IOANNOU v MARINOS No. SCGRG-97-1582 Judgment No. S464

[1999] SASC 464

IOANNOU V MARINOS
[1999] SASC 464

Civil
1 MARTIN J.         The plaintiffs seek a declaration that they are the owners of a food shop business known as Sea Shanty which they operate from Shop 251A situated in the West Lakes Shopping Centre ("the Centre") at West Lakes.  In essence, the plaintiffs claim that they purchased the business from the defendants in 1992.  The defendants deny that they agreed to sell the business to the plaintiffs.  The defendants say they granted a licence to the plaintiffs to operate the business and terminated the licence in 1997.  The defendants seek a declaration that they are the legal and equitable owners of the business and an order that the plaintiffs deliver up permanent possession of the business to the defendants.
2 The plaintiffs were married on 14 August 1975.  They migrated to Australia from Cyprus in 1976.  They have two daughters, Androulla aged 23 who lives in Adelaide and Joanna aged 21 who is living in Cyprus.
3 After the Turkish invasion of Cyprus, the plaintiffs became refugees and emigrated to Australia.  Mr Ioannou, the first named plaintiff, gave evidence concerning the various businesses in which he and his wife, the second named plaintiff, were involved until he decided to return to Cyprus with his family in 1990.  It is unnecessary to canvass the details of those businesses which were unsuccessful.  The plaintiffs returned to Cyprus with a considerable quantity of money.  Mr Ioannou became involved in an unsuccessful business venture in Cyprus which resulted in a loss of all their savings. He returned to Australia in November 1991 and his wife and children followed early in 1992.  They had no assets or savings in Australia.
4 Immediately upon their return to Australia, the plaintiffs commenced working as employees in the business of the Sea Shanty which was then operating from Shop 28D in the West Lakes Mall.  The shop premises were leased by the defendants and they owned the business.  The second defendant, Michael Marinos, is the son of the first defendant Maria Marinos and her husband Tony Marinos.  The plaintiffs regarded Tony Marinos as "the boss". 
5 The plaintiffs first met the defendants and Tony Marinos in 1986.  Michael Marinos became engaged to a woman whose mother was Mr Ioannou's first cousin.  Mr Ioannou was invited to be the best man at the wedding.  The families became good friends.  When the plaintiffs returned from Cyprus, the defendants were aware of their poor financial circumstances and gave Mr Ioannou work at Sea Shanty from December 1991.  Mrs Ioannou was also employed at the shop immediately upon her return to Australia in January 1992.  Tony and Maria Marinos also worked in the business. 
6 The Sea Shanty is a food business operating in a food court at the Centre.  Patrons are able to purchase take-away meals as well as meals to be consumed in the near vicinity of the shop at tables provided by the management of the Centre.  Dishes and crockery are also provided by the management.
7 The meeting at which the agreement that is at the centre of the dispute between the parties was reached occurred in October 1992, but events and discussions during 1992 are also of significance.  According to Mr Ioannou, in about January 1992 Tony Marinos offered him a half share of the business for $60 000.  At that time Mr Ioannou believed that Tony Marinos and his wife Maria owned the business.  He thought it was a very generous offer and indicated immediately that he was interested.  Mr Ioannou said he attempted unsuccessfully to borrow $60 000 from the bank and other persons.  Within a couple of days of the offer he advised Tony Marinos that he was unable to raise the funds.  Tony Marinos responded "don't worry, I'll help you" and advised Mr Ioannou to simply wait and see. 
8 Mrs Ioannou confirmed that her husband spoke with her about the offer and said she was aware of attempts made by her husband to raise the funds.  She did not take part in that exercise and was relying purely upon what her husband had told her. 
9 Mr Ioannou said no further discussion occurred about the possibility of the plaintiffs taking a share in the business or purchasing the business until about the end of September 1992.  He and his wife continued to work at Shop 28D until August 1992 when the business shut down for a few weeks in order to re-locate to a new food court which was a more favourable area within the shopping centre.  Considerable relocation costs were incurred by the defendants and the new Shop 251A opened early in September 1992.  Mr Ioannou said he had very little to do with the mechanics of the move and was not privy to any details of the costs incurred by the defendants. 
10 Mr Ioannou was mainly involved with serving customers and had a rough idea of the weekly takings.  He was of the view that the business could be improved and Mrs Ioannou said she thought the business had potential for improvement.  Mr Ioannou said Tony Marinos regularly told him that he was feeling old and tired and Mr Ioannou formed the view that Tony Marinos was experiencing difficulties in keeping up the pace that was required at busy times. 
11 Mr Ioannou said that toward the end of September 1992, Tony Marinos spoke with him in the kitchen of the shop which was situated at the rear of the premises.  They had a conversation in the Greek-Cypriot language which is the native language of both men.  Mr Ioannou described the conversation in the following terms:
"A.  And he asked me straightforward "Are you ready to take over the business?"
 Q.  What was your reaction.
 A.  I was laughing, first of all, and he said to me "I'm serious".  I said "With which money I am going to buy the business?  What do you want me to give you to buy the business?"
...
Q.   If you have specific words, you tell me what was said.
A.   Yes, "Can I give my bum to pay, the only thing I've got?  I said "I won't be able to buy the business otherwise".
Q.   And what was Tony's response to that.
A.   He said "No, no, we're going to arrange something between us".
Q.   What arrangements, if any, were made after that brief conversation.
A.   No arrangement at that stage, but I just said to him "Thank you very much.  I'm here anyway", so we left there that day.".
12 Early in October 1992, Tony Marinos invited the plaintiffs to his family home.  The plaintiffs maintain the purpose of the meeting was to discuss the possible purchase of the business.  Mrs Ioannou said she was told the purpose by her husband.  She was positive of her understanding that it was more than simply to talk about the shop, but was in connection with buying the shop.
13 The parties agree that the critical meeting occurred at the home of Tony and Maria Marinos on a Sunday early in October 1992.  They disagree as to the content of the meeting.  Present at the meeting were the plaintiffs, Michael Marinos and Tony Marinos.  It appears that Maria Marinos and the wife of Michael Marinos were also in the house, but were not present during the critical conversation. 
14 Mr Ioannou gave the following evidence:
"Q.  Was there any discussion about the Sea Shanty between you and Tony Marinos.
 A.  That was the main reason of being there, for that discussion about the Sea Shanty.  We sat at the table there, and Tony Marinos was straightforward:  he put it to me, said "If you interested to buy the Sea Shanty, it will cost you $220 000".
Q.   Did he say anything else when he mentioned that to you.
A.   I said nothing at that time to him.  I thought for a couple of minutes about the price.  It was looking to me a bit high, but I wouldn't matter about that, and I asked him how we are going to pay this amount.
Q.   Of $220 000.
A.   That's right.  Then Michael Marinos, he brought out a bit of paper - I believe he had that ready there, his calculations - and he said to me "You pay $900 for the first year, $950 for the rest, the remaining lease years, and that will cover the $220,000.
...
Q.   And what was your response to Michael when he suggested that you start paying $900 per week for the first year.
A.   Well, just said to them "Thank you very much for your offer, this generous offer to me.  I know I have to work out to make the money to pay, but be sure, I will pay you".
...
Q.   And when you had this discussion, did you have any agreement as to when the $900 weekly payments would start.
A.   No, I just told them "I will need a couple of weeks to find the staff", and a few other things I wanted to change in the shop, and "I let you know the settlement date"."
15 Mr Ioannou said the conversation took place in the Greek-Cypriot language.  When Tony Marinos asked if Mr Ioannou wanted to buy the business, the Greek word that Tony Marinos used for the English word "buy" was "agorasis".  Mr Ioannou said Tony Marinos accepted that Mr Ioannou would need a couple of weeks to organise staff and no settlement date was fixed.  The conversation took about five to ten minutes.
16 Mrs Ioannou said they were invited into a room in the home by Tony Marinos and she described the conversation in the following terms:
"A.  Straightforward, Tony Marinos said to us, "If you want to buy the shop, this is the price" and, if we agreed with the price, and we said "Yes". 
Q.   What price did he say.
A.   $220 000 - then Michael Marinos took a piece of paper and he said, "To make those items, I know you haven't got the money, so it's $900 for the first year and if you pay $950 for the rest of the year until the lease expires the shop will be paid off"."
17 Mrs Ioannou said they agreed upon the price of $220 000.  She recalled her husband asking Tony Marinos to put everything in writing to which he responded "We trust you.  Don't you trust us?"  During cross-examination, Mrs Ioannou described the business at that time as a "reasonable business".  She said she could work the business and was able to see the potential for improvements.  She said that she and her husband had not talked about the price before attending at the house and her husband accepted the price without stopping to discuss it with her.  From her perspective she thought that if her husband was satisfied to accept the price she trusted him and would also accept it.
18 In support of their case that they purchased the business, the plaintiffs called their daughter Androulla Korbis.  She was not involved in any discussions with Tony Marinos, but gave evidence of events occurring after the plaintiffs took over the operation of the business.  During cross-examination she was specifically asked whether her father had told her in 1992 that he had bought the business and she responded affirmatively.  She said that she and her sister were aware of why their parents attended at the home of Tony and Maria Marinos early in October 1992. Mr Ioannou had told them that Tony Marinos asked him if he was ready to buy the business and that he, their father, had responded that he did not have the money.  She said he told them that Mr Marinos had responded that Mr Ioannou should not worry about it as they would work something out.  She thought they were given that information within two or three weeks of their parents attending at the home of Tony and Maria Marinos.  The night before they attended at that home her father had told her they were intending to discuss the purchase of the business.
19 As appears later in these reasons, a considerable body of evidence was led concerning statements by the parties as to the nature of the arrangement that had been reached between them in connection with the business of the Sea Shanty.  Counsel for the parties specifically agreed that statements made by the parties until the dispute arose in the latter half of 1997 should be received as original evidence capable of being viewed as reflecting the knowledge or state of mind of the maker of each statement.  In view of the agreement between the parties, I have accepted the various statements on that basis while recognising the need for caution because of the obvious dangers associated with reliance upon this type of evidence.  The evidence of the statement by Mr Ioannou to his daughter is, therefore, admissible for the purpose of establishing that Mr Ioannou believed that he had purchased the business. Other conduct and statements of Mr Ioannou dealt with later in these reasons are of particular importance and were also admissible on the basis that they amounted to admissions against interest.
20 It is the plaintiffs' case that agreement for the sale and purchase of the Sea Shanty business was reached at that meeting early in October 1992 at the home of Tony and Maria Marinos.  The purchase price and amount of weekly payments of the price was agreed and the price was subsequently paid in full.  The plaintiffs contend that the existence of the agreement and the fact that it was carried into effect is confirmed by the subsequent conduct of the parties.
21 Mr Ioannou arranged staff and also the provision of additional equipment.  Within about a week he spoke with Tony Marinos and they agreed the settlement date as 9 November 1992.  According to Mr Ioannou, he asked Tony Marinos about the lease of the premises and transferring the business name.  Mr Marinos responded that the name of the business would be transferred, but the lease would remain in the Marinos name and Mr Ioannou should not be offended.  Mr  Ioannou presumed that Mr Marinos wanted the lease in his name as a form of security. 
