Stassinopoulos v Stassinopoulos & Anor [2011] VSC 647

2 The two brothers were registered as joint proprietors of the Brunswick Street Property because the transfer which they signed contained no words of severance, even though it was silent as to the fact of joint tenancy. This arose by virtue of s 33(4) of the Transfer of Land Act 1958 which provides:

(4) Any two or more persons named in any instrument as transferees mortgagees lessees or as taking any estate or interest in land shall unless the contrary is expressed be deemed to be entitled jointly and not in shares and every such instrument when registered shall take effect accordingly.

3 The brothers purchased the Brunswick Street Property with a view to conducting a fish and chip and hamburger business from a shop situated on the ground floor, and renting out the residential accommodation upstairs.

4 The central issue in this case is whether, in all the circumstances, Nick Stassinopoulos and his brother Sam Stassinopoulos held their interests in the Brunswick Street Property as beneficial tenants in common in equal shares in equity notwithstanding the registration. Alternatively, whether, pursuant to s. 24(2) of the Partnership Act 1958 the brothers held their interests as tenants in common in equal shares notwithstanding the registration.

5 Nick Stassinopoulos migrated from Greece to Australia in the early 1960's together with his brother, Sam Stassinopoulos and their sister, Angeliki Stassinopoulos ("Angeliki Stassinopoulos").

6 At the time of the acquisition of the Brunswick Street Property, Nick Stassinopoulos was aged 37 years, having been born in Greece on 16 June 1939. Sam Stassinopoulos was aged 36 years, having been born in Greece on 26 October 1940. Both brothers were married at the time: Nick Stassinopoulos married the First Plaintiff, Irene Stassinopoulos ("Irene Stassinopoulos") in May 1970, and Sam Stassinopoulos married Georgia Stassinopoulos ("Georgia Stassinopoulos ") in June 1970.

7 Nick Stassinopoulos had four daughters. Soula Irwin was born on 16 July 1971, Angela Stassinopoulos was born 19 July 1974 ("Angela Stassinopoulos"), Samantha Kavakliotis was born on 18 September 1976 and Vicky Stassinopoulos ("Vicky Stassinopoulos") was born on 24 May 1978.

8 Nick Stassinopoulos worked at the Museum for many years as a cleaner. He had very limited ability to understand the English language. Throughout his life, he requested members of his family to explain to him documents written in English. He could not read or write English, although he could identify some words in English and guessed the meaning of some things he read. He had limited knowledge of business and financial investments. He looked up to and trusted his brother Sam Stassinopoulos. He often deferred to him in discussions.

9 Nick Stassinopoulos died on 3 April 2008. He made a will dated 3 August 1970 (the "Will").

10 By the Will, his brother Sam Stassinopoulos, who is the Defendant, and the deceased's sister Angeliki Stassinopoulos, were appointed executors and trustees of the estate.

11 On 31 March 2009 probate of the Will was granted to Sam Stassinopoulos and Angeliki Stassinopoulos.

12 The First Plaintiff, Irene Stassinopoulos, the former wife of the deceased Nick Stassinopoulos, is the sole residuary beneficiary under the Will.

13 Irene Stassinopoulos is the subject of an order, dated 25 May 2010, made by the Victorian Civil and Administrative Tribunal, pursuant to the Guardianship and Administration Act 1986, appointing another daughter Vicky Stassinopoulos, who is the Second Plaintiff, as the sole Administrator of her estate.

14 On 21 July 2009 Angeliki Stassinopoulos consented to being removed as an executor and trustee of the Will.

15 By order made 8 October 2009 Kaye J made an order which, inter alia, removed Sam Stassinopoulos as an executor and trustee of the Will and appointed Vicki Stassinopoulos as administrator.

16 In 1977, Sam Stassinopoulos originally proposed to purchase the Brunswick Street Property with his wife, Georgia. However the two brothers decided to purchase the property together, excluding their wives. As deposed to by Georgia Stassinopoulos, this caused her considerable upset. However, the source of this upset was not that she had been informed that the property was to be purchased by the two brothers as joint tenants, but rather because she was to be left off the title completely. I am satisfied from her evidence that at the time of the purchase and the subsequent registration of the transfer, she was not informed by her husband Sam Stassinopoulos that the property was to be held by the brothers pursuant to a joint tenancy between them.

