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[2026] NSWSC 369
Supreme Court of NSW
2026-06-15
Peden J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Original judgment source is linked above.
Medium Neutral Citation: Tarazi v Paras; Paras v Tarazi [2026] NSWSC 369
Hearing dates: 2-3 June; further submissions received 4 June 2026
Date of orders: 15 June 2026
Decision date: 15 June 2026
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Peden J
Decision: Independent administrator appointed to the estate of the late Ahileas Parastatidis; Ahileas’ Ashbury property not held on trust for two daughters to the exclusion of the third; two daughters to account to the estate for use of Ashbury property: see [103]
Catchwords: TRUSTS – Express trust or common intention constructive trust – Alleged trust arising from an agreement or common intention – Alleged family arrangement that deceased held property on trust for defendants – Whether oral conversations took place – Where some parties to the agreement deceased or not called to give evidence – Where no evidence of common intention that agreement was accepted as alleged – Where defendants did not act to their detriment on the basis of the alleged agreement
ESTOPPEL – Proprietary estoppel – Where no clear representation defendants would receive a proprietary interest – Where executed will appears inconsistent with alleged representations – Where no reasonable reliance on representations – Where no detrimental reliance established
SUCCESSION – Probate and administration – Administration of estate – Whether claim to have estate administered is out of time under Limitation Act 1969 (NSW) – Appointment of an independent administrator – Application for accounts as trustees de son tort on a wilful default basis
CIVIL PROCEDURE – Overriding purpose of Civil Procedure Act 2005 (NSW) – Provision of unrequested supplementary submissions
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW) s 23C
Limitation Act 1969 (NSW) ss 27, 36 and 47
Cases Cited: Application of Walker Corporation Pty Ltd [2022] NSWSC 1609
Bosanac v Commissioner of Taxation (2022) 275 CLR 37
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Commissioner of Stamp Duties (Qld) v Livingstone (1964) 112 CLR 12
Crawley v Short (2009) 262 ALR 654
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Everts v Liepins [2022] NSWSC 1021
Galati v Deans [2023] NSWCA 13
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Juul v Northey [2010] NSWCA 211
Kennon v Spry (2008) 238 CLR 366
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Williams v Thomas [1909] 1 Ch 713 (CA)
Category: Principal judgment
Parties: Yvonne Tarazi (Plaintiff/Cross-Defendant)
Sophia Paras (First Defendant/First Cross-Claimant)
Anastasia Ualesi (Second Defendant/Second Cross-Claimant)
Representation: Counsel:
S O’Brien (Plaintiff/Cross-Defendant)
M Evans (Defendants/Cross-Claimants)
Solicitors:
Serenity Legal (Plaintiff/Cross-Defendant)
ELG Legal (Defendants/Cross-Claimants)
File Number(s): 2024/00413859
Publication restriction: Nil
Yvonne Tarazi has sought an order that the 1998 will of her late father, Ahileas Parastatidis, be administered according to its terms that his residual estate is divided between his children in equal shares as tenants in common. Her sister, Sophia Paras, was named in the will as sole executrix, but to date, has not administered the will. Sophia and their other sister, Anastasia Ualesi, claim that Ahileas’ only real asset, a property at Ashbury, was held on trust by him for Sophia and Anastasia (to Yvonne’s exclusion) by reason of a 1987 family arrangement.
I refer to the family members by their first name, meaning no disrespect.
Ahileas died on 23 December 2011, at the age of 81. At the date of his death, the Ashbury property contained the family home upstairs, in which Anastasia and her family are currently living, two shops on the ground floor, and a mezzanine level. Until about 1987, Ahileas had operated a general store from the ground floor. Thereafter, the ground floor was generally leased.
For the reasons that follow, I consider Yvonne is entitled to the relief that she has sought, and that Sophia and Anastasia’s cross-claim fail.
Before moving to the substantive issues, I note that after the completion of the hearing, Sophia and Anastasia’s counsel sent further unrequested submissions to my chambers without seeking leave. They ought not to have been provided; the time and place to present argument is at the hearing, and communications to the Court after the hearing without leave should not be made: see eg Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 258 (Mason J); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [27]-[31] (McHugh J, Gummow J agreeing); NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [191]-[192] (McHugh ACJ, Gummow, Callinan and Heydon JJ). The Court, lawyers’ clients and other parties ought not be burdened with the time and cost of the preparation and consideration of such material. This is antithetical to the overriding purpose of the Civil Procedure Act 2005 (NSW). I have not had regard to those submissions.
Sophia and Anastasia’s counsel accepted that if I could not find that certain conversations took place, nor that Ahileas and his daughters held a common intention as alleged, then their claim would fail and Yvonne’s case would succeed.