22 There is no written record of the agreement.  Mr Ioannou said that on a couple of occasions he spoke with Tony Marinos about putting the agreement in writing, but Tony Marinos responded by asking whether he had money to pay lawyers or landbrokers and said "We trust you, koumbaro.  Don't you trust us".  Mr Ioannou simply responded "Of course I trust you, koumbaro."  Having asked on two occasions Mr Ioannou felt that he could not ask again.  "Koumbaro" is a word that describes a special relationship and was applicable because Mr Ioannou is the godfather of the son of Michael Marinos.
23 The method of payment was also the subject of discussion between Mr Ioannou and Tony Marinos.  According to Mr Ioannou he was asked by Mr Marinos to pay $500 by cheque and $400 in cash.  He said Mr Marinos explained that if everything was paid by cheque he would be obliged to pay a lot of taxes and "what would he clear after taxation".  The payments were due when Mr Ioannou took over the business, but Mr Marinos agreed to a delay in making the first payment because the plaintiffs did not have any money.
24 Mr Ioannou said that shortly before they took over the business he spoke with the Manager of the Centre, Mr Patrick Jordan.  He told Mr Jordan he was buying the business from Tony Marinos and asked about the placement of a salad display fridge.  Although counsel for the plaintiff said in opening that Mr Jordan would be a witness, he was not called.
25 On Saturday 7 November 1992, Michael Marinos, Tony Marinos and Mr Ioannou conducted a stock-take. Mr Ioannou said a price was not agreed that day as Michael Marinos had to check invoices for the cost of each item.  During the following week they agreed a figure in excess of $3 000 as the amount owed by the plaintiffs for the stock.  Mr Ioannou said he paid $1 500 shortly after Christmas 1992 and was required to pay an outstanding account for stock of $1 762 which made up the balance of the amount owing.
26 From 9 November 1992, the plaintiffs were responsible for all the usual expenses associated with the running of a shop business.  This included payments of the rent direct to the Centre.  The direct payments ceased in 1996 when, according to Mr Ioannou, Tony and Michael Marinos spoke to the manager of the Centre and instructed the manager not to accept any lease payments from the plaintiffs as they wanted to make those payments.  The lease was still in the name of the defendants.  Mr Ioannou said he asked Tony Marinos why he had given that instruction and was told that it was in order to claim the payments on taxation.  When he asked how the claim could be made when the full amount would be repaid to them, Mr Tony Marinos simply responded "My accountant knows how".  The evidence of Mr Ioannou concerning that conversation was supported by Mrs Ioannou.  After the defendants commenced paying the rent to the landlord, the plaintiffs reimbursed the defendants each month.
27 Although the lease of the premises remained in the name of the defendants, Mr Ioannou said that when the amount of the rent was reviewed in 1993 and 1994 he conducted the negotiations with the manager of the Centre. When the landlord sought to increase the rent in 1995, Mr Ioannou conducted negotiations with the manager and was not prepared to accept any increase in rent.  However, he later became aware that the landlord had conducted negotiations with the defendants and the rent was increased.  When he subsequently told Tony Marinos that he should not have accepted any increase and that it was too high, Mr Marinos responded that he was told to take it or leave it and had no choice.  The same procedure occurred in 1996.
28 The business name of the Sea Shanty had been registered in the name of the defendants.  With the assistance of his accountant, Mr Ioannou arranged for a change in particulars.  An extract from the records of the State Business and Corporate Affairs Office contains a statement of change in particulars related to the business name that was filed on 19 January 1993.  The defendants and the plaintiffs signed the change and dated their signatures as 31 December 1992.  Under a heading "CHANGES TO PROPRIETORS", the defendants are identified as the proprietors leaving the business who have ceased to be the proprietors and the plaintiffs are identified as the persons who have commenced as the proprietors coming into the business. 
29 In support of their case that they purchased the business, the plaintiffs suggested their conduct in purchasing various items of equipment is consistent with a purchase and inconsistent with a leasing of the business.  Taxation records for the year ending 30 June 1994 disclose the following purchases:
Date Item Amount
9 November 1992 Toaster    $672
27 November 1992     Display fridge  $2 998
18 January 1993 Cash Register   $420
21 October 1993 Fryers     $7 400
Total     $11 490
30 Taxation records for the year ending 30 June 1995 disclose the following additional purchases:
18 July 1994    Plant $1 800
8 August 1994   Plant $1 800
18 December 1994     Freezer    $629
Total     $4 229
31 Mr Ioannou gave evidence of the various purchases which he said were necessary to improve the quality of the food that he offered for sale.  He described a number of items in addition to those set out in the records to which I have referred.  The total cost of the items described by Mr Ioannou was in excess of $20 000. Mr Ioannou was giving evidence from memory and it is unlikely that the various items purchased were not included in the taxation returns for the purposes of depreciation.  I cannot be satisfied as to the precise amount expended, but I am satisfied that after they took over the operation of the business the plaintiffs incurred expenses of at least $15 000 in purchasing additional equipment.
32 The taxation return for the year ending 30 June 1994 also refers to a purchase on the day of settlement, 9 November 1992, of fixtures, fittings,  a counter and a fridge for $25 000.  Neither of the plaintiffs were asked about those items and neither suggested that any specific amount had been agreed in respect of plant and equipment in addition to or as part of the purchase price of $220 000.  The return was prepared by an accountant, Mr Barry Biggs, who explained the reason for its inclusion.
33 Mr Biggs became the accountant for the plaintiffs in the mid 1980s. Mr Ioannou said he told Mr Biggs in October 1992 that he was buying the business and wanted Mr Biggs to attend to all the necessary documents for taxation and for the transfer of the business name.  In cross-examination Mr Ioannou said he understood that any income earned from the business had to be declared for taxation and, from his experience, he knew that rent paid for the premises in connection with the business could be claimed as a tax deduction.  As to whether the purchase price of $220 000 was tax deductible Mr Ioannou said he did not know how it worked and relied upon his accountant.  He said Mr Biggs advised him he could claim the weekly payments, but on the sale of the business he would be required to pay a high amount of capital gains tax.  He said Mr Biggs having advised him it could be done that way, he decided to claim the payments because he would not pay as much tax in the immediate future and would pay the capital gains tax on the sale of the business.  There is no mention in the evidence of Mr Ioannou of any conversation with Mr Biggs about a figure of $25 000 or any other amount for fixtures, fittings, a counter and a fridge.

34 Mr Biggs confirmed that his first knowledge of the plaintiffs taking over the operation of the Sea Shanty business came from Mr Ioannou.  He gave the following evidence:
"A.  Only Mr Ioannou.  I became aware of the Sea Shanty in October 1992 when Mr Ioannou brought his tax details in for that year and there were some group certificates having been drawn up by the Sea Shanty relating to his employment in that organisation.  So, we completed that assignment and then very late that year in December Mr Ioannou contacted me to say that he had acquired that business and we had a meeting and during the course of the meeting he asked me to prepare the necessary documentation to transfer the business name the Sea Shanty from the previous owner to him and his wife."
35 Mr Biggs said that in the December meeting he obtained full details for the purposes of registering the change in the proprietors of the business name. As Mr Biggs was not aware of Mr Ioannou having very many assets or funds available, they had a general discussion as to how Mr Ioannou was to pay for the purchase.  He said Mr Ioannou suggested he had reached a private arrangement with the vendors and was to pay the amount owing through payments of $500 per week for the ensuing five years.  Mr Biggs said he asked Mr Ioannou how the $500 payments were to be treated, whether as capital or as a business expense, and Mr Ioannou instructed him to treat those payments as a business expense.  He said Mr Ioannou indicated he had previously discussed that subject with the vendors.  According to Mr Biggs, he did not give advice on that topic, but asked the question as to how Mr Ioannou wanted the payments treated for the purposes of taxation.  He believed that Mr Ioannou understood the question because he had been involved in two previous businesses.  As mentioned, Mr Ioannou said Mr Biggs gave advice on that topic.
36 Although he was unable to remember the exact words used, Mr Biggs said he was left in no doubt that Mr Ioannou was telling him that he had purchased the business as opposed to leasing or renting it.  He said that Mr Ioannou did not ever say to him that he had rented or leased the business or was operating it on licence.  Mr Biggs regarded claiming the $500 weekly payments as a business expense to be a legitimate treatment in a line headed "Rent" because he assumed it was a rental purchase type agreement.  He said this form of treatment was common for rental purchase agreements related to plant and equipment, including motor cars, and he accepted it could be applied to the purchase of the business although he had never previously treated the payment of a purchase price in this manner. 
37 As to the claim for depreciation of $25 000 worth of fixtures and fittings recorded in the tax return as purchased on the date of settlement, 9 November 1994, Mr Biggs said he asked Mr Ioannou how the furniture, fittings and other plant and equipment already in the shop was to be treated.  Mr Ioannou told him those items had a value of $25 000 and he would be paying that amount to the vendors at some time in the future.  Mr Biggs created an accounting entry establishing a liability of $25 000 that was due to the previous owners because he assumed payment would be due at the end of the five year period.  He also created a plant and equipment depreciation schedule.
38 Mr Biggs did not see any difficulty with claiming the weekly amounts of $500 as business expenses.  He said he advised Mr Ioannou that if the payments were treated in this manner, when Mr Ioannou sold the business in the future there would be a significant capital gains amount that he would be required to pay.  He said Mr Ioannou was adamant that the payment should be treated in that manner.  During cross-examination, Mr Biggs was obliged to acknowledge that the components of a business are fundamentally comprised of the goodwill, plant and equipment and the stock in trade.  The $500 weekly payments were not for the stock in trade or the plant and equipment.  Logically, those payments were for the goodwill.  Viewed in that light, Mr Biggs was obliged to acknowledge that such payments were not tax deductible.  He had not, however, addressed his mind to that logical sequence and accepted that there was a private arrangement between the parties which entitled the plaintiffs to claim the $500 weekly payments as business expenses.
39 There is considerable force in the defendants' submission that the treatment of the payments in the tax returns was inappropriate, but I am satisfied that Mr Biggs was not deliberately acting in a dishonest manner.  He was a quiet, almost staid witness.  He was careful in considering the questions and his answers.  I am satisfied that he was telling the truth and that his evidence is reliable concerning both the conversations with Mr Ioannou and his processes of reasoning that led to the particular treatment of the payments in the tax returns.  In particular, I am satisfied that Mr Ioannou told Mr Biggs that he had purchased the business and wanted the $500 weekly payments treated as a business expense.
40 In evidence unchallenged by the plaintiff, Mr Biggs said he did not ever discuss the concept of rent or rental purchase with Mr Ioannou.  He simply drew the conclusion that the arrangement was similar to a rental-purchase scheme from an accounting point of view based on what Mr Ioannou had said about the weekly payments of $500.  In those circumstances the defendants submitted that if the weekly payments were instalments on a purchase price, there was no occasion for Mr Ioannou to identify the payments as "rent".  However, the contrary occurred and the defendants submitted that the conduct of Mr Ioannou in identifying the payments as for "rent" is strong evidence that the plaintiffs leased the business. 
