Aronis v Aronis
[2022] QSC 39
•30 March 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Aronis v Aronis [2022] QSC 39
PARTIES:
THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED)
(first plaintiff)
AND
THEODORA LOULA ARONIS
(second plaintiff)
v
MATINA ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)
(defendant)
FILE NO:
BS12875/15
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
30 March 2022
DELIVERED AT:
Brisbane
HEARING DATE:
30-31 August 2021 and 1-6 September 2021
JUDGE:
Jackson J
ORDER:
The judgment of the court is that:
1. The plaintiff’s claim is dismissed.
2. On the counterclaim the plaintiff pay the defendant the sum of $211,327.87.
3. The parties make submissions in writing limited to 5 pages in respect of interest, other orders and costs within 10 days.
4. The counterclaim is otherwise dismissed.
CATCHWORDS:
ESTOPPEL – ESTOPPEL BY CONDUCT – EQUITABLE ESTOPPEL GENERALLY – where the plaintiffs claimed to be beneficially entitled to five properties – where the plaintiffs assisted in managing the properties – where the plaintiffs alleged that there were agreements, common intentions or representations that they were the equitable owners of the properties – where the plaintiffs alleged that they acted on those agreements, common intentions or representations to their detriment – where there was no documentary evidence of those agreements, common intentions or representations – where there were inconsistencies in the plaintiff’s evidence – whether the alleged agreements were made – whether the alleged common intentions were held – whether the alleged representations were made – whether the plaintiffs acted in reliance upon the alleged agreements, common intentions or representations to their detriment
EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – FIDUCIARY DUTY – ACCOUNT FOR BENEFITS GAINED – where rents were not distributed in accordance with the owners’ entitlements as joint proprietors – whether either plaintiff was acting as agent for the defendant – whether the first plaintiff was required to account to the defendant for the rents – whether the deceased first plaintiff owed fiduciary obligations not to allow a conflict between his duties as agent and his personal interest
EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – LIABILITY FOR BREACH OF TRUST – where the plaintiff as trustee was required to make distributions to the defendant beneficiary pursuant to a trust deed – whether the plaintiff failed to make the distributions to the defendant or made the distributions but did not pay them to the defendant – whether the plaintiff was required to account to the defendant for the distributions to which the defendant was entitled but was not paid
REAL PROPERTY – TORRENS TITLE – JOINT TENANCY AND TENANCY IN COMMON – GENERALLY – where the defendant alleged that the distribution of rents received by the plaintiff was disproportionate to the plaintiff’s interest in the properties – whether the plaintiff as co-owner was liable to account to the defendant under s 43 of the Property Law Act 1974 (Qld) in respect of receipt of that rent
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564, applied
Giumelli v Giumelli (1999) 196 CLR 101, applied
Legione v Hately (1983) 152 CLR 406, applied
Riches v Hogben [1985] 2 Qd R 292, applied
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153, appliedProperty Law Act 1974 (Qld) s 43
COUNSEL:
K Howe, T O’Brien and B Coyne for the plaintiff
D Clothier QC and S Webster for the defendantSOLICITORS:
MacDonald Lawyers for the plaintiff
Cooper Grace Ward for the defendant
Jackson J
This unfortunate family dispute stems from the family and business arrangements of a once close family of four. The relevant family history was of immigration to this country from Greece in the 1950s and financial success in the decades that followed, built on hard work and thrift. The efforts of all of them contributed to the small retail service businesses they ran until the early 1970s when the parents stopped working in those businesses. The two children had other occupations by then. But from at least the middle of the 1970s, the son devoted his energies to running the business of the rental properties that the parents had acquired and continued to acquire, while the daughter continued to be employed outside the family property business. In 1993, the father died and the son continued his management of the properties. In 2015, the son died and relations between his widow and his mother and sister soured in a dispute as to the parties’ respective entitlements. In 2016, after the claim was started, the mother died. The dispute continued between the son’s widow as plaintiff, as the son’s executor and personally, and the daughter as defendant, as the mother’s executor, until the trial was heard last year.
Simplified, the plaintiff’s claim is that by reason of a proprietary or equitable estoppel five claimed properties, initially held by the father and mother as joint tenants (and after the father’s death solely by the mother) as registered proprietors of the fee simple in the land, became beneficially owned in 1979 by the son and the plaintiff, and that all of the income generated by those properties after that time was also their property.
Also simplified, the defendant’s principal counterclaim is that the son and the plaintiff were the managing agents of the properties after the father’s death, and failed to properly account for the rental income generated by the properties. There are other smaller subjects of counterclaim.
By the time of the trial, two of the claimed properties had been sold but the circumstances of the sales do not form part of the claim or counterclaim.
For the reasons that follow, the claim must be dismissed and only limited relief should be given on the counterclaim.
Simplified chronology of purchases and trusts
George Aronis (“George”) was born in 1922 in Greece. Maria Aronis (“Maria”) was born in 1924 on Kythera, an island in Greece. They were married in 1946 on Kythera. Their daughter, Matina Aronis (“Matty”), was born in 1947 in Fratsia on Kythera. Their son, Panayotis Aronis (“Peter”), was born in 1952 in Fratsia.
In or about 1953, George immigrated to Australia. He was followed by Maria, Matty and Peter in late 1955.
In or about 1959, the family moved to Brisbane.
On 19 October 1959, George purchased 95 Burn Street, Camp Hill (“95 Burn Street”), a combined corner shop and residence near a local primary school, and became sole registered proprietor. George and Maria ran the business of the shop and 12 year old Matty, who had the best English, also worked there. A loan that partly funded the purchase was repaid to the bank in about 12 months.
In about 1960, George leased the shop at 95 Burn Street to a tenant and George and Maria purchased a leasehold fish and chip shop at 216 Days Road, the Grange, which they operated. The Grange fish and chip shop had a residence at the back where the family lived.
In 1963, Matty left Kelvin Grove High School, aged 16. She went to work for HC Sleigh and continued to help in the Grange fish and chip shop after hours and on weekends.
On 4 November 1964, George and Maria purchased another corner shop at 3 Hayling Street, Salisbury (“3 Hayling Street”), and became registered proprietors as joint tenants. The land purchased included another vacant block nearby, described as Lot 4, 17 Hayling Street, Salisbury.
In February 1967, George and Maria purchased a residence at 7 Carberry Street, the Grange (“7 Carberry Street”), and became registered proprietors as joint tenants, for the family to live in.
In 1967, Peter finished high school at age 15. He worked for RT Edwards and Queensland Newspapers over the next 18 months or so.
In 1969, George and Maria purchased another leasehold fish and chip shop business at Clayfield. In 1970, George, Maria and Peter entered into a partnership agreement for the business. Matty continued to work for HC Sleigh but assisted in the business as well, although she was not made a partner. By 1971, Peter was working in the Queensland Police Service (“QPS”) but assisted in the cooking part of this business after work.
In the late 1960s or early 1970s, George suffered from a kidney infection and developed a chronic kidney disease or illness.
On 19 February 1971, Peter was sworn in as a police officer. In this role, he was stationed and lived in western Queensland for a period of time.
In 1973, the Clayfield fish and chip shop business was sold.
Also in 1973, Peter was charged with arson. He was acquitted.
On 31 August 1974, Peter retired from the QPS, on medical grounds, with a partial pension of approximately $4,200 per annum at that time, aged 22.
On 17 October 1974, George and Maria purchased a commercial shops and office building at 74 Vulture Street, West End (“74 Vulture Street”) and became registered proprietors as joint tenants. The purchase was funded by George and Maria’s savings, and a bank loan to them of $36,000.
In April 1978, Peter met the plaintiff.
In August 1978, Peter and the plaintiff purchased a residence at 15 Cranbourne Street, Chermside West, and were registered as tenants in common in three quarters to one quarter shares.
In March 1979, Peter and the plaintiff were married.
