Kyriacou v Makis [2025] NSWSC 1010 | Case summary

Medium Neutral Citation: Kyriacou v Makis [2025] NSWSC 1010

Hearing dates: 9-12; 17-19 September 2024; 30 October 2024 plus written submissions

Decision date: 08 September 2025

Jurisdiction: Equity

Before: Lindsay J

Decision: Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, costs and any ancillary or residual business, DECLARE that the defendant holds on trust for the plaintiff her interest in the properties known as “the MacDonald Street Units”

Catchwords: PARTNERSHIP – Determining existence – Persons not carrying on a business in common – No partnership – Joint activities essentially transactional in nature
PARTNERSHIP – Determining existence – Co-ownership of investment property not of itself sufficient to establish a partnership
EQUITY – Estoppel – Principles – Estoppel by convention – Estoppel by encouragement – Estoppel found
AGENCY – Actual or apparent (ostensible) authority – Nature and scope of authority
AGENCY – Knowledge of agent – Imputed to principal – Manager of business – Solicitor – Agent acting for both parties to a transaction
JUDGMENTS AND ORDERS – Publication of reasons for judgment without orders – No estoppel of record – In circumstances of this case no abuse of process arising from earlier judgment in same proceedings

Legislation Cited: Evidence Act 1995 NSW
Family Law Act 1975 (Cth)
Limitation Act 1969 NSW
Partnership Act 1892 NSW
Supreme Court Act 1970 NSW

Cases Cited: Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464
Bradley v Riches (1878) 9 Ch D 189
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Dixon v Winch [1900] 1 Ch 736
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Jackson v Goldsmith (1950) 81 CLR 446
Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126
Kyriacou v Makis (No 3) [2023] NSWSC 1098
Kyriacou v Makis (No 4) [2023] NSWSC 1261
Kyriacou v Makis [2021] NSWSC 60
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Reichel v McGrath (1889) 14 App Cas 665
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Shultz v Corwill Properties Pty Ltd (1969) WN (Pt 1) (NSW) 529
United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1
Wiltshire v Kuenzli (1945) 63 WN (NSW) 47

Texts Cited: Lindley & Banks on Partnership (Sweet and Maxwell, 21st ed, 2022)
Keith L Fletcher’s The Law of Partnership in Australia (Lawbook Co, 9th ed, 2007)

Category: Principal judgment

Parties: Cross Claimant (Defendant): Andrea Makis
Cross Defendant (Plaintiff): Kyriacos Kyriacou

Representation: Counsel:
Cross Claimant (Defendant): FM Douglas KC
Cross Defendant (Plaintiff): JA Darvall
Solicitors:
Cross Claimant (Defendant): Swan Lawyers
Cross Defendant (Plaintiff): KP Lawyers & Barristers

File Number(s): 2018/00081547

JUDGMENT

Introduction

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 Kyriaco**u 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.

(a) Declarations to the effect that a partnership has existed, in one form or another, between the plaintiff and the defendant since December 1995. (b) A declaration that the plaintiff and the defendant and their respective spouses (the plaintiff’s wife Anastasia and the defendant’s husband John) comprised the members of the partnership, in equal shares, between formation of the partnership in December 1995 and March 2002. (c) A declaration that (their respective spouses having, for one reason or another, retired from the partnership) the plaintiff and the defendant alone have since March 2002 comprised the membership of the partnership, in equal shares. (d) A declaration that the plaintiff, the defendant and their respective spouses, in or about December 1995, made an agreement (ancillary to the partnership agreement said to have been made at the same time) for the defendant and her spouse to provide loan funds to the plaintiff for the benefit of himself and his family, for which the plaintiff is now accountable to the defendant. (e) Declarations identifying what are alleged to have been assets and liabilities of the partnership. (f) An order pursuant to section 35 of the Partnership Act 1892 NSW that the partnership be dissolved and that the partnership business be wound up under the direction of the Court. (g) An order that accounts be taken upon a referral to a referee.

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.

(a) Although the defendant insists that all dealings between her and the plaintiff can be accommodated within the ambit of a single “overarching” partnership formed (by express agreement) in or about December 1995 and continuing (with changes in membership) until the present time:

(i) there has never been a material written partnership agreement of any description; (ii) the terms of the alleged partnership have never been reduced to writing in any form; (iii) partnership tax returns have never been lodged in respect of the alleged partnership; (iv) financial records associated with the parties’ joint activities have never taken the form of regular partnership accounts; and (v) the alleged partnership has never operated with a registered “Australian Business Number”.

(b) Whether or not characterised as a partner of the alleged partnership, the dominant personality in the conduct of the parties’ joint activities has generally been the (now former) husband of the defendant, John, to whom the plaintiff from time to time lent his name in support of John’s separate business interests in a social environment no respecter of boundaries. (c) What pass for “partnership accounts” in the evidence adduced by the defendant are merely schedules in the form of “spreadsheets” reconstructed by John based, he says, on documents held by him but not self-evidently complete or formally discovered in the course of the proceedings. (d) The evidence of the defendant and John from which the Court is invited to determine whether there was one or more partnerships (and, if so, the terms of any partnership) is permeated with statements of conclusions which impede the fact finding process. (e) The existence of a significant term of the alleged global partnership (that, upon a winding up of the partnership each partner would be entitled to a return of “contributions” made to the partnership plus interest at a particular rate) depends upon disputed evidence of conversations given by John, in particular, but also the defendant, unsupported by uncontentious contemporaneous records. (f) The defendant’s claim for the taking of accounts upon dissolution of a long standing partnership appears calculated to circumvent a defence based upon the L**imitation A**ct 1969 NSW if individual, alleged debts were sought to be enforced. (g) The defendant’s allegation of a single overarching partnership appears calculated to maximise her claim to full beneficial ownership of the MacDonald Street units. (h) The defendant’s claim to an order for the taking of accounts upon a reference to a referee, or for the conduct of an accounting by the Court, is accompanied by a submission that, because (it is said) the defendant’s likely entitlement on the taking of accounts far exceeds the value of the one asset (the MacDonald Street units) allegedly available for distribution (and the defendant has no intention of pursuing a claim for a personal remedy against the plaintiff), the Court should dispense with the taking of accounts and merely declare that the defendant is entitled to full beneficial ownership of that asset. (i) The “partnership records” kept by John are said by the plaintiff to be unreliable (and, if only because of the passage of time and the unavailability of third party records such as that those ordinarily held by banks, unverifiable), casting doubt on the utility or fairness of any order for the taking of accounts.

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

(a) proof of his financial contribution to the joint activities of the defendant and himself (in particular, the sum of $224,475.13 recorded in a bank statement of the plaintiff on 27 January 2004 as a “closing transaction”); (b) characterisation of his dealings with John, particularly in relation to investments other than Australian real estate; (c) characterisation of his “Australian real estate” activities, with the defendant, as a “property investment partnership” distinct from the overarching partnership for which the defendant contends; and (d) proof of an estoppel claim (based upon representations made by reference to the PDA) which, if established, would operate to disengage the parties’ affairs; (e) proof that John had actual or apparent authority to bind the defendant to the PDA.

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:

“[26] Then, in pars 17 to 21, Mr Kyriacou [the plaintiff] 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, the defendant] 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].”

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:

“[33] Nonetheless, by the agreed statement of issues dated 17 September 2020 provided to the Court, the parties stated the issues to be decided in the following terms:

Was there an agreement made between the Plaintiff and the First Defendant in or about June 2012 relating to the separation of assets and liabilities then jointly owned by them (as evidenced in the form of the Partnership Dissolution Agreement produced by the Plaintiff)?

If so, has the agreement been partially performed?

If so, should specific performance, or alternatively damages be ordered?

[34] By their agreed statement of issues, the parties limited the issues to be determined at the hearing to the validity and enforceability of the PDA.