41 The evidence that Mr Ioannou identified rent as the purpose of the payments is found in the remains of cheque books and on cheque butts.  He was not questioned about these documents, but the documents were tendered as part of the business records of the plaintiffs.  The case for the plaintiffs was conducted on the basis that Mr Ioannou attended to all the payments.  Included in those records are the remains of two cheque books which do not contain cheque butts.  A record of the cheques has been entered in an area at the beginning of the cheque book set aside for that purpose.  In addition, in one of the books a piece of paper is stapled to the book which contains a record of the cheques written from that book.  I am satisfied that the written records in those documents were made by Mr Ioannou or with his concurrence and those records form part of the business records of the plaintiffs.  Those records establish that from the first payment on 21 November 1992 Mr Ioannou regularly identified rent as the purpose of the cheques.  The entry for the first payment is typical of the following entries and is marked "Sea Shanty (rent)".  Numerous entries of that nature are recorded for cheques written from November 1992 to June 1993.  Those entries record the weekly payments made to Tony Marinos as opposed to payments to the centre for the rent of the premises which are separately identified in the records. 
42 In addition to the records of cheques, for the financial year ending 30 June 1994 Mr Ioannou prepared a typewritten list of expenses which he provided to Mr Biggs for the purposes of preparing the taxation returns.  Included in the list was an entry marked "Tony Marinos (rent)".  Immediately above that entry is a line for the rent paid to the Centre identified as "Westfield Shopping Town".  Mr Ioannou acknowledged preparing the document, but was not specifically asked why he identified the payments to Mr Marinos as "rent".  He was, however, asked about declaring the payments as rent in the taxation returns.  He said he chose that option after receiving the advice from Mr Biggs to which I have already referred.
43 As mentioned, I accept the evidence of Mr Biggs in preference to that of Mr Ioannou.  I find that the conduct of Mr Ioannou in recording the payments in this manner is inconsistent with the case for the plaintiffs that they purchased the business.  Considered in isolation that conduct might be capable of explanation on the basis that Mr Ioannou was attempting to claim tax deductions which he knew he was not entitled to claim and, therefore, made false entries identifying the payments as rent.  However, that conduct is not to be considered in isolation.  As will appear later in these reasons, there are other features of the conduct of Mr Ioannou which also tend to support the conclusion that the plaintiffs leased the business. 
44 As mentioned, according to the plaintiff he agreed to divide the weekly payments by paying an amount by cheque and the balance in cash.  The parties agree that for the first year the plaintiffs  paid $500 by cheque and $400 in cash each week.  For the remaining years, they paid $550 by cheque and $400 in cash each week.  Mr Ioannou obtained the weekly cash component from the takings of the business.  He was asked about the failure to declare as income the $400 cash component paid to Tony Marinos each week.  Notwithstanding a caution that he was not obliged to answer questions that might tend to incriminate him, Mr Ioannou admitted that failure. 
45 No mention was made to Mr Biggs of the $400 cash component.  He only became aware of that amount after the dispute arose and during conversations with the plaintiffs' legal representatives.  In a joint conference with Mr Ioannou and his solicitor, consideration was given to amending the previous year's returns and other advice was sought.  It was decided that the Taxation Department would not be interested in making an adjustment because it was revenue neutral.  If the additional cash amount was declared as income, it would also be declared as a business expense.  In those circumstances no attempt was made to adjust the previous returns, but subsequent returns have included the $400 weekly payment as both income and an expense.
46 Subject to occasions when Tony Marinos travelled overseas, from December 1992 to September 1997 the plaintiffs made regular weekly payments by cheque and cash as previously described.  Generally the payments were collected by Mr Tony Marinos at the shop premises on a Friday afternoon.  It appears that these meetings were friendly social occasions and it was common for the parties to drink coffee or have lunch and chat.  It was Mr Ioannou's practice to remove an envelope from his briefcase containing the cheque and cash and to hand it to Mr Tony Marinos.  On some occasions other persons collected the envelope on behalf of the defendants and a few collections were made from the plaintiffs' daughter at a shop in a shopping centre known as Tea Tree Plus.  The plaintiffs and their daughter denied that any collections had been made from the plaintiffs' daughter at her fashion shop in the West Lakes Shopping Centre.  The plaintiffs also denied that the word "rent" in the Greek-Cypriot language was used on any occasion when the envelope was collected.
47 The plaintiffs' daughter agreed that she had never heard any member of the Marinos family refer to a sale of the business to the plaintiffs.  She said that on one occasion she heard her father and Mr Tony Marinos discussing the fryers in the shop when her father was showing Mr Marinos the new fryers he had purchased.  She heard Mr Marinos respond "Well, it's your shop, do what you want".  She thought that conversation occurred in about November or December, 1993. 
48 Tony and Maria Marinos travelled overseas from May until August 1997. Mr Ioannou said that he was instructed by Tony Marinos not to provide the cash component to Michael Marinos who would be collecting the weekly payments. Mrs Ioannou said she heard that conversation.  According to Mr Ioannou, he explained that instruction to Michael Marinos.  On about 10 September 1997 Tony Marinos came to the shop where a discussion occurred about the overseas holiday.  Mr Ioannou said he asked Mr Marinos when he would transfer the lease to the name of the plaintiffs.  He said the following occurred:
"Q.  And what was his response to that.
 A.  He said "What lease?", and I said to him "The lease for the shop". 
 Q.  And what was his reaction.
 A.  And he said to me "You're like now asking me to transfer the title of my house to you".  I said "No, Mr Marinos, I am not asking you to do this;  I'm asking you to transfer the lease to whatever I pay for", and he said "No, the lease is in our name, and it will stay in our name", and then I asked him "What about the agreement we had?"
 Q.  You were referring to the agreement in 1992.
 A.  1992, and he said "No, the lease will stay to us".  That was it that day."
49 Mr Ioannou said he did not say anything else as he was upset. Mrs Ioannou confirmed that her husband was angry.  She described the conversation in the following terms:
"A.  When Mr Marinos came back from overseas he came down to the shop, it was on Wednesday, after lunch, and my husband and him talk about the holiday, how it was, and everything, and after that my husband said to him "What about the lease now, I pay the shop, when you going to transfer the lease to my name, I pay the shop now?", and Tony Marinos just laughed and he said "What lease?", and my husband said "The lease for the shop, I pay the shop, so you have to transfer the lease to me", and Tony said "The lease is in our name and it will stay in our name"."
50 Mrs Ioannou said the cash had been kept by her husband at home while Tony Marinos was overseas.  Later that day Mr Ioannou retrieved the cash and drove to the home of Tony Marinos.  He gave the cash to Mr Marinos in an envelope, but there was no discussion about the shop. 
51 Mr Ioannou said that at the end of September 1997 he was telephoned at the shop by Tony Marinos and asked to meet at the Marinos home to discuss the situation.  He and his wife attended on 1 October 1997 and had dinner before discussing the shop.  Mr Ioannou said that Michael Marinos asked about the previous conversation concerning the lease and then insisted that he had not sold the business to Mr Ioannou, but had rented it to him.  He said the conversation continued as follows :
"A.  And I said to him "No koumbari, you are wrong.  You sold the business to me and the price was $220 000 and I believe I paid that amount, so I am entitled to that lease".  He said "No, the lease, it came to our name, and the shop, the business, is ours."  Then I asked him what about those equipments I put in the shop, those changes I done there.  And he said the equipment belonged to the shop, and the shop is ours, the equipment is ours."
52 Tony and Michael Marinos then produced a letter from their solicitors to Mr and Mrs Ioannou dated 29 September 1997.  The letter has been tendered in evidence.  Mr Ioannou said they attempted to give him the letter which he described as asking for another $220 000 to transfer the lease to his name or, if he wanted to stay in the shop, offering to allow him to continue paying them $950 per week.  He refused to take the letter.  He said he told them that he refused because this was contrary to the agreement and they were now telling him he did not own anything notwithstanding that he had spent so much time and energy on the shop.  Tony and Michael Marinos told him that he could leave and they would bring somebody in to take over and he responded that if the person taking over paid for the equipment and the goodwill he would leave.  It was repeated that he had nothing.
53 Mr Ioannou said he also made another offer to Tony Marinos during the course of this meeting.  He said he offered to pay $20 800 per year over a five year period if Mr Marinos would put the names of Mr and Mrs Ioannou on the lease.  He said he made the offer because he had been to his solicitor and received advice about how much it would cost to take the matter to trial and he decided to make the offer in order to avoid the legal fees and traumas associated with a court case.  He said he did not receive any response from Mr Marinos.  He was told that he owned nothing and that if he wanted to stay he could continue to pay $950 per week on a rental basis or pay the purchase price of $220 000.
54 Mr and Mrs Ioannou received the letter of 29 September 1997 on 14 October 1997.  By letter of 22 October 1997 the defendants gave the plaintiffs one month's notice terminating what they maintained was the licence agreement.  The letter notified the plaintiffs that the defendants would take over from the close of business on Saturday, 22 November 1997.  The plaintiffs have continued to operate the business, but have been paying $950 per week into a joint account.   The funds from that account will be disbursed in due course according to the order of the court.
55 If the evidence of the plaintiffs is accepted, they will have established an agreement for the sale and purchase of the business and performance by them of their obligations pursuant to that agreement.  The case for the defendants was put to the plaintiffs, and in particular to Mr Ioannou, in considerable detail.  They denied all significant aspects of the defendants' case.  In particular they denied that the agreement was in the form of a licence or a lease of the business and that the word "enigio" which means "rent" in the Greek-Cypriot language was ever used in connection with the arrangement between the parties or the weekly payments. 
56 The principal witnesses for the defence were Mr Tony Marinos and his son Michael.  Tony Marinos is aged 65 and has had extensive experience in the running of food shops since 1954.  He is a very successful businessperson.  In particular, he has a great deal of experience in the running of fish and chip shops such as the Sea Shanty.  Although the business is in the name of his wife Maria and son Michael, Mr Marinos agreed that it is fair to describe him as the boss who made the decisions with respect to that business. 
57 The business was purchased in the names of Maria and Michael Marinos for approximately $17 000 in the mid 1980s.  The shop had closed and the price was essentially paid for equipment.  For a period of approximately six months Savvas Tantis, the son-in-law of Tony and Maria Marinos, owned the half share otherwise held by Maria Marinos.
58 Tony Marinos said he employed the plaintiffs to work in the shop because he felt sorry for them.  He said that on numerous occasions during 1992 Mr Ioannou talked about wanting to buy the business and told Mr Marinos repeatedly that he would have the money by the end of the year through a court case in Cyprus or through selling a BMW motor vehicle and a block of land both of which he owned in Cyprus.  Mr Marinos responded that when Mr Ioannou had the money they could talk about it.  He said he did not offer to sell a half share in the business to Mr Ioannou for $60 000.  During cross-examination he said he would not be interested in permitting anyone other than members of his family to share in the operation of a business in which he or his wife and children were involved.