17 After some renovations had been completed, the brothers operated a fish and chip and hamburger food business together. The takings of the business were split evenly between them after payment of expenses and outgoings.

18 Initially, Sam Stassinopoulos paid the full amount of the deposit for the purchase, being 10 per cent of the purchase price. The purchase price was $36,000. A mortgage loan was obtained from the CBC Bank for payment of the balance of the purchase price. Over time, Nick Stassinopoulos reimbursed his brother for half of the deposit and his contribution to the balance of the purchase money.

19 After two or three years the brothers ceased to operate the fish and chip and hamburger food business. They then received income in equal shares from renting out the Brunswick Street Property which was initially leased to Mr Balbir Singh as an Indian Restaurant. Leasing of the property has continued to this day.

20 Where property is conveyed to two or more persons who are named as transferees without further specification as to whether they are to hold the title as joint tenants or tenants in common, they are deemed by operation of s 33(4) of the Transfer of Land Act 1958 (Vic) to hold the legal estate as joint tenants. However, s 33(4) of the Act does not preclude the operation of equity.[1] It follows that, irrespective of the position on the certificate of title, in certain circumstances, equity may intervene to impose a tenancy in common.[2]

21 Where legal title to property is conveyed to one or more persons an equitable presumption of a tenancy in common arises. The rationale for the presumption against a joint tenancy is described in Snell's Equity, where the maxim "Equality is equity" is explained:[3]

The maxim ["equality is equity"] has long been illustrated by equity's dislike of a joint tenancy. On the death of a joint tenant, the whole estate belongs to the survivor, and the representatives of the deceased take nothing. There is here no equality, except, perhaps, an equality of chance. Equity, therefore, leans in favour of a tenancy in common ... the presumption arises in three main classes of case to which however it is not restricted ... Thus a lease to two persons as joint tenants for their several business purposes will be held by them as tenants in common in equity in shares proportional to the benefits each enjoyed. So also where land is vested in two persons jointly the usual entry on the registrar restricting a disposition by one joint proprietor without an order of the court or the Land Registrar is a pointer towards the conclusion that they intended to hold the property in equity as tenants in common.

22 In equity, even slight circumstances are enough to indicate the parties did not intend to hold property as joint tenants. As stated by Gibbs CJ in Delehunt v Carmody:[4]

... slight circumstances would have been enough to indicate that it was intended that there should not be a joint tenancy. Equity had a dislike for joint tenancies, because their effect was to make the ultimate ownership of the property depend on the chance of survivorship, and, in the words of Snell's Principles of Equity, 28th ed. (1982), at p.37: 'There is here no equality except, perhaps, an equality of chance.'

23 Reference is also made to the observations of Mandie J in Xenou v Katsaras[5] where his Honour stated:

Due to equity's dislike of joint tenancy, slight circumstances may be sufficient to give rise to a presumption of a tenancy in common. Even where contributions are equal (in which case, equity will prima facie follow the law), equity will hold that there is a tenancy in common where the persons to whom the property is conveyed acquire it as partners or as participants in a joint undertaking; these are not rigid categories.

24 Prima facie, the provision of purchase money in equal shares is consistent with an intention to hold property as joint tenants. However, even if the parties provide purchase money in equal shares, equity will presume the parties intended to hold the beneficial interest as tenants in common in circumstances where:[6]

... a mortgage is made to them jointly, or where the persons to whom the property is conveyed acquire it as partners or as participants in a joint undertaking; these are not rigid categories.[7]

25 The application of the equitable presumption is not confined to formal business structures. As observed by Mandie J in Xenou v Katsaras:[8]

...The right of survivorship has no place among merchants. A joint business venture or undertaking 'of a more informal kind lacking the system and continuity or pursuit of profit of a business would still give rise to equities leaning towards a tenancy in common of the beneficial interest '.