On 31 October 1979, George, Maria and Matty purchased a new residence (near to Peter and the plaintiff’s residence) at 16 Whittaker Street, Chermside West (“16 Whittaker St”). Matty became the sole registered proprietor, in part to access the first home buyer’s grant. The purchase price was funded largely by George and Maria or from their accounts and George borrowed $19,000 to assist with funding, possibly until 7 Carberry Street was sold.
On 16 May 1983, George and Maria purchased Lots 5 and 6 at 17 Hayling Street, Salisbury and were registered as proprietors as joint tenants. Subsequently, buildings on that land and the land at Lot 4, 17 Hayling Street (previously acquired with 3 Hayling Street) were developed (“17 Hayling Street”). The construction funds were sourced in 1984 by bank loan to George.
On 22 May 1984, the Aronis Family Trust was settled (at Peter’s instigation) for the development of 17 Hayling Street. George and Maria’s solicitor, David Jacobson, was settlor. George was the initial trustee. The primary beneficiaries were George, Maria, Matty and Peter. The secondary beneficiaries were George and Maria’s grandchildren. The tertiary beneficiaries were spouses and widows or widowers of George and Maria’s children and grandchildren.
On 1 May 1985, the Aronis Family Trust deed was amended. The trust was renamed the Aronis Investment Trust (“AIT”) and Peter and Matty replaced George as trustees. On 21 May 1986, the plaintiff replaced Peter as trustee. On 17 May 1990, Matty was removed as trustee, leaving the plaintiff as sole trustee.
On 20 September 1985 the Aronis Development Trust (“ADT”) was settled (at Peter’s instigation). Matty was trustee.
On 10 October 1985, Matty (as trustee for the ADT) purchased 69 Boyland Avenue, Coopers Plains (“69 Boyland Avenue”) and was registered as sole proprietor as trustee. The purchase price was funded as to $21,000 from a term deposit held by Matty and as to $62,000 by a bank loan to Matty as trustee.
In 1989, George purchased 99 Burn Street, Camp Hill (“99 Burn Street”), and became registered as sole proprietor. The property was adjacent to 95 Burn Street that George already owned.
On 20 August 1989, George, Maria and the plaintiff purchased a commercial site at 24 Selhurst Street, Coopers Plains (“24 Selhurst Street”) and they became registered as proprietors as joint tenants. The purchase was funded in part with a bank loan to the purchasers of $160,000.
In 1991, Peter and the plaintiff moved their place of residence from 15 Cranbourne Street to 99 Burn Street. They retained 15 Cranbourne Street as their own property.
The disputed properties (“Claimed Properties”), of which Maria was registered as sole proprietor at the dates of both Peter’s and Maria’s deaths, are:
(a)95 Burn Street;
(b)3 Hayling Street;
(c)74 Vulture Street;
(d)17 Hayling Street; and
(e)99 Burn Street.
Of those, the defendant, as executor of Maria’s estate, sold 95 Burn Street and 74 Vulture Street before trial, under orders permitting their sale to fund estate expenses including defence of the proceeding. 95 Burn Street and 74 Vulture Street are subject to a claim by the plaintiff for an account.
The properties not claimed by the plaintiff are:
(a)16 Whittaker Street;
(b)69 Boyland Avenue; and
(c)24 Selhurst Street.
Of those, 24 Selhurst Street was sold by the plaintiff on 20 March 2020. Cross claims were made by each of the parties for an account of the received rents of 24 Selhurst Street. Otherwise, the relevance of those properties is as context to the alleged circumstances under which the Claimed Properties were held and managed.
Peter’s management
There is common ground that Peter played a role in managing the Claimed Properties and other properties from his retirement from the police force in 1974. The plaintiff alleges that from the early 1970s, George was so incapacitated that Peter did all the management from some time before the acquisition of 74 Vulture Street in 1974.
However, the plaintiff was not involved in what happened at that time. She did not meet Peter until 1978. Matty said that in 1974 it was George who bought 74 Vulture Street and he who purchased the properties acquired before then. And she said that George continued to be concerned in the management and maintenance of the properties until not long before his death in 1993.
Maria said that from or after George’s kidney illness in the early 1970s, they shut down the Clayfield fish and chip shop. Still, George was managing the properties after then. But after Peter retired from the QPS (which in fact occurred in August 1974) Peter took over more of the management and George’s responsibilities were reduced to maintenance tasks like cleaning the toilets and mowing the grass. However, George and Peter discussed the decisions to be made about managing the properties.
The plaintiff said that from 1978 Peter managed and maintained the properties and George was either not involved or not substantially involved.
Long before George’s death, it is clear from the documents that Peter had financial management of the properties. He managed the buildings and the tenants and oversaw the rental receipts deposited into the bank accounts. Up to 1984, at least, all the bank accounts associated with the group of properties purchased by George or by George and Maria as proprietors were in their account names. But it seems likely that even by then Peter had authority to operate the accounts and possession of the cheque books. After 1984, the bank accounts of the AIT and ADT were or ought to have been in the trustees’ names. Receipts from the income earning properties were paid into the various accounts, being those in George and Maria’s or the trustees’ names. Peter had practical or day-to-day control of the bank accounts and of the funds deposited into them by tenants of the properties. He managed transfers of funds between the various accounts, payments of outgoings from the accounts to third party suppliers or creditors and payments to family members.
Peter also dealt with the accountants for the preparation of the relevant tax returns. And he dealt with the lawyers who acted for George and Maria in relation to their business and personal affairs.
To the extent that Matty said that George continued in a more significant management role up to the time of his death in 1993, I prefer what was said by Maria and the plaintiff and the objective evidence of the documents as to the extent of Peter’s role. That role also brings context to a number of events that occurred in relation to the family’s financial, legal and tax affairs from the early 1980s onwards.
George and Maria’s wills
On 13 January 1984, George and Maria made what were in effect mutual wills prepared by and executed in the presence of Mr Jacobson. Each of the wills appointed the other executor and left the testator’s estate to the other, or if the other predeceased the testator, to Matty and Peter in equal shares (or their children if they too predeceased the testator).
On 11 July 1991, Maria (but not George) made another will prepared by and executed in Mr Jacobson’s presence. It revoked prior wills, appointed Peter and the plaintiff as executors and gave Maria’s estate to them only. The 1984 will was not retrieved or considered by Mr Jacobson or Maria in preparation for the 1991 will. In 2015 or 2016, Maria denied that the 1991 will was her will at all, although it is not disputed that it bears her signature.
On 5 September 2016, after this proceeding was started, Maria made her last will, prepared by the solicitor who acted for her in this proceeding until her death. It revoked prior wills, appointed Matty executor and left Maria’s estate to Matty.
After George’s death
On 25 September 1993, George died, aged 70, shortly after surgery for a brain tumour from which he did not recover. Maria was aged 69 at the time.
In 1994, in accordance with the laws of joint tenancy for the properties George and Maria owned jointly and under George’s 1984 will as to the properties that were owned solely by George, Maria became registered as sole proprietor of all the Claimed Properties. The transfers were prepared by Mr Jacobson’s firm and executed by Maria as executor of George’s will where necessary.
Maria and Matty continued to live in 16 Whittaker Street. Matty was Maria’s carer in her advancing years. Peter continued the financial management of the properties and their maintenance for the next 21 years.
After Peter’s death
On 5 August 2015, Peter died, aged 63. Maria was aged 91.
Peter’s funeral was held on 10 August 2015.
Communications between the plaintiff (and her daughter Marietta), on the one hand, and Matty and Maria, on the other hand, quickly broke down over their relative entitlements to the properties and their management.
On 18 December 2015, this proceeding was started with the plaintiff claiming to be entitled to a declaration of constructive trust over the Claimed Properties and other relief.
On 26 October 2016, Maria died, aged 92.
Draining the accounts on Peter’s death
At the time of his death, Peter retained full financial management of the properties and accounts.