59 According to Mr Marinos others were interested in purchasing the business and he had specified a price of $180 000.  No firm offers were made, but Mr Ioannou was well aware of that price.  Mr Marinos said that in about the middle of 1992 Mr Ioannou asked whether Mr Marinos would lease the business to him and enable him to pay rent until he raised the funds for the purchase.  In making that request Mr Ioannou guaranteed that within a year he would have the money to buy the business.  Initially, Mr Marinos responded that he was not in a position to rent the business to Mr Ioannou because he would need the funds from the sale of the business to move on to further investments.  He would have been prepared to sell the business for $180 000 to Mr Ioannou because he thought of Mr Ioannou as a friend.

60 Mr Marinos said that in about August 1992, shortly before the shop was relocated, he and Mr Ioannou had a further discussion about the possibility of Mr Ioannou renting the business.  At that time the takings had been reduced because of construction work being undertaken in the shopping centre.  He told Mr Ioannou that he would not rent the business to him at that time because Mr Ioannou would not be able to make a living.  He told Mr Ioannou that they should wait until they moved to the new shop which Mr Marinos would run for a couple of months to see if it was capable of supporting a good living.
61 Mr Marinos said that in about the second week after the relocation, Mr Ioannou displayed that he was anxious to take over the shop and asked if he could do so.  He was asking about renting the business and still maintaining that by the end of the following year he would have the money to purchase it.  Mr Marinos responded that he would run the shop for at least two months, particularly over the Christmas period, and then say yes or no.  He gave Mr Ioannou his word that he would not sell the shop to anyone else.  As to the price, Mr Marinos said they discussed a figure of $220 000 because the relocation costs of approximately $40 000 had to be added to the original figure of $183 000.  At that time Mr Marinos did not think Mr Ioannou would ever be in a position to purchase the business because Mr Ioannou was "pulling his leg" about the funds to be obtained from the court case, the block of land and the BMW. 
62 The effect of the evidence of Mr Marinos was that a number of conversations occurred over a considerable period of time about the renting of the business and how that would be arranged.  This included matters such as the plaintiffs paying all the expenses associated with the business.  He said Mr Ioannou was constantly talking about wanting the business and being able to pay for the purchase within a year.  Mr Marinos explained that he changed his mind about his willingness to rent the business and needing the funds to move on because they had already purchased another business. 
63 Mr Michael Marinos gave evidence similar to that of his father.  He said that while Mr Ioannou was in Cyprus he spoke with Mr Ioannou on a number of occasions and was told about Mr Ioannou losing all his money.  He told Mr Ioannou that on their return his house was open to Mr Ioannou and his family and, if he returned and was unable to obtain employment, he would employ Mr Ioannou in the Sea Shanty.  That offer came to fruition.
64 Michael Marinos said that during 1992 until the relocation he regularly worked at the Sea Shanty to assist his parents during the busy lunch period.  He said he and Mr Ioannou were always talking about businesses and regularly Mr Ioannou would speak about needing to get into his own business.  He was always saying to Michael Marinos words to the effect "Look, koumbaro, how about we do something" and "how about we go partners?".  Michael Marinos told Mr Ioannou that his share was not for sale, but he could try to obtain his mother's share.
65 According to Michael Marinos, during these conversations Mr Ioannou constantly expressed interest in purchasing the shop.  Michael Marinos told him that everything is negotiable and if he could obtain the funds they might be able to talk business.  Mr Ioannou also spoke about the possibility of renting the shop.  He told Michael Marinos that he was unable to obtain funds from his family which annoyed him.  In the words of Michael Marinos, it was a "continuous saga". 
66 Michael Marinos said he took the same attitude as his father as the time for relocation drew closer.  The shop takings were lower because of the renovations and he was not prepared to rent the shop to Mr Ioannou until the new shop was operating and he knew it was viable.  He said he told Mr Ioannou that he would not know what to charge him for rent until he had an idea of the takings of the new shop.  Prior to the relocation they had spoken about a purchase price of $180 000 and Mr Ioannou had said he should be able to obtain the funds in due course from the court case in Cyprus as well as by selling his block of land and BMW motor vehicle.
67 The defendants called Mr Peter Kelly who gave evidence supporting their case that discussions occurred about renting the business prior to the shop relocation.  Mr Kelly is a motor mechanic who has known Tony Marinos for approximately 20 years since he used to attend at a Marinos fish shop while he was working night shift for the Royal Automobile Association.  For approximately eleven years Mr Kelly and his wife have lived a short distance from the home of Tony and Maria Marinos.  Mr Kelly has serviced cars belonging to Tony Marinos and his family for some years. 
68 Mr Kelly said that during an unplanned visit to the Marinos home he and his wife met Mr and Mrs Ioannou.  Through the recommendation of Tony Marinos, Mr Kelly subsequently carried out service work on Mr Ioannou's motor vehicle and the first of those occasions was 25 August 1992.  By reference to the date of carrying out that work, Mr Kelly was able to say that the occasion on which he and his wife first met Mr and Mrs Ioannou was a short time prior to 25 August 1992. 
69 Mr Kelly did not give evidence of any conversation at the Marinos home concerning the Sea Shanty business, but his wife Mrs Clarissa Kelly gave evidence of a conversation she said occurred with Mr Ioannou.  Mrs Kelly had worked for a short time in the shop during 1991.  She described a reasonably close relationship with Maria Marinos and said they often chatted over a cup of coffee.  She also said that she and her husband met Mr and Mrs Ioannou at the Marinos home.  By this time she was aware from Maria Marinos that Mr and Mrs Marinos were renting the shop out.  She said she noticed after she was told they were renting the shop that they appeared to be spending more time at home during the day. 
70 According to Mrs Kelly, on the evening in question she was introduced to Mr and Mrs Ioannou by Maria Marinos who described Mr and Mrs Ioannou as the people who were renting the business where Mrs Kelly previously worked.  In subsequent casual conversation with Mr Ioannou, Mrs Kelly asked how the business was going and whether Mr Ioannou was happy to rent it.  He responded in the affirmative and told her that he would like to have bought the business, but he did not have any money.
71 The sequence of events is then taken up by Mr Kelly.  As mentioned, on 25 August 1992, a date which Mr Kelly said was within a short time of meeting the plaintiffs, he worked on Mr Ioannou's motor vehicle.  Mr and Mrs Kelly had previously been interested in purchasing the business and, when Mr Ioannou attended at the workshop to collect his motor vehicle, Mr Kelly spoke with Mr Ioannou about the business.  He said that Mr Ioannou told him he was working for Tony Marinos at the business and would like to buy it, but did not have any collateral and was, therefore, unable to obtain finance.  He told Mr Kelly that he was negotiating to try and rent the business.
72 Notwithstanding an error by Mr Kelly which is discussed later in these reasons, he impressed me as a solid person of good character who gave reliable evidence which I accept concerning his conversation with Mr Ioannou.  I accept that Mr Ioannou told him on 25 August 1992 that he, Mr Ioannou, was unable to raise the finance to purchase the business and was negotiating to try and rent it.  As to the earlier conversation deposed to by Mrs Kelly, the evidence establishes that at the time Mr and Mrs Kelly met the plaintiffs at the Marinos home no agreement for rental or for purchase had been reached between Tony Marinos and the plaintiffs.  Mrs Kelly's evidence that Maria Marinos spoke of Mr and Mrs Ioannou as the people who were renting the business and that Mr Ioannou said he was renting at that time is unlikely to be correct.  However, Mrs Kelly was a forthright and frank witness and I accept that she was doing her best to recollect the conversation accurately.  I find it is more likely that some reference was made to the plaintiffs as persons who might rent or were likely to rent the business and that Mrs Kelly is in error in her recollection of a conversation that renting was actually in process at the time of the first meeting at the Marinos home. 
73 The relocation of the shop occurred in August 1992.
74 Mr Tony Marinos said he decided in late September or early October 1992 that the business was successful enough to support the plaintiffs if they rented it from him.  He said he told Mr Ioannou that he had some news for him and invited him to attend at his home with Mrs Ioannou.  Early in October 1992 Mr and Mrs Ioannou attended at the Marinos home where they had a discussion in the presence of Michael Marinos.  Mr Marinos gave the following evidence as to the essence of the conversation:
"A.  I turned to Bill and I said, "Look, now if you're ready to rent the business, I think you can make good living," and he said, "How much?".  I said, "Before I tell you the rent, you have to do all the expenses, if they need any repairing, or the rent to the centre and everything, you have to pay everything.  I don't want any bills.  When you start the shop, you pay everything.  Is that understood?" and he said, "Yes," and he said, "How much the rent?" and I said, "Look, I come up with one thousand dollars, you have to pay me one thousand dollars a week," and he said "We are not far off," and I said, "What do you mean by that?" and he said, "I was thinking nine hundred."  I said to him "Forget the nine hundred.  It's a thousand dollars.  Yes or no".  And he grabbed me and kissed me and his wife, and then my wife come in and they kiss her, and they went home."
75 Mr Marinos said that when he put the proposition that it was $1 000 a week, yes or no, Mr Ioannou responded "okay, okay".  He said he told him he could have the shop for one year and that at the end of the year if he obtained the funds he still had the word of Mr Marinos that he would sell the business to him for $220 000.
76 According to Mr Marinos they agreed that an additional amount would be paid for the stock and they fixed 9 November 1992 for the takeover. Mr Ioannou said he would be unable to pay for the stock immediately and Mr Marinos agreed to give him until December to do so.  A stocktake was conducted shortly before 9 November 1992.  Mr Marinos had a different version from Mr Ioannou as to the amount involved.  He said the figure agreed was close to $5 000 and there was an amount of $1 100 to be paid to Coca-Cola.  A balance of $3 900 was owed, but only $1 500 was subsequently paid.
77 As to the plant and equipment, Mr Marinos said they had previously discussed that if anything happened to the plant and equipment the plaintiffs would be obliged to fix it.  During the course of the meeting at the Marinos home, Mr Ioannou accepted that if repairs were needed or if the plaintiffs wanted to change something they would have to pay for it.  As to the period of the arrangement, Mr Marinos said no particular period was mentioned except that Mr Ioannou expressed confidence he would be able to purchase the business within a year.  According to Mr Marinos he told Mr Ioannou that if the business did not proceed well Mr Marinos could take the shop back on a week's notice or if Mr Ioannou could not make enough he could give a week's notice to Mr Marinos who would take the business back "with no strings to it". 
