mr Kyriacou ultimately withdrew the $98,000 without informing her or Mr Papatheodotou.
Mr Kyriacou's response to this evidence [81] was primarily to exhibit the bank statements for the $90,000 loan [82] and to assert that he, rather than Ms Makis, was making the necessary repayments. It is true that the notations made against each credit for the period 23 May 2012 to 23 May 2015 are all: "LOAN PAYMENT KYRIACOU K".
The Cessnock Motel was purchased in December 2005 for $965,000 and sold to a third party in November 2013 for $1,470,000.
Mr Kyriacou undertook a tracing process using documents received from relevant banks on subpoena concerning the two deposit cheques of $24,500 and the two settlement cheques of $220,716.75 drawn in the names of Mr Kyriacou and Ms Makis respectively. The following table summarises what is apparently established by the tracing exercise in relation to the cheques. [83] Cheque Amount Beneficiary Account details Deposit cheque - Ms Makis $24,500 Deposit into Ms Makis' NAB account on 15 November 2013 Split deposit into the following Ms Makis' ANZ accounts on 15 November 2013: Settlement cheque - Ms Makis $220,716.75 1. ANZ bank account - $175,500 2. ANZ Frequent Flyer Credit Card - $1,500 3. ANZ personal loan account - $43,716.75 Split deposit into the following joint accounts on 15 November 2013: Deposit cheque - Mr Kyriacou $24,500 1. Pambris Loan Account 2. Cessnock joint account with proceeds then transferred to Ms Makis' personal account. Settlement cheque - Mr Kyriacou $220,716.75 Deposit on 15 November 2013 into Cessnock joint account, then transferred to Ms Makis' personal account ($135,744.62) and to Mr Kyriacou's personal account ($98,000)

[24]

