Plaintiff v Defendants

EQUITY - Remedy - Prima facie entitlement to transfer of property - Lesser relief of equitable compensation as appropriate remedy - Measure of equitable compensation referable to payments made for renovations - Equitable compensation awarded - Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 and Giumelli v Giumelli (1996) 196 CLR 101 applied.

EVIDENCE - Certificate granted - Evidence Act 2008 (Vic), s 128.

1 This proceeding involves a poignantly sad, but acrimonious dispute between the elderly widowed plaintiff, Kiki Hatziminas ('Kiki'), and the defendant, her widowed daughter-in-law, Maria Hatziminas ('Maria'),[1] about the beneficial ownership of a residential property in which Maria has lived for more than 28 years but which is owned by Kiki. The property is at 23 Cornwall Street, Brunswick West ('Cornwall Street').[2]

2 The story of Kiki and her late husband, Alexis Hatziminas ('Alexis'), is a not an uncommon one amongst the wave of European migrants who, with little education and much endeavour, made a life for themselves in Australia in the second half of the 20th century. Kiki and Alexis, after migrating from Greece, settled in Melbourne and worked in blue collar jobs throughout their working lives. They had two children, Minas Hatziminas ('Minas') born in 1970, and Peter Hatziminas ('Peter') born in 1973. Kiki and Alexis were hard working and frugal, buying their own house at 14 Straw Street, Brunswick West ('Straw Street')[3] in 1974.[4]

3 Kiki and Alexis have been astute in terms of property investment over their lives, albeit on a relatively modest scale. Having bought Straw Street in 1974, they purchased Cornwall Street, their first investment property, in January 1987. At that time, their two children were minors. Cornwall Street was registered in Alexis and Kiki's joint names.

4 In 1993, Kiki and Alexis purchased a second investment property at 48 Melville Road, Pascoe Vale South ('Melville Road').[5] Whilst the title to Melville Road was registered in the names of Alexis, Minas and Peter as joint tenants, the mortgage for the property was taken out in the names of Alexis, Minas and Peter as well as Kiki.

5 Maria married Minas in 1995 in a registry office civil ceremony. That Minas and Maria chose a civil marriage ceremony was the cause of some disappointment to Minas' parents. A second, traditional Greek ceremony and a large reception took place in 1996.[6] Initially after their marriage, Minas and Maria lived with Maria's mother, before moving into Cornwall Street in around 1996. The circumstances and basis of their initial occupation with Maria's mother, and the basis of their residency at Cornwall Street was contested.

6 Maria separated from Minas in September 2004 and divorced in September 2005. They resumed cohabitation sometime around 2011,[7] although the timing and circumstances of this resumption is contested. In 2014, Minas was diagnosed with multiple myeloma. Initially, he responded well to treatment but unfortunately deteriorated rapidly in late 2016 and passed away in February 2017.

7 Apart from a period when a significant renovation was undertaken in 2016 and the period of marital separation,[8] Maria and Minas lived at Cornwall Street, rent free, from approximately 1996. Maria's three children, Alex born in October 1997, Andreana born in February 2001, and Keyra born in November 2005, lived and continue to live at Cornwall Street.

8 On Alexis' death in August 2014, by survivorship, his interest in Straw Street and Cornwall Street passed to Kiki, who now holds the legal title of both properties as the sole registered proprietor.

9 Also by survivorship, Melville Street was then held by Minas and Peter as joint tenants. Upon Minas' death, Peter became the sole registered proprietor by survivorship.

10 By the time of Alexis' death, Kiki and Alexis were both retired and receiving a pension. On Alexis' death, Kiki's pension was reduced to a single person's pension. She became aware that with Cornwall Street held beneficially in her name, her pension could be further reduced.

11 After Minas' death, and Kiki's change in pension circumstances, Kiki approached Maria seeking a small monthly payment of $150 per month.[9] This was rejected by Maria. Kiki issued Maria a notice to vacate Cornwall Street on 14 July 2017 using the standard form prescribed by the Residential Tenancies Act 1997, but took no further legal action until Maria lodged a caveat on the Cornwall Street title on 13 July 2022 on the basis that Cornwall Street was held by Kiki for her benefit based on a constructive, resulting or implied trust.[10] By way of letter from her lawyer to Maria's lawyer, Kiki gave further notice to vacate on 28 February 2023.[11]

12 By this time, Kiki had decided to sell Cornwall Street as she had lost her pension entitlement and needed to fund her retirement. She had incurred a debt to the bank of more than $95,000 with no capacity to repay it.[12]

13 By her writ and statement of claim issued on 19 April 2023, Kiki sought possession of Cornwall Street and mesne profits until the delivery up of possession. The claim for mesne profits was not pursued at trial.

14 By her defence and counterclaim, Maria alleged she was not required to vacate and deliver possession of Cornwall Street because she has an equitable interest in the entire property. She claims that Cornwall Street was gifted to Minas in 1987 (referred to as the 'Initial Gift'), and on his death his interest in the property transferred to her. Separately, or alternatively, she claims that Cornwall Street was gifted to her and Minas jointly as a wedding gift in 1996 (referred to as the 'Amended Gift'). She resists the orders sought by Kiki on the basis of equitable estoppel. Alternatively, she relies on a common intention or joint endeavour constructive trust, or equitable compensation.

(a) a declaration that Kiki holds Cornwall Street on constructive trust for her and/or the estate of Minas;

(b) an order that Kiki transfer Cornwall Street to her and/or the estate of Minas;

(c) alternatively, a declaration that Kiki is estopped from denying Maria and/or the estate of Minas is beneficially entitled to Cornwall Street, selling or disposing of the property or acting in a manner inconsistent with the assumption or expectation that Maria and/or the estate of Minas is beneficially entitled to the property; and

(d) such orders this Court considers just and equitable, including equitable compensation and/or an equitable charge and/or equitable lien.

16 Kiki joins issue with Maria on the whole of her defence and, whilst she admits some contributions by Maria and Minas to some outgoings in respect of Cornwall Street, she denies any other contributions made to the renovation or maintenance of Cornwall Street by Maria or Minas.

17 On 8 December 2023, probate of Minas' estate was granted to Maria as his domestic partner and the sole beneficiary of his estate, and the pleadings were amended accordingly.[13]

18 Two procedural issues arose during the trial which required resolution. The first was an application by the defendant to file a further amended defence and counterclaim. The second was an application by the parties for a certificate under s 128 of the Evidence Act 2008.

19 At the commencement of the hearing, objection was taken on behalf of Kiki to the opening submission made on behalf of Maria alleging that the submissions did not reflect the pleaded case. The next day, an application was made to file a further amended defence and counterclaim to add the following allegations:

(a) that there was a common intention that the equitable owner of Cornwall Street was Minas and that family members would, if required, pool their resources in respect of family property (at [13]);

(b) Minas and Maria conducted their affairs in reliance on the 'Initial Gift'[14] and the 'Amended Gift'[15] (at [15]);

(c) that Kiki and Alexis contributed about $20,000 towards the costs of the 1996 renovation (at [16]); and

(d) adding a reference to the notice to vacate issued on 17 September 2017 (at [23], particulars).

20 It was submitted by Maria's counsel that the amendments sought were modest, caused no prejudice, did not raise a new cause of action, provided some particularity, and were contained in the opening submissions filed prior to the first day of hearing, thus notice of them had been given. It was argued they were effectively in the nature of housekeeping.

22 The amendments sought to the pleadings were argued to be 'very modest' and were sought to avoid any ambiguity. The principles which apply to amendment of pleadings under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 are well established. Considerations relevant to the exercise of discretion include substantial delay, wasted costs, potential for unfair prejudice, case management concerns (including adjournment), reduction in public confidence and the reasons for the delay.[16]

23 Whilst it is highly undesirable to be amending pleadings after the trial has commenced, I concluded that the proposed amendments should be allowed. I was satisfied for the following reasons:

(a) the absence of strong objection by the plaintiff;

(b) the plaintiff's express view that she was content to proceed and did not seek an adjournment;

(c) the identification of the matters which were the basis of the amendments sought had been notified to the plaintiff in the written opening submissions previously provided; and

(d) the fact that no new cause of action is identified by the amendments.

Certificate under Evidence Act

24 The nature of some of the financial information which was elicited from Maria during her evidence led to an application being made in respect of s 128 of the Evidence Act 2008 by counsel on her behalf. Whilst the seriousness of the behaviour and practices admitted to are not to be condoned and do not bear well on her character and integrity, I was prepared in all of the circumstances to grant the certificate in order for her evidence to be able to be fairly and fully given.

25 In seeking possession of Cornwall Street, Kiki relies on her legal entitlement as sole registered proprietor. There is no dispute that Kiki is on title as the sole registered proprietor.

26 There is considerable overlap in the causes of action pleaded by Maria. In substance, they are reliant on the establishment of a promise made to Minas and/or Maria and Minas that Cornwall Street was gifted to them. Whether it be by proprietary estoppel or constructive trust (either joint endeavour or common purpose), the burden is on Maria to prove her case on the balance of probabilities.

27 The key and determining facts in this proceeding involve the alleged representation(s); whether Kiki, either by her words or conduct, knowingly induced Minas and/or Maria that they/she would obtain a beneficial interest in the property and that Minas and/or Maria reasonably relied on those words or conduct to their/her detriment. Absent cogent and reliable proof of representations by Kiki that she gifted Cornwall Street to Minas and Maria, proved to the reasonable satisfaction of the Court such that the Court must feel an actual persuasion of its occurrence or existence, the claim will fail.

28 For the reasons which follow, I am not satisfied on the evidence that either the Initial Gift nor the Amended Gift promises were made in the terms contended by Maria. Consequently, I am not satisfied that the defence and counterclaim based on proprietary estoppel or constructive trust for the whole interest in Cornwall Street is established.

29 I am satisfied however, that there was a promise which was made and which can be inferred from the actions and behaviour of Kiki and Alexis and Minas and Maria that Maria and Minas could continue to live at Cornwall Street rent free subject to the need for Kiki's[17] financial security to be maintained. This finding arises from the circumstances related to the renovation of Cornwall Street which was undertaken between 2015 to 2017.

30 Further, I am satisfied that the appropriate relief in the circumstances is by way of equitable damages and not the transfer of the whole of the estate to Maria or Minas' estate.

31 The parties provided the Court with a statement of agreed facts and issues.

(a) Kiki is the sole registered proprietor of Straw Street where she lives with her son, Peter.

(b) Straw Street was purchased in July 1974 by Kiki and her late husband Alexis, secured by a mortgage to the Commonwealth Bank of Australia ('CBA') which was discharged in September 1985.

(c) Cornwall Street was registered in the names of Kiki and Alexis in 1987. The purchase was financed with savings and money borrowed from CBA, secured by a mortgage which was discharged in November 1993.

(d) In October 1993, Melville Road was purchased using money borrowed from CBA and secured by a mortgage over Cornwall Street and Melville Road. The loan was in the joint names of Kiki, Alexis, Minas and Peter. Melville Road was registered in the joint names of Alexis, Minas and Peter.

(e) Maria was married to Kiki's son, Minas, from October 1995 until 5 September 2005, when they divorced.

(f) In October 2004, there was a refinancing of the mortgage over Melville Road, which was discharged in favour of a new mortgage to Adelaide Bank Ltd.

(g) In November 2006, there was a further refinancing of the mortgage over Melville Road, which was discharged in favour of a new mortgage to CBA.

(h) Alexis died in August 2014 and both Straw Street and Cornwall Street were transferred into Kiki's sole name on survivorship. The mortgages were discharged in 2014.

(i) In mid-2014, Minas was diagnosed with cancer.

(j) Melville Road was transferred into the names of Peter and Minas in early 2015 following a survivorship application.

(k) In December 2015, Kiki received a certificate of consent to act as 'Owner Builder'.

(l) Minas died of cancer in February 2017.

(m) On or around 7 July 2017, Maria received a notice to vacate Cornwall Street.

(n) On 28 February 2023, Kiki sent Maria a further notice to vacate.

(o) The estimated value of Cornwall Street is between $1.8 and $2.3 million.

(p) The estimated rental for Cornwall Street between 2017 and 2024 is between $800 to $1,200 per week.

33 There was much in dispute, not all of which was particularly useful in the determining of the legal issues, but was argued by both parties to go to the credit of the other, or to the credit of the witnesses called on both sides.

34 Given the burden is on Maria to establish her claim, it is logical to deal first with Maria's counterclaim first before turning to Kiki's claim for possession of Cornwall Street, and any appropriate relief.

35 Maria's counterclaim to Kiki's claim for possession of Cornwall Street was pleaded primarily on the basis of a constructive trust. In particular, she alleged that there was a common intention that the equitable owner of the property was to be Minas upon its initial acquisition by Kiki and Alexis (referred to as the 'Initial Gift') and that family members would, if required, pool their resources in respect of family property.

36 It was alleged that Kiki and Alexis bought a property for each of their children to set them up in life and also in part payment for work they were required to carry out. It was alleged that Cornwall Street was purchased for Minas but he could not hold it in his name as he was a minor at that time and instead it was registered jointly in the names of Alexis and Kiki.

37 It was further alleged that in 1993 when Melville Road was purchased, it was purchased and registered jointly in the names of Alexis, Peter and Minas. As a result of survivorship, it became solely registered in Peter's name. Upon Maria and Minas' marriage in October 1995, it was pleaded that Kiki, Alexis and Minas gifted any interest they had in Cornwall Street to Maria and Minas jointly as a wedding gift (referred to as the 'Amended Gift').