It can be difficult to assess evidence concerning things allegedly said by a person who is deceased, and there is a risk that witnesses’ recollections of the conversation with the deceased is reconstructed or misremembered: see eg Webb v Ryan [2012] VSC 377 at [22] (Whelan J).
The observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 concerning the fallibility of human memory are well-known, including that fallibility increases with the passage of time, and where disputes occur, memory may be overlaid (often subconsciously) by perceptions or self-interest. Therefore, where spoken words are basal to a cause of action, the conversation must be proven to the “reasonable satisfaction” of the Court. This requires “actual persuasion” of the occurrence of the conversation: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] (Hammerschlag J) (John Holland). The seriousness of the allegation made, inherent unlikelihood of a conversation of a given description, gravity of the consequences flowing from a particular finding, and existence of reliable contemporaneous records or other satisfactory corroboration may be relevant: John Holland at [94].
Sophia and Anastasia alleged a family agreement was made in August 1987 at the Ashbury property a few weeks after Ahileas’ wife, Panagiota Parastatidis, died. At the time, Panagiota’s mother, Vithleem Mpilionas, and father, Dimitrios Mpilionas, had come to visit and help their daughter because she was dying. There is some dispute about whether they were staying at the Ashbury property. While not significant, I accept that they did stay at the property.
The parties to the alleged family agreement are Sophia, Anastasia, Ahileas, Vithleem, Dina Kostopoulos (who is Panagiota’s sister, and Sophia, Anastasia and Yvonne’s aunt), and Dimitrios.
In August 1987, Sophia was 22, Anastasia was 18, and Yvonne was 4 years old. Considering her age, Yvonne’s evidence was not critical to a determination of whether the parties agreed the alleged arrangement. Therefore, it is not necessary to consider much of her evidence, and I only do so where it is relevant to an issue in dispute.
Sophia alleged that Dimitrios proposed an arrangement to those present at the family meeting that:
Anastasia and Sophia would renounce and waive their “rights” to their maternal grandparents’ estates;
Yvonne would renounce “her rights” in the Ashbury Property; and
Yvonne is small … [and] should get a fair start in life without debts. You [Sophia and Anastasia] are both older and can work and help your father pay his debts and like this you will inherit from him and not from your mother.
Sophia and Anastasia pleaded that it was “explicit or implicit in that agreement that Sophia and Anastasia would take on responsibility for the deceased’s debts in return for receiving the Ashbury property”.
Anastasia did not really give any evidence of what was said during any such family meeting; her evidence was of later conversations which referred to the alleged arrangement, discussed below.
Critically, most of the parties to the agreement are now deceased, or were not called to give evidence. The only other person who was present at the alleged meeting who gave evidence was Dina. Her evidence contradicted Sophia’s evidence. None of Dina’s evidence was seriously challenged, and in the circumstances outlined in this judgment, I accept it.
Dina’s evidence was that:
When Panagiota died, the family followed the cultural tradition of staying in the home of the deceased for 40 days to mourn.
Yvonne went to stay with Dina when she was about 10 years old to attend school, and this occurred because Panagiota asked her to look after Yvonne; it was not suggested to Dina that she only did that because of some family agreement.
Dina denied there was any family meeting about Yvonne inheriting property in Greece and Sophia and Anastasia inheriting the Ashbury property to Yvonne’s exclusion. She was unaware if Ahileas had financial problems. Her evidence was that Yvonne gave her cash from Ahileas to pay the school fees, which was consistent with Yvonne’s evidence. An attempted challenge in cross-examination to suggest that in fact Sophia had paid Yvonne’s school fees went nowhere; all the evidence was that Sophia gave her father cash from the rental of the Ashbury property shops, and I consider it likely he used that for Yvonne’s school fees.
Further, Dina accepted that Yvonne did inherit some land in Greece from Dimitrios’ estate. However, that was not discussed in the family meeting; Dina only found out about that inheritance after her father died. She suggested:
When my parents went back to Greece they wanted, they made their will because they wanted to give something small to Yvonne.
The apparent total value of the land Yvonne inherited from her grandfather (as one of six beneficiaries), was worth between roughly $14,000 - $26,000. Yvonne had told Anastasia that they were “two pieces of grass” that she could not do anything with.
I do not consider Sophia and Anastasia have discharged their burden of proving to the level of actual persuasion that there was any family agreement as alleged.
It is inherently improbable that there would be no written document supporting such an agreement.