78 Mr Michael Marinos gave evidence similar to that of his father concerning that critical meeting.  The essence of the meeting was covered in the following answer:
"A.  I think it might have been me that said, 'Well, Bill, you cannot get no money or anything obviously.  So, therefore, we have to do things slightly different maybe'.  I would have said that, 'We'll rent you the shop.  You cannot get the $60,000 deposit, so we are going to have to trust you that you're going to run the shop properly and do the right thing with the shop'.  As I was talking, if I'm right, I believe that my father would have butted in or come into the conversation, and would have been speaking in Greek.  My father would have, and said - I think he repeated roughly what I had said in English and said, 'You can have the shop, run the business, and we'll help you as much as we can to get you onto your feet as you start running the business.  To run the shop, you would have to pay all of the expenses of the shop.  No matter what expenses they are, it's your headache.  You have to pay for the stock of the shop.  You have to look after the plant and equipment.  If that breaks down, you've got to fix them.  If you're going to pay the rent, I'm not going to fix your plant and equipment, because you are the one using it.  Wear and tear, I'm not going to pay for'.  Bill said, 'Yeah'.  Then the topic of the rent came up and we said - my father said, 'We would like a thousand dollars a week rent for the shop' and my father said to Bill, 'What do you think?' and Bill's reply was 'Yeah, koumbaro, I am happy with everything. It all sounds fair.  Nothing wrong with that except for one point'.  My father goes, 'What point is that"?  He goes, 'Slightly apart on the rent'.   My father goes, 'Why slightly apart'?  He goes, 'Well, you want a thousand dollars.  I was thinking about the $900 mark' and my father said, 'No, it's a thousand dollars I want and that's it' sort of thing.  Bill goes, 'Okay, if that is what you want, I cannot argue the point.  I haven't got anything to argue with' and we said, 'If you agree, you agree, and we will arrange a time to take over, do a stocktake, and you will take over' and he goes, 'Okay, I agree'.  That was the conversation about the shop, about him renting the shop.  It's mainly the important parts or the gist of the whole conversation."
79 Michael Marinos said that his father indicated they wanted weekly turnover figures.  Michael Marinos had earlier insisted on payment of a bond of $60 000 in case the takings of the shop were reduced during the period of the renting and there was a loss of goodwill.  Mr Ioannou resisted that proposition and Mr Marinos agreed not to insist upon it.  In the absence of that bond money, Michael Marinos said he wanted to ensure that the takings were not reduced and sought to see the weekly turnover figures in order to know how the shop was progressing.  Tony Marinos raised the issue and Mr Ioannou asked why they wanted the figures and Michael Marinos explained the reasons.
80 According to Michael Marinos, after his father finished speaking he told Mr Ioannou that if at the conclusion of his court case in the following twelve months he wanted to purchase the shop, he could still do so for $220 000.  Mr Ioannou responded that he was keen to buy.  Michael Marinos explained in evidence that it suited him for Mr Ioannou not to purchase the business because it was very successful.  As to why he was prepared to sell, he said:
"A.  Because I had promised to him I would sell it to him.  My father promised him.  I don't go against my father's word.  And it was a helping hand to get him back onto track for his wife.  As I said earlier, not only was he my koumbaro, he was my wife's uncle, ex-wife's uncle, and he was like an older brother to me.  We wanted to give him a helping start if he had the money."
81 Michael Marinos confirmed that the purchase price had increased from $180 000 to $220 000 because of the cost of approximately $40 000 incurred in the relocation of the shop.  He produced various documents in support of his evidence about that cost.  I accept the evidence of Michael Marinos and his father concerning that cost.  Michael Marinos said he told Mr Ioannou prior to the relocation that the purchase price would be $180 000 plus the expenses incurred in relocating.
82 Michael Marinos also confirmed the evidence of his father concerning the issues of the stocktake and the rent.  As to the period of the leasing agreement, he said that he and Mr Ioannou continued talking after his father had finished the serious negotiations.  He told Mr Ioannou that they had a five year lease and, if he successfully renegotiated a new lease and Mr Ioannou was still renting the shop, he would continue to allow him to rent it if he wished to do so.  He said he told Mr Ioannou he would not throw him out.
83 Throughout his evidence Mr Michael Marinos spoke of the business as his although it was a partnership with his mother.  He explained the business relationship with his father.  Ever since he left school the businesses were partnerships, but he perceived his parents as mainly working to help him get a better life.  He said that he abided by his father's promises and explained the situation in the following terms :
"...even though legally the business is mine because it's under my name, but any business dealings or whatever we did with my parents, it was always - it's not "yours" or it's not "mine", it's "ours", and he was my father so whatever he says in the household goes and because he made such a promise I had to abide by it."
84 As to the stocktake, Michael Marinos said that after allowance was made for existing accounts the balance owing was $3 900, of which only $1 500 has been paid.  He said he has asked Mr Ioannou for the outstanding $2 400 on more than one occasion and been told that it will be paid.  He said Mr Ioannou has never denied owing that amount of $2 400. 
85 The versions of the October 1992 meeting given by Tony and Michael Marinos provide the essence of the defendants' case.  In addition to the content of that meeting, the defendants point to their own conduct and to the conduct of Mr Ioannou as supporting their case that, through Mr Tony Marinos, they agreed to rent the business to the plaintiffs and not to sell it.  Chronologically, the first occasion upon which the defendants relied was an incident involving both Tony Marinos and Mr Ioannou.  They were members of a group that regularly played cards.  According to Mr Marinos, in about October or November 1992 he arrived late to the card evening.  He could not recall if Mr Ioannou arrived at the same time.  When he entered the premises he announced to the group in the presence of Mr Ioannou that they had news to impart.  In his words:
"A.  I tell the boys that we have news to tell them and I said "Bill and I, we agree he will run the shop from now on and now I got time to play cards" - I crack a joke."
86 The evidence of Mr Marinos concerning the announcement at the card evening was supported by other persons who were present.  Mr Andreas Kouloundis kept records of who attended and the premises at which the card evenings were held.  He was able to identify an entry for an evening at his premises dated 9 November 1992 and he said the previous occasion at his premises would have been six weeks prior to that date.  He was unable to recall on which occasion, either October or November 1992, but on one of those evenings Mr Ioannou and Tony Marinos arrived late.  As they entered the house Tony Marinos announced in the Greek-Cypriot language that he had rented the shop to Mr Ioannou and joked that he would now have more time to play cards.  The group congratulated Mr Ioannou and Mr Kouloundis made a comment that he wanted a special evening to celebrate.  He said that Mr Ioannou laughed in response and said words to the effect of "why not". 
87 During cross-examination, Mr Kouloundis said that was the only occasion on which Mr Ioannou was involved in any discussion about renting the business.  That evidence was in contrast to an affidavit that he swore in the proceedings on 20 January 1998 in which Mr Kouloundis adopted the affidavit of a Mr George Savva.  The latter affidavit stated that Mr Ioannou had told the group on a number of occasions that he had not bought the business.  Mr Kouloundis said he could not recall any occasion on which he heard Mr Ioannou say that he had rented the business or that he had not bought the business.  He said the contents of the affidavit had been explained to him by those who had prepared it, but he had not been sure what he was signing.

88 Mr Kouloundis was a pleasant although voluble witness who gave evidence in a straightforward manner without any hint of prevarication.  I accept that he was doing his best to accurately relate the events that he was able to recall.  I am satisfied that he was both truthful and accurate in describing the announcement that was made by Tony Marinos to the card playing group.  In addition, I am also satisfied that another member of the group, George Theofanos, was both truthful and accurate in describing the announcement in similar terms to the description given by Mr Kouloundis.  He was a quiet and thoughtful witness who impressed me as truthful and reliable. I also accept the evidence of Mr Theofanos that after the plaintiffs took over the operation of the business he visited the shop on a number of occasions and asked how the business was going.  He also asked on more than one occasion if Mr Ioannou had bought the business or was still renting it and Mr Ioannou responded that he had not yet bought the business.
89 The other member of the group to give evidence was Mr George Savva.  He has known Mr Tony Marinos since his arrival in Australia in 1966.  He has had extensive experience in the owning and operating of fish shops.  He said that in 1991 he made inquiries about purchasing the business of the Sea Shanty and discussed a purchase price of $180 000 with Tony Marinos.
90 Mr Savva has known the plaintiffs since approximately 1990.  He recalled the evening of the announcement to the card playing group when Tony Marinos and Mr Ioannou arrived together, but late.  He described what then occurred as follows:
"A.  I can't give you the exact wording, but we sort of razzed Tony and Bill for coming in late and we sort of teased them a bit.  Tony said, "Well, the deal is done".  He didn't give any real details at that stage and I asked Bill and he said "Let's toast it"."
91 Mr Savva said no details of the nature of the arrangement were provided.  During the course of his evidence he explained that he was hard of hearing and confirmed that his difficulty was in existence at the time of the announcement.  In addition, Mr Savva said he had prior knowledge of the deal from both Tony Marinos and Mr Ioannou.
92 According to Mr Savva, during 1992 and prior to the relocation of the shop which occurred in August 1992, Tony Marinos told him that Mr Ioannou was a very good worker and he thought he would do something with Mr Ioannou in respect of the shop.  Subsequently he told Mr Savva that he was intending to rent the shop to Mr Ioannou for $1 000 a week and he had provided Mr Ioannou with an option to purchase the shop for $180 000.  According to Mr Savva this information was confirmed by Mr Ioannou at a discussion around a barbecue.  Mr Ioannou told Mr Savva that he was intending to rent the shop with an option to purchase it.  He seemed happy and told Mr Savva he had done a good deal.  Mr Savva thought this conversation took place in the first two or three months of 1992. 
93 During cross-examination Mr Savva confirmed that the group was aware from general discussions of what was likely to happen between Tony Marinos and Mr Ioannou in connection with the business.  In that sense the announcement did not come as a surprise, but it still remained a surprise in a general way like a "birthday".  Mr Savva said that after the occasion of the barbecue he did not personally speak with Mr Ioannou about renting the shop.  He was unsure whether further discussions occurred at card evenings subsequent to the announcement.  The contents of an affidavit of 20 January 1998 were put to Mr Savva which, read literally, are inconsistent with his evidence that no further conversation took place.  Mr Savva acknowledged the inconsistency and explained what he intended to convey.  It is unnecessary to canvass the details of the explanation.  I was impressed with the candour and thoughtfulness of Mr Savva and the manner in which he gave evidence.  I accept him as a witness of truth as to the statements he recalls were made by Tony Marinos and Mr Ioannou to which I have referred.  It is likely that he has not recalled the full detail of the announcement which other witnesses have recalled.  In the alternative, it is possible that he may not have fully heard what Mr Tony Marinos said on that occasion because of his hearing difficulty.  The differences in recollection between Mr Savva and by other witnesses as to the details of the announcement is not surprising given that the event occurred approximately seven years ago in the context of an evening centred around the playing of cards.
94 In arriving at my conclusion concerning the credibility of the witnesses in the card playing group, I have borne in mind the submissions of counsel for the plaintiffs that these persons are close friends of Tony Marinos and all attended at the Marinos family home on the same occasion to discuss their recollections with the solicitor acting for the defendants.  Counsel submitted that those circumstances and the inconsistencies with the affidavits to which I have referred should lead to the conclusion that their evidence is unreliable.  He submitted that it was likely they had given false evidence at the instigation of Tony Marinos.
95 I have no hesitation in rejecting the contentions of counsel for the plaintiffs that the members of the card playing group deliberately gave false evidence.  I am satisfied that, in substance, Mr Tony Marinos announced in the presence of Mr Ioannou that they had agreed to lease the business to the plaintiffs.  By his conduct on that evening, Mr Ioannou assented to and adopted the announcement made by Mr Tony Marinos.