Before 5 August 2015, Peter signed a number of cheques. On a date between 4 August 2015 and 11 August 2015, the plaintiff filled in the details of two cheques drawn upon bank accounts in the name of George and Maria as follows:
Date
Account Number
Amount
4 August 2015
110-723
$44,000
4 August 2015
167-703
$49,000
On 11 August 2015, the plaintiff deposited the two cheques to the bank account named “Theodora Loula Aronis trading as Aronis Investments Trust” number 139-913.
Also on 11 August 2015, the plaintiff withdrew from a bank account in the name of “George Aronis and Maria Aronis and Theodora Loula Aronis” number 167-690 the amount of $56,353.08, leaving a balance of $1,000. That account was associated with the property at 24 Selhurst Street. On the same day, the plaintiff deposited the amount of $56,353.08 into the AIT account number 139-913.
On 21 August 2015, the plaintiff opened a new account in the name “Theodora Loula Aronis” number 10051572. She withdrew $160,000 from the AIT account number 139-913 and deposited it into the new account. The new account was opened as a personal account, not an account as trustee of the AIT.
The withdrawal of $160,000 from the AIT account and deposit of that sum into the new personal account were made by the plaintiff to retain personal control of those funds.
Also on 21 August 2015, the plaintiff sent a letter to Maria enclosing a Commonwealth Bank of Australia authority for the plaintiff to operate the bank accounts in the account name of Maria and George, “so the business can continue to be run”. Maria did not sign or return the authority.
Plaintiff’s case
The plaintiff alleges that in or about 1979 at a meeting between George, Peter, Maria and the plaintiff an agreement was made (“the Family Agreement”) that:
“(a)Despite George and Maria being the registered or, sole or joint, owners of the initial Properties… Peter was the equitable owner of them and any future property purchased using the initial Properties;
(b)Peter was to be responsible for the management of the initial Properties and any future property purchased using the initial Properties;
(c) Peter was to pay the costs of George and Maria in respect to:
(i)the costs associated with George’s and Maria’s private place of residence in respect to rates, water and electricity;
(ii)George’s and Maria’s private health insurance;
(iii)George’s motor vehicle;
(iv)a monthly allowance for living costs to be agreed between Peter, George and Maria from time to time.”
Alternatively, the plaintiff alleges George, Maria and Peter had the common intention (“the Common Intention”) or Maria represented to Peter and the plaintiff (“Representation”) that:
“(a) If Peter:
(i)was responsible for the management of the initial Properties and any future properties;
(ii)paid the costs of George and Maria in respect to:
(A) the costs associated with George’s and Maria’s private place of residence in respect to rates, water and electricity;
(B) George’s and Maria’s private health insurance;
(C) George’s motor vehicle;
(D) a monthly allowance for living costs to be agreed between Peter, George and Maria from time to time;
(b) Then Peter would have:
(i)a 100% interest in the initial Properties and any future properties purchased using the initial Properties from time to time.”
The plaintiff further alleges that at a meeting before 11 July 1991 between George, Peter, Maria and the plaintiff, an agreement was made (“the Varied Family Agreement”) that:
“(a)Despite George and Maria being the registered or, sole or joint, owners of the Properties…Peter and [the plaintiff] were the equitable owners of them;
(b)Peter and [the plaintiff] were to be responsible for the management of the Properties;
(c) Peter and [the plaintiff] were to pay the costs of George and Maria in respect to:
(i)the costs associated with George’s and Maria’s private place of residence in respect to rates, water and electricity;
(ii)George’s and Maria’s private health insurance;
(iii)George’s motor vehicle;
(iv)a monthly allowance for living costs to be agreed between Peter, George and Maria from time to time.”
Alternatively, the plaintiff alleges George, Maria and Peter had the common intention (“the Varied Common Intention”) or Maria represented to Peter and the plaintiff (“the Second Representation”) that:
“(a)If Peter and [the plaintiff]:
(i)were responsible for the management of the Properties;
(ii)paid the costs of George and Maria in respect to:
(A) the costs associated with George’s and Maria’s private place of residence in respect to rates, water and electricity;
(B) George’s and Maria’s private health insurance;
(C) George’s motor vehicle;
(D) a monthly allowance for living costs to be agreed between Peter, George and Maria from time to time;
(b)Then Peter and [the plaintiff] would have:
(i)each have (sic) a 50% interest in the Properties”.
The plaintiff alleges next that in or about September 1993, in a discussion between George, Maria, Peter and the plaintiff on the day before George was due to have surgery for the brain tumour, George said, “…Maria, you know the properties at 3 Hayling Street, 17 Hayling Street, 95 Burn Street, 99 Burn Street and 74 Vulture Street are Peter’s and [the plaintiff’s]” and Maria said, “Yes – of course the properties are Peter’s and [the plaintiff’s]”.
The plaintiff alleges finally that in late 1993, at the offices of Gilshenan and Luton, Maria said to the plaintiff: “These properties are Peter’s, yours and the children’s. Even though they are in my name, they are your properties. I am only holding them for you.”
The plaintiff alleges that pursuant to the original Family Agreement or Common Intention or Representation, Peter acted to his detriment by: managing the properties for no remuneration; cleaning and maintaining the properties; and paying the costs of George and Maria in respect of the costs associated with their private place of residence such as rates, water and electricity, private health insurance, George’s motor vehicle and a monthly allowance for living costs. The plaintiff further alleges that Peter purchased the “remainder properties”, being those acquired after the initial properties, using rental income from the initial properties and his and the plaintiff’s “own funds”.
Further or alternatively, the plaintiff alleges that all those things were done by Peter and the plaintiff to their detriment pursuant to the alleged Varied Family Agreement or the Varied Common Intention or acting in reliance on the Second Representation.
It was common ground that the pleaded case alleged an equity as to the acquisition of ownership of property induced by representations upon which there had been detrimental reliance by the plaintiff. As the defendant submitted, the equity claimed is of the kind described as follows by the High Court in Giumelli v Giumelli:
“the equity… was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant.”[1]
[1](1999) 196 CLR 101, 112 [6].
Another penetrating analysis of principle that has influenced subsequent cases, including Giumelli,[2] was given by McPherson J in Riches v Hogben, including:
“What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise … The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates … Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff’s part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise. That is why in Dillwyn v Llewelyn (1862) 4 De G F & J 517, 552; 45 ER 1285, 1287, where the son built on land promised but not effectively conveyed to him by a memorandum signed by his father, Lord Westbury LC said that the only inquiry was “whether the son’s expenditure, on the faith of the memorandum, supplied a valuable consideration and created a binding obligation”.” [3]
[2](1999) 196 CLR 101, 121 [35].
[3][1985] 2 Qd R 292, 300-301.
Defendant’s case
The central issues in the present case resolve into two questions. First, were the alleged agreements made or common intentions held or representations made? Second, did Peter and the plaintiff act in reliance upon them or any of them?
The defendant denied both questions and set up a number of facts alleged to be inconsistent with them as grounds of denial or positive pleas. The relevant denials were made during the time when Maria was defendant in the proceeding until her death in 2016 and subsequently maintained when Matty as Maria’s executor was substituted as defendant.
Maria’s denials were supported by her evidence on oath in an affidavit that the relevant conversations did not occur. Matty was not alleged to be a party to any of the relevant conversations, agreements, common intentions or representations but she too said that she knew nothing about them on oath and in oral evidence.
There is no documentary record of the alleged family agreements, common intentions or representations (although the plaintiff alleges that Maria’s 1991 will was consistent with them).