[35] Nothing was said in the agreed statement of issues or in submissions at the hearing concerning Mr Kyriacou's alternative case that appears to have been based upon the principles of conventional estoppel.”

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

“[222] I therefore answer the questions posed by the parties in their statement of agreed issues as follows:

(1) Was there an agreement made between the Plaintiff and the First Defendant in or about June 2012 relating to the separation of assets and liabilities then jointly owned by them (as evidenced in the form of the Partnership Dissolution Agreement produced by the Plaintiff)?

No.

(2) If so, has the agreement been partially performed?

This question does not arise. If it had arisen, the answer would have been: No.

(3) If so, should specific performance, or alternatively damages be ordered?

This question does not arise.”

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:

“The only costs order that the Court will make at this stage in respect of the hearing that commenced on 21 September 2020 [culminating in his Honour’s judgment, Kyriacou v Makis [2021] NSWSC 60 published on 9 February 2021] is:

(i) Save for any costs orders that have been made to date, the costs of the proceedings to the point of the delivery of judgment handed down on 9 February 2021 are reserved.”

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:

[128] The most significant aspect of the PDA is that it was not signed by either party to it, being Mr Kyriacou and Ms Makis.

[129] 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.

[130] 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…”

[131] 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.

[132] The document provided for Ms Sinanis to be the witness.

…

[158] 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.

[159] 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.

[160] 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.

[161] 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.

[162] 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.

…

[211] 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.

[212] 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.

[213] 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.

[214] 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.

[215] 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.

…

[223] 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.

[224] 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.

[225] 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.”

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:

“[1] As these proceedings were originally constituted, the plaintiff, Mr Kyriacou, sued to enforce an agreement allegedly made between himself and Ms Makis, in about June 2012, to the effect that Ms Makis’ interest in a set of units that were called the MacDonald Street units would be transferred to him. The agreement was said to be contained in a document called the “Partnership Dissolution Agreement”.

[2] On 9 February 2021, I published the primary judgment in these proceedings on Mr Kyriacou’s claim: Kyriacou v Makis [2021] NSWSC 60. I dismissed Mr Kyriacou’s claim. Although Mr Kyriacou apparently believed that a final and binding agreement had been made with Ms Makis, and the evidence supported a conclusion that negotiations had been undertaken for that purpose, Mr Kyriacou failed to prove that a specific agreement had been made with Ms Makis’ authority.

[3] Prima facie, under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, the costs of the proceedings should follow the event, which would mean that an order would be made that Mr Kyriacou pay Ms Makis’ costs of the proceedings on the ordinary basis. However, UCPR r 42.1 maintains the Court’s discretion as to the costs order that is appropriate and the Court may make a different order if it is satisfied, on the application of judicial principle, that some other order should be made.

[4] This matter raises special circumstances, as it has become apparent that, by reason of the manner in which Ms Makis has conducted the litigation, the hearing of the claim made by Mr Kyriacou has not remotely determined all of the issues in dispute between the parties.

…

[8] It appeared to me that the course taken by Ms Makis, in not filing her foreshadowed cross claim, would have the effect that it would not be possible for the Court, in deciding the case before it, to determine all the issues in contest between the parties. Furthermore, a substantial portion of the evidence that had been served did not relate to the issues that had been pleaded, but instead supported a case that Ms Makis intended to mount that was not actually before the Court. Ms Makis had not sought any declaration concerning the existence of the alleged partnership, its commercial ambit, or its terms. That created a forensic problem because, although Ms Makis had foreshadowed an application for a partnership accounting, that process could not be undertaken efficiently unless the existence and the terms of the partnership had first been determined.

[9] It appeared to me that not only would the determination of the case limited to the issues raised by the amended statement of claim not resolve the real dispute between the parties, but furthermore, there was likely to be a substantial costs overlap, in the sense that much of the evidence introduced at the hearing would not be of significance to the issues that were to be determined, but would potentially be significant to the resolution of the partnership dispute that had not been brought before the Court.

[10] After the primary judgment was delivered on 9 February 2021, case management orders were made on 29 March 2021 for Ms Makis to file her cross claim by 10 May 2021 and for Mr Kyriacou to file his defence to the cross claim by 21 June 2021. Those pleadings have now been filed by the parties.

[11] Ms Makis in her cross claim has elaborately pleaded the terms of a partnership said to have initially been entered into in 1995 between Mr Kyriacou, Ms Makis and their respective spouses, and, from October 2002, carried on by Mr Kyriacou and Ms Makis alone. The cross claim contains detailed allegations concerning the transactions entered into by the alleged partnership, including at pars 154 to 164 the purchase of the Macdonald Street units.

[12] Mr Kyriacou’s defence to the cross claim responds in detail to the allegations made by Ms Makis. It is not necessary for the purpose of these reasons to analyse in detail the allegations contained in the cross claim and the defence to the cross claim. It may be noted, however, that a particular theme of the defence to the cross claim is the allegation made by Mr Kyriacou that his involvement in many of the transactions that Ms Makis alleges were partnership transactions involved only notional transactions in so far as Mr Kyriacou was concerned, because he agreed at the request of Ms Makis’ former husband to lend his name to transactions entered into by the former husband in which Mr Kyriacou had no real interest.

…

[15] The Court is presently unable to forecast the outcome of the dispute between the parties on the issues raised by Ms Makis in her cross claim. It is possible that, after all the issues have been determined by the Court, it will appear that Mr Kyriacou’s claim for an order enforcing the alleged agreement that Ms Makis would transfer to him her interest in the Macdonald Street units was sufficiently separate from all other issues in dispute between the parties to justify a costs order being made against Mr Kyriacou in favour of Ms Makis in respect of that claim. However, I do not consider that that possibility is sufficiently clear at this stage to justify the Court making a costs order in favour of Ms Makis on the issues determined by the primary judgment. I consider that, even if ultimately the Court thinks that the claim brought by Mr Kyriacou was a discreet one, it will also conclude that Ms Makis has been responsible for the wastage of considerable costs because much of the evidence traversed at the first hearing was not in fact relevant to the issues, but rather will be relevant and will be required to be reconsidered for the purposes of the determination of the issues raised by Ms Makis’ cross claim.

…

[18] Ms Makis also relied upon the submission that, given the extensiveness of the issues raised by the cross claim and the defence to the cross claim, it is inevitable that it will be a considerable time before these proceedings are finally determined.

[19] That submission is most likely to be true, but the problem substantially lies at the feet of Ms Makis for failing to have served her draft cross claim on Mr Kyriacou by 23 April 2019, as the first case management order dealing with that subject made on 7 March 2019 required. If Ms Makis had complied with the Court’s order, there is every possibility that the Court would have been able to deal with all of the issues in dispute between the parties in the hearing that commenced on 21 September 2020, although it is possible that a somewhat longer hearing time would have been required.

…

[23] I consider that the failure of Ms Makis to bring the claims now made in her cross claim before the Court in a timely way was a serious breach of the duty imposed upon her by s 56 of the Civil Procedure Act.

[24] It will not be appropriate for the Court to make an order in favour of Ms Makis that Mr Kyriacou pay her costs of the proceedings to date, or even of the hearing in so far as it dealt with the claim raised by Mr Kyriacou’s amended statement of claim. I am also not prepared to make an interim lump sum costs order in Ms Makis’ favour, as I consider that any attempt by the Court to estimate an appropriate amount to be paid by Mr Kyriacou would be an artificial and essentially speculative exercise. I consider that it would be impossible for the Court, in any judicially principled manner, to make a proper allowance for the wastage of costs that is likely to have been caused by the failure of Ms Makis to comply with the Court’s directions on the many occasions that she has failed to do so, in so far as her conduct has had the effect that the Court was required to conduct the hearing limited only to one issue of many overlapping issues that will now have to be determined after separate preparation and a new hearing.”