38 In reliance on the Initial Gift and the Amended Gift, it was alleged that Maria and Minas conducted their affairs in the following manner:

(a) In 1996, Maria and Minas renovated Cornwall Street (the 'First Renovation'), converting it from two bedrooms into four bedrooms with a new bathroom and open plan living area and kitchen. Maria and Minas paid $50,000 towards the renovation, being $25,000 from wedding gifts and around $25,000 from their own savings. It was acknowledged in the pleadings that Kiki and Alexis contributed around $20,000 towards the cost of the First Renovation.

(b) Upon completion of the First Renovation, Maria and Minas moved into Cornwall Street and continued to reside there.

(c) From 1996 to 2008, Minas and Maria paid the outgoings including council rates, repairs and maintenance.

(d) In 2005, Kiki and Alexis agreed to transfer the legal title to Minas and Maria. Minas and Maria transferred $40,000 to them to fund the costs associated with the transfer of the title to Cornwall Street. The source of these funds was alleged to have been a loan, with $40,000 transferred directly into Kiki's bank account.

(e) Between 2015 and 2017, Minas and Maria renovated Cornwall Street a second time (the 'Second Renovation'). This extension was extensive, with the rear of the property being demolished and a new rear extension and second floor added. As pleaded, Minas and Maria alleged that they paid around $413,815 towards the works, with the source of funds primarily being Minas' superannuation and life insurance benefits and money from Maria's bank account as follows:[18]

AMP Super $159,552.03

NFS Super $77,354.82

Australian Super $67,587

Maria's bank account $70,725

39 Maria alleges that when Minas died on 8 February 2017, his interest in Cornwall Street passed to her by survivorship.

40 It was pleaded that, in the circumstances (including the Initial Gift, the Amended Gift, payment of outgoings, the First Renovation, the payment of $40,000 to Kiki and Alexis and the Second Renovation), it would be inequitable for Kiki to rely upon her legal title in order to deny Maria or the estate of Minas the beneficial interest in Cornwall Street by way of constructive trust.

41 As an alternative to the constructive trust argument set out above, Maria also pleaded proprietary estoppel. It was alleged that Maria and Minas assumed that Kiki and Alexis were legally bound to an obligation to give effect to the representation that Cornwall Street had been gifted to them. The expectation was alleged to have been created by the Initial Gift and the Amended Gift, the allegation that in 2005 they were told by Kiki and Alexis that Cornwall Street had been transferred to them.

42 It was alleged that Maria and Minas were induced by these representations, and allowed to move in and reside at Cornwall Street from 1996 to the present. It was alleged that Kiki and Alexis encouraged and/or acquiesced as Maria and Minas made payment of outgoings, completed the First Renovation, paid $40,000 for the transfer and completed the Second Renovation, forgoing opportunities to purchase an alternative home.

43 It was alleged that Maria and Minas acted in reliance on the representations by these actions and that Kiki and Alexis knew or intended that Minas and Maria would act in reliance upon those representations. It was alleged that Kiki and Alexis' knowledge or intention that Maria and Minas would act in reliance of this expectation could be inferred from their knowledge of these events.

44 It was alleged that the detriment to Maria and/or Minas' estate is that they will not receive their equitable interest in Cornwall Street and Maria will lose her home.

45 It was pleaded that Kiki had denied the obligation to fulfil the promises as:

(a) Cornwall Street was transferred to Kiki by survivorship instead of being transferred to Minas and Maria upon Alexis' death in 2014;

(b) on 14 July 2017, Kiki issued a notice to vacate the property to Maria; and

(c) on 19 April 2023, Kiki filed a written statement of claim seeking inter alia possession of Cornwall Street.

46 Despite these pleadings, the case for Maria was primarily argued on the basis of the estoppel claim. It was alleged in closing submissions that the Court ought to be comfortably satisfied that Maria has made out her case on the following basis:

(a) the estoppel promise(s) was/were made in 1987 to Minas when Cornwall Street was purchased and repeated to Maria in 1994 when she first met Minas;

(b) the estoppel promise(s) was/were made and varied to include Maria at the engagement party in 1994 and repeated in 1996 at the wedding; and

(c) in 2004, Kiki told Minas and Maria not to worry as Cornwall Street was theirs and, in 2015 Kiki said 'the house is yours' and it 'would be nice for Minas and the children once complete'.

(a) Minas left school and contributed his wages on the basis of the promise(s);

(b) in 1996, Minas and Maria renovated Cornwall Street because they thought it was theirs;

(c) in 2005, Minas and Maria transferred $40,000 to Kiki and Alexis as they thought the property was being transferred into their names; and

(d) in 2016, Minas and Maria renovated Cornwall Street as they were told it was theirs.

48 It was alleged that Minas and Maria's conduct was reasonable given that:

(a) the promises were made and repeated over decades;

(b) there were no inconsistent statements from Alexis and Kiki;

(c) they were allowed to live at Cornwall Street over decades and treat the property as their own;

(d) they saw their equitable interest documented with Yarra Valley Water; and

(e) they were encouraged by Kiki to spend all of Minas' superannuation and Maria's savings on the Second Renovation.

49 The knowledge of reliance was said to be the promises Alexis and Kiki made, standing by or encouraging them to treat Cornwall Street as their own. In this they must have known that Minas and Maria were relying on their promises.

(a) Minas left school early, thereby being denied educational opportunities;

(b) Minas contributed his wages between 1987 and 1994;

(c) Minas and Maria spent $50,000 and contributed their labour to the First Renovation in 1996;

(d) Minas and Maria did not purchase a house and land package;

(e) Minas and Maria did not save a deposit and they could not borrow money as Minas was a mortgagor/guarantor for Melville Road;

(f) Minas and Maria paid all outgoings over decades including council rates; water rates and land tax;

(g) Minas and Maria paid $40,000 to Kiki and Alexis to have the property title transferred in 2004;

(h) Minas and Maria spent around $350,000 and contributed their labour for the Second Renovation in 2015;

(i) Minas and Maria put all their financial 'eggs' in one basket by investing in Cornwall Street; and

(j) Maria will not receive her full equitable interest in the property, leaving her homeless in her mid-50s.

51 Maria submitted that Kiki has denied her beneficial interest by bringing this proceeding and enforcing her legal interest in the property.

52 In respect of the common intention constructive trust or the joint endeavour constructive trust, Maria's final submissions to the Court were that the common intention was that each child was to be given a property and the family would pool resources to help each other.

53 She relied on the same detriment and reliance as set out in respect of the estoppel case.

54 The equitable fraud claimed to result included the following:

(a) Minas and Maria, being promised Cornwall Street consistently over the decades, invested heavily in Cornwall Street, making those investments with Kiki's encouragement;

(b) Minas and Maria assisted the family, including Maria looking after Alexis and Minas;

(c) Minas acting as mortgagor to purchase Melville Road;

(d) Minas and Maria not making alternative plans in life such as buying another home;

(e) Maria being left homeless in her mid-50s; and

(f) Kiki receiving the benefit of Minas' superannuation and Maria's savings.

55 In respect of the joint endeavour constructive trust, Maria's closing submissions were that the joint endeavour was that each child was to be given a property and the family would pool resources to help each other. The substratum was removed when Minas died.

56 The benefit of Minas' and Maria's contribution, including the cost of the two renovations, Maria looking after her family and her parents-in-law, would be enjoyed by Kiki and Peter as they plan to sell Cornwall Street and use the proceeds for themselves.

57 It was alleged that it was intended that Minas and Maria would own Cornwall Street and stay there for the rest of their lives. It was not intended that Kiki and Peter enjoy the benefit of the property. There was an assumption that Minas and Maria would outlive their parents.

58 As to unconscionability, the same matters referred to above were relied upon.

59 In opposing Maria's counterclaim on any of the bases outlined above, Kiki pleaded that there was no promise to gift Cornwall Street either to Minas or to Minas and Maria. She denied that the First Renovation of Cornwall Street was paid for by Minas and Maria. She also denied that the Second Renovation was paid for by Minas and Maria, save to the extent of $50,000 paid by Minas. She said that, in doing so, the payments were made not based on any representation by her and was significantly less than the benefit obtained by Minas and Maria and their children, who resided in Cornwall Street from around 1997.

60 Kiki admitted that Minas and Maria contributed to payment of utilities but that Kiki, Alexis and Peter assisted them with household expenses because they were low income earners. She denied that Minas and Maria paid council rates, insurances and repairs.

61 She admitted that she allowed Maria and the children to move back into Cornwall Street after the Second Renovation.

62 In Kiki's final submissions, it was submitted that the orders sought by Kiki for the possession of Cornwall Street ought be made as Maria had not discharged the burden of proof that underpinned her claim, being that there was ever any promise to Minas in 1987 or to Maria and Minas in 1994 to 1996 that Cornwall Street was gifted to them. The further representation, that in 2005 Cornwall Street had been transferred to them, was also not proved to the requisite standard.

63 Kiki maintained that the purchase of Cornwall Street was always an investment property belonging to her and Alexis to provide for their retirement. She maintained that the offer made to Maria and Minas was for them to move into Cornwall Street rent free for them to save to buy their own house. Kiki now needed to sell Cornwall Street to fund her retirement.

64 Kiki also denied that she received $40,000 in 2004 to pay for the costs associated with transferring the title to Cornwall Street to Maria and Minas and that the bank records did not corroborate this allegation.

65 The key material facts that required proof, being the representations alleged to have been made by Kiki and Alexis that Cornwall Street was gifted to Maria and Minas, were required to be proved to the reasonable satisfaction of the Court. If the Court were not persuaded, that is feel an actual persuasion of the occurrence or existence of these facts, Maria's claim must fail.

66 Further, it was submitted that the Court ought not be persuaded that:

(a) Maria and Minas paid for the First Renovation of Cornwall Street;

(b) Maria and Minas gave Kiki and Alexis $40,000 (or any amount) in consideration for the transfer of the title to Cornwall Street; and

(c) Maria did not contribute any of her own funds to the Second Renovation.

67 At best, Minas' estate can point to certain monies being spent on the Second Renovation, which prima facie might have entitled the estate to repayment of those amounts had there been representations and detrimental reliance proven. However, it was argued that the benefit of living rent free at Cornwall Street for 28 years demonstrates there was no detriment suffered.

68 As noted above, Maria's core claim is that she is entitled to full fee simple ownership of Cornwall Street on the grounds of proprietary estoppel.

69 Proprietary estoppel applies where a person creates, or lends force to, an assumption by another that the other has, or will, obtain an interest in the first person's property on the basis of which assumption the other person alters their position or acts to their detriment. In such a case, the doctrine may bring into existence an equity in favour of that other person, the nature and extent of which depends on the circumstances.[19]

70 Proprietary estoppel is the doctrine by which a court of equity intervenes to redress the unconscionable conduct of a promisor departing from a promise which has induced another to change their position to their detriment.[20]

71 In Laird v Vallance,[21] the Court of Appeal summarised the elements of proprietary estoppel. In summary, a plaintiff must establish as follows:

(a) A representation was made by the defendant that the defendant would confer on the plaintiff an interest in property.

(b) The plaintiff acted in reliance on that promise.

(c) The plaintiff acted reasonably in relying on the promise made by the defendant.

(d) The defendant knew or intended the plaintiff would rely on the promise.

(e) The plaintiff has suffered detriment as a consequence of the failure by the defendant to adhere to the promise.

72 The representation may be inferred by conduct, and whilst the representation must be clear in its terms, the test is less strict than required for a representation in contract law.[22] The question of uncertainty or ambiguity of a promise is relevant to the issues relating to reliance, the reasonableness of the reliance, the nature and expectations of the promise, the awareness of the promisor on the reliance of the promisee, and the nature of the detriment sustained by the promisee if the promise is not adhered to. The terms in which the promise was expressed may bear on the question that, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.[23]

73 The inducement may arise from positive representations, express or implied by words or conduct, or a combination of both;[24] it may arise by omission where the defendant, knowing the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation under which the plaintiff is conducting their affairs.[25]

74 The plaintiff must show that there was reliance on the assumed state of affairs. Reliance is a fact to be found and not imputed on the basis of evidence which falls short of the proof of fact.[26] The question is whether the promisee was so influenced by the promise that it would be unconscionable for the promisor to resile from the promise, and the promise being a 'significant factor' which the promisee took into account when deciding to act as they did.[27] The question was framed by Gageler J in Sidhu at [93] as:

Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?

75 The assumption must be a reasonable one. That is, the plaintiff must have acted reasonably in adopting the assumption.[28] The question of whether reliance was reasonable encompasses both the reasonableness of adopting the representation in the circumstances and that of taking the relevant actions.[29] The claim will fail if the plaintiff knows that the representation was not true or that the representor lacked authority to make it.[30]

76 Detriment is not confined to financial loss and may consist of the loss of opportunity to protect or advance one's position.[31] Detriment is not to be approached in a narrow, technical sense and need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial.[32] It must be such that it binds the conscience of the party being estopped. It is approached as part of the broad enquiry as to whether departure from the promise would be unconscionable in all the circumstances.[33]

77 The promisee is prima facie entitled to have the promisor held to the promise or expectation. However, the court will then consider all the circumstances to determine whether it is necessary to modify the relief to avoid going beyond what is required for conscientious conduct or to avoid injustice to others. The equity may be satisfied in another more limited way where the plaintiff's expectation or assumption is uncertain, or extravagant, or out of all proportion to the detriment suffered.[34] Proportionality is a relevant consideration but not a necessary constitutive element to be proved by the party seeking relief.