The facts alleged by the defendant to be inconsistent with the alleged family agreements, common intentions and representations and the conversations in which the plaintiff alleged that they were made included that:
(a)Peter did not look after George and Maria for the ten years between 1969 and 1979;
(b)Peter did not have the financial resources to give any substantial sums of money to George and Maria between 1974 and 1979, or to pay their expenses;
(c)George and Maria did not need financial support in the period from 1969 to 1979;
(d)George was the instigator of the purchase of 74 Vulture Street;
(e)responsibilities for managing the initial properties were shared among family members;
(f)George and Maria’s 1984 wills left their estates to each other, and if the other pre-deceased the testator, to Matty and Peter equally;
(g)the establishment of the AIT in 1984 and the ADT in 1985 created beneficial interests in the property of the trusts for George and Maria, Matty and others;
(h)before George’s death in 1993, the allocation of income from 74 Vulture Street was made equally between George, Maria, Peter and Matty in 25 per cent shares;
(i)after George’s death in 1993, the allocation of income from 74 Vulture Street was made 50 per cent to Maria, 25 per cent to Peter and 25 per cent to Matty; and
(j)the overall allocation of income from the properties was inconsistent with the alleged family agreements, common intentions or representations.
The plaintiff as a witness
The plaintiff gave evidence both by affidavit and orally. There were four affidavits sworn on dates between 27 April 2018 and 9 April 2021. Her cross-examination extended over two sitting days. The plaintiff relies upon her oral evidence as being consistent with her affidavit evidence as to the alleged conversations constituting the family agreements, common intentions or representations.
The defendant submits that her evidence under cross-examination was inconsistent with her affidavit evidence or contemporaneous documents or both and was tailored to suit her case. The defendant also alleges non-disclosure of some documents that would have been relevant. A number of specific submissions were made as to the plaintiff’s credibility and as to the unlikelihood of the plaintiff’s pleaded case.
As previously discussed, on 11 August 2015 the plaintiff withdrew three sums from accounts held in Maria’s name and transferred them into the AIT account controlled by her. Following that, on 21 August 2015, the plaintiff withdrew the total amount of $160,000 from the AIT account and deposited it into a new personal account.
When asked about these transactions, the plaintiff initially said that Peter drew a couple of cheques but when shown the cheques accepted that the visible handwriting on them other than his signature was her own. The plaintiff said that she transferred the money in anticipation of paying for renovations to be made for 17 Hayling Street, on the basis of quotes she had received but that she had later lost the quotes because they were on an old computer and she had also deleted or lost relevant emails. However, the plaintiff eventually accepted that her purpose in making the transfer from the AIT account to her new personal account was to keep the funds under her personal control. The defendant submitted this conduct demonstrates an understanding by the plaintiff that the money in Maria’s accounts and in the AIT account was not Peter’s or her money. The defendant also submitted that the plaintiff’s statement (in her affidavit sworn 14 May 2020 at paragraph 361) that she was unable to look after the properties or pay Maria’s expenses because she did not have access to money in the bank accounts was knowingly misleading because she made no mention of the substantial withdrawals and transfer into her personal account that she had made.
In my view, this conduct shows that at least from 11 August 2015 the plaintiff had an appreciation or expectation that Maria and Matty may not agree to her continued control of the financial affairs of the properties after Peter’s death or her continued use of the money in the relevant bank accounts.
Second, the defendant placed particular reliance on the inconsistency between George and Maria’s 1984 wills and the original alleged Family Agreement, Common Intention or Representation. The plaintiff’s evidence was that she did not see those wills but that George and Maria told her in 1984 that they had left everything to Peter. It would have been a lie for George and Maria to say that. There is no reason identified in the evidence why they would have told such a lie to the plaintiff. Not only that, it was not suggested in the evidence that the contents of George and Maria’s wills were kept secret from Peter. From before 1984, Peter was involved intimately in George and Maria’s financial affairs and was involved in their contacts with their solicitors. Matty said that Peter arranged for the 1984 wills to be prepared. The solicitor responsible for the preparation of the wills, Mr Jacobson, generally dealt with Peter over Aronis family matters. It is highly unlikely that if Peter knew of their contents, and that they were inconsistent with the alleged Family Agreement, Common Intention or Representation, he would not have discussed that with the plaintiff.
In my view, it is unlikely that George and Maria falsely told the plaintiff that they had left everything to Peter in their 1984 wills. I reject that evidence given by the plaintiff.
The defendant relied on the plaintiff’s failure to disclose statement 319 for the AIT bank account as going to her credit as a witness, when every other statement for that account up to 2016 was disclosed. The missing statement showed that on 4 July 2011 there was a $346,000 deposit to the account and on the next day a withdrawal of $330,000 from that account to an account of Lepta Pty Ltd (“Lepta”). The defendant submitted that the plaintiff’s evidence about Lepta, that Peter started it off for his own thing or own reasons, was vague, given that the plaintiff was involved in Lepta’s incorporation. She filled out part of the registration form. The only purpose for Lepta revealed by the evidence was to receive income or funds to be held on deposit. At least some of the funds came from the Aronis family bank accounts either in George and Maria’s or the AIT account. Lepta was owned or controlled by Peter and the plaintiff. None of George, Maria or Matty had any interest in Lepta. The defendant submits that it was incorporated and utilised to receive money from the AIT’s accounts derived from the estate properties that were not Peter or the plaintiff’s property.
In my view, to the extent that the evidence showed Lepta’s activities, there was substance in the defendant’s submissions that funds from the AIT or otherwise derived from the income of the properties were transferred to Lepta.
It will be recalled that 16 Whittaker Street was George, Maria and Matty’s home. There was contradictory evidence about the sources of funds and contributions that were made to purchase that property. At the commencement of the proceeding and at the trial, the plaintiff made no claim to 16 Whittaker Street. However, in interlocutory proceedings some time before the trial the plaintiff sought to add 16 Whittaker Street to the list of Claimed Properties but was refused leave to amend the claim and statement of claim to do so. Nevertheless, the evidence dealt with the contributions to the purchase of 16 Whittaker Street. The defendant submitted that the plaintiff’s answers to questions about that subject matter affected the credibility of her evidence otherwise.
When the plaintiff sought to add 16 Whittaker Street to the Claimed Properties and lodged a caveat over that property, she alleged that Matty had contributed only $925 to the purchase. In the plaintiff’s main affidavit, she said that Peter and her own contributions were recorded on a handwritten note that had been in their possession since 1979. In cross-examination she initially accepted that the note represented her understanding of the relevant contributions. She accepted that Matty contributed $4,000 of her own money as set out in the note. However, she did not accept that George and Maria provided the money attributed to them in the note.
The plaintiff’s refusal to accept the contributions of George and Maria as provided in the note was consistent with the plaintiff’s case that all of the money in the various accounts belonged to Peter and to her after the alleged original Family Agreement, Common Intention or Representation. That might explain her denial that George and Maria provided the money attributed to them in the note. However, the evidence did not establish whether the conversations said to constitute the original alleged Family Agreement occurred before or after the purchase of 16 Whittaker Street. If it was beforehand, it is not explained why separate contributions for George and Maria were recorded on the note, as that would be inconsistent with the plaintiff’s case as to the agreed ownership of the funds in the accounts in George and Maria’s names. In my view, it is more likely than not that George and Maria did provide the money attributed to them and did so from their own funds.
The defendant also submits the plaintiff’s evidence as to the source of monies used to purchase 69 Boyland Avenue damages the credibility of her evidence otherwise.
In her affidavit in reply, the plaintiff said that she and Peter had provided Matty with approximately $21,000 that, together with a bank loan to Matty of $62,000, funded the purchase of 69 Boyland Avenue. Matty said her contribution of approximately $21,000 came from a term deposit that was held by Matty in her own name and were her own funds and the contemporaneous banking documents in evidence are consistent with that. That is not consistent with the plaintiff’s evidence. The defendant submitted that this aspect of the plaintiff’s evidence was another part of the plaintiff’s false narrative that George, Maria and Matty had no money of their own, which was also rooted in the false assertion that the money in George and Maria’s accounts and the AIT account and ADT account were Peter and the plaintiff’s monies.