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):

“[2] The Court published its principal judgment in these proceedings on 9 February 2021: see Kyriacou v Makis [2021] NSWSC 60 (the "principal judgment" or "J"). The Court found that Mr Kyriacou had failed in his attempt to establish that a document called the "Partnership Dissolution Agreement" was an enforceable contract. By his proceedings, Mr Kyriacou had hoped to prove that he and Ms Makis had made a binding agreement to dissolve a partnership that existed between them and to distribute the partnership property. The Partnership Dissolution Agreement was negotiated with Mr Kyriacou by Mr Ioannis Papatheodotou, the former husband of Ms Makis. I found at J [160] that Mr Papatheodotou did not have Ms Makis' authority to make an agreement on her behalf in terms of the Partnership Dissolution Agreement, without her explicit agreement.**”

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:

“[229] 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.

[230] 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.

[231] 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 … under s 63 of the Supreme Court Act [to determine all issues in dispute]. 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.”

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”:

“[5] As foreshadowed in J [226], Ms Makis filed a cross claim on 12 May 2021. This is the pleading that Ms Makis now seeks leave to amend. As will be seen, it alleges the one overarching partnership referred to at J [226].

[6] As I noted at J [229], much of the evidence that was tendered at the hearing appeared to relate to issues that would have been relevant to Ms Makis' cross claim had she filed it. I observed that, as a practical matter, there was a basis for concluding that the Court was part heard in the determination of issues that were not strictly raised by a proper initiating process. As I explained to the parties at the hearing of the notice of motion with which these reasons are concerned, I do not consider that I am strictly part heard on the cross claim. Because at the initial hearing the Court had received evidence that had been prepared by the parties, principally, Ms Makis, in anticipation that she would have filed her cross claim before the hearing, the Court was appraised of evidence and had heard submissions that might be relevant if Ms Makis subsequently filed her cross claim. However, the issues now raised in the cross claim were not formally before the Court, and it did not conduct the hearing on the basis that I would necessarily determine any cross claim that was subsequently filed.”

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:

“Reference also needs to be made to the case of conventional or promissory estoppel. This is an abuse of process, as it should have been run conjointly with the case seeking to establish a contract for the termination of the partnership. Secondly, to the extent already embraced by the propositions put to Robb J it is contrary to the principles in Anshun. Thirdly, issues estoppel arise in relation to the judgment of Robb J, particularly in relation to the authority of John to bind Andrea which are fatal to any claim for promissory estoppel as the same questions of authority arise.”

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 Curr**an (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 B**roadcasting 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:

“[37] Kyriacou's estoppel claim relies on a number of representations made by John and conduct by Makis, repeated and furnished in the Partnership Dissolution Agreement given to Kyriacou and Ms Sinanis.

[38] As a preliminary point we address Makis' submission that the estoppel claim is an abuse of process or is subject to the principles in Anshun or an issue estoppel. The estoppel claim set out in the Defence to Cross Claim was not, and could not, be run in conjunction with the initial claim because at that time no claim for an accounting had been made by either party. While a claim had been foreshadowed by Ms Makis it did not eventuate despite repeated Orders from this Court requiring her to do so. The failure to ventilate these issues at the original hearing was a result of Ms Makis' failure to comply with the Court Orders in relation to the filing of a Cross Claim and she cannot now rely on that failure to seek to prevent Mr Kyriacou from making an estoppel claim in relation to the terms of the dissolution of the partnership.

[39] Further [citing Bushby v Dixon Holmes du Pont (2010) 78 NSWLR 111 for the proposition that promissory estoppel is available as a defence as well as founding a claim for relief, available to be used as a “shield” as well as a “sword”], here, the claim for relief is brought defensively, as a shield for an estoppel by convention. In short, they are not the same claim and an estoppel by convention could not have been brought in the Plaintiff's claim. Put simply, John's representations set out in the Partnership Dissolution Agreement ("PDA"), his provision of a copy of the PDA to both Sinanis and Kyriacou, his instruction to Sinanis to prepare documents and to act on the transfer the Wangee Road and Yerrick Road units, coupled with the authority of Makis (noting she had not spoken to Kyriacou since 2011) she provided to John and her direction to the agent to account to Kyriacou and the various council and utilities to bill Kyriacou (a state of affairs that continued until after the commencement of these proceedings) constituted the conduct of the relations between Kyriacou and Makis as to her agreement or their assumption that the terms of the PDA would be given effect. In that context, Kyriacou signed the transfers to the various properties and permitted Makis to take the whole of the net property sale proceeds for her use and benefit, with the detriment to Kyriacou now being that he parted with his interest in the properties and has suffered the detriment of not having title to the MacDonald Street units transferred to him. The estoppel arises to prevent Makis from denying the fact that Kyriacou was to obtain the MacDonald Street units.”

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

“[19] So far as [the plaintiff’s estoppel claim] is concerned, it is precluded by the simple fact that Robb J in Kyriacou v Makis [2021] NSWSC 60 has found that John did not have any capacity to bind Makis in relation to those negotiations: [see Corpers *(*No 664) Pty Ltd v NZI Securities Australia Ltd 1989 ASC 55-714; 20 ATR 1084, Young J].”

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.

(a) the plaintiff’s estoppel case; and (b) the plaintiff’s contention that any partnership between him and the defendant was limited to Australian property held by the two parties in co-ownership.

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:

(a) the plaintiff’s Defence to Cross Claim does not plead all the elements required to establish an estoppel; (b) if the facts pleaded by the plaintiff are taken to have been established, an estoppel would not operate against the defendant on her claim to beneficial ownership of the MacDonald Street units; or (c) if the plaintiff is found to have established his estoppel case, an appropriate remedy would not be a declaration that she holds her beneficial interest in the MacDonald Street units on trust for the plaintiff, with consequential orders.

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

(a) whatever John may have said to the plaintiff in relation to the PDA, he had no authority as her agent to bind her without her consent; and (b) she entered transactions relating to the transfer of the Yerrick Road property, the Wangee Road property and the Maitland Road property and arranged for the plaintiff to assume management of the MacDonald Street units in the ordinary course of business of the global partnership between the plaintiff and herself for which she contends.

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

“221. In the period March - June 2012 Makis (by John on her behalf) made a number of representations to Kyriacou to the effect that the Australian investments and all associated claims and liabilities would be finally and exhaustively separated on the following terms (the “2012 Representations”):

a. Kyriacou would receive Makis’ interest in the MacDonald Street Units and would also assume sole liability for the ANZ Banking Group Ltd mortgage loan in the sum of $1,310,000;

b. Makis would receive Kyriacou’s interest in the Maitland Road property;

c. Makis would receive Kyriacou’s interest in the Yerrick Road Unit (which would be transferred to Makis’ son);

d. Makis would receive Kyriacou’s interest in the Wangee Road Unit (which would be transferred to Makis’ daughter);

e. Makis would assume all liability of Kyriacou pursuant to the Pambris Laiki Bank Loan;

f. while the legal transfer of the MacDonald Street Units and the Maitland Road property would be deferred, the parties would henceforth be entitled to rental income, and be liable for all expenses, as though the described transfers had occurred; and

g. the parties would mutually release each other from any claims relating to the investments.

PARTICULARS

a. Conversations between John and Kyriacou in late March and early April 2012, including a conversation in the carpark at loannis’ then place of work in Bardwell Park.

b. Conversation between John and Maria Sinanis, the solicitor engaged by Kyriacou and Makis, in early May 2012, at which John furnished Ms Sinanis with a document titled ‘Partnership Dissolution Agreement’.

c. Conversation between John and Kyriacou in June 2012 at Kyriacou’s home in which John furnished Kyriacou with a document titled ‘Partnership Dissolution Agreement’.

d. Execution by Makis of various documents and authorities required to enable Kyriacou to receive all rent, and pay all expenses, for the MacDonald Street units.