Consideration

I have already explained above in context why the evidence does not satisfy me that Ms Makis agreed to be bound by the terms of the PDA, or that Ms Makis had given Mr Papatheodotou the authority to enter into a contract on her behalf with Mr Kyriacou on the terms of the PDA without reference to her.
There is simply inadequate evidence to enable me to feel an actual persuasion of the existence of the agreement or agency in the terms described in Watson v Foxman that are extracted above.
I have reached that conclusion not simply because the PDA was not signed, but because the document in the clearest terms specified that it was the parties' signatures to the document that would cause them to be bound.
Mr Kyriacou has established, by means of the evidence concerning the disposition of the proceeds of sale of the Yerrick Road and Wangee Road units and the Cessnock Motel, as well as the transfer of management of the MacDonald Road Units and the repayments of the mortgage and the receipt of rents, that there must have been some agreement or understanding between Mr Kyriacou and Ms Makis that at least dealt with some of the subjects contained in the PDA. The evidence may also establish that Mr Kyriacou genuinely believed that there was an agreement in the terms of the PDA.
However, apart from the fatal circumstance, as I see it, of the absence of sufficient evidence of agreement and authority, there is the difficulty of the multiplicity of documents that could be the record of the agreement and the inconsistency within those documents. That is primarily so in relation to the PDA and the 7 May 2012 email, both of which were given or sent by Mr Papatheodotou to Ms Sinanis. The evidence provides no resolution of the issue as to why the email provides for prices for the transfers of the MacDonald Street Units and the interest in the Cessnock Motel while the PDA does not. I am not satisfied that the PDA is objectively anything more than a broadly stated proposal.
I am also not satisfied that there was any real agreement concerning the assets and debts relevant to the parties' Cyprus venture, or the proposition that Ms Makis would solely become responsible for the Commercial Loan Facility relating to the Pambris Venture. That conclusion is reinforced by the fact that there is no reference in the 7 May 2012 email containing instructions to Ms Sinanis to those two aspects of the PDA.
Consequently, it is not strictly necessary for the Court to make a determination of whether the conduct of Mr Kyriacou constituted sufficient acts of part performance of the PDA to make it enforceable insofar as it provided for the sale or other disposition of land or any interest in land within the meaning of s 54A of the Conveyancing Act.
I accept the submissions made on behalf of Ms Makis concerning what constitutes relevant part performance. [85] It is sufficient to set out the following extract from the judgment of Kiefel CJ, Bell, Gageler and Keane JJ in Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39 (footnotes omitted): 40 Nothing in the use made of Caton v Caton by Gibbs J in Regent v Millett gives any support for the relaxation of the approach of Lord Selborne in Maddison v Alderson. On the contrary, Gibbs J went on to say: "the test suggested by the Earl of Selborne LC in [Maddison v Alderson], that the acts relied upon as part performance 'must be unequivocally, and in their own nature, referable to some such agreement as that alleged', has been consistently accepted as a correct statement of the law. It is enough that the acts are unequivocally and in their own nature referable to some contract of the general nature of that alleged (see McBride v Sandland)." 41 It is simply not possible to understand these observations as expressing reservation or doubt about the correctness of Lord Selborne's statement. 42 It is also noteworthy that Gibbs J went on to say that the taking of possession was unequivocally referable to the contract even though the contract permitted, but did not require, the plaintiffs to take possession of the land. In other words, his Honour's judgment rejected the suggestion that only an act to the detriment of a plaintiff on the faith of the contract would suffice as an act of part performance. As will be seen, the decision in Regent v Millett differs, in this respect, from the approach of Lord Reid in Steadman v Steadman. 43 Earlier decisions of the High Court also support the view that Lord Selborne's requirement of unequivocal referability is to be taken as a correct statement of the law. In McBride v Sandland, Isaacs, Rich and Powers JJ accepted Lord Selborne's statement of the law; and in Cooney v Burns, Knox CJ, Isaacs, Higgins, Gavan Duffy and Starke JJ did likewise. 44 It is true that, in McBride v Sandland, Isaacs and Rich JJ accepted that an act of part performance must be done "by the party relying on it on the faith of the agreement, and … the other party must have permitted it to be done on that footing" if the moral turpitude that is the "ground of jurisdiction" is to be established. That view may not accord with what Lord Selborne actually said or with the decision in Regent v Millett. But otherwise there can be no doubt that in Australia Lord Selborne's statement of the law in Maddison v Alderson is unshaken by the course of authority in this Court. … 49 The view that the court enforces the equities arising from partial performance, rather than the rights conferred by the parol contract itself, while attended with a degree of subtlety, has the powerful merit of being consistent with the Statute of Frauds. The view that part performance is concerned with matters of proof of the parol contract cannot stand with the Statute of Frauds, the evident purpose of which is to prevent the enforcement of a parol contract, however clear may be the proof of its making. 50 It is not correct to say that Lord Selborne's statement of principle evinces the view that part performance operates as acceptable evidence of the parol contract in question in place of the writing required by the statute. When Lord Selborne spoke of acts "unequivocally … referable" to "some such agreement", his Lordship was not speaking of the particular contract in question. The very circumstance that Lord Selborne spoke of referability to "some such agreement" itself suggests that the requirement is not concerned with proof of the particular contract in question, but with dealings between the parties which in their nature establish that the parties are in the midst of an uncompleted contract for the sale or other disposition of land. Given that part performance is relevant only in relation to contracts for the sale or other disposition of land, it is not difficult to appreciate that the acts described by Lord Selborne are acts unequivocally and inherently referable to a transaction for the sale or other disposition of the land. Lord Selborne was clear that unequivocal referability is concerned with the proof of acts partially executing a transaction that remains uncompleted, and that proof of the agreement that had been made was not required to show the equity to have the transaction completed. 51 It is significant in this respect that Lord Selborne expressly adopted the statement of Sir James Wigram V-C in Dale v Hamilton that it is in general of the essence of an act of part performance: "that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract." 52 In a case where the parties are found, as a matter of fact, to be in that position, equity requires that the transaction be completed notwithstanding the objection of the defendant that the contract itself cannot be enforced by reason of non-compliance with the Statute of Frauds. The requirement for unequivocal referability is essential to Lord Selborne's thesis that the court is not enforcing the contract - that would be contrary to the Statute of Frauds - but the equities generated by its partial performance. It is only where the acts of part performance are inherently and unequivocally referable to such a contract that it cannot be objected that, in truth, and contrary to the legislation, it is the parol contract that is being enforced. 53 In Burns v McCormick, Cardozo J explained the essential requirement this way: "There must be performance 'unequivocally referable' to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing. 'An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.' … What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done." 54 The equity to have the transaction completed arises where the acts that are proved are consistent only with partial performance of a transaction of the same nature as that which the plaintiff seeks to have completed by specific performance. At that point, regard may be had to the terms of the oral contract in order to ascertain the appropriate orders by way of specific performance. So, in Maddison v Alderson, Lord Selborne stated that the terms of the parol contract may be taken into account only when the equity to have the transaction carried to completion has been established and it becomes necessary to establish the terms of the order to be made. At that point: "The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded." 55 In McBride v Sandland, Isaacs and Rich JJ explained that the logical order in which the issues in a case such as the present should be addressed is first to determine whether the acts performed establish the equity and then, and only then, to refer to the terms of the parol agreement in order to ascertain the terms in which the equity is to be enforced. 56 Applying that reasoning to the present case, because the acts of part performance relied upon by the appellant are consistent with some transaction other than a sale of the Clark Road property, he was not able to show a partially completed sale of the Clark Road property that he was entitled in equity to have fully executed by means of a decree of specific performance.
I do not accept that the acts of Mr Kyriacou upon which he relies to constitute part performance are "unequivocally, and in their own nature, referable to some such agreement as" the PDA. Those acts are not consistent only with partial performance of a transaction of the same nature as the PDA.
In my view, the transactions that that took place involving the Yerrick Road and Wangee Road units, the changes in management of the MacDonald Street Units, and the change in the receipts from the one third interest in the Cessnock Motel could have related to separate agreements or understandings, and Mr Kyriacou's actions in relation to those matters do not seem to have anything to do with the parties' Cyprus venture or any liability they may have had under the Commercial Loan Facility.
It follows from Mr Kyriacou's acknowledgement that he did not make any financial contribution to any aspect of his ventures with Ms Makis after the possible initial contribution of capital, as well as the lack of resolution of the contest as to whether Ms Makis had to make personal borrowings to fund shortfalls in rental income that the Court could not regard the evidence of the transactions involving the Yerrick Road and Wangee Road units, the MacDonald Street Units, and the third share in the Cessnock Motel, whether taken individually or collectively, as being unequivocally preferable to an agreement that required Ms Makis to transfer her interest in the MacDonald Street Units to Mr Kyriacou, subject to the ANZ mortgage, for no consideration.