The defendant also submitted that the plaintiff’s evidence that Peter and the plaintiff did not pay themselves for cleaning of toilets at 74 Vulture Street damaged the credibility of her evidence otherwise, as did her evidence that in 2004 there was a $250,000 renovation of 74 Vulture Street. As to the first point, notes on cheque butts were inconsistent with it. As to the second point, the plaintiff’s evidence that there were a lot of renovations done to 74 Vulture Street, including a renovation of the full office upstairs, and the expenditure was about $250,000 overall, was directly inconsistent with the evidence of the tenant of the upstairs office that between 1994 and 2006 there was no renovation.
More generally as to the use of the net rental income from the properties, the defendant submitted that the plaintiff’s failure to accept that the income was used to support Peter, the plaintiff and their children damaged her credibility. This dispute must be seen in the light of the plaintiff’s case that from the original Family Agreement, Common Intention or Representation, all of the income from the properties belonged to Peter or to Peter and herself. Nevertheless, it is significant to note that:
(a)from August 1974, Peter’s only sources of income were his police pension and income derived from managing properties, so far as the evidence revealed;
(b)from 1986, the plaintiff did not work, except to the extent that she assisted Peter in managing the properties;
(c)in 1986, Peter and the plaintiff’s fourth child was born; and
(d)Peter and the plaintiff did use substantial funds derived from the rental properties for their own purposes, including between October 1996 and April 2008 substantial cheque withdrawals nominally made to their children which those children did not receive. There is a dispute about the extent of the utilisation of those funds that I deal with later.
The defendant also submitted that the plaintiff’s alternative claim to a money sum in relation to the net income of 24 Selhurst Street damaged the credibility of her evidence otherwise. The defendant submitted that the plaintiff falsely alleged that Maria and Matty retained property agents for 24 Selhurst Street, ignored that Peter and the plaintiff were the only people who transacted on the bank account for 24 Selhurst Street and also ignored the withdrawal she made from that account on 11 August 2015 of about $56,000 as part of the funds transferred into the AIT account and subsequently transferred from that account into her personal account.
In my view, there is substance in these criticisms.
Other inconsistencies
The plaintiff said in her main affidavit (sworn on 14 May 2020 at paragraph 227) that, in the conversation in or about 1979 during which the original Family Agreement was made, George said there was an agreement between Maria, Peter and himself that the original properties as at that time, including 74 Vulture Street, West End, were Peter’s properties. As to the other properties at that time, the plaintiff said George said: “Peter has been looking after them for 10 years. Peter has also been looking after me and Maria for 10 years by giving us money and paying our expenses.”
In 1967, Peter left school aged 15. He then worked for RT Edwards in Fortitude Valley for approximately twelve months and after that was employed by Queensland Newspapers for a period of more than six months. In 1969, George and Maria purchased the Clayfield leasehold fish and chip shop business. They both actively worked in that business. Peter helped with cooking at the Clayfield shop although he was working elsewhere. In 1970, Peter was shown as a partner in the Clayfield fish and chip shop business with George and Maria. Matty said that was done for tax minimisation by George and Maria. In 1971, Peter entered the QPS, aged 18. In 1974, Peter retired from the QPS, aged 22.
In 1969, the properties that had been purchased were 95 Burn Street purchased by George in 1959, the leasehold fish and chip shop business at 216 Days Road, the Grange purchased in 1960, 3 Hayling Street (and the additional Lot 4, 17 Hayling Street) purchased by George and Maria in 1964 and 7 Carberry Street purchased by George and Maria in 1967.
In my view, it is not credible that, from 1969, aged 17, Peter had been looking after the properties and had been looking after George and Maria by giving them money and paying their expenses. I am fortified in that conclusion by the fact that until Peter and the plaintiff opened a joint bank account in July 1978, Peter had no bank account in his own name.
As previously mentioned, George and Maria’s 1984 wills were inconsistent with the alleged original Family Agreement, Common Intention or Representation. I have rejected the plaintiff’s evidence that George and Maria lied to her about what those wills contained. But more than that, under the terms of the alleged family agreements, common intentions or representations, Matty was not a party to any of the arrangements. Nor is it suggested that she knew of or was told of either the original or varied forms of that agreement, common intention or representation over the period between 1979 and 2015. As at 1979, the Aronis family appears to have been a close family. Matty was the oldest sibling, had lived with her parents for almost her entire life (as had Peter except while stationed in the country as a police officer and after his marriage to the plaintiff) and had made substantial financial contributions to the family, including the purchase of the first family car. No explanation appears in the evidence for George and Maria to promise all their bounty to Peter in 1979 or to Peter and the plaintiff in 1991, to the exclusion of Matty.
That inconsistency between the terms of the alleged original Family Agreement, Common Intention or Representation and Matty’s involvement in the family arrangements may be seen in even greater relief over the following years. Matty continued to live with her parents and to make substantial financial contributions, including contributions towards repayment of the loan for 74 Vulture Street, paying expenses for her parents, contributions to repay the loan for 16 Whittaker Street and a contribution to the purchase price for 69 Boyland Avenue. In the absence of any explanation in the evidence, it is not likely that George and Maria or for that matter Peter would have permitted Matty to do all of those things in circumstances where it was agreed and intended as between George, Maria, Peter and the plaintiff, as alleged by the original Family Agreement, Common Intention or Representation, that Matty would be wholly excluded from a share of or any entitlement to the properties.
Another point of inconsistency is that the alleged original Family Agreement does not reconcile with the actual pattern of purchase of properties from 1979 onwards. First, 15 Cranbourne Street was purchased in 1979 by Peter and the plaintiff as tenants in common as to three quarters and one quarter respectively, suggesting some difference in their contributions to the purchase. As at that date, however, Peter had no capital of his own of any significance. He had been unemployed since August 1974 when he retired from the QPS. Second, 16 Whittaker Street was purchased in 1979 by Matty, although the contributions for the purchase by and large came from George and Maria’s accounts and loan funds. Matty said that at least one reason that the property was purchased in her name was to access a first homeowner’s grant. Third, in 1985, 69 Boyland Avenue was purchased by Matty as trustee for the ADT. On creation, Matty was the principal of the trust who retained control over the appointment of the trustee from time to time. The primary beneficiaries were George, Maria and any children of Peter or Matty. Fourth, 24 Selhurst Street was purchased in 1990 by George, Maria and the plaintiff as joint tenants. Fifth, the borrowings made to acquire the various properties were loans and mortgages taken out in George’s name (and in Matty’s name for 69 Boyland Avenue). On the evidence, Peter and the plaintiff neither borrowed nor provided any security or guarantee for those loans.
The AIT deed was settled on terms that George was the principal who retained control of the appointment of the trustee from time to time and Peter and Matty were both primary beneficiaries. Years later, the plaintiff as trustee of the AIT leased a number of the Claimed Properties from Maria and the trustee sub-leased those properties to third party tenants.
The distribution of income earned from the initial properties was inconsistent with the terms of the alleged original Family Agreement, Common Intention or Representation. Between 1975 and 1984, the income from 3 Hayling Street was allocated to George and Maria according to their tax returns. Between 1975 and 1991, the income from 74 Vulture Street was allocated equally between George, Maria, Matty and Peter according to their tax returns. Matty accepts that prior to approximately 1989, income from 74 Vulture Street allocated to her was not in fact received by her but from that time Peter arranged for her to receive the 25 percent that was allocated to her in the tax returns.
Sources and application of funds
A significant body of evidence was led by each of the parties at the trial as to relevant sources and application of funds. That evidence logically began with the sources of funds to acquire the properties starting in 1959 with 95 Burn Street and ending in 1990 with the purchase of 24 Selhurst Street (or 1991 with the improvement of 99 Burn Street, or 2000 with the improvement or renovation of 95 Burn Street). It also included the business of renting the properties over many years, except for 16 Whittaker Street and 99 Burn Street. There were a number of issues to which the evidence related.