Sophia and Anastasia claimed Dina, Vithleem and Dimitrios were Yvonne’s “guardian[s]” and therefore the agreement ought to be enforced. I accept that Vithleem and Dimitrios may have been “looking out for [Yvonne’s] interests”. However, Ahileas was Yvonne’s legal guardian; she still lived part-time at Ashbury with him, he gave Yvonne money for school and other things, and Ahileas was receiving a single-parent pension. I do not accept that Ahileas decided Yvonne would be disinherited as part of any family conversation.
Further, it is difficult to see how anyone was acting in Yvonne’s best interests in making such an agreement, of which she was unaware as a 4-year-old. The agreement terms were uncertain, including as to the identification of the parents’ debts and also the property in Greece.
To the extent necessary, I prefer Dina’s evidence over Sophia’s. I consider Sophia’s credibility further in the context of the proprietary estoppel claim below.
I said [to my father]: Listen dad… [Anastasia] and I will take care of everything. You don’t need to worry about it. You just need to do the other things – like take my drycleaning, you do the banking, some cooking… The most important thing now is that we are all healthy. That you are healthy. We will work as a team.
Sophia did not record her father responding. It is not clear from Sophia’s affidavit evidence exactly what, if anything, about the family agreement was discussed with Ahileas. In her affidavit, Sophia said Ahileas was a “silent man”. When she was cross-examined about whether Ahileas asked her to “take care of everything”, she stated “He did”. Sophia stated she proffered that she would pay the family expenses, and Ahileas said “in that case, the property will be yours”. She claimed it was “a given” that her father promised her the Ashbury property. I am not satisfied that Ahileas’ response, if made, constituted his acceptance of the alleged family agreement. Even if Sophia and Anastasia paid “all expenses” going forward, I do not accept that conduct amounted to an agreement to exclude Yvonne from inheriting.
A finding of an agreement or a common intention is necessary for a finding of an express trust or common intention constructive trust.
Express trusts require objective or manifested intention to create a trust, including certainty of subject-matter and object: see Bosanac v Commissioner of Taxation (2022) 275 CLR 37 at [93], [108] (Gordon and Edelman JJ). Yvonne further submitted that to be an enforceable express trust of land, it must also be written and signed in accordance with s 23C Conveyancing Act 1919 (NSW). There was no evidence of any writing here, even though Sophia may have understood that requirement, having been admitted and worked as a solicitor.
A common intention trust may arise “where the parties have agreed, or it was their common intention, that a claimant should have an interest in property owned by the other”, and where the claimant acts to their detriment on the basis of that agreement: see Galati v Deans [2023] NSWCA 13 at [53] (White JA) (and cases cited therein). Again, I am not satisfied that there was a common intention here that the agreement was accepted as alleged. In any event, for the reasons below, I do not consider Sophia and Anastasia acted to their detriment on the basis of any alleged agreement.
I do not accept there was any alleged conversation in which Ahileas agreed that Sophia and Anastasia would be entitled to the Ashbury property, particularly to the exclusion of Yvonne for the reasons above and below. Therefore, it is not possible to find there was any express trust or common intention constructive trust.
Sophia and Anastasia also brought an alternative case based on proprietary estoppel, effectively alleging that Ahileas made representations to them that the Ashbury property was theirs if they paid off his debts and paid outgoings on the property, that they relied to their detriment, and it would be unconscionable for the estate to resile from those representations.
This claim also fails for the following reasons.
Sophia alleged that on various occasions Ahileas told her the Ashbury property was her and Anastasia’s. However, the highest the evidence rises is as follows.
First, Sophia said that when she suggested buying another property with Anastasia, their father said:
Why do you want to buy a house when you have one here.
That does not amount to Ahileas unequivocally indicating the “house” was Sophia and Anastasia’s to his and Yvonne’s exclusion. I consider the representation was in effect indicating that his daughters had a home with him, and did not need to buy elsewhere.
Secondly, Sophia’s evidence was that her father allowed her to make all decisions about repairs and renovations of the property saying:
… Do what you think is best. The property is yours. You will pay for it and have it.
… this is yours. Your responsibility. You need to decide what you want, undertake it and pay for it.
These statements were similar to those alleged above in the context of the alleged family agreement or conversations between Sophia and Ahileas.
I accept that through these statements, if made, Ahileas was delegating authority to Sophia (and Anastasia) to manage the property and to obtain the shop rent and pay expenses and debts, so as to relieve him from that burden now he had retired and his wife had died. Again, I do not consider those statements were a clear representation that Sophia and Anastasia were the beneficial owners of the property that he held on trust for them.
Anastasia’s evidence is similar. She alleged she had a meeting between Ahileas, Sophia and herself around the time of her mother’s death, in which their father allegedly said:
You girls will get this building; you will pay the debts and it’[s] yours. I will look after Yvonne, and I’ll go and live with her.