[26]

Future of the proceedings

The failure of Mr Kyriacou to prove that the PDA is an enforceable agreement against Ms Makis does not finally determine the dispute between them.
Mr Kyriacou has not received any of the proceeds of sale of the properties in this State, and it is an arguable matter whether or not Ms Makis has received more than her proper share of the proceeds of sale of the properties that have been sold. The issue of the entitlement of the parties to the MacDonald Street Units is unresolved.
There is a question about whether the issues that were agreed by the parties to be determined by the Court at the hearing that has occurred deal fully with all of the issues raised by the ASOC; in particular, whether Mr Kyriacou has abandoned his conventional estoppel case.
As explained above, Ms Makis contends that the business ventures in which the parties engaged were part of one overriding partnership; or alternatively that at least the ventures in this country were engaged in in partnership. Ms Makis formally offered to agree to orders made in these proceedings for the dissolution of the alleged partnership, and the conducting of an account. She said, in any event, that in due course she would make an application for that relief.
Before an account is undertaken, there may be a need for the issue of whether there was a partnership, or more than one partnership, and the terms of any partnership, to be determined. Otherwise, there may be a real risk of wasted costs if accounts are prepared on a false assumption as to the existence and terms of any alleged partnership between the parties.
It may be that the failure of Ms Makis to file her proposed cross claim will thwart the obligation of the Court found in s 63 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) to finally determine all matters in controversy between the parties and avoid a multiplicity of proceedings. It is also arguable that the manner in which these proceedings have been conducted has not facilitated the just, quick and cheap resolution of the real issues in the proceedings, as is required by s 56 of the Civil Procedure Act 2005 (NSW).
Much of the evidence that has been tendered, and many of the submissions made, arguably concern wider issues that would be relevant if the proceedings had encompassed the issue of whether there was a partnership, its terms, and the need for a partnership account. The Court has received evidence of dealings between the parties that extend much wider than was necessary to determine the issues relevant to the existence and enforcement of an agreement in the terms of the PDA. As a practical matter, there is a basis for concluding that the Court is part heard in the determination of issues that have not strictly been raised by proper initiating process.
Even in respect of the issue of costs, the Court has received evidence and submissions that extend wider than was necessary to determine the agreed issues, but may well be relevant to the foreshadowed partnership issues.
I will require the parties to confer as to what orders should be made by the Court based upon these reasons for judgment, and what, if any, further orders should be made to ensure that the Court is able to perform its obligation referred to above under s 63 of the Supreme Court Act. I will arrange for my Associate to fix a telephone directions hearing for the purpose of the consideration of the future course of these proceedings. The parties should provide to my Associate proposed short minutes of order before that hearing.