Encouraged and induced by, and in reliance upon, the representations made by Makis, and to the knowledge of Makis, Kyriacou:

a. on or about 17 July 2012, transferred his interest in the Yerrick Road Unit to Makis’ son Polycarpos Paul Papatheodotou and permitted Makis to retain the whole of the proceeds of sale;

b. on or about 20 July 2012, transferred his interest in the Wangee Road Unit to Makis’ daughter loanna Yianna Papatheodotou and permitted Makis to retain the whole of the proceeds of sale;

c. on or about 12 November 2013, transferred his interest in the Cessnock Motel as part of the sale of that property and permitted Makis to retain the whole of the proceeds of sale;

d. assumed responsibility for management of the MacDonald Street Units from June 2012 onwards, including payment of expenses to the extent not funded through the rental income;

e. permitted Makis to retain the joint share of the net rental proceeds from the Maitland Road property from June 2012; and

f. paid $50,000 to reduce the principal amount of the ANZ loan secured by a mortgage on the MacDonald Street Units.

By reason of Kyriacou’s performance of the matters set out in paragraph 222 above and Makis’ failure to effect a transfer of the Macdonald Street Units in accordance with the 2012 Representations, Kyriacou has suffered a detriment.

In the premises, it would be unconscionable, and would occasion detriment to Kyriacou, for Makis to assert an accounting of the partnership assets and liabilities on terms other than set out in the 2012 Representations.

In the premises, the accounting of the partnership assets and liabilities should be undertaken in accordance with the 2012 Representations, so as to put the parties in the position as though the 2012 Representations had been implemented.

In further answer to the Cross Claim generally, Kyriacou further says that:

a. the amounts now claimed by Makis, some of which relate to alleged contributions from the 1990s and early 2000s, were never set out in any partnership accounts or claims provided to Kyriacou; and

b. the 2012 Representations referred to in paragraph 221 above did not refer to the historical claims now made pursuant to the Cross Claim.

In the premises, by making the 2012 Representations, Makis represented to Kyriacou that no accounting for historical contributions was owed and/or would be sought.

In the premises, it would be unconscionable, and would occasion detriment to Kyriacou, for Makis to assert an accounting of the alleged historical contributions set out in the Cross Claim in a manner inconsistent with the 2012 Representations.”

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]:

“… John’s representations set out in the Partnership Dissolution Agreement (‘PDA’), his provision of a copy of the PDA to both Sinanis [the parties’ solicitor] and [the plaintiff], his instructions to Sinanis to prepare documents and to act on the transfer of the Wangee Road and Yerrick Road units [to children of John and the defendant], coupled with the authority of [the defendant] (noting she had not spoken to [the plaintiff] since 2011) she provided to John and her direction to the [real estate] agent to account to [the plaintiff] and the various Council and utilities to bill [the plaintiff] (a state of affairs that continued until after the commencement of these proceedings) constituted the conduct of relations between [the plaintiff and the defendant] as to her agreement or their assumption that the terms of the PDA would be given effect. In that context, [the plaintiff] signed the transfers to the various properties and permitted [the defendant] to take the whole of the net property sale proceeds for her use and benefit, with a detriment to [the plaintiff] now being that he parted with his interest in the properties and has suffered the detriment of not having title to the MacDonald Street units transferred to him. The estoppel arises to prevent [the defendant] from denying the fact that [the plaintiff] was to obtain the MacDonald Street units.”

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:

“His Honour: What do you say the estoppel question is?

Darvall: What we say is that she [the defendant] conducted herself as leaving us [the plaintiff] in no uncertain terms that John was the one that negotiated on her behalf.

His Honour: Is that something that Robb J found against?

Darvall: No, he didn’t, because the estoppel case wasn’t run. It was limited to the specific performance of the partnership agreement. The partnership agreement was, ‘You give us the proceeds of these’ …

His Honour: This is the dissolution agreement that you alleged?

Darvall: Dissolution agreement. ‘You give us these three properties you get that. We’ll take responsibility for the rest, and we each go our own ways’. We then handed over the proceeds of the three properties to her and the property wasn’t transferred to us. Ultimately, when we got tired of waiting for it that’s when these proceedings commenced. The estoppel is the way she conducted herself in having John conduct all the dealings with us on her behalf led us into the impression that if we handed all all this over things …

His Honour: You handed things over to John.

Darvall: Handed the proceeds of the property to her, the three properties to her, that we would end up with this block of units. We did hand over the proceeds of the properties to her. She disputes that [but, in this judgment, on that issue I find for the plaintiff] … Our detriment is obviously that we’ve handed them over, got no money out of it, and don’t get the benefit of what the partnership dissolution agreement was.”

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):

“Darvall: … I am informing you of this now so that you understand the case that [the plaintiff] brings. Firstly, we have submitted to his Honour that part of [the plaintiff’s] case is that he seeks to prove that there was an estoppel against you [the defendant] from resiling from the terms of the partnership dissolution agreement.

His Honour: I think what that means is it’s going to be submitted against you [the defendant] that in some way you adopted a document called a partnership dissolution agreement, and having adopted it in some way, you’re stuck with it. I think that’s, in essence …

Darvall: It’s more than that. What we’re saying is that you [the defendant] - in the course of your dealing was to cloak John with your apparent authority for transactions and dealings with [the plaintiff] on your behalf throughout the course of these matters, and I’m just putting the proposition to you first, and so that having conducted yourself in that way, he was entitled to accept that he was dealing with John, with your authority, and that he acted on that authority by letting you take the proceeds of the various properties that you took.

Douglas [Counsel for the defendant]: Your Honour, I do object.

Defendant: I don’t understand what you’re trying …

His Honour: I am not sure this is altogether helpful, because you’re putting a series of propositions - ultimately, they’ll be submissions - to a witness …

Darvall: I don’t think it’s going to …

His Honour: … who’s a lay witness.

Darvall: I’m just making clear that one possible outcome is that his Honour will be invited to accept is that the partnership dissolution agreement should be given effect to, effectively, in which case you get the properties that you had, he gets [the MacDonald Street units]. Alright? That’s one possible outcome. You may or may not accept, but that’s an outcome …”

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:

“Darvall: This was a joint loan that was secured by mortgage over the MacDonald Street units, correct?

Answer: Correct.

Defendant: Let me make it clear, your Honour, if you’re asking me about the accounts, about the loans, about the withdrawals, about the deposits, it was [the plaintiff] and [John] organising that. If, if, even if I say something, it will be just ‘I don’t know’. There were, the anything to do with the accounts, I was not involved …

His Honour: … What I’m hearing is that you’re telling us that when it comes to matters of detail, you were never involved in matters of detail because everything was dealt with by John and …

Answer: And [the plaintiff].

His Honour: And [the plaintiff].

Answer: Any details of the loans that their, their accounting, I was not involved.”

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.

THE CENTRAL PERSONALITIES

Introduction

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:

“140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject - matter of the proceeding; and

(c) the gravity of the matters alleged.”

The Nature of Personal Relationships

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”:

“[36] In around 2011 I started hearing rumours in the Cypriot community about Ioannis [John] that made me concerned. I heard that he had been sacked from his job at Bank of Cyprus and that people were saying he owed them money. At some time in late 2011 I met with Ioannis at his house in Fowler Street, South Coogee and spoke to him as follows:

Me: ‘People are saying you lost their money and they are going to come after you. Some people are wondering if I was involved because I invest with you and Androulla [the defendant]. What is happening?’

Ioannis: ‘They are saying I owe them money but it’s bullshit and it’s not my fault. But some people might try and take me to Court.’

Me: ‘I don’t want to be involved in any of that. This is embarrassing for me. I think it’s better if we split up the investments and invest separate from now on. I don’t want to be mixed up with all this trouble.’

Ioannis: “Ok we will think about how to split the properties and once we agree we will separate them.’”