96 Mr Tony Marinos gave evidence that on the first occasion he collected the rent, Mrs Ioannou thanked him and kissed him saying that even her own father wouldn't do the things for them that he, Mr Marinos, had done.  He gave the following evidence upon which the defendants rely in suggesting that Mr Ioannou wanted to mislead people into thinking that he had purchased the business:
"A.  No - actually, he mentioned that - because when I went there, he was in the front, and I went and stayed on the front where he was, and a customer comes in, which - he knew me, and he said "Oh, Tony, I thought you left".  I said "No, I didn't leave here.  My cousin will take over the shop, I go for holiday and I come back", and when he heard that, he said to me "Don't say that".  I said "Why not?"  He said "Don't say you going to come back.  Say you sold the business".  I said "Why should I lie?".  He said "I want my people to brag"."
97 Mr Marinos explained that Mr Ioannou was referring to Mr Ioannou's own family and that he wanted them to think that he had purchased the business because they did not lend him the money to buy it. 
98 Mr Marinos said he opened the envelope containing the first payment when he arrived home.  In examination he said it was a cheque for $500 and cash of $400, but when it was suggested in cross-examination that the first payment was made on 21 November 1992 and covered two weeks, he accepted that it may have been a cheque for $1 000 and cash of $800.  This was an example of the tendency of Mr Marinos to give answers that he assumed were correct without properly reflecting upon whether he could specifically recall the details or otherwise.  Mr Marinos said he realised that the amount was short of the $1 000 per week that he said had been agreed and he thought there may have been a mistake.  He said no discussion had occurred about splitting the payment into a cheque and cash and that matter was never the subject of discussion thereafter between him and Mr Ioannou.  The following week when he attended at the shop to collect the rent, Mr Marinos told Mr Ioannou that he had made a mistake and Mr Ioannou asked Mr Marinos to give him a chance until he got onto his feet. Mr Ioannou put to him that $100 was good money and he needed it to the end of the year.  The matter was not resolved.  Mr Marinos left without opening the envelope, but when he did so he again found a payment of only $900 for the week.  He spoke with his son and wife about the matter and decided to allow Mr Ioannou a year at $900 per week on the basis that the shortfall would be paid in a lump sum of $5 200 at the end of the first year.  He conveyed that decision to Mr Ioannou who agreed to pay the lump sum at the end of the first year.
99 Mr Marinos said that on about the second or third occasion he collected the rent, a piece of paper was in the envelope on which were written the takings of the business for the previous week.  He said that when the agreement was reached in October 1992 at his home, he told Mr Ioannou that he wanted a weekly report on how much the shop was making.  For the first six or seven months a piece of paper was included in the envelope with that information, but this practice ceased before the end of 1993.  When Mr Marinos raised the issue, Mr Ioannou suggested as an alternative that he would bring the books to Mr Marinos and show him the results.  Approximately three or four weeks later Mr Ioannou attended at the Marinos home and showed the books to Mr Marinos.  That happened on about three or four occasions.  Mr Marinos did not continue to ask him for that information as he was aware that the shop was doing well and Mr Ioannou was paying his rent. 
100 As mentioned, Mr Marinos said that Mr Ioannou appeared anxious not to broadcast the fact that he had rented the business.  In that context Mr Marinos gave evidence that on numerous occasions during the five year period Mr Ioannou requested that the rent be collected from his daughter's shop in the West Lakes Centre because he did not want people seeing Mr Marinos attending at the Sea Shanty and collecting the rent.  On those occasions, Maria Marinos in company with their daughter Tina collected the rent from that shop.  In addition, for the same reason on a few occasions rent was collected from another shop operated by the plaintiffs' daughter at the Tea Tree Plus Shopping Centre. 
101 The anxiety of Mr Ioannou to convey the impression that he had purchased the business was, according to Michael Marinos, also conveyed to him.  He said that Mr Ioannou asked him not to tell anybody that he was renting the shop and to tell them that he purchased the shop.  Mr Ioannou explained to Michael Marinos that he wanted to "stick it up them."  When asked about the apparent inconsistency between that attitude and the fact that, according to the evidence of Michael Marinos, it was common knowledge that the plaintiffs were renting the business, Michael Marinos responded that the plaintiffs wanted to be accepted in the higher levels of the social hierarchy.  During cross-examination he said it was part of Mr Ioannou's personality.
102 According to both Tony and Michael Marinos the Greek word for rent was frequently used when collecting the money.  In addition, Tony Marinos said there were occasions when his daughter Tina accompanied him and she would joke with Mr Ioannou about payment of the rent.  Tony Marinos said he spoke with Mr Ioannou late in 1993 at the Marinos home about payment of the rent and the arrears of $5 200. Mr Ioannou responded that at the first meeting Mr Marinos had put forward $1 000 whereas Mr Ioannou had proposed $900.  Mr Ioannou suggested, therefore, that they split the difference and that he pay $950 from that time forward.  As to the $5 200 owing for the previous year, Mr Ioannou asked Mr Marinos to leave it and said he would pay him if not that year, the following year.  Mr Marinos replied that he did not trust Mr Ioannou any more and that if he did not feel sorry for his family he would take the shop back.  He told Mr Ioannou that he was lucky because he would let him stay in the shop.   From that time onward Mr Ioannou paid $950 per week, but he did not pay the arrears of $5 200.
103 As to the possibility of purchasing the business, Tony Marinos said that he asked Mr Ioannou about the purchase of the business, but was told that the court case in Cyprus had not finished and Mr Ioannou did not have the money.  When he asked about the car, Mr Ioannou responded that he should forget the car as it was not worth much.  Mr Marinos asked whether he intended to buy or stay with the rent and Mr Ioannou responded that he preferred to stay with the rent for the time being until he got his money.  He maintained that when he had enough money he would buy the business.  Mr Marinos agreed to permit him to continue renting the business. 
104 The weekly payments continued until late 1996 when they changed to monthly.  According to Tony Marinos this occurred at the request of Mr Ioannou who complained that the landlord had increased the rent for the premises and he requested that Mr Marinos reduce the rent for the business.  Mr Marinos refused and Mr Ioannou asked if, as a favour, he would accept a change to payment of the rent on a monthly basis.  Mr Marinos did not agree to the request during that conversation, but when he collected the rent the following week Mr Ioannou again asked him to agree to payment of rent on a monthly basis.  Mr Marinos said he responded that if it would help Mr Ioannou he would agree to monthly payments of rent, but on the basis that a month's notice would be required if Mr Ioannou wanted to leave or if Mr Marinos wanted to take the shop back. Mr Ioannou responded in the affirmative to that proposition.
105 As to the rent payable to the Centre, both Tony and Michael Marinos said that they always negotiated in respect of the annual increases in rent.  They said Mr Ioannou was not involved and had no right to negotiate with the landlord.  In support of their case the defendants called Mr Philip Monfries who was the Centre Manager from August 1993 until the end of 1997.  He said it was the practice of management to write to the lessees in connection with the annual rent reviews and to negotiate with the lessees.  However, he said he was reasonably confident that he dealt with Mr Ioannou in connection with the rent review in the latter half of 1994 when negotiating the rent for 1994-1995.  He conceded it was possible he also dealt with Mr Ioannou in the latter half of 1993 shortly after he commenced as the manager.  Mr Monfries said he dealt with Tony and Michael Marinos in 1995 and 1996. 
106 Mr Monfries was a forthright and capable witness.  I am satisfied that he discussed the rent review with Mr Ioannou in the latter half of 1994.  However, I also find that at least Michael Marinos was probably involved in negotiations concerning the rent in 1993 and 1994.
107 According to Tony Marinos, when he travelled overseas in 1994 and 1997 he did not instruct Mr Ioannou to withhold the cash portion of the payments.  It is unnecessary to canvass the details of that evidence.  Mr Marinos said that on his return to Australia in September 1997 he spoke with Mr Ioannou about his failure to pay the cash component and Mr Ioannou said they had to talk.  Mr Marinos asked what there was to talk about and suggested Mr Ioannou was starting again with the same story. Mr Ioannou responded that he had been paying for so long and asked what he had bought.  Mr Marinos replied that he had nothing as he had only paid rent.  He told Mr Ioannou that if he did not want the shop he, Mr Marinos, would take over after one month.  Mr Ioannou said that he had spent money in the shop to which Mr Marinos responded "Good luck to you". Mr Ioannou proposed that Mr Marinos give him $60 000 for his expenses and he would then return the shop.  Mr Marinos responded unfavourably and became upset.  Mr Marinos said he and his wife left and, shortly after they arrived home, Mr Ioannou attended and paid the cash that had been withheld while Mr Marinos was overseas.
108 The attitude displayed by Tony Marinos in his conversation with Mr Ioannou about expenses incurred by Mr Ioannou reflected the belief that Mr Marinos said he held as to the content of their agreement.  As far as he was concerned, if Mr Ioannou wanted to buy new equipment he could do so and, in that sense, while the plaintiffs operated the business it was their shop.  He compared it to renting a house and said that when he is in a house that he is renting it is his house.
109 Subsequently Mr Ioannou put a further proposition to Tony Marinos.  According to Mr Marinos he offered to pay him $20 800 a year in return for his name being put on the lease.  Mr Marinos responded negatively and indicated he did not trust Mr Ioannou.  He discussed the matter with his son Michael who suggested that they invite Mr Ioannou to the Marinos home for further discussions.  Mr Marinos did so and subsequently they met at the Marinos home where Mr Ioannou repeated the proposition.  This was the occasion when Mr Marinos produced the letter from his solicitor to which I have already referred.
110 As mentioned, the particulars of the proprietors of the business name Sea Shanty were changed from the defendants to the plaintiffs.  The plaintiffs rely upon this change as evidence of a transfer of ownership.  Tony Marinos,  said it did not arise because of a change in ownership of the business.  He said the change came about at the request of Mr Ioannou who said he wanted to show his relatives that he had bought the business.  When Mr Marinos said it did not mean that he had bought the business, Mr Ioannou agreed but said he nevertheless wanted the transfer.  Mr Marinos said he had been thinking independently of the possibility of transferring the name because of the potential liability should anyone be injured in connection with the business of the shop. 
111 Michael Marinos confirmed that the request by Mr Ioannou concerning the business name was raised with him by his father.  He said his father asked him what he thought and he said that he would check on something and let his father know.  Subsequently he told his father it was a good idea because if someone was poisoned by the food or sustained injuries the liability should rest with Mr Ioannou who was running the shop.  He pointed out to his father that if the business name was in the name of Mr Ioannou, it would be Mr Ioannou who would be liable.  He told his father that he, Michael Marinos, still had the lease which was the most important matter.
112 It is apparent from that brief overview of the evidence of the plaintiffs and Tony and Michael Marinos that considerable differences exist between them on critical issues, including the content of the meeting at the Marinos home in October 1992 when the agreement was reached.  Where those differences existed, each denied the version of the other.  In support of their case, the defendants called an array of witnesses on various aspects.  I have been conscious of the need to consider the evidence of each witness individually in the light of all other evidence both oral and documentary and to avoid drawing conclusions based purely on the weight of numbers.