26 Further, as observed by Hargrave J in Sacks v Klein:[9]

The equitable presumption may be rebutted by evidence of a common intention by the co-owners to acquire the property as joint tenants. The common intention must be actual and not presumed. If there is ambiguity as to the existence of a common intention: "... the Court very properly leans to the construction which creates a tenancy in common in preference to a joint tenancy".

27 His Honour further observed in Sacks v Klein:[10]

If the parties describe their interests in words which suggest distinct shares are to be held, their words prevent the creation of a joint tenancy. In Robertson v Frazer, Lord Hatherley LC stated that the evidentiary threshold to establish such a division is easily met:

"... anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy and to create a tenancy in common".

28 Thus, as stated in Megarry, The Law of Real Property:[11] "[t]he mere fact that the legal title to the property is conveyed 'to A and B jointly' does not rebut the equitable presumption of a tenancy in common because it is silent as to their beneficial interest".

29 In relation to the position of property under a partnership is governed by s 24 of the Partnership Act 1958. In particular, s 24(2) provides:

The legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof and the general rules of law thereto applicable but in trust so far as necessary for the persons beneficially interested in the land under this section.

30 The operation of this provision is informed by the observation of Windeyer J in Spence v Federal Commissioner of Taxation[12] where it was said in relation to similar provisions in the Western Australian legislation:

... in equity[;] partners who hold as joint tenants in law hold beneficially as tenants in common. That is an old rule. It is more exactly stated today in terms of the Partnership Acts - the relevant provisions are ss. 30 and 32 in the Western Australian Act: the legal estate devolves according to its nature and tenure but in trust so far as necessary for the persons beneficially interested; and as between partners land which is partnership property is to be treated as personal estate.

31 It is further informed by operation of the maxim of equity - "ius accrescendi inter mercatores locum non habet" (the right of survivorship has no place among merchants). Thus where partners acquire property, they are presumed to hold it as beneficial tenants in common.[13]

32 Sam Stassinopoulos gave oral evidence as to how he arranged with his older brother to buy the Brunswick Street Property. He said in his evidence:

Did you and your brother discuss how you would hold the property as between the two of you? --- Yes, we do. My - my brother he has opinion about that and he says, "We buy together, something for me and for yourself." Which mean to both of us, no wives, nor kids, and if one die the other one having - have it.

33 This was repeated by Sam Stassinopoulos, in one form or other, throughout his evidence.

34 Sam Stassinopoulos gave evidence that he and his brother attended a solicitor, Mr Nick Papas, on two occasions in relation to the transaction. I accept that Mr Papas was an experienced conveyancing solicitor in practice in Melbourne.

35 Sam Stassinopoulos said that on their first attendance instructions were given to Mr Papas as follows:

We tell him how we want it. He advise us and he approve us the way we can do it and let - he says to us think about it and back to me. We fixing the papers and we come to sign.

36 He said that on their next attendance upon Mr Papas in relation to the matter, the transfer was signed by the two brothers and the following conversation occurred:

We back again. He ask us if were any change ... And we says no, we want it, because my brother has told me we buy together. If - if I die he has it. If he die I have it. Still again Mr Papas ask us if we agree with that and we say yes and we continue the process from the land for joint tenants.

37 Mr Papas has since passed away and was not available to give evidence. Further, his file on the Brunswick Street Property transaction has been destroyed and could not be examined or tendered in evidence.

38 Dr Hardingham, who appeared with Mr Newton of counsel for the Defendant Sam Stassinopoulos, urged that an experienced conveyancing solicitor of the calibre of Mr Papas would not have been likely to have confused his instructions on such an important matter. On the contrary, it is likely that he would have taken some care to ensure that his clients understood the difference between taking the Brunswick Street Property as joint tenants and as tenants in common and would have been likely to have drawn the transfer in accordance with his instructions without incorporating words of severance. Upon registration of the transfer, pursuant to s 33(4) of the Transfer of Land Act 1958, the interests of the two brothers were registered on the title to the Brunswick Street Property as joint tenants.

39 Upon the death of Nick Stassinopoulos on 3 April 2008, Mr George Petropoulos, a real estate agent who then managed the leasing of the Brunswick Street Property gave evidence that Sam Stassinopoulos gave instructions that the whole of the rent for the property was to come to him.