Ahileas’ general statements about his property belonging to “you girls” or “is yours” were similar to other family members saying to Sophia and Anastasia that a property in Greece was “half yours”. I do not accept that such colloquial statements made by family members to the effect that they would be welcome to stay amounted to a representation, upon which any reliance could be placed that Sophia and Anastasia, but not Yvonne, was receiving a proprietary interest in the property. I consider Ahileas was representing that the Ashbury property was his three daughters’ home.
I do not accept that there was any direct statement that Sophia and Anastasia effectively owned the property to the exclusion of Yvonne because they paid debts and expenses and managed the shop rentals.
No document, upon which Sophia and Anastasia relied, demonstrates the representations were made.
Ahileas’ 1989 tax return contains a notation “all business expenses paid by daughters: Sophie Parastatidis, and Anastasia Parastatidis”. It may be factually correct that they paid expenses related to the property, but Sophia and Anastasia received all the rental income. It is also not clear what “business expenses” were still required to be paid, except for maintaining the shops, in circumstances where Ahileas’ business operated from the property ceased in April 1988. I consider it more likely that Ahileas relied on his daughters as his agents, roles they adopted because of familial loyalty. There was no evidence of who gave instructions for the notation, likely typed by Ahileas’ accountant. I do not accept that notation amounts to Ahileas’ acknowledgement of the alleged agreement.
Similarly, the fact that Sophia received rental statements for the property is explained below.
In any event, I consider it unlikely Ahileas made the representations, particularly because he executed his will in 1998 with the assistance of a solicitor, about 11 years after the alleged agreement, and in it, he left his estate to his children equally, without making any notation about any agreement or the exclusion of Yvonne from an interest in the property. While I accept that the will does not specify any real or personal property, considering that Ahileas had a little over $1,000 in cash when he died and no other assets, it would have been almost pointless having a will prepared if he did not consider he owned the property, and it is highly likely lawyers would have advised him to that effect.
That is consistent with Dina’s unchallenged evidence that a few years before Ahileas died, he told her that he had prepared a will and left his estate equally to his daughters with Sophia as executrix. There is no evidence that he told her of any arrangement with Sophia and Anastasia about the property.
Further, had Ahileas had an intention to hold the Ashbury property on trust, it is unclear why he agreed to lease the property to Sophia, agreed to a mortgage for renovations to create the mezzanine, and never signed a transfer of the title to his two daughters, as discussed further below.
This is particularly so in light of Sophia’s evidence that a few years before he died, Ahileas told Sophia that he wanted to put the Ashbury property into her name. She thought this “will look suspicious” and told him to visit his lawyer Alidenes. Her evidence was he did not respond. Whether that conversation took place or not, Ahileas neither asked his lawyer to transfer the property into Sophia and Anastasia’s names (or Sophia’s alone), nor changed his will. This is telling.
Anastasia also alleged that in 1998 Ahileas said just to her:
I’m going to make a will … I’m going to leave everything to Sophia … You and Sophia will get from my side of the family and Yvonne will get from your mother side … I’m not going to put her name or your name in my will. Just Sophia.
Anastasia did not protest, which is consistent with no previous representations having been made. During cross-examination, Anastasia conceded she was not surprised that everything would be left to Sophia and that she was content to “work it out” with Sophia. If there had been the alleged representations, Anastasia did not explain why she did not tell Sophia and/or at least raised the pre-existing agreement with Ahileas.
Anastasia further said that in about 2011, Ahileas said to her “don’t worry about the house, it’s Sophia’s … I have done everything to make sure that it is Sophia’s”. She said in cross-examination that she was not surprised, even though she considered it contrary to the arrangement that the property was hers and Sophia’s. That does not ring true.
Instead, I consider neither Sophia nor Anastasia believed there had been any earlier alleged representation by Ahileas. They behaved consistently with Ahileas owning the property. He had allowed Sophia and Anastasia to use the property as their home and business, receiving rents and operating businesses there. However, none of that meant that he was not the owner or that Yvonne was necessarily excluded.
I do not consider there is any basis for concluding that Ahileas represented or intended the Ashbury property to be Sophia and Anastasia’s to the exclusion of Yvonne.
I do not accept that Sophia and Anastasia reasonably relied on any representation by their father, if any was made.
They claim evidence of their reliance was:
Sophia briefly postponed her legal studies around the time her mother died.
Sophia and Anastasia paid off their father’s debts.
Sophia and Anastasia abandoned a plan to buy another property and stayed in the Ashbury property.
Sophia and Anastasia took out a $40,000 loan to develop the mezzanine section of the property.
Anastasia and her husband set up a business in the property.
They paid expenses of the property, while receiving rent from tenants.
They provided Ahileas a home until his death.