The relevant evidence was both testimonial and documentary. As to the witnesses, both the plaintiff and the defendant gave evidence as to numerous relevant transactions and financial transactions relating to them. One critical allegation alleged by the plaintiff was that from 1978 all relevant payments were made by Peter and the plaintiff from their “own monies”. Another was that Peter and the plaintiff received no remuneration for any of their work in maintaining, improving, acquiring or managing any of the properties. The defendant contended that the contribution of monies to the acquisition of various properties was inconsistent with the alleged family agreements, common intentions or representations. She also contended that the allocation of income from 74 Vulture Street, the creation of and operation of the AIT and ADT and the overall allocation of income from the properties were inconsistent with the alleged family agreements, common intentions or representations.
From 1979, there were copies of relevant bank statements, cheque book stubs and other documents evidencing receipts and payments made in relation to the properties. The most relevant bank statements were in George’s name or George and Maria’s names and in the names of the trustees of the AIT or ADT for relevant periods. As well, there were bank statements for the personal accounts of George and Maria. The statements cover the period from 1979 until 2015 that is relevant, although some statements were missing. On the other hand, only some of the personal bank accounts of Peter and the plaintiff were disclosed or in evidence. Nor were the bank accounts of Lepta fully disclosed.
As well, the tax returns of the relevant parties and entities were disclosed and the subject of evidence.
From these sources, a range of opinion expert evidence was obtained by the parties in the form of reports that were tendered at the trial. In order to explain some of the disputes that arose upon those reports, it is necessary to summarise them briefly.
A report by Kasey O’Sullivan of BDO dated 15 October 2018 (“BDO Report”) provided a reconciliation of the money deposited into and withdrawn from 1979 for the following accounts:
(a)bank account 110-723 in the names of George and Maria;
(b)bank account 167-703 in the names of George and Maria;
(c)bank account 139-913 mostly in the name of the plaintiff as trustee for the AIT; and
(d)CBA account 167-690 in the names of George, Maria and the plaintiff.
The summary of the deposits and withdrawals for those accounts were:
| Description | Account 110-723 | Account 1167-703 | Account 139-913 | Account 167-690 | Total |
| Total Deposits | 1,451,304.47 | 2,726,866.09 | 3,266,019.32 | 517,521.90 | 7,961,714.78 |
| Total Withdrawals | 1,429,228.77 | 2,667,878.10 | 3,226,132.63 | 519,824.76 | 7,843,064.26 |
The BDO Report broke those amounts into unknown and known sources of the deposits and unknown and known applications of the withdrawals.
Elia Lytras of Lytras & Company produced a forensic accountant’s report dated 23 December 2020 (“First Lytras Report”) in relation to a range of matters relevant to the dispute and the ten properties acquired by members of the Aronis family previously mentioned. That report reviewed the BDO Report, considered the primary affidavit of the plaintiff and focused on the four bank accounts the subject of the BDO Report but also considered other information and the effect of the available relevant tax returns, being those for George for the years ended 30 June 1970 to 1994 (excluding 1971, 1972 and 1974), Maria for the years ended 30 June 1970 to 2014 (excluding 1971, 1972 and 1974), Maria’s estate for the years ended 30 June 2017 to 2019, Matty for the years ended 30 June 2002 to 2019, Peter for the years ended 30 June 1978 to 2014, the plaintiff for the years ended 30 June 1978 to 2015 (excluding 1986 to 1999), the AIT for the years ended 30 June 1987 to 2016 and the ADT for the years ended 30 June 1995 to 2019.
Some information about the relevant individuals and entities reported in the tax returns and from other sources may be summarised from the First Lytras Report.
George reported income from the fish and chip shop in 1970. From 1973, his reported primary income was from rental properties, predominantly 3 Hayling Street and 74 Vulture Street and from 1988, from trust distributions from the AIT. Except for 1973, George reported no rental income from 95 Burn Street, 99 Burn Street or 24 Selhurst Street. From 1970 to 1994, George’s reported income sources totalled $196,351.
Maria’s reported income sources were similar to George’s. From 1993, her reported 25 per cent share of the net rent from 74 Vulture Street doubled to include George’s share. From 2015 (when Matty assumed management), Maria received distributions from the ADT. From 1970 to 2015, Maria’s reported income was $909,885.
Matty’s reported income prior to 1975 was not available, although from 1963 to 1974 she was employed full-time by HC Sleigh. From 1975 to 2001, Matty’s reported income included a 25 per cent share of the net rent from 74 Vulture Street. From 1974 to 1987, Matty was employed by HH Robertson. Thereafter, Matty worked as a self-employed distributor of books and products for the trading arm of the Seventh Day Adventist Church. From 2002, Matty’s reported income sources were from book distribution, her share of rent from 74 Vulture Street and interest income. The total income over that period was $618,656, of which $228,443 was rental income from 74 Vulture Street. Matty’s reported income did not include any distribution from the AIT or ADT.
Peter reported income from the Clayfield fish and chip shop partnership business in 1970. There was no information as to Peter’s reported income for the period between 1971 and 1974 when Peter worked for the QPS. From 1975 to 1994, Peter’s reported sources of income were his QPS pension and his 25 per cent share of the net rent of 74 Vulture Street. From 1995 to 2014, Peter’s reported income included a share of net rent from 15 Cranbourne Street and interest income. From 1978 to 2014, Peter’s reported income was $1,162,403, of which $681,928 was attributable to the QPS pension and net rent from 15 Cranbourne Street.
From 1978 to 1985, the plaintiff reported income from employment by the State of Queensland averaging $10,541 per annum. The plaintiff’s personal tax returns for 1986 until 1990 were not available. However, in 1987 and between 1991 and 1998 the plaintiff was reported as receiving trust distributions from the AIT and in 1988 and 1999 she was recorded as receiving a wage from the “G & M Aronis Partnership”. In 1986 and 1988, the plaintiff was recorded as receiving distributions from the ADT and from 1995 to 1998, a 50 per cent share of the net rent of 15 Cranbourne Street. From 1999 to 2015, the plaintiff was recorded as receiving distributions from the AIT of $380,213 and distributions from the ADT of $68,146, as well as net rent from 15 Cranbourne Street and interest income. Her total recorded income from 1999 to 2015 was $594,100.
The trustee of the AIT became the lessee of a number of the properties from the owner, whether it was George or George and Maria or George and Maria and the plaintiff. The AIT conducted the business of renting the relevant properties to tenants. Excluding 1994, from 1990 to 2016, it reported a gross income of $2,271,037 and deductions of $1,200,065 resulting in a net income of $1,113,165. From 1987 to 2016, the AIT reported distributions to George, Maria, the plaintiff, the plaintiff’s children, the ADT and Lepta totalling $1,163,650 of which $598,535 was reported as distributed to the plaintiff and $198,939 was reported as distributed to Lepta.
Lepta was registered on 20 June 2011 with Peter as the sole director and shareholder. Marietta was recorded in the application for registration as the contact person. After Peter’s death, the plaintiff replaced Peter as sole director and shareholder. On 10 March 2017, Hoang Nguyen, an acquaintance or associate of Marietta, became sole director and shareholder. On 10 November 2019, it was deregistered. There has been no disclosure in the proceeding relating to Lepta and no information made available as to its income or assets or liabilities from time to time.
The trustee of the ADT was the owner of 69 Boyland Avenue. From 1995 to 2019 (excluding 2010), the ADT reported $207,980 rental income, $20,000 in trust distribution from the AIT and $11,506 interest income, totalling $239,486. After deductions of $118,752, it reported a net income of $125,171. From 1995 to 2018, the ADT reported distributions to the plaintiff of $74,116 with other distributions of $11,487 not being determinable. From 2015 to 2018, the ADT reported distributions to Matty of $53,106 and a total of $138,709. Prior to 2015, all identifiable distributions were to the plaintiff alone.