113 A number of witnesses gave evidence of statements made by Mr Ioannou after the plaintiffs took over running the business that he was renting the business or referring to the payments as rent.  Mr Kelly said that he carried out work on the plaintiffs' motor vehicle on 7 June 1993.  He recalled the particular occasion because Mr Ioannou was unable to pay and he had Mr Ioannou sign the carbon copy of the invoice for the work he had carried out.  Tony Marinos paid that particular account.  Mr Kelly said that when Mr Ioannou collected the motor vehicle Mr Kelly asked how things were going at the shop.  In response Mr Ioannou spoke again about wanting to buy the business, but being unable to afford to do so and said he was renting it.
114 Although the plaintiff was unable to recall Mr Kelly working on his vehicle on a third occasion, he accepted that it may have occurred.  He was adamant, however, that he did not sign an invoice or carbon copy of an invoice prepared by Mr Kelly.  Mr Don Gangell, whose expertise in this area was accepted by the parties, gave evidence that, in his opinion, Mr Ioannou was probably not the author of the writing on the invoice that Mr Kelly said was placed on the document by Mr Ioannou.  Although counsel for the defendants searched during cross-examination of Mr Gangell for explanations consistent with Mr Ioannou signing the document, there was no substantial challenge to the reliability of the opinion expressed by Mr Gangell.

115 I have no hesitation in accepting the evidence of Mr Gangell as reliable.  I am satisfied that Mr Ioannou was not the author of the signature on the invoice.  I am also satisfied that Mr Kelly did not deliberately misstate the position.  As indicated previously, I am satisfied that Mr Kelly was a truthful witness.  He was in error as to the author of the signature and was probably led to that erroneous conclusion because he relied upon his practice of obtaining the signature of the customer whenever the customer did not pay the invoice on the day the customer took delivery of the vehicle. 
116 The error by Mr Kelly has caused me to reflect carefully upon his evidence and to approach his evidence concerning the conversations with Mr Ioannou with particular caution.  After careful reflection, I am satisfied on balance that Mr Kelly was both truthful and reliable in his evidence concerning the essence of the conversation that he said occurred with Mr Ioannou in June of 1993.
117 Mr Michael Marinos, the nephew of Tony Marinos, supplied the Sea Shanty with food for a number of years while it was being operated by the plaintiffs.  He said that on a number of occasions he spoke with Mr Ioannou about the state of the account for those supplies and was told that Mr Ioannou was struggling to pay the accounts because he had to pay rent to the defendants.
118 Mr Michael Marinos spoke very quickly and had difficulty waiting for the questions before commencing his answers.  He was not a calm and thoughtful person, but gave evidence in a frank manner.  Evidence concerning the amounts owing to Mr Marinos by the plaintiffs from time to time provided support for his evidence that he regularly had occasion to visit Mr Ioannou at the shop to discuss the amount owed by Mr Ioannou.  In all the circumstances I am satisfied that Mr Marinos was truthful in his evidence that Mr Ioannou told him on a number of occasions that he was having difficulty meeting the payments because he had paid rent to the defendants.
119 Mr Con Marinos, the brother of Tony Marinos, spoke of an occasion when he attended at the shop with his brother.  Mr Ioannou spoke with him and asked him to tell Tony Marinos to lower the rent.  When Con Marinos replied that he could not do so as he was not involved, Mr Ioannou told him to forget it.  Although Mr Ioannou denied making such a statement to Mr Con Marinos, counsel for the plaintiffs did not challenge the evidence of Mr Marinos during cross-examination.  Without much enthusiasm, counsel put forward a suggestion that Mr Ioannou may have been referring to rent payable in respect of the shop to the centre.  I reject that suggestion.  Mr Con Marinos was a particularly impressive witness and I have no hesitation in accepting his evidence as both truthful and reliable.
120 Mr John Georgiou, the first cousin of Mr Ioannou, said that he and Mr Ioannou had been close relatives and he was sad to be involved in giving evidence.  He described an occasion when he asked Mr Ioannou if he had purchased the business and been able to find money for the purpose.  Mr Ioannou responded that he was unsuccessful in obtaining the money and was renting the business at the rate of about $1 000 per week.  He thought the conversation took place about four or five weeks after Mr and Mrs Ioannou took over the operation of the business.  He said Mr Ioannou was happy about the situation and described Mr Tony Marinos as being very kind.  Mr Georgiou also referred to a subsequent occasion when they spoke of the business and he commented to Mr Ioannou that if it was making good money it would be good for Mr Ioannou if he was able to raise the funds to purchase the business.  Mr Georgiou was a thoughtful and straightforward witness who was saddened by the circumstances of the trial and the need for him to give evidence unfavourable to Mr Ioannou.  I accept his evidence.
121 Apart from their daughter Androulla Korbis, the only person who gave positive evidence that Mr or Mrs Ioannou spoke in words that could be construed as meaning they owned the business was Savvas Polycarpou.  He gave evidence in a frank and open manner.  I was impressed with his responses to the questioning.  He and his wife were very close to the plaintiffs in 1991.  He said that in January 1992 Mr Ioannou asked him for a loan of $60 000 to put a deposit forward for the purchase of the shop, but Mr Polycarpou refused.  In his words "that was it" and the plaintiffs did not want to have anything to do with Mr and Mrs Polycarpou until some years later when Mrs Polycarpou worked at the shop.
122 According to Mr Polycarpou, when the plaintiffs took over the running of the shop they let a number of people know that it was their shop.  In this respect Mr Polycarpou was relying upon what he had been told by other persons.  He asked Mr Ioannou if he had purchased the shop to which he obtained the response "it's my business".  He assumed that Mr Ioannou meant that he had purchased the business.  However, he had also been told by Michael Marinos that Michael intended to lease the business to the plaintiffs and he did not believe Mr Ioannou when he said that it was his business.  Subsequently, shortly before Christmas 1996 during the course of a discussion about a freezer breaking down, according to Mr Polycarpou he was told by Mr Ioannou that Mr Ioannou was renting the shop from "Marinos" and was paying approximately $1 000 a week.  Mr Ioannou mentioned renovations and said it was not up to him to carry out renovations because it was not his shop.  I accept the evidence of Mr Polycarpou.
123 Mr Patrick Jordan was the Centre Manager from December 1985 until the end of June 1993.  He left in the middle of June 1993 on two weeks' holiday.  He said there was an occasion when he was walking past the shop and asked where Tony Marinos was.  He gave the following two answers as to the response given by Mr Ioannou:
"A.  I only have a very, very vague recollection of asking Bill one day where was Tony and the words "he buy" came into it.  Whether he said he was thinking of buying or whether he was buying or whatever, but nothing ever came of it.  I had no approach from anyone else on that.
...
 A.  And Bill said he was thinking of buying, going to buy, but I have a very, very vague, vague, vague, recollection of it, but no documentation or nothing else came to me, so I just put it in the back of my mind and forgot about it."
124 I accept the evidence of Mr Polycarpou and Mr Jordan concerning the statements made by Mr Ioannou.  The statements are vague and capable of more than one interpretation.  Even if I was to accept that those statements were statements by Mr Ioannou that he owned the business, I also find that Mr Ioannou has spoken to a number of persons in terms of renting the business and paying rent. 
125 The daughter of Tony and Maria Marinos, Mrs Athena (Tina) Tantis gave evidence of being told by her father that he was renting the shop and of being provided with considerable detail of the arrangement.  Generally speaking, her evidence was consistent with that of Tony Marinos.  While I accept that Mrs Tantis and her father regularly spoke about business matters, the detail of these matters that Mrs Tantis said was given to her by her father was considerable. 
126 Mrs Tantis said that on occasions she attended with her parents at the shop and joked with Mr Ioannou about the collection of the rent.  Sometimes she would joke that she was present to take the rent and on other occasions that she was just the bodyguard for her father.  In addition, in evidence-in-chief she said that on a couple of occasions she collected the rent for her father from Mr Ioannou at the shop premises.  When she spoke at the front counter of collecting the rent, Mr Ioannou took her to the rear room and asked her not to mention the fact that she was attending for the rent because he did not want anyone to know that she was doing so.  Mrs Tantis also said that there were occasions when she attended with her mother at the shop of Mr Ioannou's daughter when she was aware that her mother was collecting the rent.
127 According to Mrs Tantis there were also occasions when she saw Mr and Mrs Ioannou at the home of her parents.  The first was in 1992 shortly after the agreement had been reached.  Mr Ioannou told her that he and his wife were really happy and lucky that her parents had been able to help out and did assist "with the rent".  She expressed it in these terms:
"A.  They said that they were appreciative that dad and mum were able to help them, and the fact that they knew that they didn't have any money, that they were able to at least let them rent - "inikiasoume" meant to rent the shop".
128 Mrs Tantis explained the Greek word as meaning "we are allowed to rent".  She also said that on a couple of other occasions she saw Mr Ioannou at her parents' home when she made a joke of him attending by asking whether he was so late in paying the rent that he had to attend at "Mum's place now and pay the rent".
129 Mrs Tantis gave evidence in an off-hand manner, almost bordering on flippancy.  Contrary to the impression she endeavoured to convey, I am satisfied she was well rehearsed in the evidence she expected to give.  There were two matters, however, in respect of which she experienced difficulty under cross-examination and was unconvincing in her attempts to explain apparent inconsistencies.  Those matters concerned whether she opened the envelopes containing the weekly or monthly payments on the occasions when she collected them and a statement in the affidavit she swore on 22 January 1998 that she was disillusioned with the plaintiffs because they were taking unfair advantage of Maria and Michael Marinos "by not getting an increase in the licence rental fee for five years".  It is unnecessary to canvass the details of the inconsistent evidence given by Mrs Tantis concerning the opening of the envelope or her attempts to explain the reference to a licence rental fee over a period of "five years".  I found her attempts to explain the inconsistencies and the statement unconvincing.
130 Similarly, the attempts to resurrect her credit during re-examination were unsuccessful.  The answers in re-examination merely served to confirm that she was willing to give answers that she thought would assist in explaining away the difficulties that confronted her.  I gained the clear impression that she was willing to tailor her evidence to suit the cause of her father.  As a consequence, I have treated the evidence of Mrs Tantis with considerable caution.  Where it is in conflict with the evidence of Mr and Mrs  Ioannou I would not act upon the evidence of Mrs Tantis unless it was supported by other evidence upon which I am prepared to rely.
131 The husband of Mrs Tantis, Savvas Tantis, was a frank witness who was careful with his answers and prepared to acknowledge when he was unsure or unable to recall matters about which he was being questioned.  I accept him as a witness of truth.  From family discussions he understood that the plaintiffs were renting the business.  In 1994 he was asked by his father-in-law Tony Marinos to collect the rent while Tony and Maria Marinos travelled overseas.  He did so over a three month period and asked for the rent in the Greek-Cypriot language.  On occasions Mr Ioannou would say "here's the rent" when handing over the envelope.