40 I found Sam Stassinopoulos to be an astute individual with a good business sense, particularly with real estate, although his skill with the English language was less than perfect. He was nevertheless well able to comprehend the matters put to him and had the capacity to respond accordingly. He did not require the assistance of an interpreter, although one had been made available for his use.

41 However, in cross examination, Sam Stassinopoulos demonstrated a poor memory of what had actually occurred between himself and his brother in the critical period following the purchase of the Brunswick Street Property leading up to the execution of the transfer. His version of events changed from time to time in the course of his evidence.

42 I find the evidence of Sam Stassinopoulos to be unreliable on the critical issue relating to the discussions between himself and his brother leading up to the execution of the transfer of land and the instructions given to their solicitor in relation to its preparation.

43 Further, as confirmed by another solicitor who worked in the practice at the time and was familiar with the signature of Mr Papas, namely Mr Peter Zoupa, the transfer was not witnessed by Mr Papas, but by some other unidentified person. This throws some doubt on the evidence advanced by Sam Stassinopoulos as to the circumstances relating to the execution of the transfer, where he suggested that the transfer was signed in front of Mr Papas, as is to be inferred from the following evidence sworn to by him in his affidavit:

Nick and I again attended the offices of the Papas to sign the Transfer of Land. Papas again explained the difference between registration as joint owners and tenants in common.

We confirmed that we understood and wished to proceed to be registered as joint tenants and signed the Transfer of Land he had prepared.

44 Further, the transfer on its front page was endorsed with the code "GL/GR" under the address of the solicitors "N.C.Papas & Co". The code initials are not consistent with the initials of Mr Nick Papas, who Sam Stassinopoulos maintained had prepared the document.

45 There was no other direct evidence to corroborate the version of events leading up to the execution of the transfer by the two brothers, other than the evidence of Sam Stassinopoulos.

46 Following their purchase of the Brunswick Street Property, the two brothers operated a fish and chip and hamburger business from the premises, which they did for about three years. Sam Stassinopoulos said that the business was operated as a partnership between them. However, he denied that the Brunswick Street Property was an asset of the partnership.

47 The brothers engaged an accountant, Mr George Gigas, to prepare the taxation returns for the partnership business. Mr Gigas deducted the interest which they paid to the bank on the loan used to purchase the land as a deduction for tax purposes from the earnings of the partnership. Mr Gigas said in his evidence, which I accept, that he did this on the instructions of the two brothers, who told him that they were in the enterprise together "misa/misa" in the Greek language, meaning half and half. Mr Gigas swore in his affidavit, which I also accept, that "I was instructed by Sotirios [Sam] and Nicholas [Nick] to include the property as an asset of the partnership when I prepared the profit and loss statement and statement of assets". When confronted with this evidence in cross-examination Sam Stassinopoulos said: "I don't remember. I don't remember". However, in his affidavit which he swore in this proceeding on 28 November 2011, a little over a week before the trial, Sam Stassinopoulos deposed: "I did not instruct Mr Gigas to include the property as an asset of the partnership". When this was put to him in cross examination, his explanation again was "I don't remember", but a little later in his examination he asserted "it is lies". Mr Gigas also swore in an affidavit, which again I accept, that: "I was instructed by Sotirios [Sam] and Nicholas [Nick] to claim the interest amount paid to the bank, to service the mortgage loan as a deduction against income of the partnership business for income tax purposes". I further accept that in accordance with this instruction Mr Gigas prepared partnership returns which included a claim for the deduction of the interest as an expense of the partnership business. In reply in his affidavit, Sam Stassinopoulos said: "I do not recall having instructed Mr Gigas to claim interest on the mortgage as a deduction". When this was put to him in cross examination, Sam Stassinopoulos persisted in his position: "I don't remember", adding the plea that "I'm not very educated in English language".

48 I find that the evidence of Sam Stassinopoulos to be unsatisfactory on the issue as to whether the Brunswick Street Property was part of the assets of the partnership between the two brothers. I accept the evidence of Mr Gigas in the matter, and find that the Brunswick Street Property at all material times since its purchase was an asset of the partnership, while the business continued.