I do not consider any of those activities were carried out in reliance on any representation. Instead, I consider they were carried out to the sisters’ benefit, and also out of a sense of familial duty and love of their father.
Sophia gave evidence that her parents “needed help” and that “we needed to step up” and help; she made cash contributions when she could because she “saw [her] family was desperate”. She also gave evidence that since her mother’s passing, she wanted to preserve her father’s dignity. She denied she would have helped her father in any event to protect his reputation, without the alleged agreement. I do not accept that evidence.
Similarly, Anastasia’s evidence was contrary or equivocal as to reliance on representations, rather than helping because of a sense of duty. She gave evidence that she stayed at the Ashbury property and looked after Yvonne and Ahileas because her mother asked her to shortly before she passed away in 1987; she believed this was her “role in life”. During cross-examination she said “we’ll never know” whether she would have otherwise stayed, and that she might have gone to America subject to what her mother said. That is not clear evidence of any reliance; I accept that Anastasia stayed in Ashbury because of familial loyalty, not because of any representation about obtaining the property to Yvonne’s exclusion.
Further, to the extent that there was evidence from Sophia and Anastasia that they relied on representations; for the reasons that follow, I do not accept it.
Sophia was an unimpressive witness. She has an economics degree and a Diploma of Law (LPAB) and has practised as a lawyer both in Australia and in Italy. Despite this experience, her version of events is incredible; it is unnecessary for me to determine whether her evidence was intentionally false or simply wrong.
There is confusing and conflicting evidence about various leases over the Ashbury property. It appears that in 1990 or 1991, Sophia asked Dina’s daughter, her cousin, Stavroula Urizar (nee Kostopoulos), who was working at her father’s real estate business, LH Brown Lakemba, to prepare a commercial lease. Stavroula could not recall whether she prepared the lease or gave Sophia a blank version, and Sophia completed it. The lease purports to commence on 2 June 1990 with a term of 3 years and be between Ahileas as landlord and Sophia as tenant. It specifies a weekly rental of $45 plus outgoings. It also includes typed into a standard form lease the following bespoke clause:
The tenants agree to pay a loan mortgage of $6000.00 with repayments being $311.00 per calendar month.
Sophia’s explanation was this was a “head lease” between her and her father created in 1991, but backdated, that entitled her to enter into sub-leases with tenants and retain commercial rents. She claimed that before the commercial lease was created there was an informal lease in place between her and her father which also entitled her to receive rents from “sub-tenants”. I consider it likely that the commercial lease was created around mid-1991 because of the included reference to the “loan mortgage”. At the end of May 1991, Ahileas’ business overdraft facility was converted into an “instalment loan” with an opening balance of $6,111.
In the year ending 30 June 1991, a statement from LH Brown addressed to Sophia indicated the gross rent received for the shop was $20,250, and that the net rent was $18,806.16, which she retained. Sophia’s counsel accepted that in that year, Sophia was “better off” by about $14,000 because she paid to her father’s benefit $6,072, comprising $2,340 in rent for the year plus outgoings, as well as amounts towards the “loan mortgage”.
I consider the most likely explanation of the “commercial lease” between Ahileas and Sophia is as follows.
Ahileas could not read or write English; he relied upon Sophia in relation to documentation and business affairs. He considered himself the owner of the property. He directed his brother-in-law, Steve Kostopoulos, principal at real estate agency LH Brown, to pay all rents for the Ashbury property to Sophia. Steve did so, including sending her statements, but always to the Ashbury property, where Ahileas was living, and because he knew Ahileas was the owner. Steve was not meaningfully challenged on his evidence that one statement was sent to “S and A Parastatidis”, which meant Sophia and Ahileas.
The most likely reason why Sophia organised the “commercial lease” between herself and her father was to assist paying down her father’s debts, while ensuring that he retained his pension. Had Ahileas leased the property directly, he would have received the close to $20,000 rent and had an ability to pay down his debts alone. However, according to a letter that the Department of Social Security sent Ahileas in June 1988, an income of over $52 per week would impact on his pension. By Sophia receiving the rental income, she could claim outgoings on the property on her tax return, and then pay off her father’s overdraft and provide him with $45 rent weekly, while he retained his pension.
I note Sophia’s evidence was that she paid him more than the $45 per week, stating variously she gave him “spare cash”, or about $100 or $200 weekly or “when he asked for it”. Therefore, on Sophia’s own evidence Ahileas would have had sufficient cash to give to Yvonne for her school fees each year of about $350 per term. It follows that I reject the implicit criticism of Yvonne’s evidence that her father gave her cash that she gave to her aunt Dina to pay the school.