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.

John as a Dominant Personality

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:

“[24] After my discussions with Andrea and Kyriacos about the Partnership, my understanding of my role was that had authority to negotiate finance and make investments on behalf of the partners for the Partnership. I understood that I would also be responsible for keeping the records of the Partnership.

[25] Over the next two decades, I arranged finance for the Partnership and arranged Investments on behalf of the Partnership. In arranging finance, I would often utilise my extensive contacts built up through my career in banking, who were usually members of the Greek and Cypriot community.

[26] Many of the loans I arranged were informally documented, and often the only document recording the loan was an acknowledgment of the funds advanced that I would sign. I believe that my reputation in the community was such that people trusted me and were happy to deal with me on that basis. In my experience of the Cypriot community, it is not uncommon for members of the community to lend money to other members outside of the regulated financial system.”

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’s Family

The plaintiff married Anastasia, in Sydney, in or about November 1981.
There were two children of their marriage:

(a) a daughter, Nicole; and (b) a daughter, Georgina.

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 Defendant’s Family

The defendant married John, in Sydney, in about November 1983.
There were two children of their marriage:

(a) a son, Paul, born in 1985; and (b) a daughter, Ioanna.

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:

“F. [John] would be allowed to stay in the house [the former matrimonial home] and pay rent for a period of a minimum (but not limited) of thirty months after the date of the marriage of the last of the two children [of the marriage].

G. [John] has no interest to any other property or properties that [the defendant] has currently in her name as all the properties are fully mortgaged and the current mortgage balance is higher than the current market value of the properties.

H. [The defendant] has no interest in any other money or investments that [John] might have.”

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.

COMPETING CASE THEORIES

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):

(a) the first category of business, conducted between some time in the 1990s and 2011 or thereabouts, comprised trading in various types of business (not involving the acquisition of real estate in New South Wales), including share trading, foreign exchange trading, loans to third parties, and an export-import business between Australia and Cyprus which ended in 2011. (b) the second class of business comprised the acquisition of real estate investment properties in New South Wales (in the names of the plaintiff and the defendant as tenants-in-common in equal shares) with a view to profit on resale.

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.

(a) he was not in partnership with anybody in relation to the first category of business and that his involvement in those trading activities was (to use a descriptive label) as a nominee or proxy for John. (b) if any of the trading activities imposed upon him a liability for debts, then any liability he might otherwise have had:

(i) was a liability to John, not the defendant, and any entitlement John may have had vested in John’s trustee in bankruptcy when, shortly after the last of the trading transactions, John became bankrupt; and (ii) if the plaintiff would otherwise have been liable in debt to the defendant that liability was extinguished by operation of the Limitation Act 1969 NSW, sections 14 and 63 after the expiry (before the commencement of these proceedings) of a limitation period of six years.

(c) the defendant is estopped from denying arrangements made between the plaintiff (on the one hand) and John (on the other hand) for a division of property between the parties, which arrangements (as evidenced, in concept, by the PDA) contemplated that he would be left with all beneficial ownership of the MacDonald Street units, subject only to liability for the ANZ Bank mortgage. (d) accepting that the PDA was not a contract binding on the defendant, the PDA document, considered as evidence, corroborates the plaintiff’s contention that he was not involved in the first category of business otherwise than as a proxy for John. (e) the Court should declare that the defendant holds her interest in the MacDonald Street units on trust for him.

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:

(a) John prepared the PDA and made representations to the plaintiff that the business relationship between the plaintiff and the defendant (and, incidentally, John) would, in effect, be wound up on the terms for which the PDA provided if he performed his side of the bargain contemplated by the PDA. John made those representations to the plaintiff on behalf of the defendant as her agent even though she has refused to acknowledge the PDA. (b) John instructed the parties’ joint solicitor to carry into operation, in consultation with him, the real estate transactions contemplated by the PDA (in the event stopping short of effecting a transfer of the defendant’s interest in the MacDonald Street units to the plaintiff). (c) in effecting these transactions John and Ms Sinanis were acting, inter alia, as agents of the defendant with knowledge of the plaintiff’s reliance on the PDA, albeit unsigned. (d) although the defendant declined to acknowledge the PDA she did not disclaim it when, knowing that the plaintiff was expecting to take over management of the units and the ANZ mortgage on the units as a step towards full beneficial ownership of the units, she allowed him (believing that he would receive a transfer of her interest in the units) to sign over his interest in the Wangee Road, Yerrick Road and Cessnock properties and allow her to appropriate the net proceeds of sale of those properties.

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”.

ARE ANY OF THE ACTIVITIES OF THE PARTIES CORRECTLY CHARACTERISED AS A “PARTNERSHIP”?

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):

“The partnership relation is contractual. Whether it exists in a particular case is determined by assessment of what the parties must be taken to have intended, as evidenced not only by the terms of their express agreement but by their conduct towards one another during the course of carrying on [a] business. No one factor of itself is conclusive. All the facts and relevant circumstances of the relationship between the parties must be considered. The statutory rules [set out in section 2 of the Partnership Act] qualify the terms of the definition [contained in section 1] and provide guidance for persons interested in separating partnership from non-partnership joint ventures and other relationships, such as principal/agent, employer/employee, creditor/debtor and bailor/bailee, which may exhibit similar characteristics to partnership in some circumstances.”

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):

“1 Definition of partnership

(1) Partnership is the relation which exists between persons carrying on a business in common with a view of profit and includes an incorporated limited partnership.

…

2 Rules for determining existence of partnership

(1) In determining whether a partnership does or does not exist, regard shall be had to the following rules—

(1) Joint tenancy, tenancy in common, joint property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof.

(2) The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived.

(3) The receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business, but the receipt of such a share, or of a payment contingent on, or varying with the profits of a business does not of itself make the person a partner in the business; and in particular—

(a) The receipt by a person of a debt or other liquidated demand by instalments or otherwise out of the accruing profits of a business does not of itself make the person a partner in the business or liable as such—

(b) A contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such—

(c) A person being the surviving spouse (including widow or widower) or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such—

(d) The advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such: Provided that the contract is in writing and signed by or on behalf of all the parties thereto—

(e) A person receiving by way of annuity or otherwise a portion of the profits of a business in consideration of the sale by the person of the goodwill of the business is not by reason only of such receipt a partner in the business or liable as such.

…

4 Meaning of firms

Persons who have entered into partnership other than an incorporated limited partnership with one another are for the purpose of this Act called collectively a firm, and the name under which their business is carried on is called the firm-name.

5 Power of partner to bind firm

(1) Every partner in a partnership other than a firm that is a limited partnership or incorporated limited partnership is an agent of the firm and of the other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which the partner is a member, binds the firm and the other partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom the partner is dealing either knows that the partner has no authority, or does not know or believe the partner to be a partner.

…

6 Partners bound by acts on behalf of firm

(1) An act or instrument relating to the business of a firm other than an incorporated limited partnership, and done or executed in the firm-name, or in any other manner, showing an intention to bind the firm by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners.

…”

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).

THE CONCEPT OF A GLOBAL OVER ARCHING PARTNERSHIP

The Concept Identified

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:

(a) to carry on an investment business together, as partners, to invest in real property in Australia and Cyprus; Australian and international shares; commodities such as silver; and foreign currency; (b) that the partnership would conduct business on terms (more precisely set out in paragraph 26 of the defendant’s amended statement of cross claim) that included an agreement that the investment business would be conducted using mainly borrowed funds, that any funds contributed to the partnership business by an individual partner would accrue interest at 8.5% per annum, (compounded monthly) “to be repaid out of profits of the partnership business at a future date”, that any investments were to be made with the consent of all partners and that “upon the conclusion of the partnership” all partnership property (not earlier the subject of an ad hoc distribution of profits) “would be sold, all partnership liabilities paid, and after accounting for any amounts owed to any individual partner for their contributions, plus interest, the net profit (if any) would be distributed equally between the partners”; (c) that John would have authority to conduct the business of the partnership on behalf of each of the other partners; and (d) that on the basis of the partnership agreement, John and the defendant would lend money to the plaintiff “to assist him and his family financially” on an ad hoc basis by forming “one loan” from John and the defendant to the plaintiff attracting interest at a rate of 8.5% per annum, compounded monthly pending conclusion of the partnership and the deduction from any profit otherwise due to the defendant and his wife and credited to John and the defendant.