78 Whilst the character of the detriment is a relevant consideration, the exercise is not one of weighing detriment too minutely in order that it be converted into some equivalent of cash or kind. Nor does it require substantial correspondence between the expectation and the monetary value of the detriment.[35] The detriment should also not be treated as consideration for the proprietary interest.[36]

79 Estoppel in equity may not entitle the plaintiff to the full benefit of the assumption upon which he relied.[37] As put by Brennan J in Waltons Stores at 423:

[t]he object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid detriment which, if the assumption or expectation goes unfulfilled will be suffered by the party who has been induced to act or abstain from acting thereon.

80 Alternatively, Maria's claim for the full fee simple interest in Cornwall Street relied on a claim made pursuant to a constructive trust. The claim was put on the alternative bases of a common intention or a joint endeavour constructive trust.

81 A common intention constructive trust is a trust which is 'construed' or 'constructed' by a court to give effect to the common intent of the parties. The elements of a common intention constructive trust are very similar to that required for establishing proprietary estoppel such that its establishment as a class of constructive trust has been called in to question.[38]

82 A common intention constructive trust may arise from an agreement or common intention arsing after acquisition of the relevant property. The common intention constructive trust creates substantive rights and is not merely a remedy arising when a court makes a declaration to that effect.

83 In Iman Ali Islamic Centre v Iman Ali Islamic Centre Inc,[39] at [402]-[405] McMillan J set out the following elements which are needed to establish a constructive trust:

(a) there is an actual or inferred common intention of the parties as to their beneficial interest in a property;

(b) there has been detrimental reliance on that common intention by the plaintiff; and

(c) it would be an equitable fraud on the plaintiff to deny their beneficial interest in the property.

84 The onus of proof of such a trust lies on the party asserting the beneficial interest against the legal owner.

85 The parties' intentions can be inferred from a party's contemporaneous words or conduct having regard to the surrounding circumstances and context in which they were made or performed. The relevant intention may arise after the property was acquired.[40] The intention does not need to designate a specific share of the property; it is sufficient that the plaintiff should have a beneficial interest.

86 A joint endeavour constructive trust may be imposed on parties to reflect an equitable interest that is not otherwise reflected in their legal interest arising from the way in which those parties conducted their personal relationship. The equitable interest is protected by the imposition of a constructive trust where the plaintiff establishes that:[41]

(a) the parties shared a joint endeavour or relationship in which effort and expenditure were shared;

(b) the substratum of the joint endeavour or relationship is removed without blame; and

(c) it is unconscionable for one party to retain as against the other party contributions made to the joint endeavour.

87 The principle as originally expressed by Deane J in Mushinski v Dodds is oft quoted:

the principal operates where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit the other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.[42]

88 Baumgartner v Baumgartner[43] extended these principles to circumstances where there is no initial common intent. Contributions are ascertained by looking at the whole of the relationship and are not confined to direct financial contributions but to other arrangements in the relationship that contribute to the maintenance or improvement of property.

89 Cressy v Johnson (No 3)[44] involved a domestic relationship where the parties, whilst not pooling finances in a literal sense, had an arrangement of combining their joint financial resources where one party undertook parenting and homemaking duties and paid housekeeping expenses from her wage, thus permitting her partner to focus his finances on the acquisition of properties. Kaye J said in respect of the remedy of a constructive trust that:

[t]he remedy of a constructive trust is not a response by equity to a perceived unfairness where, on termination of a personal relationship, the legal arrangements between the parties do not reflect the commitment and contribution of each party to the relationship. Rather the equitable remedy of a constructive trust is available to adjust the legal interests in property of a party or parties to a relationship, where, during and on the basis of the continuation of the relationship, one party has made a contribution to the acquisition, maintenance or improvement of the property, such that it would be unconscionable for the other party, on the failure of the relationship, to insist strictly on his (or her) legal rights without an appropriate adjustment commensurate with the contribution made by the former party to the property. Accordingly, in order to be entitled to an interest under a constructive trust, the plaintiff must establish that the contribution which she relies, was not simply directed to advancing the welfare of the defendant ... Rather, the contribution of the plaintiff, on which the constructive trust is to be based, must have been directed to the acquisition and maintenance of the assets in respect of which the plaintiff claims an interest under the constructive trust.[45]

90 The elements of a joint endeavour constructive trust are fact sensitive such that it can be difficult to set out precisely isolated factual criteria.

91 Finally, the relief sought also claimed as a final option, equitable compensation.

92 A court of equity has an inherent jurisdiction to award compensation for a breach of an equitable obligation. It may also make orders giving effect to an equitable charge or lien.

93 Whilst these alternative forms of remedy were raised by the relief sought in Maria's counterclaim, they were not developed at the trial. However, when counsel was directly questioned in final submissions about these potential courses being open to the Court, they were not resiled from as a possible form of relief.[46]

94 In any event, the Court may award equitable compensation as the appropriate remedy where it would disproportionate to a claimant's outlay in reliance of the expectation created or induced by the representor's conduct.[47]

95 Much of the factual contest between the parties centres on evidence of conversations, some of which took place with people who have passed away, and of documentary evidence which was inconsistent, or incomplete. The task was not straight forward, given the passage of time and by reason of neither party presenting a comprehensive and consistent narrative. This is not an unknown circumstance in proceedings such as these.[48] In this context, the principles by which the Court approaches the fact-finding exercise, in particular with regard to the oral evidence in such a proceeding, bear articulating.

96 The often quoted observations of McLelland J in Watson v Foxman[49] sets out the difficulty generally with evidence of recollection of spoken words:

In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen as a relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[50]

97 In the context of evidence where credit is in issue, the principles which apply have been conveniently summarised by Forbes J in Gurappaji v Duncan[51] (referencing Hallen J in Pollock v New South Wales Trustee & Guardian[52]) as including:

(a) Proof of a fact requires the court to feel actual persuasion of the existence of that fact, not simply a mechanical comparison of probability.

(b) The credibility, veracity or motives of the witness may be tested by reference to objective facts proved independently of the oral evidence given and in particular by reference to documents.

(c) Evidence of the words and actions of the person subsequently deceased, given by those who carry the onus of proof, should be treated with 'suspicion'. In this context, 'suspicion' means the evidence is approached with great care and scrutiny such that 'the evidence ought be thoroughly sifted, and in the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witness is made perfectly clear and apparent' and the court believes their evidence, then it may act on that evidence.

(d) In particular, evidence of conversations with a deceased is treated with care given the deceased is not available to confirm or deny, or to expand or explain the conversations. Memories of such conversations deteriorate with time. Additional caution is needed and the expectation that independent evidence of such conversation, where available, is led.

(e) In relation to such conversations, there is a significant risk of reconstruction, and the process of litigation itself subjects memories to powerful biases. The prospect not only of unconscious reconstruction, but of a self-interest to give evidence favourable to one's case, requires a court to proceed with caution.

(f) As a result of the cautions attaching to present recollection of words in conversations, greater weight is usually accorded to contemporaneous documents as the 'safer repository of reliable fact', subject to consideration of who has prepared those documents. This is not to discount recollection but to assess it in 'its proper place alongside contemporaneous documentary evidence and other evidence upon which undoubted or probable reliance can be placed'.

98 I observe that the Court is not bound to make findings of fact on the basis of one party's version of events.[53]

99 It is in accordance with these principles that I have reached the conclusions on the evidence and found the material facts set out below.

100 The Court had the opportunity to observe and assess the oral evidence of Kiki and Peter, the opposing evidence from Maria, and a number of other witnesses called to support Maria's claim.[54]

101 The opportunity to test the plausibility of the material allegations made by reference to the documentary evidence was hampered by that evidence being incomplete and somewhat disorganised.

102 Overall, I have some reservations about the reliability of the evidence of each of the key witnesses: Kiki, Peter and Maria. Consequently, as the burden of proof lies with Maria to establish any equitable claim, I have not been persuaded that burden has been discharged on her primary case as pleaded.

103 I also did not find the other witnesses called by Maria to be particularly compelling in providing useful corroborative evidence.

104 Alex Hatziminas, Maria's son, gave evidence and I am sure he believed that Cornwall Street belonged to his parents and he was steadfast in his support for her, as is to be expected from a devoted son. However, his version of events, for example of the relationship between his parents which omitted the fact that they were divorced and his evidence being that his father was always living at Cornwall Street, does not ring true.

105 Christopher Tsementzis was a partisan witness who, under cross examination when challenged about the nature of his relationship with Maria, explained that he was supporting Maria (financially) in the litigation because what was being done 'was not right'. He did not give the evidence that he observed the supervision of the renovation in detail (which was foreshadowed in the defendant's witness outlines[55]). He had only been to the work site a couple of times over the period of the renovation. He was complimentary about the quality of the carpenter's work.

106 Four other witnesses were called to support Maria's claim that Cornwall Street was promised to her and Minas, that Maria understood the property belonged to her and Minas, that she arranged and supervised the renovations, and that she is a hard working wife and mother. I have no doubt that each of these witnesses honestly believed the evidence they gave. However, all were unable to give any definitive evidence of the promise made or the admission by Kiki or Alexis as to the promise and they came across as devoted and loyal friends of Maria.

107 As discussed below at [136]-[137], only Ms Katsianos' evidence touched on the subject of the promise of a gift. For the reasons given below, I am of the view that this evidence was equivocal on the question of whether there was a gift by Kiki and Alexis or just the expectation that, one day in the ordinary course of events, there was a property which would be inherited by their children.

108 As well-meaning and personally supportive of Maria as they no doubt intended to be, their evidence was peripheral to say the least. In some respects, it appeared to be coloured by self-interest or loyalty. I have not given the evidence, in particular of Alex Haziminas and Chris Tsementzis, any weight.

109 There is no direct corroborating evidence that was called by Maria to establish the claims of either the Initial Gift, or the Amended Gift. Essentially, what is relied upon is a course of conduct she says established that the representations of the gifts were made. There is no compelling documentary evidence which assists in establishing either the Initial Gift or the Amended Gift.

110 The bank records, as they relate to the borrowings for Cornwall Street, show that there were no payments made by Minas or Maria to the acquisition or maintenance of the mortgage payments.

111 What is relied upon is the alleged conduct and circumstances of the move into Cornwall Street, the payment of outgoings, an alleged title transfer payment of $40,000 in 2004 or 2005, and the Second Renovation decision and expenditure.

112 I will deal with each of the matters which are relevant to the parties' claims in turn.

113 Maria gave oral evidence that when she met Minas in 1994 he told her that Cornwall Street was his property. Minas told her that he was contributing to the property 'to pay the property off' by the wages he earned at Hilton Hosiery where he and Kiki worked.[56] Maria was unable to say how much he contributed. She said that he told her he was contributing to the property 'because it was going to be his.'[57]

114 She acknowledged in her evidence that in 1994 Cornwall Street was tenanted, that Minas was living at Straw Street with his parents and that she knew that Minas was not on the title to Cornwall Street.[58]

115 Kiki's evidence was that there was never any promise to Minas that Cornwall Street was his. She also strongly denied that he made any financial contribution to the purchase, mortgage payments or family finances when he lived at Straw Street (or later) in respect of Cornwall Street (and later in respect of the purchase and maintenance of Melville Road).

116 Her evidence in this respect was supported by Peter, although his evidence was of limited utility given his age and involvement in family financial affairs in 1987.[59] Peter's evidence was that neither Cornwall Street was purchased as a gift for Minas nor Melville Road as a gift for himself.[60]

117 In respect of Melville Road, it was Maria's evidence that Minas had told her that in 1993 a second investment property was purchased and that: 'because they were all working they put their names on the title. Yeah, the whole family was on the title and that was supposed to be Peter's home'.[61]

118 Maria said that Minas told her 'that Cornwall Street was his home and there was one for Peter, but they had them both for investments and whoever was working at the time contributed to both properties.'[62] She explained that she understood that Minas' name was on the title to Melville Road because 'they needed - I think they put all their names on there to borrow money'.[63]

119 This state of affairs is not consistent with the title being in the name of only the three men and not Kiki, notwithstanding Kiki was also a mortgagor or guarantor. She was also working at the time.

120 The evidence of the arrangements and motivation for the purchase of Cornwall Street (and Melville Road) was strongly contested by Kiki. She said she bought Cornwall Street with her husband: '[w]e were both working and we bought it.'[64] She said they borrowed money[65] and that the reason for purchasing Cornwall Street was for her 'aged retirement'.[66] Kiki was vehement in denying Cornwall Street was bought as a gift for Minas.[67] Kiki's reason for Alexis, Minas and Peter's names being on the title was that it was consistent with accounting or tax advice she and Alexis received at the time.

121 The documentary evidence shows that Cornwall Street was bought by Kiki and Alexis with a loan from CBA with Straw Street as security. There are no banking records to show how the mortgage was paid but that mortgage was discharged in 1993.[68]

122 Maria conceded that she was aware that Cornwall Street was purchased as an investment.[69]

123 I am not satisfied there is persuasive evidence which supports the Initial Gift representation as claimed by Maria. I do not accept that there was a gift or promise of a gift to Minas of Cornwall Street upon its purchase as alleged. The evidence relied upon by Maria was what she said she had been told by Minas. There was no other direct or indirect oral evidence to corroborate this assertion. If the real reason to omit Minas' name on the title was his minority, there is no reason why the title change did not occur upon his majority. Rather, the title remained in Kiki and Alexis' names, consistent with Kiki's evidence that the intention was the property was an investment for their retirement. A different approach was taken to whose names were on the title in respect to Melville Road.

