(These reasons were delivered extemporaneously on 15 December 2025 and have been lightly edited from the transcript).
[2]
By writ indorsed with a statement claim filed 17 February 2025 (SOC), the plaintiffs commenced these proceedings.
I am satisfied from an affidavit of service,[1] that the first defendant, Mr Fotios, was served on 27 March 2025 with the indorsed writ. Mr Fotios has not entered an appearance in the proceedings to date.
Appearances were entered for the second defendant, Helios, and the third defendants (Receivers) on 7 March 2025. The second and third defendants filed a defence on 2 May 2025.
The matter was initially referred to me on the plaintiffs' Motion for Judgment filed on 22 May 2025.
The plaintiffs and second and third defendants filed a memorandum of consent orders on 23 July 2025, which sought further programming orders and a listing of the Motion for Judgment.
Following a hearing on 24 July 2025, the plaintiffs and the second and third defendants filed a minute of consent orders on 4 August 2025, and I made orders in terms of the filed minute.
The orders made were for the engagement of a property valuer.
By a joint communication to the Court on 5 December 2025, the plaintiffs and second and third defendants indicated that they had reached a settlement which was conditional upon the Court making certain orders.
The proposed orders of 5 December 2025 were sought initially on the papers by the plaintiffs and second and third defendants and were as follows:
A declaration that the Partnership was dissolved with effect from 30 April 2019.
A declaration that each of McSweeney and Helios hold their respective interests in Lot 1 on trust for the Partnership.
A declaration that McSweeney is authorised to wind up the Partnership.
The first and second plaintiff's [sic] action against the defendants be, and hereby is, dismissed.
There be no order as to costs in the action and any costs orders made to date are discharged.
The Court indicated that it wished to hear from the plaintiffs and the second and third defendants on the orders sought by consent after the proposed orders had been served on Mr Fotios.
I did not consider it appropriate, given that Mr Fotios has not entered an appearance nor sought to be heard, that the matter should be dealt with on the papers and consequently listed it to be heard in open court.
The matter was listed for hearing on 15 December 2025 on the basis that would allow enough time for Mr Fotios to be served and appear at the hearing if he wished.
I am satisfied from the evidence of Seema McCormack, by an affidavit made and filed on 15 December 2025, that Mr Fotios has been served with the memorandum of consent orders dated 5 December 2025 and has been given, in all of the circumstances, a proper opportunity to appear and be heard on the application. There continued to be no appearance by him when the matter was called.
Quite properly, Mr Pratt, appearing for the plaintiffs, brought to my attention that Mr Fotios was not given specific notice of the date or time of today's hearing.
In all of the circumstances, however, I consider that Mr Fotios has been given a proper opportunity to appear and be heard, and note that he was served with the memorandum by:
process servers on 10 December 2025; and
registered mail through Australia Post, which the evidence shows was delivered to his last known home address on 11 December 2025 in the morning.
[3]
On or about 29 August 2006, McSweeney as trustee for the McSweeney Family Trust and Fotios as trustee for the Michael Fotios Family Trust entered into a partnership in half shares in relation to the ownership and management of the property located at 24 Mumford Place, Balcatta, Western Australia (Partnership).
2. The terms of the Partnership were:
[4]
(a) recorded in a partnership Deed dated 21 December 2007; and
[5]
A copy of the Partnership Deed will be produced upon request.
[6]
(b) save as provided for in the Partnership Deed, governed by the Partnership Act 1895 (WA) and the general law.
[7]
On or about 30 August 2006, McSweeney and Fotios became the registered proprietors of the property located at 24 Mumford Place, Balcatta, Western Australia as tenants in common in half shares (Property).
[8]
Their proprietorship is recorded in Certificate of Title Volume 1537 Folio 979.
A copy of the Certificate of Title will be produced upon request.
[9]
(a) McSweeney and Fotios each held their respective interests as tenants in common in half shares in the Property and in Lot 1 on trust for the Partnership;
(b) McSweeney held his interest in the Partnership on trust for the McSweeney Family Trust; and
(c) Fotios held his interest in the Partnership on trust for the Michael Fotios Family Trust. (emphasis in the original)
[10]
The SOC then pleaded that:
as a result of Mr Fotios being declared bankrupt on 30 April 2019, the Partnership was dissolved pursuant to s 44(1) of the Partnership Act 1895 (WA);[2]
on 22 December 2022, Helios became the registered proprietor as a tenant in common in half shares in Lot 1 with Mr McSweeney;[4] and
Helios holds its interests in Lot 1 on trust for the Partnership.[5]
Previously:
the plaintiffs read, and read again at the hearing, the affidavit of Mr McSweeney made on 16 June 2025; and
the second and third defendants read the affidavit of Mr Kirman, the first named third defendant and one of the Receivers.
The written Partnership Agreement was PRM‑10 at page 93 to Mr McSweeney's affidavit.
The bankruptcy of Mr Fotios was established by:
a letter from the Australian Financial Security Authority dated 30 May 2019, which was PRM‑12 to Mr McSweeney's affidavit at page 113; and
a certificate of appointment of trustees in bankruptcy on 8 August 2019, as per the certificate of appointment dated 9 August 2019, which was PRM‑13 to Mr McSweeney's affidavit at page 116.
Section 44(1) of the Partnership Act provides as follows:
Dissolution by death, bankruptcy, assignment or charge
[11]
(1) Subject to any agreement between the partners every partnership is also dissolved by the death or bankruptcy of any partner.
[12]
On the basis of the evidence led, which was not contested, I am satisfied that there is a proper basis on which to make the declarations sought in orders 1 and 2 of the memorandum of consent orders dated 5 December 2025.
Both Mr McSweeney and the second and third defendants consent to Mr McSweeney being authorised to wind up the Partnership, and so I consider that it is proper to make the declaration sought by proposed Order 3.
Orders 4 and 5 as sought are, in my view, appropriately matters which may be decided between the parties, and those orders may be appropriately made.
Because there has been some history of agitation on the part of Mr Fotios and those who may be considered to be in his camp, I consider it appropriate to make the declarations sought. In the absence of such a history of disputation, it may have been thought that the operation of the Partnership Act was sufficiently clear so as not to require the first declaration sought.
For the reasons given, I will make the orders sought by the plaintiffs and second and third defendants by the memorandum dated 5 December 2025.
[13]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[14]
[1] Affidavit of Kirsty Jessica Fowler made and filed on 8 April 2025.