I do not accept that Sophia and Anastasia have demonstrated that any conduct said to be in reliance on any representations was detrimental. Their counsel accepted that his clients bore the onus of proving detriment. No submissions were made as to how a financial detriment could be made out. There were thousands of pages spread throughout the Court book said to demonstrate income received and expenses incurred by Sophia and Anastasia in relation to the property. However, there was no clear delineation between their personal living expenses, including for example, electricity, and expenses relevant to the rented part of the building. The sisters would have incurred ordinary living expenses, irrespective of where they were living and those incurred in respect of that part of the property are not an element of detrimental reliance. Similarly, it appears that Anastasia and her husband obtained a considerable benefit in operating a business from the property without paying any rent. I reject the suggestion that expenses incurred in operating that business rent-free from the property amounted to detrimental reliance.
I also do not accept that spending money on improvements to the property amounts to a detriment. The improved value of the property is a benefit to the sisters’ interest to be received under the will. Those improvements also provided tax and income benefits. They have not clearly demonstrated a particular detriment.
I do not accept there was detrimental reliance in electing to stay in the Ashbury property, rather than buying elsewhere. First, there is no evidence of the value of any lost opportunity to do so and how it compares to the increase in the value of the Ashbury property overtime. Further, the opportunity to live rent-free in the property they considered their life-long “home” was a benefit and was consistent with their sense of “family”.
I also do not accept that Sophia delaying her legal studies amounted to a material detriment. Sophia’s evidence was that she ceased her legal studies before her mother died, not because of any representation. When her mother died, she was working in a bank and received an income she described as “gold” because it was $19,000 per annum. She recommenced part time legal study in 1988, and completed her diploma in 1990. During that time, she lived in the Ashbury property rent-free and received rental income from a property that did not belong to her of almost $20,000 in financial year ending June 1991. I do not accept she suffered a material detriment.
I am not satisfied that paying off their father’s debts was a significant detriment in the circumstances. While it is the case that their parents’ overdraft balance as at 10 July 1987 was $17,444.04, by May 1988 it had dropped to $11,405.02. I consider it can be inferred that Ahileas paid at least part of his debts. There is evidence that when he closed his shop business, he sold business equipment of about $5,000 and existing stock, recorded as being worth over $20,000. By the time the “commercial lease” was executed, only about $6,000 was left to be repaid. As noted above, Sophia collected rents of almost $20,000, which Ahileas could have applied to paying off his debts, had different arrangements been made.
For those reasons, there is no equitable fraud or unconscionable conduct in Yvonne bringing her claim, which has the effect of resisting or denying the cross-claim.
Sophia and Anastasia’s cross-claim fails.
Had it been necessary to decide, I would have concluded that Sophia and Anastasia’s cross-claim is out of time for the following reasons.
Sophia and Anastasia sought a declaration that Ahileas held the property on trust for them in equal shares. Their alleged equitable interest in the property accrued, at the earliest, in late 1987, following the family agreement, and at the latest, on 23 December 2011, being the date of their father’s death.
Yvonne relied on the 12-year limitation periods in each of ss 27, 36 and/or 47 Limitation Act 1969 (NSW) (Limitation Act), submitting that the cross-claim is out of time:
Section 27 Limitation Act provides that an action on a cause of action to recover land is not maintainable if brought after the expiration of a limitation period of 12 years, running from the date on which the cause of action first accrues.
Section 36(1) Limitation Act provides that “…a cause of action to enforce an equitable estate or interest in land…” is not maintainable after 12 years, in the same way the limitation period applies to actions to recover land.
Section 47(1) Limitation Act provides that a cause of action to recover trust property is not maintainable if brought after the expiration of the limitation period of 12 years running from the date on which the person “first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued.” “Trust” is defined broadly by s 11 Limitation Act and includes express, implied and constructive trusts.
Sophia and Anastasia effectively submitted that the sections do not apply because their cross-claim seeks a declaration that the property is held on trust for them. I reject that submission.
I consider that a limitation period of 12 years applied to the cross-claim for any of the following reasons.
First, the cross-claim is an action to recover property for the purposes of s 27 Limitation Act. An action to recover land is any action to obtain land by judgment of a Court and is not limited to obtaining possession: see Williams v Thomas [1909] 1 Ch 713 (CA) at 730 (Buckley LJ). Section 27 Limitation Act applies to causes of action to enforce equitable estates or interests in land by virtue of s 36 of that Act.
The cross-claimants sought a declaration that the property is held on trust for them; their counsel submitted that they were “in effect, seeking an order that the legal title of the trustee be transferred to the beneficiaries.” I consider that such an order has the effect of enforcing an equitable interest in land. Sophia and Anastasia’s counsel characterised his clients’ claim as “a claim by a beneficiary for transfer of the legal title” and submitted that no limitation period applied, by relying on “Hourigan’s case”, but never provided a citation for that case. The transfer of legal title of the property would have the effect of enforcing Sophia and Anastasia’s equitable interest.