From these sources of information as further detailed in the annexures to the First Lytras Report, Mr Lytras expressed a number of points as to the sources and amounts of the incomes of Peter, the plaintiff and their children and Lepta from 1979. From 1974, Peter’s independent income source was his QPS pension. From 1975 to 1987, Peter’s only reported income from the properties was his share of the net rent from 74 Vulture Street. From 1978 to 1985, the plaintiff’s independent income source was her wage or salary from employment by the Queensland Government. From 1995, her source of independent income was her share of the net rent from 15 Cranbourne Street. From 1987 to 2016, Peter, the plaintiff and their children and Lepta started to receive reported distributions from the AIT and ADT and the plaintiff and Peter’s interest incomes increased. Over time, substantial income from the properties was received. Over the period reviewed, approximately 60 per cent of the total income identifiable as being received by Peter, the plaintiff and their children and Lepta was derived from the properties. Peter and the plaintiff had four children between 1980 and 1986 and neither of them worked other than in managing the properties from that time. They were dependent upon income from the properties for their livelihoods from that time.
From 1974 George and Maria were in receipt of income derived from the properties. They had no other source of income.
From before 1979, as independent sources of income, Matty was employed by HC Sleigh, then HH Robertson and she later earned income as a book distributor.
Broadly speaking, from 1975 to 1987, the net rent of 74 Vulture Street was allocated as to 25 per cent each for George, Maria, Matty and Peter. As reported, during that period, the other properties net rents were allocated to George and Maria.
From 1987 onwards, the net rents for a number of the properties were received by the AIT and ADT. In effect, from 1987, approximately $1.4 million was allocated to Peter and the plaintiff and a similar amount was allocated to George, Maria and Matty, as reported or recorded.
Marietta Aronis, who is a qualified accountant, also prepared a reconciliation of deposits and withdrawals from the four bank accounts the subject of the BDO Report and the First Lytras Report as well as twelve other bank accounts as follows:
(a)Matina Aronis as trustee for the Aronis Developments Trust 279-417;
(b)Matina Aronis as trustee for the Aronis Developments Trust 279-505;
(c)Aronis Investment Trust account 5004-551;
(d)Georges Aronis 21-5501;
(e)Georges Aronis 110-715;
(f)Georges Aronis 21-5528;
(g)Georges Aronis 157-444;
(h)Georges Aronis 110-053;
(i)Maria Aronis 5899542-01;
(j)Maria Aronis 5899542-06;
(k)George and Maria Aronis 2.409147; and
(l)Maria Aronis 5899542.
Marietta then further undertook a process to identify the deposits and withdrawals for seven of the properties for each financial year as follows:
(a)74 Vulture Street;
(b)3 Hayling Street;
(c)17 Hayling Street;
(d)95 Burn Street;
(e)99 Burn Street;
(f)16 Whittaker Street; and
(g)24 Selhurst Street.
In the result, in my view, the defendant has proved an entitlement of Maria’s estate to an account from the plaintiff as trustee of the AIT for the sum of $106,288.01, whether as a sum due in equity or by way of breach of trust in failing to pay that amount.
Accordingly, there should be judgment that the plaintiff pay the defendant the sum of $106,288.01 on this part of the counterclaim.
Rates for 17 Hayling Street
The 14 May 2012 Lease provided in clause 3.2 that the plaintiff as lessee was to pay local authority rates to the relevant assessing local authority. For 17 Hayling Street, they were the rates payable to the Brisbane City Council as a local government.
Between 1 October 2015 and 31 December 2016, the plaintiff as lessee failed to pay the levied and assessed rates. The defendant pleaded a counterclaim for that period in the amount of $8,023.95. In submissions, the defendant limited its claim to that period. The pleadings raised other alleged breaches of the lease and the evidence included that notice of breach prior to termination for breach was given by the defendant. It was not explained why the claim over the alleged failure to pay rates was limited in time to 31 December 2016, when the pleaded period was longer. The evidence of Matty exhibited rate notices and statements that totalled $8,180.20 for that period.
As well as the period to 31 December 2016, the evidence of Matty included an additional amount of $5,346.75 for rates paid by her for 2017. If the claim period is limited to 31 December 2016, that additional amount is not recoverable.
The evidence includes correspondence between the solicitors that show that on 6 October 2017 Maria terminated the lease of 17 Hayling Street for breach. Because on the evidence the lease was not terminated before then the rates paid in 2017 for the period before then could be included in the amount of this counterclaim. But because the defendant’s final submissions stated that the claimed period was up to 31 December 2016, the additional amount should not be included in the amount awarded.
Accordingly, there should be judgment that the plaintiff pay the defendant the amount of $8,180.20 for this counterclaim.
Conclusion
There should be judgment on the counterclaim against the plaintiff for the sum of $211,327.87.
The parties will have the opportunity to make submissions on the questions of interests and costs.
Annexure 4 – Summary of lump sum withdrawals misattributed to Maria, unattributed by the plaintiff
| Withdrawals allocated to Maria that are traceable to accounts in the name of Peter and/or Theodora Aronis | ||||||||
| 1. | 02.04.2007 | $45,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 182 | Theodora Aronis ATF AIT Term Deposit No. 418650046746 | Exhibit 37 [DBTE.0139] pdf page 11. See also T4-20/40-45 and T4-21/1-15. | ‘Maria’ on statement | Withdrawals for Maria – Exhibit 57 [441] pdf page 9 [sic] |
| 2. | 01.10.2007 | $40,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 176 | Theodora Aronis ATF AIT Term Deposit No. 418650046746 | Exhibit 37 [DBTE.0139] pdf page 11 | ‘Maria’ on statement | Withdrawals for Maria – Exhibit 57 [457] pdf page 9 [sic] |
| 3. | 18.03.2011 | $45,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 111 | Peter and Theodora’s CBA Streamline account no. 10031961. | Part 2 of Exhibit 82 [DBTE.0136] pdf page 179 | ‘Maria’ on statement | Withdrawals for Maria – Exhibit 57 [493] pdf page 10 |
| 4. | 10.04.2012 | $50,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 94 | Theodora Aronis ATF Aronis Investment Trust 410750141728 | Exhibit 37 [DBTE.0139] pdf page 14 | ‘Maria’ on statement | Withdrawals for Maria – Exhibit 57 [515] pdf page 9 |
| Subtotal | $180,000.00 | |||||||
| Withdrawals traced to accounts in the name of Peter and/or Theodora Aronis (or related entities) or otherwise unexplained | ||||||||
| 5. | 19.06.2000 | $50,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 263 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [341] pdf page 12 | |||
| 6. | 19.03.2001 | $20,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 254 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [355] pdf page 12 | |||
| 7. | 01.05.2001 | $25,000.00 | G & M Aronis 167-703 | Exhibit 9 [PLOD.1453] pdf page 238 | Missing cheque – relevant page ripped from cheque book (see Exhibit 8 [PLOD.1454] pdf pages 323 and 324. ‘Matina’ written on bank statement. Matty characterises as an unknown withdrawal – Exhibit 74 [DFCD.0006] pdf page 408 | Withdrawals for Matty Aronis – Exhibit 57 [356] pdf page 9 | ||
| 8. | 25.02.2003 | $10,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 231 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [382] pdf page 11 | |||
| 9. | 30.08.2004 | $10,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 213 | Theodora Aronis ATF AIT Term Deposit No. | Exhibit 37 [DBTE.0139] pdf page 11 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [412] pdf page 11 | |
| 10. | 28.02.2005 | $10,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 207 | Theodora Aronis ATF Aronis Investment Trust | Exhibit 37 [DBTE.0139] pdf page 11 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [412] pdf page 11 | |