49 Further, there were other factors which pointed away from there existing a joint tenancy as maintained by Sam Stassinopoulos.

50 By the Will of Nick Stassinopoulos his brother Sam Stassinopoulos, along with Angeliki Stassinopoulos, were appointed executors and trustees of his estate. Upon probate being granted on 31 March 2009 probate of the Will, was granted to Sam Stassinopoulos and Angeliki Stassinopoulos. They remained in this position until 21 July 2009, when Angeliki Stassinopoulos consented to being removed and 8 October 2009 when Kaye J ordered that Sam Stassinopoulos be removed.

51 While he was an executor and trustee of his brother's estate, a tax return for the estate was prepared and filed for the 1 July 2007 - 30 June 2008 year. Nick Stassinopoulos died on 3 April 2008. The return therefore covered the period from the date of his death until 30 June 2008. The estate recorded income for this period of $4,850 in respect of rent from the Brunswick Street Property, from which $599 was deducted in respect of various expenses, leaving a net rent of $4,251. This was recorded in the "2008 Rental Property Statement" included in the tax return. The declaration of the rental income by the estate during this period, is directly inconsistent with the existence of a joint tenancy between the two brothers. Were the position otherwise, and a joint tenancy in fact existed, Sam Stassinopoulos, not the estate, would have been required to declare the rental income.

52 Mr Gigas produced an accounting record for the 2007-2008 year from his file. It recorded, amongst other things accounts in respect of the Brunswick Street Property in respect of that period. These records were prepared by Mr Louie Vayanas, who is the son-in-law of Sam Stassinopoulos. He was accustomed to assisting his father-in-law collate documentation and information for the preparation of his taxation returns, including collating receipts for interest, income and rental for the Brunswick Street Property. He would prepare spreadsheets of his work and provide them to Mr Gigas, the accountant for Sam Stassinopoulos. The spreadsheet he prepared for the 2007/2008 return he says contained an error. In fact it recorded receipt by Sam Stassinopoulos of only half of the rental income from the Brunswick Street Property which totalled $38,796, half of which amounted to $19,398. This half was recorded as being divided as follows: "Sam's share 50%" $9,699, with the other half being recorded as "Georgia's share 50%" again $9,699. Georgia was the wife of Sam Stassinopoulos. Mr Vayanas did not prepare any spreadsheets after the financial year ending 30 June 2008.

53 Although Mr Vayanas said that he had no communication with Sam Stassinopoulos about the specifics of the preparation of the spreadsheet information for the 2007-2008 year, and although he said that the division of rental income between Sam Stassinopoulos and Nick Stassinopoulos after the latter's death on a 50/50 basis was a mistake, nevertheless, there is no evidence that upon the death of his brother, Sam Stassinopoulos took any step to ensure that an adjustment was made in the spreadsheet information prepared for Mr Gigas to correct the position so as to reflect the joint tenancy which he now asserts. This failure is even more remarkable when considered against the evidence of the managing real estate agent Mr George Petropoulos earlier referred to. Nevertheless, it provides some further evidence which works against the case which Sam Stassinopoulos seeks to advance.

54 Sam Stassinopoulos did not include in his personal taxation return for the 2007-2008 year any additional rental for the period 4 April 2008 to 30 June 2008, being the period immediately following the death of his brother. Later, in 2010, he gave instructions to Mr Gigas to submit an amended taxation return. The amended return was prepared and lodged on 3 June 2010. The gross rent recorded in the amended return was $9,699. This was one quarter of the gross rental derived from the Brunswick Street Property for the period 4 April 2008 to 30 June 2008. Another quarter, again amounting to $9,699, was recorded by Mr Gigas as having been earned by Georgia Stassinopoulos, the wife of Sam Stassinopoulos. The combined gross rental income recorded as having been earned by Sam Stassinopoulos and his wife from the property during the period was $19,398, or precisely one half of the gross rental derived from the property during the period, which amounted to $38,796. This manner of accounting is directly inconsistent with Sam Stassinopoulos becoming entitled to receive all of the rental income derived from the Brunswick Street Property following the death of his brother, but is consistent with ownership of the property being held by the brothers as tenants in common.