I reject Sophia and Anastasia’s submission that Yvonne’s claim to have the estate administered is somehow out of time. Sophia and Anastasia sought to characterise Yvonne’s claim as “a claim of an equitable interest in land”, and that it was brought 12 years and 11 months after Ahileas’ death, being the date at which Yvonne’s equitable interest “springs to life” and was therefore out of time with regard to the 12 year limitation period in s 36 Limitation Act.
I reject that submission, which appears contrary to law. Neither legal nor equitable ownership vests in the named beneficiary at the time of death of the testator: Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 312 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ). A beneficiary’s interest under a will entitles them to a chose in action to compel due administration of the estate: see eg Kennon v Spry (2008) 238 CLR 366 at [74]-[75] (and cases cited therein) (French CJ). Prior to the administration of a deceased’s estate, a beneficiary does not have a proprietary interest in the assets of the estate; their rights are capable of being invoked for any purpose connected with the proper administration of his estate: Commissioner of Stamp Duties (Qld) v Livingstone (1964) 112 CLR 12 at [27] (Viscount Radcliffe, Lord Reid, Lord Evershed, Lord Pearce and Lord Upjohn).
Yvonne is only seeking to have the estate duly administered. Yvonne is not seeking to enforce any equitable interest in land. There is no relevant limitation period.
Laches is also not relevant to Yvonne’s claim. Laches may refer to either “delay in the bringing of proceedings coupled with prejudice to the defendant resulting from the delayed assertion of rights” or to a delay which on its own can be interpreted as a form of acquiescence: Application of Walker Corporation Pty Ltd [2022] NSWSC 1609 at [115] (and citation therein) (Parker J). To make out a defence of laches, there must be knowledge of the wrong, delay and unconscionable prejudice: Crawley v Short (2009) 262 ALR 654 at [163] (Young JA).
I do not consider that Yvonne has unreasonably delayed from the time of knowledge of her father’s will. It appears that none of the sisters claimed they knew of the contents of their father’s will until about 2023. Yvonne acted promptly thereafter. I accept her evidence that she did not want to cause additional stress to her sisters after their father’s death by raising administration of his estate; it had not been the “right time”. That accords with Sophia’s evidence that she also considered their father’s estate would cause friction, which she sought to avoid or delay.
I also do not consider the delay in Yvonne bringing the claim thirteen years after her father’s death has caused Sophia and Anastasia any prejudice. They give no evidence of any prejudice.
Yvonne proposed that Mr Gerard Basha, solicitor and partner at Bartier Perry Pty Ltd, ought to be appointed as administrator of Ahileas’ estate. No submission was made that he was not a fit and proper person to be so appointed.
However, Sophia and Anastasia submitted that Anastasia ought to be appointed as administrator on the basis that the cross-claim would be made out. It has not been.
In the context of the antagonism between the sisters, I consider it appropriate to have an independent and experienced lawyer appointed as the administrator. I will appoint Mr Basha.
I accept that in circumstances where Sophia and Anastasia have failed on their cross-claim and have, since the death of their father, continued to behave as owners of the property in terms of receipt of all net rental income, they are liable to account as trustees de son tort on a wilful default basis: see generally Juul v Northey [2010] NSWCA 211 at [186]-[193] (McColl JA) (and cases cited therein) (Juul).
While not formally nominated as executor of Ahileas’ estate, nor as a trustee, I consider that both Sophia and Anastasia owed fiduciary duties by way of their conduct in relation to the Ashbury property, as discussed above.
In Everts v Liepins [2022] NSWSC 1021, for example, Hallen J at [73]-[74], [80] ordered the executor to pass accounts where there had been undue delay, and in particular, where the executor was the only person able to “establish the true state of affairs” regarding the deceased’s estate since their death. Similarly, here, Sophia and Anastasia are the only people who know the true nature of Ahileas’ estate since his death. I have found that they did not have beneficial ownership of the property. Notwithstanding that Sophia and Anastasia have not properly discharged their duties as trustees de son tort, the net proceeds of the rental income form part of the estate and ought to be accounted for. Sophia has failed and neglected to provide Yvonne with requested copies of estate accounts and financial information.
Sophia and Anastasia submitted that for the purposes of an account on a wilful default basis, the requisite breach of trust had not been pleaded or otherwise evidenced by Yvonne. However, the Amended Statement of Claim specifically pleaded the wilful default claim and provided particulars of Sophia’s failure, refusal or neglect to provide Yvonne with requested copies of estate accounts and financial information, and also included particulars of the rental income said to have been received since Ahileas’ death. I consider that sufficient particulars of the wilful default claim were provided for Sophia to understand the case to be met: see also Juul at [191] (and citations therein).