124 Rather, the oral evidence of Kiki (and of Peter, to the extent that it added anything useful given his age at the time of the purchase of Cornwall Street and Melville Road) was directly to the contrary.

125 The only documentary evidence relating to the purchase of Cornwall Street are the title documents, which show Kiki and Alexis as registered proprietors.

126 Insofar as the purchase of Melville Road is said to support this promise or reflect the underpinning of a joint endeavour or common purpose constructive trust, the documentary evidence shows that the title was put in the names of Alexis, Minas and Peter as joint tenants and that the mortgage was secured in their names and that of Kiki. This documentary evidence was in existence commensurate with the time Maria says Minas told her of the promise to him of the beneficial ownership of Cornwall Street.

127 Kiki's evidence was that she knew she was guaranteeing the mortgage. She strongly denied that either of the two sons paid any part of the mortgage for either Cornwall Street or Melville Road at this time. Maria's explanation as to why Alexis, Minas and Peter's names were on the title and bank documents was that Minas' name was required because he was working, and had a regular income. This was disputed by Kiki, who criticised Minas' work ethic and work consistency.

128 The alternative explanation given as to the title arrangements was that Kiki and Alexis had received tax advice to that effect.

129 From this evidence, I find that it is inherently improbable that Kiki and Alexis, hardworking but not prosperous people, would make a gift in 1987 to one son. Rather, in 1987, given their relatively modest means and income and their desire to build their wealth for their own financial security in retirement, any promise (if one were made at all) was made in an informal familial context. Minas was a minor, had a tentative work record, and there was a lack of any persuasive evidence of contribution by him to the family coffers. There was certainly no persuasive evidence of direct payments to the mortgage on Cornwall Street by him. If there were any financial contributions to the family finances, I am of the view that they would be made in a commonplace familial setting and not directed to a formal legal arrangement by which Minas was to be the beneficial owner of Cornwall Street.

130 I accept that Cornwall Street was purchased as an investment for Alexis and Kiki's long term financial security. They rented it out, paid off the mortgage and the property remained in their names accordingly.

131 That one day, in the ordinary course of life, the property, if still retained by them on their passing, might be inherited by Minas and/or his brother is a commonplace expectation, but the evidence led by Maria does not support the alleged Initial Gift.

132 I am not persuaded on the evidence that Maria's equitable claim based on proprietary estoppel or constructive trust is established based on the Initial Gift representation, either by words or conduct. The Initial Gift representation not being established as a fact, it is unnecessary to deal with the other elements which are needed to make out the proprietary estoppel or constructive trust claims in respect of the Initial Gift.

Oral representation of the gift of Cornwall Street as a wedding present

133 Maria gave evidence that Kiki and Alexis both said to a gathering of people[70] at the engagement party held for Maria and Minas at Maria's family's home in December 1994 that 'they were gifting us the house and we were going to move to, and [sic] the address.'[71] When pushed on the exact words, Maria said this was '[w]hat I could vaguely remember because it was constantly mentioned all the time, and not only at the engagement but a lot of times after that.'[72] She said further that:

[t]hey were talking to my parents saying that, you know, we've got a home they can renovate, they can move in. It will be Minas', at the time. One each for the kids when they get married or, you know, for now it is an investment but now they are married they can move in. That's when we decided to renovate.[73]

134 Maria and Minas were married at a wedding ceremony in the registry office on 1 October 1995. She said that when they married in 1995, the promise was reiterated by Kiki and that they were encouraged 'to renovate the house, it's going to be ours, we gift it to you, its for the wedding, and then we went along with the next wedding.'[74] The next wedding was a traditional Greek wedding which occurred on 17 September 1996 which was attended by about 450 guests.

135 There was no corroborating evidence of Kiki's alleged representation, notwithstanding several other witnesses were called on behalf of Maria to support her version of events, including that they believed what Maria had told them as to the promise made and that they believed Cornwall Street was Maria's house. None of this evidence was of probative value. It was given by supportive and loyal friends of Maria's. None of these witnesses gave evidence that they were at the engagement party or the registry wedding. In fact, tellingly, no one at all who was at the engagement party or the wedding was called to confirm the representation, including any member of Maria's family. Nor was anyone called to give evidence of the representation being 'constantly mentioned all the time' as Maria alleged.

136 Ms Katsianos' evidence was the only evidence which came close to any useful corroboration. This evidence was of a conversation which occurred well after the alleged promise was made. Ms Katsianos said that Kiki told her she should save money and buy a house, and that 'that's what I've done with my two boys when they were working. From young I used to take a commission of their wages so that's how we've got all these properties now for the kids and everything'.[75] Ms Katsianos was forthright in her evidence. However, her evidence was imprecise as to detail. She was unable to be specific as to her recollection. She was unable to say that what Kiki actually said to her was that Cornwall Street was Maria and Minas' property. Her evidence was equally able to be interpreted as being consistent with Kiki's version of the arrangement and Kiki's sentiment that a home of one's own was what one should aspire to and that it is a good thing for parents to help their children if they are able to do so. It is also consistent with the usual expectation that, in the ordinary course, assets of one's parents would be inherited one day by the next generation.

137 I also note that Ms Katsianos' allegation was not put to Kiki in cross examination so the evidence was not able to be tested.

138 There was also no useful evidence given by the other witnesses called by Maria on this issue.

139 There is no direct contemporaneous corroborating evidence given by any person to support Maria's version of the Amended Gift.

140 On Maria's own evidence, there is an acknowledgement that Cornwall Street was bought as an investment and rented out. In my view, it is difficult to reconcile her acceptance that Kiki and Alexis owned Cornwall Street and that it was initially bought as an investment with her allegation and stated belief that the property was gifted to her and Minas.

141 There was also an acknowledgement by Maria that no mortgage payments were made by her or Minas to Cornwall Street. There were some ongoing costs which were paid, such as council rates, water rates and some land tax, and these payments were borne out by the bank statements produced. I note that no council rates have been paid since mid-2017.[76]

142 Maria's evidence of the Amended Gift is based on her oral evidence of what she alleged was said by Kiki and Alexis to her and Minas. As two key people in these alleged conversations (Alexis and Minas) are now deceased, the evidence in this regard must be treated with caution.

143 Kiki's evidence was definitive that there was never a gift of Cornwall Street to Minas and Maria. She maintained the offer to Minas and Maria was for them to live rent free at Cornwall Street so they could save to buy their own home.[77] She maintained Cornwall Street was purchased by Alexis and herself to provide financial security for their retirement.[78]

144 Whilst I have gone on to consider below the evidence relied upon by Maria in respect of the circumstances and events said to be corroborative of the Amended Gift, I am satisfied on the balance of the evidence that Cornwall Street was purchased as an investment to provide for Kiki and Alexis' retirement. I am also satisfied that, in the natural order of things, there was an expectation that if Cornwall Street was still held by Kiki and Alexis upon them passing away, Maria and Minas would inherit it. While that is a reasonable expectation for Maria and Minas to hold, that circumstance does not amount to proof of a representation or promise that can found proprietary estoppel or impose a constructive trust over the whole of Cornwall Street as claimed.

145 However, as I explain later, in my view the change in circumstances and events which lead to the Second Renovation changes the position of the parties.

Circumstances of moving into Cornwall Street and the First Renovation

146 In support of the contention that there was a promise of the gift of Cornwall Street to Maria and Minas and their actions in reliance of that representation, Maria gave evidence of the circumstances which she said led to them moving into Cornwall Street.

147 The evidence in relation to the First Renovation of Cornwall Street in or around 1996-7 was disputed. Maria claimed that she and Minas paid for the renovation as they had been gifted the property. Her response to the question of whose idea it was to renovate the property was that 'I think it was a mutual one because the property was really trashed'.[79]

148 Maria's evidence was that, despite not wanting to move into Cornwall Street, and preferring a new house and land package, she was persuaded to renovate Cornwall Street and move in there based on the promise of the house being theirs. Maria agreed that in 1994 Cornwall Street was tenanted. She said that she went to see the property in 1994 with Peter. It had been left in a damaged state by the tenants.[80] She described the house as a 'two bedroomed little shack', 'like a maze walking in', with a 'tiny kitchen with 'two [sic] little cupboard space' and 'grass at the back'.[81] Maria gave evidence that in 1996, after they were married, she, Minas and Peter started renovating Cornwall Street.[82]

149 Kiki strongly disputed that Cornwall Street was given to Minas and Maria as a wedding gift.[83] Rather, she was adamant that the offer to move into Cornwall Street was made so they could save for a deposit and purchase their own house.[84] Kiki's evidence was that Cornwall Street had been tenanted, left damaged and was renovated by her and Alexis at her and Alexis' expense. She said that she and Alexis took out a loan of $30,000 to pay for the renovations and that Minas and Maria did not pay for the renovation.[85] Kiki's evidence was that it was after the work was done to repair Cornwall Street that Minas asked if he and Maria could move into the property and this request from Minas came after the couple were married and had been living with Maria's mother for some time.[86]

150 I accept that it seems that until sometime between 1994 and 1996, Cornwall Street was tenanted and, when the last tenants vacated the premises, the property was left in a very poor state of repair. There is no clear evidence about the cost of the repairs and upgrading of Cornwall Street. However, there is sufficient consistency in the evidence of Maria, Peter and Kiki to conclude that there was cooperation between them all to undertake the work at Cornwall Street.

151 Maria's evidence was that the renovation cost around $50,000 and the funds came from her and Minas' savings and from $25,000 they received in wedding gifts.[87] She accepted that approximately $20,000 was contributed to the renovation by Kiki and Alexis.[88]

152 Maria also gave evidence that the work done on the First Renovation was physically undertaken by herself, Minas and Peter. She said that two bedrooms were added and an open plan living area and a new kitchen was put in before they moved in.[89] Maria denied that she was ever told that their occupation was short term. She maintained that her understanding was that Cornwall Street 'was gifted to us so that's why we renovated it, otherwise I would have spent that money on a house and land package.'[90] She said the basis of her belief that Cornwall Street was theirs was 'because it was constantly mentioned all the time' by Kiki and Alexis.[91] She said she would not have put her money into Cornwall Street otherwise.

153 Neither party could give precise evidence about the timing of when Minas and Maria moved into Cornwall Street. Given the length of time which has passed, this is not surprising. Maria gave evidence that she was living at Cornwall Street in its renovated state when her first child as born in October 1997. The only other independent evidence is that the mortgage taken out over Straw Street by Alexis and Kiki, which was said to be the funding source for the renovation, was taken out in August 1997.[92] The First Renovation was undertaken over a lengthy period according to Peter's evidence.

154 The amount spent on the First Renovation was not clear. Maria's evidence would suggest a total amount of $70,000, being $20,000 she conceded came from Kiki and Alexis and the $50,000 she claimed she and Minas had between them. As against this, the mortgage over Straw Street was around $30,000.[93]

155 I am not persuaded that the representation as alleged by Maria led to Minas and Maria expending $50,000 of their own money to renovate Cornwall Street in or around 1996 is made out. Firstly, I do not accept that they had $50,000 between them at this time. They were on modest salaries and there is no independent corroboration or documentation which establishes that they had saved or acquired such an amount. It is Maria's oral evidence alone.

156 In particular, I am not persuaded nor believe it is plausible that they received $25,000 in wedding money. Again, there is no corroborating evidence of this amount. It is notable that no member of Maria's family was called to support this allegation. As against this, Kiki and Peter both said the amount was much less than this at around $8,000 or $9,000, recognising they were repeating what they say they were told by Maria's mother, or by Minas. Kiki's evidence was that Minas and Maria had debts and Minas asked Kiki to allow them to move into Cornwall Street after it had been renovated.

157 Whilst Maria might have hoped for a new house, my conclusion on the available evidence is that their prospects of having sufficient financial means to achieve that option were unrealistic at that time and, as events transpired, this is confirmed by Minas' modest salary and Maria being a fulltime mother at home for much of the first decade of their marriage.

158 In any event, Maria's income was less than modest, being derived from dog breeding and some 'at-home salon' hairdressing. No tax returns were discovered. That Maria was in receipt of Centrelink benefits for a substantial period of time underlines this low level of independent financial stability. Save for her oral evidence that in 2016 she had $40,000 of undeclared income 'in my wardrobe', her capacity to fund alternative accommodation would appear to be extremely limited. The option of moving into Cornwall Street rent free in order to save money provided them with a generous start in their married life.

159 I am not persuaded that the reason for moving into Cornwall Street was motivated by the promise of ownership. Rather, their circumstances suggest to me that it was because, as Kiki maintained, an option available to them so they could save money to purchase their own home. Their financial prospects were not rosy and whilst I accept that Minas was in work, that work was not high paying nor it would appear, given their lifestyle, regular. In addition, Maria and Minas started a family within the year of moving into Cornwall Street, limiting her personal income earning capacity.

160 The tentativeness with which I observed Maria's evidence around the legal position of ownership of Cornwall Street was reflected in several other places in her evidence and in subsequent events about which she gave evidence. In this regard, her evidence that she was aware the property had not been transferred into her and Minas' name demonstrated to me that she was well aware of the counterfactual proposition that Cornwall Street remained the property of Kiki and Alexis, and that she and Minas could stay there rent free until they saved for their own property. Later, when she is involved in the Second Renovation of Cornwall Street, she is well aware that she needs Kiki's permission to sign off on the planning and building permissions.[94]

161 I am not satisfied that these events assist in proving, on the balance of probabilities, that Cornwall Street was gifted to Minas and Maria as a wedding present. I am satisfied that the offer made to them was to move in rent free, subject to the continued legal ownership of Kiki and Alexis. The acknowledgement that Cornwall Street was purchased as an investment for Kiki and Alexis was accepted by Maria. At most, there was an expectation that one day they might inherit the property but in the meantime they would be assisted in their new married life to save and buy their own home by the generous gift of rent free accommodation.