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:

(a) agreed that John would have authority to:

(i) conduct the business of the partnership on her behalf and in her name in accordance with the Partnership Proposal, subject to her prior consent to investments; (ii) arrange the borrowing of funds to finance partnership business, as well as the repayments of those borrowed funds; (iii) make contributions to the business or liabilities of the partnership on her behalf; and (iv) arrange the lending of money to the plaintiff on behalf of herself and John on the terms of the alleged “Kyriacou Loan Agreement Proposal”;

(b) agreed to:

(i) the Partnership Proposal, and for John to have the authority to conduct the business of the partnership on her behalf and in her name, subject to her consent to any investments; (ii) John to have the authority to arrange the borrowing of funds to finance partnership business; (iii) John to have the authority to make contributions to business or liabilities of the partnership on her behalf; and (iv) the “Kyriacou Loan Agreement Proposal”, and for John to arrange the lending of money to the plaintiff on the terms of the Kyriacou Loan Agreement Proposal.

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.

Existence of a Global Partnership Agreement Denied

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.

Fluidity of Alleged Partnership Membership

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:

(a) The terms of the alleged global partnership are said to have been established, just once, in or about December 1995. (b) The partnership was said to have been reconstituted (expressly, but perhaps more realistically, implicitly, without formality) on at least two occasions:

(i) when the plaintiff separated from his wife, Anastasia; (ii) when John separated from his wife, the defendant.

(c) There is at least a question about whether membership of “the partnership” was (again informally) reconstituted on two other occasions:

(i) In or about 2003-2004, when George Christiou and George Costi COSTI were spoken of as “silent partners” in relation to the purchase of the Darling Road units; (ii) Between 2006-2011 or thereabouts when Kypros Parisis and Panayiotis Paniyi joined the plaintiff and defendant as co-owners in the Dudley Street property.

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.

Disputed “Incriminating” Records

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) he was trusted by his community, including both the plaintiff and the defendant, in the conduct of business and, based on that, he had (and exercised) a free hand in dealing informally with others’ affairs; and (b) the plaintiff, I accept, would have been naive enough to sign documents in blank, and documents presented to him without explanation, if and when requested by John to do so.

Questions of Credit

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.

RECORDS OF THE SOLICITOR, Ms SINANIS

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):

“Hi Maria

Please make the following transfers/ contract of sales (the minimum required):

Unit 8/43 Yerrick Road, Lakemba, NSW, 2195 Sold to Polycarpos Paul Papatheodotou for $235,000 - settlement 20/6/2012

Unit 12/60 Wangee Road, Lakemba, NSW, 2195 Sold to loanna Yianna Papatheodotou for $235,000 – settlement 30/5/2012

Unit 22/289 Gardeners Road, Eastlakes, NSW, 2018 Sold to loanna Yianna Papatheodotou for $400,000 - settlement 30/5/2012

Units 1,2,3,4,5,6,7,8/2 MacDonald Street, Lakemba, NSW, 2195 Andrea Makis is selling her share 50% of each unit to Kyriacos Kyriacou for $117,500 -total price $940,000

Settlement date for this deaI is 1/7/2015

Kyriacos Kyriacou is selling his 1/6 share of Lot 1, in Deposited Plan 841518 [the Cessnock Motel] to Andrea Makis for the price of $235,000 with settlement day 1/7/2015.

If you need any information please let me know. …

Regards

(signed)

Ioannis Papatheodotou

Alpha Choice Finance Solutions Pty Ltd. …”

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:

“Dear Maria

Please note that for Yianna I will need the front page of the contracts of sale because I have to give them to the bank for the loan.

For 4 and 5 the settlement will be 2015.

On the contract of sale for Yianna please show that for the Unit 12/60 Wangee Road she paid $52,000 deposit and

for Unit 22/289 Gardeners Road, she paid $80,000 deposit.

I should visit in the next few days.

If you need anything else please let me know.

Regards,

(signed)

loannis Papatheodotou

Alpha Choice Finance Solutions Pty Ltd …”

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:

“Kyriacos Kyriacou

xxx [a mobile phone number].

*Undertake valuation of MacDonald St Lakemba

*Do Transfer from A Makis to K.K”

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

“KYRIACOU

Conf. Kyriacos

*Prepared contract for ½ share sale to him from Andrea based on the previous instructions.

*Loan for $1.3 million now with ANZ.

*He gave three apts in exchange for this share.

*Gave x2 Contract Transfer copy of val for $825k-half of the value for signature and return.

*Advised since he has effectively paid for his share of the block of units he should put a Caveat protecting himself pursuant to the proposed Contract. He will speak to them about it & advise me when he returns docs. He is not sure how they would take it.”

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

“KYRIACOU

Conf Kerry

*23 May 2015 – Mtge expires

*Been to the Bank - no increase in loan amount.

*Advised him to speak to John Papatheodotou & see what is going to happen. My notes show that it is supposed to settle 1/7/15

*People are going to the workshop looking for John. Told Kerry is not worth it. If John doesn’t tell him what he intends to do with the unit etc, then he should force a sale. He will get less money but at least he won’t be [CH… ED**?**] for it.

*He will ring John & get back to me.”

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

“Conf. Kerry

Attended my office with a copy of the Partnership Dissolution agreement. I gave him a copy of the email I received.

He wants to start proceedings for partnership to get all Units in MacDonald St. They are telling him that he is only going to get half.

He was adamant that he signed the document with me & that I had prepared the document. I told him that I had not prepared the document and that I remembered JP showing me the doc but that he sent me the email of how they were to split [?].

Found my file & he asked for a copy of docs. I provided with him. Gave him a copy of Contracts, Transfer & Val that he had taken away for them to sign and never returned them to me.”

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.

CATEGORIES OF BUSINESS THE SUBJECT OF CONTROVERSY

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.

PARTICULARS OF REAL ESTATE TRANSACTIONS

Introduction

Leaving aside:

(a) an unrealised proposal to acquire an interest in a property development (with Sam Pambris) at Canterbury; (b) the fact that only one of two units initially planned to be acquired in a strata development at 3 Darling Island Road, Pyrmont (through Kyrpap Pty Ltd) was ultimately acquired; and (c) treating the eight units in the strata building known as the MacDonald Street units as a single acquisition,

using the dates of registration of title documents as a measure of time (and not allowing for earlier contract details unless specified), between January 2005 and September 2007 or thereabouts the plaintiff and the defendant acquired four properties (at Darling Island Road, Pyrmont; Wangee Road, Lakemba; Yerrick Road, Lakemba; and MacDonald Street, Lakemba) and an interest shared with other parties in two properties (the motel at Maitland Road, Cessnock and a residential property at Dudley Street, Punchbowl).

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.

3 Darling Island Road, Pyrmont

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:

(a) Unit 121, being Lot 7 in the Strata Plan; and (b) Unit 111, being Lot 1 in the Strata Plan.