Yvonne has been successful and Sophia and Anastasia have not. In the first instance, there is no reason why costs ought not follow the event.
The appropriate orders are:
Parties to confer on appropriate orders to be made to give effect to these reasons and interest and costs, and to send a single communication to the Chambers of Peden J within 5 days of today’s date containing either agreed orders or an indication that no agreement could be reached.
Should there be no agreement as to final orders, the matter will be listed for directions on a date to be allocated.
Liberty to apply on 2 days’ notice.
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(2022) 275 CLR 37
(1981) 147 CLR 246
(1964) 112 CLR 12
(2009) 262 ALR 654
(2003) 214 CLR 318
(2008) 238 CLR 366
(2004) 219 CLR 90
(1990) 170 CLR 306
(1995) 49 NSWLR 315
Yvonne would live with Dina.
Allegedly, Dimitrios said words in Greek to the effect:
Sophia’s evidence about when her father’s “instalment loan” was paid off was inconsistent. In her affidavit she claimed it was 1996, however the bank account statements, which I prefer, demonstrate the loan was paid off by 30 October 1992. Sophia gave no explanation as to why it was necessary for a lease beyond the time that her father’s debts were paid, if, as she said, that was the trigger for her entitlement to title of the Ashbury property. Sophia instead said she was entitled to the legal title in 1996, when she had paid the sum of $18,000. The relevance of the 1996 date appears instead to be the expiry of the last commercial lease signed by Sophia (as tenant) and her father. This confusing evidence does not assist her credit and tells against the representations and her reliance thereon.
Sophia gave evidence that she and Anastasia took out a $40,000 loan to develop a mezzanine level in the Ashbury property, to use as a storage space, to ensure it complied with new regulations, and to renovate the mezzanine space, which included removing pigeons with “fleas” who were living there.
Sophia did not explain why, if Anastasia was also liable for the loan for the improvements to the property, Sophia claimed all the expenses in her tax return; she did not claim depreciation of the capital works. Sophia claimed she did not have the property transferred into her and Anastasia’s names to protect Ahileas’ pride. However, it is unclear how anyone would have known who the owner of the property was to impact on his pride. Sophia was content to receive all documentation and act as if she was the owner in every other regard, which might equally have impacted his pride if that was truly an issue. I do not consider it was an issue, because Ahileas did not hold the property on trust for his daughters.
Sophia claimed that she first saw her father’s will in 2023. She did not explain what attempts anyone made to find it after he died in 2011. However, it was common knowledge that Alidenes solicitors had always assisted Ahileas, including transferring title into his sole name when his wife died, and in relation to an early lease. Anastasia also said she knew that her father intended to see Alidenes solicitors to prepare his will. This is also consistent with Yvonne’s evidence of having seen her father attend there while she was doing work experience, on or about 19 November 1998, to meet with the principal of the firm; she believed he most likely signed his will during that meeting.
Sophia’s evidence was that when her father died, she did not want to make an application for probate, because it would cause “friction” with Yvonne. She also stated it would cause her – now deceased father – “embarrassment” and she wanted to protect his reputation.
Yet, if Sophia had not seen the will, she had no reason to believe that her father had not acted in accordance with the alleged representations and left the Ashbury property to her alone or to her and Anastasia. She does not explain this. When Yvonne was asking her about their father’s estate, it would have been a simple matter to tell her that she expected the will to accord with that arrangement. Similarly, Anastasia’s evidence was she never told Yvonne about the arrangement. That silence makes it easier to conclude that Sophia and Anastasia had no expectation that the property was theirs alone.
Anastasia’s version of events was also unpersuasive. Anastasia conceded she did not know the details of all the arrangement, including the leases of the property.
Secondly, s 47(1) Limitation Act also applies. Sophia and Anastasia sought the transfer of legal title of the property. The property is the subject of the constructive or express trust that they allege arises out of the family agreement. I consider that their action to obtain the legal title of the trust property is an action to recover that property.
As Sophia and Anastasia’s cause of action accrued, at the latest, on 23 December 2011, and the claim was not brought until 14 March 2025, it is out of time.
I reject counsel for Sophia and Anastasia’s submission that it is unconscionable for Yvonne to bring her claim for the due administration of the estate because Ahileas somehow had no equity in the property at the time of his death. For the reasons above, I reject that because Sophia and Anastasia had paid off Ahileas’ debts and then had received the rents and incurred costs in relation to the property thereafter they were entitled to title to the property to Ahileas’ exclusion.