162 I accept that the recall of any witness of the time and sequence of these events in or around 1996 is likely to be imprecise. The documentary evidence on this issue was sketchy. However, I am satisfied on the testimony and the plausibility of the accounts given that:

(a) Minas and Maria moved into Cornwall Street sometime in the year after their marriage, being late 1996 or in 1997;

(b) Cornwall Street required renovation, having been left in a poor state of disrepair by the previous tenants;

(c) Minas and Maria had little resources to pay for this work;

(d) the agreement was that Minas and Maria could live at Cornwall Street rent free;

(e) the First Renovation was substantially paid for by Kiki and Alexis and that any contribution made by Minas and Maria was minor. Whilst the loan in August 1997 does not coincide with the likely time period when the renovations commenced, it is the only documentary evidence of funds being available at or around the time period when the renovations would have taken place; and

(f) the First Renovation was undertaken under the supervision and direction of Alexis, and all family members, in particular Peter and Minas, assisted in repairing and renovating the house.

163 I do not accept that in all of the circumstances there was a representation to Minas and Maria that the house was gifted to them. I accept Kiki's evidence that they were given a generous opportunity to live rent free and save for their own home and that this offer was subject to the asset being available to Kiki and Alexis for their retirement and financial security.

The payment of $40,000 for the transfer of the title to Cornwall Street

164 Maria alleged that Kiki and Alexis promised to transfer the title to Cornwall Street to her and Minas in 2004. She said that there had been discussion about this during 2004, although her evidence was vague as to what was said and in what context.

165 Maria alleged that she and Minas paid Kiki and Alexis $40,000 to facilitate the transfer of the title to Cornwall Street to them in 2005 as Kiki and Alexis did not have the funds to pay the associated costs. In support of this, it was said that that there was a $40,000 payment demonstrating this transfer in Minas' bank records. It was also alleged that, rather than using those funds to facilitate the transfer, the money was spent by Kiki in payment of legal fees for Peter.

166 Kiki denied that there was ever a promise to transfer the legal title in 2004 (or at any other time) and that there was no payment made to her and Alexis for this purpose. She also denied that an amount of $40,000 was spent by her on Peter's legal fees. Kiki did accept, however, that she assisted Peter to pay for a bail application, but that amount was around $10,000.[95]

167 Minas' bank account statement with CBA shows an entry on 3 December 2004 of a deposit of $190,743.[96] Minas' bank account statement shows a withdrawal on 6 December 2004 of $25,000 which (it seems to be uncontroversial) was for the purchase of a truck.[97] On 20 January 2005, there is a withdrawal of $15,000 which Maria said was loaned to a friend.[98] Again, the purpose of this amount is uncontroversial and it was Peter's evidence that this money was repaid in cash over time to him.

168 Minas' bank account statement shows a withdrawal on 3 March 2005 of $40,000 and is annotated as being cash given to Kiki for the house transfer.[99] However, Maria agreed once the VicRoads registration documentation was shown to her,[100] that she was in error and that this withdrawal was for the purchase of a BMW vehicle for herself. On 17 March 2005, $80,400 is withdrawn. Maria had initially said in error that this was for the purchase of the BMW vehicle. However, it came out in evidence that this was actually for the construction of a home salon and kitchen renovation at Cornwall Street. She then corrected herself and said that this withdrawal included $40,000 paid to Kiki for the transfer.

169 I also note that Maria agreed, consistent with Peter's evidence, that Peter accompanied her to purchase the BMW on 3 March 2005,[101] not Minas.

170 Maria's evidence was vague as to the arrangement. This is not surprising as this period and the payments referred to occurred at a time coincident with Maria and Minas' separation in 2004 before their divorce in later 2005.

171 The task of reconciling the oral evidence and the bank records is a difficult one. As counsel for Maria commented in final submission, this was a family who loved cash. I also recognise that, not unsurprisingly for a domestic and familial situation, financial record keeping was not of a meticulous standard.

172 Peter's evidence was that the refinancing of Melville Road was arranged in late 2004 to assist Minas' financial situation. A line of credit from the Adelaide Bank was arranged through a finance broker Peter knew. Peter's evidence was that he convinced Alexis to agree to this course to assist Minas. I accept this evidence as being consistent with the bank records and the circumstances as explained by Peter.

173 I am satisfied that Minas had a personal loan which was being paid off at about $351 per month from at least January to October 2004 (the bank records produced are limited to this period).[102] Whether this personal loan was paid out from this line of credit or other funds, there is no evidence to prove much other than Minas had a personal loan during 2004 and it was paid off in late 2004.

174 When questioned about an amount of $48,115 which is deposited in Minas' bank account on 20 October 2004, Maria suggested that it was an amount of superannuation that Minas had drawn out on hardship grounds due to an injury which meant he had been unable to work. There are no documents which corroborate this assertion about the superannuation and an amount of $47,794.67 is withdrawn five days later on 25 October 2004. Maria denied that this money was used to pay off a personal loan.[103] However, the bank records show that monthly payments for a personal loan cease in November 2004.[104]

175 I am satisfied that the source of the $190,743 in funds came from the line of credit organised with the Adelaide Bank as explained in Peter's evidence. However, in terms of the payments made from Minas' bank account, there is insufficient evidence to persuade me that that there was a payment of $40,000 ever made to Kiki and Alexis for the transfer of the title to Cornwall Street.

176 Further, I am not persuaded that it is plausible that almost 10 years after the purported gift of Cornwall Street this issue had not been resolved, if the transfer of title was in fact intended.

177 It is also implausible to me that Kiki used the amount of $40,000 (which she denied receiving in any event) for Peter's legal fees as the need to do so would have arisen at a much earlier time.[105]

178 There was no evidence which explained why the payment for the transfer of the title to Cornwall Street was required to be $40,000 and on what basis the amount was calculated.

179 I disagree with the submission made by Maria that Minas' banking records demonstrate that a payment of $40,000 was made to Kiki in 2004 or 2005.

180 In light of the foregoing, I am not satisfied on the evidence that there was an agreement to transfer the title to Cornwall Street in 2004 or that Maria and Minas made a payment of $40,000 to Kiki as alleged.

Breakdown of the relationship between Minas and Maria.

181 Maria alleged that the breakdown of her relationship with Minas was caused or substantially caused by her dissatisfaction that the title to Cornwall Street had not been transferred to them. Her evidence was that she and Minas separated in September 2004.

182 Minas' financial situation in 2004 was such that it is likely that the family was under financial stress. As I have noted above at [172]-[175], I accept that Minas sought financial assistance in 2004 and funds were made available through the line of credit organised with the Adelaide Bank.

183 Peter also alleged that he was in an intimate relationship with Maria from late 2004.[106] This is denied by Maria.[107] Kiki also gave evidence that Peter was in a relationship with Maria.[108]

184 Maria and Minas divorced on 5 September 2005. Minas lived at Straw Street with his parents during the time of his separation from Maria.

185 Maria's daughter Keyra was born in late 2005.[109]

186 Even if Maria's dissatisfaction that Cornwall Street had not been transferred to her and Minas was the reason for their separation, or that it is relevant in the chronology of events, in my view this evidence tends to support the conclusion that Cornwall Street was not ever intended to be transferred to them during Kiki and Alexis' lifetime and that the offer that they live rent free until they saved to buy their own home, subject to Kiki's financial security in retirement, is more plausible.

187 As to the unedifying evidence or allegation of Maria's relationship with Peter, I do not give these allegations any weight other than as partially explaining why the relationship between the family members had so dramatically deteriorated. It was of limited forensic assistance in establishing the material facts. That said, it is apparent from the evidence given by Peter and Maria that they clearly had a close relationship at some stage, holidaying and spending time together,[110] and it is clear that Peter assisted Minas and Maria in the First Renovation and Second Renovation.

188 I accept that the family's financial situation in 2004 was not robust but that there was no suggestion that this time that they were about to be evicted by Kiki. Rather, notwithstanding their separation, Maria and the children continued to reside at Cornwall Street.

189 It was alleged that the payment of outgoings demonstrated reliance and detriment consistent with the belief by Maria that Cornwall Street was gifted to her and Minas.

190 As previously noted, payment of outgoings by Maria and Minas including council rates, water rates and land tax. These are not liabilities usually paid by a renter. I accept that certain payments of this type were demonstrated to have been paid by Maria, although the records were incomplete and inconsistent with this course of conduct for the whole of the period. I note that Kiki accepted that Minas and Maria were paying the outgoings from 1996.[111]

191 I also accept Kiki's evidence that she, Alexis and Peter financially assisted Maria and Minas from time to time. As previously noted, Maria and Minas had a record of low income and were in regular receipt of Centrelink support payments. They were raising three children. Overall, their income and financial resources were modest and I observe that financial support from parents or relatives is not uncommon in this context.

192 Minas and Maria's occupation of Cornwall Street was not that of a conventional tenant. A familial rent free arrangement is not usually deemed a residential rental agreement, unless formally documented. Rather, it is viewed by the law as a private informal arrangement which commonly involves the benefited party paying the upkeep or outgoings. I am of the view that payment of outgoings by familial occupiers such as in the circumstances here is not uncommon. It is not necessarily confirmation of beneficial ownership.

193 I have concluded that, at best, the payment of rates and outgoings as undertaken by Minas and Maria is equivocal in terms of establishing beneficial ownership of Cornwall Street.

'Life tenant' notation in Cornwall Street water account

194 It was alleged that an annotation which identified Maria as a 'life tenant' on the Yarra Valley Water account notice dated 28 June 2017 was documentary evidence which supported Kiki and Alexis' acceptance that Maria has an interest in Cornwall Street.[112]

195 Maria's evidence was that Alexis had arranged for this to be recorded. Kiki denied knowledge of this arrangement.

196 Enquiries were made to Yarra Valley Water as to the genesis of this annotation by the solicitors for Kiki. The response from Yarra Valley Water indicated that the reason for adding the life tenant annotation was so that Maria could claim a rebate as a Centrelink recipient.[113]

197 I do not consider the notation that Maria was a life tenant to be representative of anything more than she lived at Cornwall Street and paid the water rates in an arrangement where she lived there rent free.

198 The Second Renovation is a factor relied upon by Maria to form part of her claim based on the Initial Gift or the Amended Gift. Whilst I am not satisfied that Maria's cause of action as based on the Initial Gift or Amended Gift are made out for the reasons already stated, the circumstances around the Second Renovation are relevant to my ultimate finding that the expenditure made by Minas and Maria on Cornwall Street ought in equity to be brought into account.

199 There is a dispute between Kiki, Peter and Maria as to the genesis of the Second Renovation. Maria maintains that it was her and Minas's idea to renovate Cornwall Street to make the house more comfortable for the family.

200 At some stage between 2010 and 2012, the relationship between Minas and Maria thawed.[114] On Maria's oral evidence, they recommenced cohabitation in 2012.

201 In 2014, Minas was diagnosed with multiple myeloma. Minas was able to access his superannuation and life insurance, and did so in 2015. This appears to be the first time in their life that Minas and Maria had any significant funds available to them.

202 By this time, it is clear that Maria knows that the legal title to Cornwall Street remained with Kiki and had not been transferred to her and Minas. She knows and accepts that Kiki's permission is required to obtain building and planning permits. Maria said she knew an architect through one of her salon clients. She and Minas briefed him as to their plans and had a discussion about adding a second storey to the house. In February 2015, plans were drawn for Cornwall Street. The architectural plans are drafted in Kiki's name. They have Kiki's name in the signature block.[115] Maria sought Kiki's consent for these steps to be taken and Kiki gave that consent.

203 Kiki's evidence was that the Second Renovation was Peter's idea and she agreed to it so that Cornwall Street could be sold at a higher value. She agreed that she had no dealing with the architect but did sign off on the documents required for planning and building permits.

204 Peter's evidence was that the Second Renovation was his idea to increase the value of Cornwall Street prior to sale. His said his proposal was that he would recoup what he had invested into the renovation and the rest of the money would go to Kiki. He said that he approached Minas about it but that Minas was not too happy about the idea of renovating Cornwall Street because he was unwell. Peter said he spoke to Maria about it and 'she was rapt'.[116]

205 Correspondence from Maria's solicitor to Kiki's solicitor on 24 November 2022 in reply to the demand to remove the caveat Maria had placed over Cornwall Street, alleged that Peter had made suggestions during 2022 that the property be sold and the proceeds shared with Maria.[117] This allegation was not pursued by either party at trial.

206 The respective positions taken by the parties at trial as to the circumstances of the Second Renovation are irreconcilable.

207 I have formed the view that the family dynamic and circumstances changed in 2014 after Alexis' death and Minas' cancer diagnosis. It is clear that there were significant emotional and financial changes to the family overall. Alexis died in 2014. Kiki's pension entitlements were reduced, and ultimately stopped altogether as she owned assets above the threshold means test. Minas was diagnosed with cancer in 2014 and treated for what turned out to be a fatal illness.

208 I am satisfied on the evidence that Maria and Minas, together with Peter on Kiki's behalf, were involved and facilitated the Second Renovation. Kiki was not directly involved in the details of the planning and work undertaken, but in this respect I do not accept that she opposed it. Maria's case was that Kiki was supportive and said it would be nice for the family. Kiki maintained that the renovation was to improve the sale price of the property and that she wanted to sell it.