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):

(a) for a declared consideration of $610,000, Memorandum of Transfer AB212625 in favour of Kyrpap Pty Ltd (bearing a stamp duty receipt dated 11 February 2003) was registered on 11 January 2005. (b) for a declared consideration of $610,000, Memorandum of Transfer AB212626 (bearing a stamp duty receipt dated 1 December 2004) was registered on 11 January 2005. It provided for a transfer of title by Kyrpap Pty Ltd to the Christou and Costi interests. John executed the Transfer on behalf of Kyrpap Pty Ltd, styling himself as the sole director/secretary of the company. (c) Mortgage A212627 was also registered on 11 January 2005. The identity of the mortgagee is not in evidence. The evidence does not include a copy of the mortgage or a copy of the Certificate of Title recording the mortgage but a NSW Land Registry Historical Search suggests that the mortgage was discharged on 12 June 2018, upon which date the property was the subject of a Transfer and a new mortgage.

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

(a) for a declared consideration of $575,000 Memorandum of Transfer AB125028 dated 29 November 2004 (bearing a stamp duty receipt dated 26 November 2004) in favour of the plaintiff and defendant as tenants-in-common in equal shares was registered on 29 November 2004, together with mortgage AB125029 granted by the plaintiff and the defendant as mortgagors to Laiki Bank (Australia) Ltd as mortgagee. (b) that mortgage was discharged by Discharge of Mortgage AF182992 (incidentally, signed by Anastasia Kyriacou and another person ostensibly as attorneys for Laiki Bank (Australia) Ltd) registered on 10 December 2009. (c) on 10 December 2009 there was also registered on the title mortgage AF182993 (dated 25 November 2009) granted by the plaintiff and the defendant as mortgagors to Bank of Cyprus Australia Ltd as mortgagee. (d) that mortgage was discharged by Discharge of Mortgage AG478072 (dated 26 August 2011). (e) The next dealing recorded on the title is Transfer AG478073 (dated 26 August 2011), registered on 6 September 2011, recording a sale by the plaintiff and the defendant to an unrelated third party for a declared consideration of $665,000. A solicitor’s “Settlement Statement” records that, upon settlement of the sale on 26 August 2011, the sum received on behalf of the vendors (in addition to a deposit of $66,500) was $598,823.87. Ms Sinanis acted on the transaction. Her tax invoice dated 24 August 2011 was addressed to the plaintiff and the defendant at the residence of the defendant and John (then divorced) in Fowler Crescent, South Coogee.

300 Maitland Road, Cessnock

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.

6/29 Dudley Street, Punchbowl

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).

12/60 Wangee Road, Lakemba

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:

“The proceeds of sale were issued in Andrea and Kerry’s name and collected by John. But from thereon, I don’t know [where the proceeds of sale went]”.

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.

8/43 Yerrick Road Lakemba

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.

1-8/2 MacDonald Street, Lakemba

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:

(a) the relationship between the plaintiff and the defendant being confined to co-ownership of the units rather than a partnership; and (b) the plaintiff not being a party to dealings by Messrs Georgiou and Pambris with the defendant (and John).

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.

General Observations

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.

THE (UNSIGNED) “PARTNERSHIP DISSOLUTION AGREEMENT”

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:

**“**PARTNERSHIP DISSOLUTION AGREEMENT

By signing this agreement (“Agreement") the Partners Kyriacou Kyriacos of … Cross Street, Kogarah, NSW, 2217 and Andrea Makis of … Fowler Crescent, South Coogee, NSW, 2034, henceforth known as "Partnership" acknowledge and consent to dissolving said Partnership· on the First day of July Two Thousand and Twelve.

The names of the Partners in this Partnership are as follows:

Kyriacou Kyriacos or (Kerry)

and Andrea Makis or (Androulla Papatheodotou)

The previously listed Partners undersign this Agreement and acknowledge and agree to the following provisions:

Distribution of Assets and Allocation of liabilities and/or Debts:

Kyriacos Kyriacou

Kyriacos will keep ownership of the block of eight units situated at: Units 1 to 8, 2 Macdonald Street, Lakemba, NSW, 2195 with the current debt on the property with ANZ bank.

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 LIMITED, 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 Marfin Laiki Bank in Cyprus and all the joint accounts held in Cyprus with Marfin Latki Bank in Cyprus.

Andrea will also keep the share of the partners in the motel at 300 Maitland Road, Cessnock, NSW, 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.

Other Property

Unit 8/43 Yerrick Road, Lakemba, NSW, 2195 would be sold to Polycarpos Paul Papatheodotou for $235,000.

Unit 12/60 Wangee Road, Lakemba, NSW, 2195 would be sold to Ioanna Yianna Papatheodotou for $235,000.

Both Properties would be sold on the 1st of July 2012.

Tax Obligations:

The partners agree that each one would be responsible for the payment of any stamp duty, land tax or any other tax and expenses in order to effect the above transfers of the properties, in their names.

Release:

Each Partner releases all other partners from any and all known claims, actions, and demands arising as a result of the Partnership. Release does not prevent a Partner from bringing suit under this Dissolution Agreement, should this Agreement not be fulfilled according to the rules set forth.

Indemnification:

Partners agree to indemnify and hold harmless each other from claims, damages, or obligations of any kind with regard to his/her duties in liquidating this Partnership, unless claims or losses come as a result of the actions of any of the partners breach of contract and/or unethical behavior.

Disputes:

Should the Partners have any disputes with regard to this Agreement, the final decision lies with Mrs Maria Pierou Sinanis as a third party arbitrator.

Severability:

If one or more sections of this Agreement are declared invalid, those sections are null and void, but au other sections remain enforceable.

Undertakings:

The partners are undertaking the obligation to sign any paperwork, authorizations, or powers of attorney or any other documentation required in order to effect the above dissolution of partnership and transfer of properties as required by law or from the other partner.

Jurisdiction:

This agreement is bound by the laws and regulations of the State of New South Wales.

By signing below, the Partners, Kyriacou Kyriacos and Andrea Makis, agree to dissolve partnership between them, freely and willingly, according to the terms listed above.

Signed this [blank] of June 2012 by:

Kyriacou Kyriacos

Partner Name

_____________ [unsigned]

Partner Signature

Andrea Makis

Partner Name

_____________ [unsigned]

Partner Signature

Maria Sinanis

Witness Name

_____________ [unsigned]

Witness Signature”

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):

(a) by several “direct debit request forms” addressed to Sydney Water dated 9 May 2012, signed by both the plaintiff and the defendant, accounts for water rates for the MacDonald Street units were to be addressed to the plaintiff, with contact details including the plaintiff’s residential address and mobile number, and rates were to be debited to an ANZ Bank account (into which rental income from the units was directed). (b) by a letter dated 14 May 2012, signed by both the plaintiff and the defendant, addressed to the Manager of Canterbury Council, the Council was requested to change the signatories’ postal address for accounts relating to the eight MacDonald Street units to the plaintiff’s residential address and invited to ring the plaintiff on his mobile phone for any “clarifications”. (c) by a letter dated 25 May 2012, signed by both the plaintiff and the defendant, addressed to the real estate agent managing the MacDonald Street units, the rental income from the units was to be credited to the ANZ bank account in the name of the plaintiff the subject of the direct debit requests made for the payment of water rates referable to the units, such a direction for the payment of rental income to operate “as from today and until further notice”. (d) by a letter dated 27 May 2012, signed by both the plaintiff and the defendant, addressed to GIO General Limited, the insurer was requested and authorised “as from today and until further notice” to change their postal address in respect of the MacDonald Street units building to the plaintiff’s residential address. (e) by a letter dated 27 May 2012, signed by both the plaintiff and the defendant, addressed to Energy Australia, Energy Australia was requested and authorised “as from today, and until further notice” to change the parties’ postal address to the plaintiff’s residential address. (f) by a letter dated 15 June 2012, signed by both the plaintiff and the defendant, addressed to a named manager of the ANZ Bank, the bank was invited to arrange for the method of operation for the account referable to the bank’s mortgage over the MacDonald Street units to change to “anyone to sign” and for loan instalments to be paid out of the account in the name of the plaintiff into which rental income had been directed.