[27]

Endnotes

T 7.21.
T 30.42.
MFI 1.
MFI 1 par 2.
MFI 1 pars 9 to 16.
MFI 1 par 44.
MFI 1 par 45.
T 127.34.
T 74.15.
T 118.46 - T 119.21.
T 62.42.
T 80.30 - T 81.30.
25 September 2018 affidavit par 17.
15 February 2019 affidavit par 17.
T 65.32.
T 268.36.
T 269.39.
20 January 2019 affidavit par 35.
25 September 2018 affidavit par 36.
25 September 2018 affidavit par 37.
25 September 2018 affidavit par 38.
Court Book 193.
T 187.27.
T 190.5.
Court Book 171 to 184.
Court Book 171.
Court Book 172.
5 September 2018 affidavit par 40.
15 February 2019 affidavit par 39.
20 January 2019 affidavit par 40.
31 January 2020 affidavit par 117.
25 September 2018 affidavit par 42.
20 September 2018 affidavit par 10.
Court Book 185.
T 189.38.
Court Book 709.
T 127.34.
T 123.16 and T 125.24.
T 109.40.
15 August 2019 affidavit pars 35 to 36 and 41.
15 February 2019 affidavit par 35.
15 February 2019 affidavit par 41.
20 January 2019 affidavit par 21.
20 September 2018 affidavit of Ms Sinanis par 19.
20 January 2019 affidavit par 44.
Exhibit D6 page 1.
T 147.2 - T 147.14.
For these transactions see Exhibit P3 pages 3 to 4.
Court Book 525.
20 September 2018 affidavit par 20.
20 January 2019 affidavit par 44.
Exhibit P4 page 1.
Exhibit P4 page 7.
T 216.1.
25 September 2018 affidavit par 45.
15 February 2019 affidavit par 44.
20 January 2019 affidavit par 45.
22 July 2020 affidavit par 13.
22 July 2020 affidavit par 10.
22 July 2020 affidavit par 22.
23 July 2020 affidavit par 2.
Court Book 482 to 502.
Court Book 504, 505.
25 September 2018 affidavit pars 57 and 58.
T 126.18.
T 126.24.
25 September 2014 affidavit par 46.
15 February 2019 affidavit par 45.
31 January 2020 affidavit par 47.
Court Book 417 to 428.
Court Book 429 to 433.
25 September 2018 affidavit par 47.
Court Book 191.
Court Book 228. The date is obscure.
25 September 2018 affidavit par 39.
25 September 2018 affidavit par 49.
15 February 2019 affidavit par 38.
15 February 2019 affidavit par 48.
20 January 2019 affidavit par 39.
20 January 2019 affidavit par 49.
31 January 2020 affidavit par 48.
Court Book 434 to 447.
The Table is an edited version of Mr Kyriacou's written closing submissions par 34.
Pars 132-142.
Written submissions pars 82-84 and 110-112. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2021

Kyriacou v Makis

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (4)

Cases Cited (10)

Cited By (2)