55 Further, I am satisfied that it was known and understood amongst the family of Nick Stassinopoulos that the Brunswick Street Property was held by the brothers as tenants in common, and that this knowledge was derived from what Nick Stassinopoulos had told them. Vicky Stassinopoulos said in her sworn evidence, which I accept:

Growing up we would drive past the Brunswick Street Property with my father and he would refer to it as the property he owned with our Uncle Sotiri. Our father told his family, relatives and friends that he owned a half share in the property with his brother. He spoke of the property as being owned "half-half" and that our family would inherit it.

56 I have had the advantage of reading and taking into account the written submissions prepared by Dr Hardingham and Mr Newton, as supplemented by Mr Newton's oral address delivered in Court.

57 However, I find that in equity, the circumstances are such as to indicate that the two brothers did not intend to hold Brunswick Street Property as joint tenants. A presumption of a tenancy in common arises. The equitable presumption has not been rebutted by evidence of a common intention by the co-owners to acquire the property as joint tenants.

58 Further, having found that the Brunswick Street Property at all material times since its purchase was an asset of the brothers' partnership, and given that the equitable presumption has not been rebutted, the land which is partnership property is to be treated as personal estate. On this additional basis they hold the property beneficially as tenants in common.

59 In these circumstances, the Court must lean to the construction which creates a tenancy in common in preference to a joint tenancy.

60 I find that the Deceased Nick Stassinopoulos and the Defendant Sam Stassinopoulos at all relevant times held their interests in the Brunswick Street Property in equity as beneficial tenants in common in equal shares.

61 I will give the following judgment and make the following orders:

(a) the Deceased Nicholas Stassinopoulos and the Defendant Sotirios Stassinopoulos at all relevant times held their interests in the Brunswick Street Property, being the property situated at 199 Brunswick Street Fitzroy in the State of Victoria being the land described in Certificate of Title Volume 8129 Folio 291, in equity as beneficial tenants in common in equal shares;

(b) the Defendant holds a moiety or undivided equal share in the Brunswick Street Property on trust for the Estate of the Deceased;

(c) the Defendant is not entitled to be registered as sole proprietor of the Brunswick Street Property but holds a moiety or undivided equal share in the said property on trust for the Estate of the Deceased, and in particular, for the sole residuary beneficiary under the Estate, and the Defendant is restrained from pursuing any registration to the contrary;

(d) all rental received for the Brunswick Street Property by the Defendant since the 3 April 2008 to date was held by the Defendant as to a half share for the Estate of the Deceased, and that such rental (less an amount equivalent to half of any costs and expenses associated with the Brunswick Street Property) is due and payable by the Defendant to the Estate and any rental held in any trust account on behalf of the Plaintiffs (or either of them) and the Defendant be forthwith paid out to the solicitor for the Plaintiffs on behalf of the Plaintiffs.

1. It is ordered that the further hearing of the Plaintiffs' claim set out in paragraph B of their Further Amended Statement of Claim, namely that seeking an order that the Brunswick Street Property be sold and the net proceeds of sale be divided into two equal shares and one share be distributed to the said Estate of the deceased and be paid to the Plaintiff, be adjourned sine die.
2. It is directed that any party may, on reasonable notice to all other parties, be at liberty to apply to the Court in respect of Order 2 hereof.
3. The Defendant is ordered to pay the costs of the Plaintiffs of the proceeding to date.

[1] Sacks v Klein [2011] VSC 451, [25] per Hargrave J.

[3] Snell's Equity 31st edition, p.103.

[4] [1986] HCA 67; [1986] 161 CLR 464 at 473.

[5] [2002] VSC 515, [70].

[6] Supra at p.471 cited in Sacks v Klein [2011] VSC 451, [25].

[7] Ibid at p.471 cited in [2011] VSC 451, [25].

[8] [2002] VSC 515, [68].

[9] [2011] VSC 451, [25].

[11] Megarry, The Law of Real Property, 7th Edition [2008] p.500.

[12] [1967] HCA 32; [1967] 121 CLR 273, 280.

[13] Snell's Equity 31st edition, p.104.