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:

(a) by reference to the unsigned PDA, John (ostensibly on behalf of the defendant and himself) represented to the plaintiff that, if he 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 his and the defendant’s children 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 (and John). (b) John’s representation was promissory in nature, bearing the character of a bargain. (c) in reliance upon John’s representation (and in performance of the bargain) the plaintiff assumed responsibility for the mortgage debt on the MacDonald Street units and for management of the units, and joined in transfers for the benefit of the defendant of the Yerrick Road, Wangee Road and the Cessnock motel, allowing the defendant to appropriate all net proceeds of sale. (d) on reasonable grounds, the plaintiff expected that if (as he did) he assumed responsibility for the debt secured against the MacDonald Street units, assumed responsibility for management of the units, transferred the Yerrick Road and Wangee Road properties to the children of the defendant and John, and ceded his interest in the Cessnock motel (and any interest he had in property or operations in Cyprus) to the defendant, allowing the defendant to appropriate all net proceeds of sale, he would be entitled to full beneficial ownership of the MacDonald Street units and a release from any claims the defendant might have against him. (e) in causing the transfers of the Yerrick Road, Wangee Road, Cessnock motel to be effected, and in instructing Ms Sinanis in respect of those transactions, John ostensibly acted as an agent for the defendant (as well as for the children of the defendant and John). (f) Ms Sinanis acted as solicitor for both the plaintiff and the defendant and in that capacity she knew of the PDA, the plaintiff’s reliance on the bargain it recorded in taking steps to give effect to the PDA, and his expectation that he would be entitled to keep ownership of the MacDonald Street units in accordance with the PDA if he performed his side of the bargain it recorded.

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.

CONSIDERATION

John’s Authority to Negotiate and the Defendant’s Knowledge

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:

(a) The plenary authority attributed to John by the defendant in paragraphs 28(c) and 29(a)-(c) in her statement of cross claim. (b) John’s understanding of his authority after discussions with the plaintiff and the defendant, as recorded in paragraphs 24-26 of his affidavit sworn 20 July 2022. (c) The defendant’s unsolicited declaration in the course of cross examination (at transcript page 296) that when it came to “matters of detail” she was never involved because “everything was dealt with” by John and the plaintiff and she was “not involved” in any “details of the loans” or “their accounting”. (d) The conduct of the defendant between 9 May 2012 and 15 June 2012 (in close proximity to the instructions given to Ms Sinanis by John on 7 May 2012 and consistent with the terms of the PDA), in conferring on the plaintiff full management responsibility for the MacDonald Street units. (e) The defendant personally signed the ANZ Bank mortgage over the MacDonald Street units which, objectively, she must have understood allowed the Wangee Road and the Yerrick Road properties to be released from debt and to be sold, unencumbered, providing funds for her (and John) to pay down personal debts at a time when she and John were struggling to service a mortgage over their former matrimonial home. (f) The conduct of the defendant in allowing John to manage instructions given to Ms Sinanis, as solicitor for both the plaintiff and the defendant, in giving effect to transactions for the sale of real estate contemplated by the PDA and dealing with the proceeds of sale.

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 (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.

Equitable Estoppel

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):

“[32] An estoppel arising from a promise upon which a plaintiff claims an entitlement to new property rights, such as a conveyance of land or "trust", has been described as promissory estoppel, proprietary estoppel or, more generally, as estoppel by conduct and equitable estoppel. As in Giumelli v Giumelli [(1999) 196 CLR 101 at [7]] there is no occasion in this appeal to consider whether there is any difference between these descriptions or if there is any "single overarching doctrine" of estoppel. In the appeal to this Court, the parties were agreed that the category of estoppel in issue should be described as "proprietary estoppel by encouragement". That agreed nomenclature can be accepted provided that "proprietary estoppel by encouragement" is understood to refer to an estoppel which affords relief in equity "found in an assumption as to the future acquisition of ownership of property ... induced by representations upon which there had been detrimental reliance by the plaintiff" and which arises in the circumstances of this case solely by reason of detrimental reliance on a promise of a future conferral of a proprietary interest in land. This case does not call for consideration of whether, or when, any doctrine exists which might permit the creation of rights through any broader form of "estoppel by encouragement".

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):

“[36] In Waltons Stores (Interstate) Ltd v Maher, Brennan J set out six requirements for an equitable estoppel which, as senior counsel for David submitted and as explained below, were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence. When the focus is only upon an equitable estoppel which arises by reason of encouragement from a promise, the elements that must be satisfied can be refined as follows.

[37] First, as with the requirement for representations in estoppels by representation generally, there must be a "clear and unequivocal" promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.

[38] Secondly, a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an "encouragement" for the promisee to act.

[39] Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".

[40] Fourthly, the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise". Hence, the relief is "moulded accordingly to prevent th[e] detriment". In cases where the detriment suffered by a plaintiff is "a relatively small, readily quantifiable monetary outlay on the faith of the [defendant's] assurances" then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered "involves life-changing decisions with irreversible consequences of a profoundly personal nature", the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.

[41] Once these elements are satisfied, it is commonly said that conscience requires that A redress the detriment suffered by B. As has been repeatedly emphasised by this Court, the description of circumstances as unconscionable "is to characterise the result rather than to identify the reasoning that leads to the application of that description".”

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:

(a) inducing the plaintiff to give up property rights and to assume sole responsibility for a substantial mortgage debt, which he would not have done but for the expectation that, if he performed his part of the bargain, he would be entitled to sole legal and beneficial ownership of the MacDonald Street units; and (b) facilitating a means by which John and the defendant (by refinancing Laiki Bank debt with ANZ funding secured over the MacDonald Street units) could obtain much needed, urgent funds to pay their personal debts and to cut John’s ties with the Laiki Bank following his departure from the Bank in unhappy circumstances.

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.

Residual Questions

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.

ORDERS

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:
DECLARE that the defendant holds on trust for the plaintiff her interest in Lots 1-8 in Strata Plan 31426, being the properties respectively known as Units 1-8, 2 MacDonald Street, Lakemba in the State of New South Wales.
ORDER that the defendant’s interest in Lots 1-8 of Strata Plan 31426 vest in the plaintiff.
RESERVE to the parties liberty to apply for consequential relief in the working out of these orders.
ORDER that the defendant’s amended statement of cross claim filed on 27 November 2023 otherwise be dismissed.
ORDER that the defendant pay the plaintiff’s costs of proceedings on the ordinary basis.
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.

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Kyriacou v Makis

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

JUDGMENT

Introduction

THE CENTRAL PERSONALITIES

Introduction

The Nature of Personal Relationships

John as a Dominant Personality

The Plaintiff’s Family

The Defendant’s Family

COMPETING CASE THEORIES

ARE ANY OF THE ACTIVITIES OF THE PARTIES CORRECTLY CHARACTERISED AS A “PARTNERSHIP”?

THE CONCEPT OF A GLOBAL OVER ARCHING PARTNERSHIP

The Concept Identified

Existence of a Global Partnership Agreement Denied

Fluidity of Alleged Partnership Membership

Disputed “Incriminating” Records

Questions of Credit

RECORDS OF THE SOLICITOR, Ms SINANIS

CATEGORIES OF BUSINESS THE SUBJECT OF CONTROVERSY

PARTICULARS OF REAL ESTATE TRANSACTIONS

Introduction

3 Darling Island Road, Pyrmont

300 Maitland Road, Cessnock

6/29 Dudley Street, Punchbowl

12/60 Wangee Road, Lakemba

8/43 Yerrick Road Lakemba

1-8/2 MacDonald Street, Lakemba

General Observations

THE (UNSIGNED) “PARTNERSHIP DISSOLUTION AGREEMENT”

CONSIDERATION

John’s Authority to Negotiate and the Defendant’s Knowledge

Equitable Estoppel

Residual Questions

ORDERS

Parties

Legislation Cited (6)

Cases Cited (17)