209 Kiki was vague as to timelines around this period and I have formed the view that there is sufficient consistency in the evidence of Peter and Maria about the collaboration on the project that I am persuaded that there was an understanding between them all that Cornwall Street was to be renovated to suit Minas and Maria's family and that there would be an increase in value by this renovation.

210 As discussed below in more detail, the financial contributions to the project were made by Minas and Maria, and Kiki and Peter. I accept that the project management was undertaken by Peter and Maria and that Peter was very substantially involved in the work undertaken and the design decisions made, as was Maria. The relationship between Peter and Maria at this time seems to be a very positive one. Kiki agreed to the renovation though she clearly had little to do with the arrangements and decisions about design and expenditure. I am satisfied that she agreed that work would be done in general terms but had no direct involvement thereafter, save for a financial contribution to the works.

Who had the carriage of the Second Renovation and how was it paid for?

211 Maria's evidence was that the Second Renovation was not only undertaken by her and Minas to their preferred specifications, it was also paid for by them from Minas' superannuation and life insurance payout. She acknowledges that Peter provided the upstairs windows which were claimed by Peter to be worth $40,000, a figure challenged in the proceeding.

212 It was Kiki's evidence that the renovation was undertaken on her behalf by Peter and that it was paid for by Peter and herself. Given Kiki's precarious financial situation at this point, her capacity to borrow to fund the Cornwall Street renovation, even at the permit specified value of $250,000, seems highly questionable. The only source of any substantial funds was from Minas' superannuation and life insurance payments.

213 Analysis of Peter's bank accounts demonstrate the inflow of funds predominantly comes from Minas, as well as some sales of Peter's own assets. There are also some funds which come from Kiki's borrowings. The building permit indicates the cost of works to be $250,000. Peter's evidence was that he did not know how much the building was going to cost.[118] Maria claimed the cost was around $413,815.[119] The spreadsheet reconciliation provided by Kiki in her final submission alleges a figure closer to $350,000.

214 Peter's evidence was that he had the carriage of the works from its commencement in or around 16 March 2016 to the end in 2017. His evidence was that he and Kiki paid for the renovation with only a minor contribution from Minas and Maria. He acknowledged that Maria assisted with the project management from time to time, sending emails and making telephone calls, and that on occasion she handed over the money to pay tradesmen's wages or to arrange collection of materials or goods for the works. Many of the invoices discovered had Maria's name as the contact point.

215 The funds required for such a substantial renovation being sourced by Kiki, short of borrowing substantial amounts in circumstances where Kiki was a retired widow and had no other funds available to her, seems inherently improbable.

216 As noted above, there was inconsistent evidence as to the cost of the Second Renovation. As the documentary evidence is far from complete, I have attempted to reconcile the documentary evidence with the oral evidence given and make an assessment as to the plausibility of the competing version of events.

217 I do not accept that Peter alone could have provided the funds. His financial affairs were also modest, even though he was working on various building projects. He gave evidence which demonstrated the sale of assets of approximately $85,000.[120] Peter's source of funds was from the work that he was undertaking, but his own bank records do not show substantial funds other than those which can be traced back to Minas' account or funds from Kiki. There was also evidence that Peter was working on another project over this time and it was suggested to him that some of the payments for supplies and trades related to that work, a proposition denied by him.

218 Peter's home loan summary bank account for the 1 January 2015 to 30 June 2015 period had an opening balance of $103,664 which represents the debt for the loan which is in Alexis, Peter and Minas' name secured over Melville Road.[121]

219 Kiki took out a loan for $65,000 on 30 November 2016.[122] Kiki said that altogether she took out a loan for $95,000.[123] She agreed that she paid $35,000 for stem cell treatment for Minas and said that the balance went on the Second Renovation.[124] I note that preparations for the Second Renovation appear to have commenced in February 2015 when architectural plans were drawn up, which is a year before Kiki took out the loan in November 2016,[125] with work commencing on site in early 2016. Minas and Maria are aware in early 2015 that substantial funds will be available from Minas' early superannuation payout.

220 On 15 March 2017, Kiki borrowed a further $28,000 which she said was also for the Second Renovation.[126] However, Kiki accepted that when she borrowed $28,000 in March 2017, the Second Renovation was complete so the money could not have gone to the renovation.[127] There is $15,000 withdrawn on 20 March 2017 to be paid into Peter's bank account which is five days after Kiki borrowed the $28,000.[128]

221 Maria's evidence is that the money for the Second Renovation came from Minas' life insurance and superannuation payout. The only large amount of money to come into the household was that source of funds. Minas and Maria did not have high incomes and the evidence of bank records do not show other than very modest amounts in their accounts. In addition, Maria gave evidence that she was in receipt of Centrelink benefits for a number of years, partly as a carer for her uncle and as recipient of a family tax benefit payment due to Minas' low wage. Whilst she said she had 'cash money' from her hairdressing and dog breeding businesses, which she engaged in at Cornwall Street, there was no evidence to support this other than her oral evidence that she had around $50,000 in cash in her wardrobe.[129]

222 It is clear that Minas and Maria had a low income over their married life and had no substantial source of funds until Minas' untimely illness allowed him to access his superannuation and life insurance payout. The amount of this total payout was in dispute but was clearly substantial. The documentary evidence demonstrates the following amounts:

(a) $5,659.30 from Australian Super on 3 March 2015;[130]

(b) $61,444.83 from Australian Super in February 2015;[131]

(c) $147,891.57 from AMP Super on 20 October 2015;[132] and

(d) $77,354.82 from NSF Super.[133]

223 However, reconciling the bank records with these statements shows that $5,659.30 from Australian Super was paid into Minas' bank account on 3 March 2015, $147,891.57 from AMP Super on 20 October 2015,[134] and $77,354.82 from NFS Super paid into his account on 22 June 2016.[135] There is no corresponding payment shown for the Australian Super amount above of $67,587. On this evidence, a total of $230,905.69 was received into Minas' accounts between October 2015 and June 2016 from his superannuation payouts. Maria alleged that withdrawals from Minas' accounts between 20 January 2015 and 10 February 2017 amount to $250,866.43.[136] It was explained that $184,050 was withdrawn from Minas' ANZ account to pay suppliers for the Second Renovation:

(a) $51,000 was paid into the Melville Road loan accounts which was then drawn down to pay for the renovations, as both Maria and Peter confirmed;[137]

(b) $77,000 was paid into a newly opened account of Minas on 29 February 2016 which was used to draw down funds between March and July 2016;[138]

(c) $26,040 was withdrawn on 29 August 2016;[139] and

(d) $30,010 was withdrawn on 7 November 2016.[140]

224 A further amount totalling $15,337.40, comprised of medium sized withdrawals between $5,000 and $1,000, was made between 29 February and 18 November 2016,[141] together with smaller withdrawals which were made from these funds.

225 Maria conceded that Kiki borrowed $65,000 from which she agreed $35,000 was spent on Minas' stem cell treatment and $30,000[142] was transferred to Peter's account to spend on the renovations.[143] It was said, however, that Peter did not spend the money on Cornwall Street but on another project he was working on. Kiki's bank account shows $25,900 was paid into her account on 15 March 2017 and $25,000 withdrawn in three separate cash transactions on 20 March 2017.[144]

226 Maria alleged that $53,390 came from her own funds made up from $13,390 from her bank account[145] and $40,000 cash saved from breeding dogs and hairdressing between 2005 and 2015.[146] Peter disputed she contributed this amount.[147]

227 Maria's evidence was that she project managed the Second Renovation and made all the payments on her and Minas' behalf to the tradesmen. The payments were always made in cash or cash transfers. Maria conceded that sometimes Peter paid for tradesmen and supplies but maintained that all of the money came from Minas' bank account.

228 Peter disputed Maria's version of events, insisting that he was the project manager and ultimately responsible for the project. He conceded that Maria did some of the work and dealt with documentation but that he had ultimate carriage of the project when Minas became unwell.

229 The documentary evidence is not straightforward. The amounts suggested do not add up for either version of events. The amounts allegedly paid are generally without proper documentation or incomplete documents. Bank records provide some assistance, but the reconstruction of the payments made by Maria in the spreadsheet she provided to the Court were properly conceded as being inaccurate and reconstructed from guesswork.

230 The documentary evidence in support of Kiki's version of events is also equivocal. The cost of the Second Renovation would exceed the $55,000 amount contributed by Kiki on her own evidence. The building permit estimated the cost of works at $250,000.

231 The amounts coming into and out of Peter's account are significantly more substantial, with payments made of $267,514.42[148] and cash withdrawals of $193,810.05.[149] However, the source of funds available to him through other means do not account for the amounts paid out of his bank account. The only viable source of additional funds was Minas' life insurance and superannuation payout.

232 A summary of the contributions made by Peter and Kiki to the Second Renovation were annexed to Kiki's written final submissions. The summary indicated that payments from Peter's bank accounts totalled $237,471.22 (after adjustments) and from Kiki's account totalled $55,000,[150] making it a collective grand total of $292,471.22 which was made between January 2016 and December 2017. It was submitted on behalf of Kiki that, at best, the payments made from Minas' accounts were a total of $128,322.75.[151]

233 Based on all of the documentary and oral evidence given, I find that the amount spent on the Second Renovation was likely to have well exceeded the estimate of $250,000 and be closer to $400,000.

234 On assessment of the evidence, the contributions made by the respective parties to the Second Renovation can be reasonably estimated as follows:

(a) Minas and Maria's contribution is $284,905.69 (which is made up of Maria's cash and bank account totalling $53,390 and the total confirmed payout received by Minas of $230,905.69).[152]

(b) Kiki's contribution is $55,000.[153]

(c) Peter's contribution is $85,500.[154]

235 I give no weight to the spreadsheet tendered by Maria as to the proof of the amounts alleged to have been spent. As noted above, it was accepted to contain significant errors and reconstructed from memory.

236 I am persuaded that Maria did in fact make a cash contribution to the Second Renovation, notwithstanding that this allegation, being that her source of money was undocumented sums of cash stored in her wardrobe, came about late in the proceeding. Given the extended family's predilection to cash reliance,[155] I find that it is highly likely that she retained a cash amount given that no declaration for taxation or Centrelink purposes has been made for many years and her evidence was that she earned income from her dog breeding and at home hair salon.

237 Whilst the Second Renovation was underway, Maria and Minas and the children lived at Straw Street, which is where Minas was resident until his death in February 2017.[156] There is no dispute that Peter was assisting the finalisation of the renovation and the relationship between Peter and Maria was still cordial at this time.

238 Maria and the children moved back to Cornwall Street after the renovation was complete in 2017.

239 Kiki's financial situation had deteriorated as her pension was reduced to a single person pension after the death of Alexis and she had borrowed money for Minas' stem cell treatment and the renovation of Cornwall Street. She approached Maria for some financial assistance of $150 per month and was rebuffed.[157] Kiki then sought to take possession of Cornwall Street and issued a notice to vacate. I accept the evidence of Kiki and Peter that Peter attempted to mediate and reassure Maria that she could stay at Cornwall Street and he convinced Kiki not to pursue action to evict them. Kiki's own evidence was that she felt sorry for them and allowed them to stay.[158] Kiki took no further action until early 2022 when Kiki asked Peter to assist her in getting Cornwall Street ready for sale. By this time, Kiki had received a notice from Centrelink indicating she was ineligible for a pension due to her assets.[159] Kiki had the option of renting out Cornwall Street or selling it and she chose to sell it.[160] However, it is clear that Kiki and Peter's relationship with Maria deteriorated after this time with unsavoury incidents between Maria and Peter occurring and culminates with Maria lodging a caveat over Cornwall Street in July 2023. These events are discussed in more detail below.

240 Correspondence between the solicitors for Maria and for Kiki set out the initial respective positions which ultimately led to this proceeding.[161]

241 Kiki's motivation for seeking to regain possession of Cornwall Street was put in issue by Maria. Cross examination and submissions were made about Peter being the motivating force.

242 It was argued that Kiki changed her mind about gifting Cornwall Street to Maria and Minas at Peter's urging and that Peter served to benefit from the sale of Cornwall Street to Maria's detriment as the loan on Melville Road could be paid out.

243 Kiki maintained that Cornwall Street was an investment for her retirement. She needed to sell it as she owes over $95,000 to the bank and her pension payments had been stopped. She said that she is existing through the financial support of Peter from the rent received from Melville Road, which is also subject to a mortgage. It was suggested by Maria's counsel that Melville Road could be sold to provide for her financial security rather than Cornwall Street, noting that Kiki believed that Melville Road also belonged to her despite the fact she is not on title.[162]

244 Kiki was questioned about her assets and the accuracy of her assets reporting to Centrelink. It was suggested by Maria's counsel that Kiki's assets (excluding Straw Street) consisted of Melville Road[163] and Cornwall Street, which would well exceed $988,641. In my view, the suggestion that Kiki's asset pool was well over $3 million is factually inaccurate and not to the point.

245 Kiki's clear evidence was that her financial circumstances had changed. Melville Road was in Peter's name and Straw Street was Kiki's residence. I accept this being the basis for her desire to sell Cornwall Street as a means to remedying her financial situation. I also accept that it is consistent with her long-term intention that it was a financial asset to secure her retirement.

Kiki's action to recover possession of Cornwall Street

246 As noted at [11] of this decision, several months after Minas' death in February 2017 and nearly three years after Alexis passed away, Kiki issued a notice to vacate Cornwall Street to Maria on 14 July 2017.