| 11. | 01.08.2005 | $15,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 202 | Theodora Aronis ATF AIT Term Deposit No. | Exhibit 37 [DBTE.0139] pdf page 11 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [426] pdf page 11 | |
| 12. | 31.01.2006 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 196; Exhibit 24 [PLOD.1455] pdf page 776 | Cheque butt refers to “Maria Aronis rental ac Hayling St Salisbury t/a 5007699” | Withdrawals for Maria – Exhibit 57 [426] pdf page 9 | ||
| 13. | 27.03.2006 | $10,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 194 | ‘Maria’ on statement (cheques for this time not available) | Withdrawals for Maria – Exhibit 57 [426] pdf page 9 | ||
| 14. | 27.03.2006 | $45,000.00 | G&M Aronis 167-703 | Exhibit 9 [PLOD.1453] pdf page 178 | ‘Maria’ on statement | Withdrawals for Maria – Exhibit 57 [427] pdf page 12 | ||
| 15. | 18.03.2009 | $50,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 152 | ‘Maria’ on statement | Withdrawals for Maria - Exhibit 57 [471] pdf page 10 | ||
| 16. | 05.05.2009 | $50,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 150 | Theodora Aronis ATF Aronis Investment Trust 410750131714 | Exhibit 37 [DBTE.0139] pdf page 13 | ‘Maria’ on statement | Transfer to Term Deposits Exhibit 57 [471] pdf page 10 |
| 17. | 17.08.2009 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 144 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 18. | 12.10.2009 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 140 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 19. | 04.12.2009 | $50,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 138 | Transfer to Term Deposits Exhibit 57 [487] pdf page 10 | |||
| 20. | 29.12.2009 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 136 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 21. | 01.03.2010 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 132 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 22. | 01.06.2010 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 126 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 23. | 30.08.2010 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 120 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 24. | 15.11.2010 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 115 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 25. | 04.01.2011 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 114 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 26. | 14.03.2011 | $5,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 111 | Unspecified Cheque Withdrawals – Exhibit 57 [486] pdf page 11 | |||
| 27. | 14.03.2011 | $20,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 39 | Theodora Aronis CBA NetBank Saver Account 06 4107 10289963 | Exhibit 38 [DBTE.0134] pdf page 1 | T4-24/40-45 and T4-25/1-35 | Unspecified Cheque Withdrawals – Exhibit 57 [502] pdf page 9 |
| 28. | 14.03.2011 | $20,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 39 | T4-24/40-45 and T4-25/1-35 | Unspecified Cheque Withdrawals – Exhibit 57 [502] pdf page 9 | ||
| 29. | 18.03.2011 | $45,000.00 | G & M Aronis 167-703 | Exhibit 9 [PLOD.1453] pdf page 96; Exhibit 8 [PLOD.1454] pdf page 663 | Cheque butt refers to “Mrs Maria Aronis transaction a/c”. Amount is not paid into any known account. | Withdrawals for Maria - Exhibit 57 [501] pdf page 12 | ||
| 30. | 05.07.2011 | $330,000.00 | AIT 139-913 | Exhibit 33 [DTFSLOD.0466] pdf page 93 | LEPTA Pty Ltd Term Deposit No. 064107 50141701 | Exhibit 34 [DSFSLOD.0449] pdf page 2 | Not dealt with – statement 319 missing from [PLOD.1456] | |
| 31. | 08.07.2011 | $50,000.00 | AIT 139-913 | Exhibit 33 [DTFSLOD.0466] pdf page 93 | Theodora Aronis ATF AIT Term Deposit No. 410750141728 | Exhibit 37 [DBTE.0139] pdf page 14 | Not dealt with – statement 319 missing from [PLOD.1456] | |
| 32. | 07.11.2011 | $10,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 104 | Unspecified Cheque Withdrawals – Exhibit 57 [515] pdf page 11 | |||
| 33. | 05.01.2012 | $40,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 100 | LEPTA Pty Ltd Term Deposit No. 064107 50141701 | Exhibit 34 [DSFSLOD.0449] pdf page 2 | Transfer Out Branch Coorparoo | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [515] pdf page 11 |
| 34. | 23.01.2012 | $15,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 49 | Theodora Aronis CBA Account 06 4107 10306217 | Exhibit 40 [DBTE.0135] pdf page 1 | T4-25/40-45 and T4-26/1-15 | Unspecified Cheque Withdrawals – Exhibit 57 [517] pdf page 9 |
| 35. | 25.01.2012 | $15,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 49 | Unspecified Cheque Withdrawals – Exhibit 57 [517] pdf page 9 | |||
| 36. | 29.07.2012 | $15,000.00 | G & M Aronis 167-703 | Exhibit 9 [PLOD.1453] pdf page 70 | Written on statement is “T/D →50127571”. This is an unknown term deposit number. | Transfer to Term Deposits – Exhibit 57 [530] pdf page 12 | ||
| 37. | 29.07.2012 | $16,863.74 | G & M Aronis 167-703 | Exhibit 9 [PLOD.1453] pdf page 70 | Written on statement is “T/D →” | Transfer to Term Deposits – Exhibit 57 [530] pdf page 12 | ||
| 38. | 29.07.2012 | $15,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 55 | Unspecified Cheque Withdrawals – Exhibit 57 [531] pdf page 8 | |||
| 39. | 27.08.2012 | $27,500.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 84 | ‘Maria’ written on statement. T4-29/5-15. | Transfer to G & M Acc 110723-Exhibit 57 [529] pdf page 9. Amount not received in Account 110723- Exhibit 12 [DLOD.0084] pdf page 57 | ||
| 40. | 27.08.2012 | $15,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 56 | Theodora Aronis Term Deposit No. 410350092867 | Exhibit 37 [DBTE.0139] pdf page 12 | Unspecified Cheque Withdrawals – Exhibit 57 [531] pdf page 8 | |
| 41. | 29.01.2013 | $8,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 61 | Unspecified Cheque Withdrawals – Exhibit 57 [531] pdf page 8 | |||
| 42. | 31.01.2013 | $34,760.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 74 | ‘Maria’ written on bank statement | Withdrawals for Maria - Exhibit 57 [529] pdf page 9 | ||
| 43. | 11.03.2013 | $15,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 63 | Unspecified Cheque Withdrawals – Exhibit 57 [531] pdf page 8 | |||
| 44. | 10.09.2013 | $20,662.10 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 60 | Theodora Aronis ATF AIT Term Deposit No. 410750141728 | Exhibit 37 [DBTE.0139] pdf page 14 | Transfer Out Branch Bulimba | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [544] pdf page 11 |
| 45. | 20.01.2014 | $45,662.10 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 50 | Theodora Aronis ATF AIT Term Deposit No. 410350092867 | Exhibit 37 [DBTE.0139] pdf page 14 | Transfer Out Branch Bulimba | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [544] pdf page 11 |
| 46. | 03.03.2014 | $20,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 75 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [546] pdf page 8 | |||
| 47. | 11.08.2014 | $25,000.00 | Maria and Theodora 167-690 | Exhibit 38 [DLOD.0085] pdf page 80 | Unspecified Cash & Non-Cash Withdrawal – Exhibit 57 [562] pdf page 8 | |||
| 48. | 21.08.2015 | $160,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf pages 10 and 13; Exhibit 12 [DLOD.0084] pdf page 1; Exhibit 14 [DLOD.0083] pdf page 102 and Exhibit 15 [DTFSLOD.0479] | This amount includes the $44,000 withdrawn from G&M Aronis Account 110-703, the $49,000 withdrawn from G&M Aronis Account 167-703 and the $56,353.08 withdrawn from the Maria and Theodora Aronis account 167-690 (see Exhibit 13 [DFSLOD.0397] and Exhibit [DTFSLOD.0480 | Not addressed by Marietta – report ends on 05.08.2015 | ||
| 49. | 17.05.2016 | $60,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 3 | Wdl Branch Carindale | Not addressed by Marietta – report ends on 05.08.2015 | ||
| 50. | 21.09.2016 | $20,000.00 | AIT 139-913 | Exhibit 11 [PLOD.1456] pdf page 2 | Wdl Branch Springfield | Not addressed by Marietta – report ends on 05.08.2015 | ||
| Subtotal | $1,438,447.94 | |||||||
| GRAND TOTAL | $1,618,447.94 | |||||||
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