247 Maria's evidence was that when Kiki came to Cornwall Street, she was angry and handed the notice to Maria and told Maria to vacate Cornwall Street with her children.[164]

248 At section 9 of the notice entitled 'Reason for notice to vacate', it stated in handwritten text that the reason for the notice to vacate was:

S. 255 Repairs/Renovations

The premises are to be repaired, reconstructed immediately after the termination date and this cannot be done while you are living there.[165]

249 When questioned at trial, Kiki denied that the instructions she gave to her lawyer who prepared the notice were that the house was required to be repaired. She stated that she wanted $150 per month from Maria and the lawyer told her that in 60 days they had to vacate the property.[166] She said she did nothing for another five years because she was held back by Peter and the fact that Maria's children were young.[167] By way of letter from Kiki's lawyer to Maria's lawyer, Kiki purported to give a further notice to vacate on 28 February 2023.[168]

250 Maria's evidence was that, notwithstanding the fact she had received the notice to vacate in 2017, she ordered and installed drapes at the house.[169] She was questioned about what she thought at this time and her response was:

I don't know, [Kiki] was angry with something, I don't know what I thought. Because Peter had kept coming and going. He was alright, he's saying, 'don't worry it will be fine, don't worry about it, she's probably just angry' and all these excuses. But then he would turn on us. So I didn't know what was going on and I actually thought he [sic] was still my - Minas and I's property when they passed away and my kids.

...

It was still our property because obviously I spent all that much [sic] money, I didn't expect this. And [Kiki] didn't come back after that to tell me to leave again. So then I put up the blinds[170]

251 Peter's evidence was that the 14 July 2017 notice to vacate was given by Kiki to Maria after the Second Renovation was completed. He explained that Kiki had no money and was desperate to sell Cornwall Street. He said he did not know much at this time but he talked to Maria to try to calm down the situation. He said that he did not want Maria and the children to leave Cornwall Street and he tried to look after them as much as he could.[171]

252 Peter's evidence was that, more recently in 2022, he went to Cornwall Street to remove some of his belongings as well as removing the front security door, repairing fly screens on one of the windows and installing new front security cameras. By this time, Maria had put her caveat on the house and the police 'got involved'.[172]

253 Peter said that he was supporting his mother financially and that she still owed around $100,000 to the bank which he was paying off. Peter said that he had started assisting Kiki with financial affairs in 2006, eight years prior to Alexis passing away.[173]

254 I conclude from this evidence that Kiki was seeking to assert her legal title to Cornwall Street for the very purpose she and Alexis had intended, for her financial security in her retirement. However, I am satisfied that the conduct of the parties following from the decision to renovate Cornwall Street in 2015 has altered the respective interests of Maria and Kiki for the reasons which follow in the next section.

Does Maria have an equitable interest in Cornwall Street arising from the Second Renovation?

255 As previously noted, I am of the view that the elements of proprietary estoppel or constructive trust are not borne out by reason of the alleged Initial Gift or Amended Gift.

256 However, I am satisfied that there is a representation which can be inferred from the conduct and behaviour of Kiki in 2015 when the decision was made by Minas and Maria, with Kiki's consent, to undertake the Second Renovation pursuant to which Minas and Maria expended significant sums of money from Minas' superannuation and life insurance payout. I have concluded there has been conduct or acquiescence on the part of Kiki which would found an equitable interest which would prevent Kiki from asserting of her legal rights against the interest of Maria and Minas' estate.

257 Whilst Kiki submitted that the reason for the Second Renovation was to improve Cornwall Street for sale and that the renovation cost was around $100,000, this claim is not borne out by her bank records or those of Peter, Minas or Maria. Nor is it plausible that an elderly retired woman in receipt of a pension (which is likely to be cut off entirely) would be able to fund an extensive renovation which, whilst the final cost is not certain, was at minimum likely to be around $250,000 according to the permit application lodged.

258 Further, the evidence of the design and specifications demonstrates that it was designed to suit Maria and Minas' family. The evidence from Peter was that Maria was 'rapt' upon hearing of the proposed renovation and that Kiki agreed that the renovation should take place. Maria's evidence was that Kiki was encouraging of her and Minas to renovate and gave evidence that Kiki was impressed by the renovation, praising her and that Kiki said it would be 'nice for them' and that 'it will be a nice big home'.[174] Maria also said there was no discussion about the ownership of Cornwall Street and that she and the children moved back there after Minas died and the renovation work was finished.[175]

259 I am satisfied that the circumstances around the decision to undertake the Second Renovation, the management of the project, the contributions by Minas and Maria and Kiki's conduct in, at minimum, acquiescing to the expenditure and allowing Maria and the children to return to live at Cornwall Street supports the equitable interest in Cornwall Street in Maria's favour.

260 Maria has participated to her financial detriment in improving Cornwall Street, albeit mistakenly, in the belief that she would receive an interest in it. Kiki has encouraged this expenditure by positive actions or, at minimum, by not taking action to dissuade Maria from this course. Kiki is aware of this mistaken assumption and has not taken steps to correct the mistaken assumption until well after the renovations were complete. It would be unconscionable for Kiki to rely on her legal interest and receive the benefit of Maria and Minas' contribution in these circumstances.

261 As I do not accept the proposition that there was a gift of Cornwall Street to Minas and Maria in the first place, it follows that I do not accept the submission that Kiki changed her mind about gifting Cornwall Street after her pension was cut off. It seems to be accepted by Maria that Kiki was under some financial pressure.[176] I conclude that Kiki was seeking to realise the financial interest she had in the property that she and her husband had invested in some time before. Kiki first sought modest financial payment from Maria of $150 per month and, when that was not forthcoming, she took the only other option available to her which was to trigger the sale of Cornwall Street.

262 I am not persuaded that Kiki agreed to the Second Renovation solely on the basis that it would improve the resale value of Cornwall Street. Kiki's evidence overall, in particular her limited 'hands on' role in the project, indicates to me an acquiescence to the plans of Minas and Maria to undertake an extensive renovation to meet their needs. Given Peter's evidence that when the prospect of the renovation was discussed with Maria 'she was rapt', it is inconceivable to me that she would be enthusiastic to do a renovation of the scale and design undertaken only to then to be moved out.

263 There is no evidence from either party of a further discussion about the legal title to Cornwall Street after the alleged discussion about the transfer of title in 2005. That of itself is not enough to dissuade me from reaching my conclusion that Kiki's actions and conduct induced Maria and Minas to expend a significant amount of funds in the belief that Cornwall Street was or would be their property.

264 I have formed the view that Kiki's acquiescence to Minas and Maria's decision to undertake the Second Renovation led Maria and Minas to spend the entirety of their recently acquired windfall from Minas' superannuation life insurance into Cornwall Street. There is no credible evidence that Kiki did anything to dissuade Maria and Minas from this course. Rather, objectively, the evidence is to the contrary. Maria's evidence was that Kiki said that the renovations would be a positive thing for Minas and the children. Kiki took a hands off approach during the Second Renovation. Kiki's evidence was that, after the Second Renovation was complete, she allowed Maria and her children to return to Cornwall Street.

265 In my view, there is compelling evidence that Maria and Minas believed, mistakenly, by reason of the Second Renovation, that they would have an interest in Cornwall Street. That is by reason of Maria and Minas expending substantial funds from Minas' superannuation and insurance payout on the Second Renovation in the belief that the upgraded dwelling would be for Maria and their children's benefit.

266 In my view, Kiki's knowledge and acquiescence to Maria and Minas' significant expenditure in the substantial renovation of Cornwall Street, in circumstances where it was clear that Maria believed that the house was to be hers, creates an equity in favour of Maria which would be unconscionable for Kiki to reject.

267 Kiki complained that there was an inconsistency between the claim as argued by Maria from that which was articulated in the pleadings. However, there is clear authority that a failure to amend the pleadings to include non-pleaded elements does not necessarily preclude a judgment upon the facts that have emerged at trial.[177] It is necessary to look at the actual conduct of the case to see whether the point was taken at trial. In my view, it is plain that the matters now in issue arising from the evidence were squarely in issue throughout the trial. Whilst complaints were raised by counsel for Kiki both after the opening and again in closing submissions, the actions of the parties and matters of reliance and detriment, in particular, were subject to cross examination and dealt with in final submissions.

268 As set out at [132], I am not persuaded that there was a gift of Cornwall Street to Minas in 1996, nor an intention to gift the property to him. There was no persuasive evidence that Cornwall Street was ever intended to be transferred to Minas when he came of age, nor did this ever occur. I have found that this proposition was inherently improbable.

269 I reject Maria's allegation as to the Initial Gift.

270 I also find that it implausible that Kiki and Alexis gifted the beneficial ownership to Minas and Maria as claimed by the alleged Amended Gift. I am persuaded that the evidence demonstrates to the requisite level of satisfaction that the gift given was not the beneficial interest in the property but the use and possession of Cornwall Street so that Minas and Maria could save to buy a home of their own. The representation was that they could live there rent free and that the right to occupy Cornwall Street was always intended to be subject to Kiki and Alexis' financial security in retirement.

271 Such an arrangement is commonplace in a familial situation where parents, or grandparents, acting out of natural love and affection for their children and a desire to enable them to get on their feet financially, provide some financial support in this manner. That one day the property might be inherited by Minas (and Maria, if she was still part of the family unit), is not an unreasonable nor uncommon expectation in the ordinary course of life. However, this is not the same as gifting the beneficial interest to them as is alleged by Maria. I am not satisfied that any promise made was any more than a limited and non-binding one and certainly not one which created a legal liability or relationship which would support a beneficial interest of the property over that of Kiki's legal entitlement. I am not satisfied that Minas and Maria would or should have had any expectation greater than that possessed by any other child in relation to the assets accumulated by their parents.

272 Rather, the language used by Maria was consistent with a different version of events and one more consistent with Kiki's denial that there was ever a gift of the property to Minas and Maria, but rather that she agreed the couple could live rent free at Cornwall Street until they saved enough money for their own home and the property was intended to benefit Kiki and Alexis in their retirement.

273 I have not given weight to the evidence given by the other witnesses called on Maria's behalf as I found their evidence to have no forensic utility.

274 Accordingly, I find that the clear and natural inference to be drawn is that there was a promise or representation made to them by Kiki and Alexis that Maria and Minas could occupy Cornwall Street rent free until they saved for their own home.

275 The evidence, however, is that they did not save and that they were never financially well off during the course of their marriage. It was only at the point of Minas' untimely illness that they had significant resources at their disposal. Despite Maria's evidence that in the early days of their marriage she wanted to purchase a house and land package, the evidence was that the resources available to them in 1996 to 1997 were modest and that their prospects of achieving this goal was uncertain. The offer to live in a house owned by Minas' parents rent free was a generously provided benefit to them in the early days of their relationship.

276 Being given permission to occupy Cornwall Street for the longer term is not the same as being gifted the property at law. It is a gift of sorts, but not of the calibre of a gift of the estate at law or in equity in my view. The reference to the Yarra Valley Water account identifying Maria as 'life tenant' does not prove an interest in the property. I accept that, as the correspondence with Yarra Valley Water disclosed, it was done so that Maria could claim a rebate.

277 It is also not uncommon in a family situation that a member of a family, usually a child or grandchild, will be gifted the use of a property for a period of time and even have the legal owner's permission to change it, provide for the upkeep and pay outgoings, renovate it and treat it as if it was theirs. That they do work on the property, make it better for themselves to enjoy and more comfortable does not automatically create an interest in the property. They will enjoy the substantial financial benefit of living there rent free, just as Maria and Minas did. In the natural order of things, it would be a reasonable expectation that Cornwall Street would be theirs one day when the legal owner passed on. That time has not come.

278 However, I am satisfied that the circumstances surrounding the decision to undertake the substantial Second Renovation and who paid for it created a situation whereby Maria and Minas were encouraged, or at last at minimum with Kiki's acquiesce, to expend substantial monies on Cornwall Street in the belief that they would benefit from that investment in the property. It would be unconscionable in these circumstances for the benefit of the improvements to Cornwall Street to be kept by Kiki as the legal owner. In equity, compensation or accounting for this expenditure is required.

279 Finally, whilst the documentation and the oral evidence of the parties made the task challenging, I am satisfied that the amount contributed to the Second Renovation by Minas and Maria was $284,905.69. Kiki contributed $55,000 and Peter contributed $85,500. I note that the total of these amounts is $425,405.69 which, on all of the evidence, would coincide with the realistic amount expended on the Second Renovation.

280 I am satisfied that Kiki's acquiescence of allowing Maria and Minas to remain in occupation and her encouragement and/or acquiescence in Maria and Minas' expenditure of a substantial sum of money in the Second Renovation created an interest in Cornwall Street which, in equity, needs to be brought into account. Kiki's conduct in the circumstances of the Second Renovation, the reliance on her permission by Minas and Maria which encouraged them to spend substantial funds on the property, and the financial detriment suffered as a consequence of Kiki's claim for possession and intended sale of the property requires a financial remedy.

281 The conduct of Kiki's acquiescence to the Second Renovation raised an equity in favour of Minas and Maria which is not of a kind which would justify a declaration of trust or proprietary estoppel over part or whole of the property in their favour. The prima facie relief of transfer of whole or part of the property would be disproportionate, taking into account all of the circumstances, and would go beyond what is required for conscientious conduct. Rather, the appropriate remedy is a monetary award of equitable compensation.

282 As the Court of Appeal stated in Donis,[178] the effect of Giumelli is that, assuming the promise and detriment have been established (as I have found here), the promisee is prima facie entitled to have the promisor held to the promise, and the court then considers all the circumstances of the case in order to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct.

283 Consequently, I have concluded that the appropriate remedy in equity is not the transfer of the whole of the interest claimed in Cornwall Street, but an award of equitable compensation to Maria and Minas' estate to the extent which represents the financial contribution made for the Second Renovation. I have so concluded primarily on the basis of the circumstances of the purchase of Cornwall Street, the intention that I have concluded remained extant throughout (being that of Kiki's financial security in retirement) that the consequent detriment which would be suffered by her in the transfer of the whole of the property in the circumstances warrants a more limited remedy. The benefits that have been conveyed to Maria and Minas over the past 28 years have been extensive and I do not consider that more than the contribution to the Second Renovation is required to meet the requirements of contentious conduct by Kiki.

284 The manner in which the case was run before me sought to demonstrate a significant sum paid by Maria and Minas in the improvement of Cornwall Street in undertaking the Second Renovation. The documentary evidence of costs expended is not agreed, although the amounts alleged to have been spent (as opposed to the documentary proof to the same extent) suggests an amount in the vicinity of $400,000. As noted earlier, I am satisfied that the expenditure by Maria and Minas was $284,905.69. Given the position taken by Maria in the forensic decision as to how her case was to be run,[179] I will award Maria and Minas' estate this amount by way of equitable compensation.

285 I will otherwise dismiss the counterclaim and order that the caveat lodged by Maria be removed forthwith. I will make an order for possession of Cornwall Street to Kiki subject to the payment of the equitable compensation ordered.

286 I will allow the parties an opportunity to make written submissions on the final form of the orders and as to costs.

Maria Hatziminas as Administrator for the estate of the Late Minas Hatziminas

Maria Hatziminas (both personally and as executor of the estate of Minas Hatziminas, deceased)

[1] Given the commonality of surnames, and without any disrespect to any party, throughout the decision when reference is made to a member of the Hatziminas family, I refer to that party by using their first name.

[2] Certificate of Title, Volume 5106 Folio 133.

[3] Certificate of Title, Volume 6539 Folio 738.

[4] Straw Street was initially purchased by Kiki and Alexis with Kiki's brother in 1972, but was transferred to Kiki and Alexis as joint tenants in 1974.

[5] Certificate of Title, Volume 6120 Folio 980.

[6] Maria gave evidence that the traditional Greek wedding reception had over 400 guests and was paid for by Minas and Maria's parents. See Transcript of Proceedings, Hatziminas v Hatziminas (S ECI 2023 01556, Supreme Court of Victoria, Quigley J, 19‑‑-22, 25 March and 17 April 2024), 40-2 ('Transcript').

[7] The date of the resumption of the relationship was variously provided as 2010 or 2011 through to 2014. 2010 is the earliest date given in Maria's oral evidence at Transcript, 63. However, correspondence from her solicitor to Kiki's solicitor on 24 November 2022 states that the date of resuming cohabitation was 2014; see Court Book (filed 27 February 2024 in S ECI 2023 01556, Supreme Court of Victoria), 576-7. ('Court Book').

[8] Maria gave evidence that Minas was also not permanently a resident at Cornwall Street during their marriage separation. See Transcript, 59-60.

[10] Registered Instrument AV851171U, dated 13 July 2022.

[12] Commonwealth Bank Equity Loan for Seniors referred to at Court Book, 579; CBA Account ending 6468 balance as at 30 June 2017, $95,848.68 at Court Book, 386-87.

[13] Defendant, 'Amended Defence and Counterclaim', Submission in Hatziminas v Hatziminas, S ECI 2023 01556, Supreme Court of Victoria, dated 19 February 2024 ('Amended Defence and Counterclaim'), amended the pleadings to add Maria's capacity as executor of Minas' estate as well as in her personal capacity.

[14] Described as the common intention that the equitable owner of Cornwall Street was Minas.

[15] Described as the gifting by Kiki, Alexis and Minas of any interest they had in Cornwall Street to Minas and Maria jointly as a wedding gift.

[16] See discussion in Business Service Brokers v Optus Mobile Pty Ltd (No 3) [2022] VSC 283, [23]-[31].

[17] In this I also include Alexis whilst he was alive.

[18] These amounts are set out in the particulars to paragraph [23] of the Amended Defence and Counterclaim and which total $375,218.85.

[19] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 ('Waltons Stores'), 404 (Mason CJ and Wilson J); Giumelli v Giumelli (1999) 196 CLR 101, 112 (Gleeson CJ) ('Giumelli').

[20] Harrison v Harrison [2011] VSC 459, [369] ('Harrison').

[21] [2023] VSCA 138, [51].

[22] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, [95], Brooking JA ('Flinn'); Harrison, [374]; Harris v Harris [2020] VSC 256, [175] ('Harris'); Laird v Laird [2021] VSC 352, [17]; McDonald v Dunscombe [2018] VSC 283, [17]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1, [36] (French CJ, Kiefel and Bell JJ).

[24] Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 438-9 (Mason and Deane JJ).

[25] Waltons Stores, 429 (Brennan J).

[26] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, [58] ('Sidhu').

[27] Sidhu, [73] citing Steria Ltd v Hutchison [2006] EWCA Civ 1551; [2007] ICR 445, [117].

[28] Crown Melbourne [35] (French CJ, Kiefel and Bell JJ), [160] (Keane J).

[29] Harris, [173]; Laird [20].

[30] Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164, 180-1; State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170.

[31] Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524, 540; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 436-7 (Deane J), 431-7 (Brennan J), 454 (Dawson J).

[32] Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, [20] ('Donis').

[34] Donis, [41]; Crown Melbourne, [222] (Nettle J), referring to Jennings v Rice [2003] EWCA Civ 159; [2003] 1 P & CR 100.

[36] Donis, [19]-[20]; Giumelli, [42], [50]; Sidhu, [85] (French CJ, Kiefel, Bell and Keane JJ.

[37] Waltons Stores, 404-5 (Mason CJ and Wilson J), 423 (Brennan J).

[38] Gurrappaji, [177]; Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336, [119]; Zekry v Zekry [2020] VSCA 336, [76]; Clayton v Clayton [2023] NSWSC 399, [534]; Grant v Edwards [1986] Ch 638, 656-7.

[39] [2018] VSC 413 ('Iman Ali Islamic Centre').

[40] DPP v Ali (No 2) [2010] VSC 503, [75].

[41] Galati v Deans [2021] NSWSC 1094, [913].

[42] [1985] HCA 78; (1985) 160 CLR 583, 620.

[43] [1987] HCA 59; (1987) 164 CLR 137.

[44] [2009] VSC 52 [197], ('Cressy v Johnson (No 3)').

[45] Cressy v Johnson (No 3), [197].

[48] I note a similar observation as to the approach to evidence was remarked upon by Forbes J in Gurappaji v Duncan [2023] VSC 558, [227]-[229] ('Gurappaji').

[49] [1995] NSWCA 497; (1995) 49 NSWLR 315 ('Watson').

[51] [2023] VSC 558, [229]-[230] ('Gurappaji') (footnotes omitted).

[52] [2022] NSWSC 923, [73]-[93] ('Pollock').

[53] Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555.

[54] The witnesses called were Helen Georgiou, Olga Haziathanasiou, Angela Palamaras, Poppy Katsianos, Christopher Tsementzis and Alex Hatziminas.

[55] Defendant's Witness Outlines (filed 4 March 2024 in S ECI 2023 01556, Supreme Court of Victoria).

[59] Peter was 14 years old and still attending high school when Cornwall Street was purchased; Transcript, 409.

[65] Kiki's evidence was that the loans were paid by her; Transcript, 282.

[67] Transcript, 280. Kiki's reply to this proposition when put to her by counsel was a very firm 'never'.

[68] CBA mortgage discharged 17 October 1993, Court Book, 406; also see 'Statement of Agreed Facts and Issues', Submissions in Hatziminas v Hatziminas, S ECI 2023 01556, Supreme Court of Victoria, undated, [4] ('Statement of Agreed Facts').

[70] Including Maria's parents and other guests.

[76] Plaintiff, 'Opening Submissions', Submissions in Hatziminas v Hatziminas, S ECI 2023 01556, Supreme Court of Victoria, 2 March 2024, [29] ('Plaintiff's Opening Submissions'); Court Book, 398, see Council Valuation and Rate Notice stating $11,673.34 owing in arrears.

[80] Maria described it as having no back door, broken windows and doors, hanging light fittings, and the flooring soaked with alcohol; see Transcript, 40.

[82] After the second wedding ceremony; Transcript, 41-2.

[90] Transcript, 43-4. Maria alleged she did not want to renovate Cornwall Street but preferred a new house like her sister had bought in Roxburgh Park.

[94] Which Kiki does and I will return to the effect of this acquiescence by Kiki later in this decision.

[101] I note that Peter alleged that he purchased the BMW vehicle for Maria; Transcript, 367.

[102] Further Amended Supplementary Court Book (dated 8 April 2024 in S ECI 2023 01556, Supreme Court of Victoria), 151-88 ('Further Amended Supplementary Court Book').

[104] Further Amended Supplementary Court Book, 189-90.

[105] Peter was released from prison in November 2004. This means that the need to pay for legal fees would have arisen at a much earlier time.

[106] Peter spent a period of time in prison in 2004 but was released by November 2004; Transcript, 437.

[109] Peter claimed that Keyra was his child. This was denied by Maria.

[110] Maria gave evidence that she, Peter and her children went on a holiday to Dreamworld in May 2005 for Minas' birthday, but Minas did not come with them; Transcript, 235.

[112] Court Book, 747; Transcript, 307.

[114] Maria's evidence at Transcript, 63 says that they got back to together by 2010, and travelled as a family to the United States of America in 2011, but at Transcript, 137 she said that she cannot remember exact dates, that they were together in 2011, and were 'a hundred percent together' in 2012.

[115] Court Book, 612; Transcript, 320-1.

[119] Amended Defence and Counterclaim, [23].

[120] Sale of a car for $65,000 (Transcript, 375); sale of Harley Davidson motorbike for $13,500 (Transcript 459); and sale of a jet ski for $7,000 (Transcript. 461).

[122] Further Amended Supplementary Court Book, 59; Transcript, 322.

[123] Further Amended Supplementary Court Book, 62; Transcript, 322.

[129] Transcript, 91 where Maria says the amount is 'About $40,000-odd' however, at Transcript 181-2 she says '$50,000 or $60,000'.

[130] Court Book, 192, 642; see Minas' bank account and Statement from Australian Super, respectively.

[131] Transcript, 75; Defendant, 'Outline of Opening Trial Submissions', Submission in Hatziminas v Hatziminas, S ECI 2023 01556, 15 March 2024, [11] ('Defendant's Opening Submissions').

[136] Further Amended Supplementary Court Book, see Schedule at 107.

[137] Court Book 209, 276, 285, 288; see also Transcript, 77, 83, 376.

[138] Court Book 222, 371-381; see also Transcript, 77, 84-5, 207-8, 468.

[139] Court Book, 237; Transcript, 184.

[140] Court Book, 244; Transcript, 78. This sum was initially used to fund Minas' stem cell treatment but Kiki reimbursed the account.

[142] Kiki's CBA Account 06 2000 1657 7302 shows $65,000 was withdrawn on 30 November 2016; also see Further Amended Supplementary Court Book, 59.

[144] Kiki's CBA Account 3111 008 2403; Further Amended Supplementary Court Book, 33-4.

[145] Further Amended Supplementary Court Book, 293, 306, 311; and further summarised in Defendant, 'Closing Trial Submissions', Submission in Hatziminas v Hatziminas, S ECI 2023 01556, 15 April 2024, [10] ('Defendant's Closing Submissions').

[150] $30,000 from Kiki's CBA account to Peter's account on 30 November 2016 and a total of $25,000 in three cash withdrawals on 20 March 2017; see footnotes [142], [144].

[151] Plaintiff, 'Closing Submissions', Submission in Hatziminas v Hatziminas, S ECI 2023 01556, 12 April 2024, [164] ('Plaintiff's Closing Submissions'), see especially Annexure 3 detailing total withdrawals from Minas' account ending in 5217 ($58,412.68) and account ending 6279 ($69,910.07).

[152] See [234] above referencing the total of Maria's greatest possible contribution of $53,390.000 and Minas' total possible contribution of $230,905.69 from his superannuation payments.

[153] This excludes the $35,000 which Kiki paid for Minas' stem cell treatment.

[154] Comprising $13,500 for the Harley Davidson motorbike, $65,000 for the car and $7,000 for the jet ski.

[156] Minas was hospitalised in palliative care when he passed away on 8 February 2017.

[159] Court Book, 396; Transcript, 333.

[162] The title to Melville Road was initially in the names of Alexis, Minas and Peter as joint tenants, then passed to Peter only through survivorship.

[163] As above, this was an incorrect assertion as Peter is the sole proprietor of Melville Road.

[169] Transcript, 115-16. This assertion was supported by an invoice addressed to Maria from Venus Drapes Pty Ltd dated 3 October 2017 for an amount of $2,100. A further invoice from the same company was addressed to Maria dated 19 December 2017 for an amount of $ 1,350; Court Book 751-2.

[176] Defendant's Closing Submissions, [18].

[179] On the final day of the trial, I gave counsel for Maria the opportunity to make submissions as to how Maria's equitable interest should be calculated. Whilst counsel for Maria indicated that Maria's claim included a claim for equitable compensation, counsel insisted that Maria's claim was for the full interest in Cornwall Street and did not make submissions on how equitable compensation should be calculated. See Transcript, 527-9.