132 In 1997 when Mr and Mrs Marinos again travelled overseas, Mr Tantis was asked by Tony Marinos to collect the rent which was being paid monthly.  His evidence concerning the collection of the rent was generally supported by Michael Marinos.  Mr Tantis said that on the first occasion he was unable to do so and he asked Michael Marinos to collect it.  He became aware through Michael Marinos that the cash component had not been included in the payment.  On the second occasion he waited outside the shop while Michael spoke with Mr Ioannou and again the cash component was not included.  On the third occasion Michael Marinos attended on his own.
133 Although the defendants called Mrs Tantis in support of the evidence of Tony Marinos, the first defendant Maria Marinos did not give evidence. According to other evidence she was in a position to assist with respect to a number of issues including the regular collection of the rent and taking delivery of the envelope on the occasions that the rent was collected from the Yazoo shop at West Lakes. In addition, she was named on the list of witnesses to be called provided at the commencement of the case for the defendants. Not surprisingly, counsel for the plaintiffs urged that I should draw an inference adverse to the defendants in accordance with the principles enunciated in Jones v Dunkel (1959) 101 CLR 298.
134 It is apparent that Maria Marinos was not involved in any of the business negotiations.  The entire tenor of the evidence of Tony Marinos was that he kept his wife removed from business affairs.  However, in view of the number of disputed matters in respect of which Maria Marinos should have been able to assist, including the collections of rent which were made from the Yazoo shop at West Lakes, and bearing in mind that Maria Marinos is a defendant who was named on the list of witnesses, I am prepared to draw the inference that in some respects she would not have assisted the case for the defendants.  However, I am not in a position to determine with any precision the issue or issues upon which she may not have assisted the defendants' case.  As to the critical meeting in October 1992, from other evidence I am satisfied that she was not involved in the negotiations that led to the agreement and would not have been in a position to assist the court with respect to that critical meeting.
135 The Marinos family generally made it known that they intended to rent or were renting the business to the plaintiffs.  A number of witnesses testified to that effect including Mr Peter Cagialis who I found to be a frank and honest witness.  He said Tony Marinos stated he would not sell the business to Mr Ioannou and was intending to lease it to him.  Mr Cagialis was interested in purchasing the business and he understood the price to be $180 000 prior to the relocation of the shop. 
136 Another person to give evidence of statements made by members of the Marinos family that the business was leased to the plaintiffs was the family accountant, Mr Tek Lee Chew.  He said he was told in 1992 by Michael and Tony Marinos that the business had been leased to Mr Ioannou and his wife.  He was never told by anyone, including the plaintiffs, that the business had been sold to the plaintiffs.  For some years Mr Chew was made aware of only the rent payments made by cheque.  He was not told of the cash component.  He prepared the returns accordingly.  When the dispute arose, Mr Chew was instructed to prepare amended returns and the additional amounts received by way of cash payments were included in the amended returns.  The defendants have paid the additional tax and penalties.
137 The treatment of the amounts declared prior to the preparation of the amended returns was consistent with the instructions that Mr Chew said he received that the business was leased to the plaintiffs.  However, counsel for the plaintiffs suggested that one feature of the returns related to depreciation was consistent with the case for the plaintiffs that a sale of the business had occurred.  The defendants owned plant and equipment in the shop at the time the plaintiffs took over the operation of the business.  On the defendants' case, they were entitled to continue to claim depreciation of those items.  Depreciation was claimed only for the period 30 June 1992 to 10 January 1993.  Mr Chew did not know the reason why the defendants ceased to claim depreciation as at 10 January 1993, but suggested it was an error on the part of his staff who prepared the return.  He acknowledged that he overlooked the omission as did Michael Marinos.
138 The failure to declare the cash component of the moneys received from Mr Ioannou was dishonest and reflects adversely upon the credit of Michael Marinos.  The credit of Mr Tony Marinos is also affected.  He acknowledged that he split the cash component between Maria and Michael and I am satisfied he was aware that the cash income was not declared.  In addition, an excessive amount was claimed as expenses incurred in collecting the payments from Mr Ioannou. 
139 While the conduct of Michael and Tony Marinos with respect to their two matters of taxation reflects adversely upon their credit, I am satisfied that Mr Chew is both truthful and accurate in his recollection that he was told by Michael and Tony Marinos that the business had been leased to the plaintiffs. 
140 During the course of these reasons I have indicated that I accept the reliability of the evidence given by a number of witnesses concerning statements made by Mr Ioannou and members of the Marinos family.  I have done so after weighing their evidence in comparison with that given by the plaintiffs and after considering the various criticisms of their evidence put forward by counsel for the plaintiffs in both written and oral submissions.  Many of the criticisms are of inconsistencies that reflect no more than natural variations between the recollections of the witnesses and the fading of memories over the years between the events and conversations that they were asked to recall and the giving of evidence.  I was unable to detect any sign that the witnesses whose evidence I accept had fabricated their evidence in the manner suggested by the plaintiffs.  The witnesses gave evidence of statements by the parties that arose in quite disparate contexts and the tenor of their evidence accorded with the natural course of human affairs.
141 Independently of the evidence of Tony and Michael Marinos, I find that the following facts relating to the conduct and statements by Mr Ioannou have been established on the balance of probabilities:
(i)  In late August or early September 1992, Mr Ioannou told Mr Kelly that he was unable to obtain finance to purchase the business and was negotiating to try and rent it.
(ii) At about the time agreement was reached between the parties, in the presence of Mr Ioannou and a number of persons gathered to play cards, Mr Tony Marinos announced that he and Mr Ioannou had agreed upon a lease of the business.
(iii) By his conduct at the time of the statement by Tony Marinos to the group, Mr Ioannou assented to and adopted that statement. 
(iv) In about December 1992 Mr Ioannou advised Mr Biggs that he had purchased the business and asked Mr Biggs to prepare the necessary documentation for the transfer of the business name to the plaintiffs.  Notwithstanding that he told Mr Biggs of a purchase of the business, Mr Ioannou instructed Mr Biggs to claim the weekly payments as business expenses.  At the time that he did so, Mr Ioannou was aware that rent paid for the lease of a business was tax deductible, but that instalments of a purchase price were not deductible.  I reject his evidence that Mr Biggs advised him he could claim weekly payments and prefer the evidence of Mr Biggs that he asked Mr Ioannou how he wanted the payments treated and was instructed to treat them as a business expense.
(v)  On a number of cheque butts or records of cheques written during 1992 and 1993, Mr Ioannou recorded the purpose of the weekly cheques of $500 as "rent".  He made those entries without any suggestion by Mr Biggs of rent or rental purchase.
(vi) For the purposes of the taxation return for the financial year ending 30 June 1994, Mr Ioannou provided type-written instructions to Mr Biggs describing the payments to Tony Marinos as "rent".
(vii) Taxation returns were prepared by Mr Biggs in accordance with the instructions given by Mr Ioannou and the payments to Tony Marinos were claimed as a deduction under the heading "Rent".  Mr Ioannou signed the taxation returns in the knowledge that the payments to Tony Marinos were being claimed as rent. 

1. After the plaintiffs took over the operation of the business, Mr Ioannou told Mr Kelly, Mr Michael Marinos (the son of Mr Con Marinos), Mr Georgiou and Mr Theofanos that he was renting the business.  In speaking with Mr Polycarpou he referred to the business as "my business", but in 1996 told Mr Polycarpou that he was renting the business.
   (ix) After the plaintiffs took over the operation of the business, Mr Ioannou asked Mr Con Marinos to speak with Tony Marinos and tell him to lower the rent.  Mr Ioannou was referring to the payments he was making to Mr Tony Marinos and not to the rent payable to the landlord of the premises. 
   142 As agreed between the parties, the statements by Mr Ioannou that he was renting the business are evidence from which his state of mind can be inferred.  They are also statements contrary to the case for the plaintiffs and amount to admissions against interest.  I accept that the statements were made and that they accurately reflect Mr Ioannou's state of mind.  I am also satisfied that Mr Ioannou's conduct in instructing Mr Biggs to claim the payments as business expenses is demonstrative of his belief that he was renting the business.  The belief is further confirmed by the records Mr Ioannou maintained of his payments by cheque and the instructions he provided to Mr Biggs for the purposes of the taxation return for the year ending 30 June 1994.
   143 Mr Ioannou denied making a statement to any person that he was renting the business.  I am satisfied that his denial cannot be explained as a mistake or as the consequence of a natural lack of memory brought about by the passing of the years since the statements were made.  I am satisfied that Mr Ioannou has falsely denied making such statements because he is unable to explain those statements consistently with the case for the plaintiffs that they purchased the business.  While there were aspects of the conduct of Mr Ioannou that were consistent with the purchase of the business such as the expenditure on new plant and equipment, the preponderance of the evidence strongly supports the view that, in its totality, the conduct of Mr Ioannou was inconsistent with the case for the plaintiffs that they purchased the business.
   144 The conduct of Mr Tony Marinos and the defendants was consistent with their case that they leased the business to the plaintiffs.  There is no evidence to suggest that Mr Marinos or the defendants ever told any person that they had sold the business to the plaintiffs.  They made statements to a number of persons to the effect that the business was leased to the plaintiffs, including Mr Chew who prepared their tax returns accordingly. 
   145 The plaintiffs attempted to demonstrate that the defendants were unable to sell the business and submitted this was an explanation for why they were prepared to agree to the sale on the terms identified by the plaintiffs.  In particular, they relied upon the recollection of Mr Chew that on the occasion in 1992 when he was told by Tony and Michael Marinos that the business had been leased, they said that they initially wanted to sell, but as they were unable to find a buyer they found somebody who was willing to lease the shop. 
   146 In 1992 the business was successful and was about to move to a new area of the shopping centre where it had the potential to improve.  The move proved successful.  Apart from the recollection of Mr Chew to which I have referred, there is no evidence to suggest that the defendants were actively seeking to sell the business.  As business persons, they adopted the attitude that the Sea Shanty business and other businesses were always for sale if the price was right and, in answer to inquiries, they had indicated that they were prepared to sell for $180 000 prior to the relocation of the shop occurring.  Various persons had expressed interest.  Mr Ioannou wanted to purchase the business, but was unable to raise the finance.  I find that Mr Chew's recollection is not reliable.  It is more likely that he was told that Mr Ioannou wanted to purchase the shop but was unable to do so and they had, therefore, agreed to lease the business to him. 
   147 The plaintiffs also sought to support their case by reference to the tax returns of the defendants.  Prior to the plaintiffs taking over the operation of the business, the defendants had claimed depreciation with respect to plant and equipment used in the course of the business.  They were entitled to continue to claim that depreciation in respect of that plant and equipment which they had purchased.  However, the claim for depreciation ceased on 10 January 1993.  The plaintiffs suggested that this was as a consequence of the recognition by the defendants that they had sold the business.  However, Mr Chew explained that the failure occurred as a consequence of an error within his office and not as a consequence of any instruction from the Marinos family to cease claiming depreciation.  I accept the evidence of Mr Chew in this regard.
   148 The plaintiffs also relied upon the change in the particulars relating to the business name to which I have already referred.  However, I find that the explanation given by Tony and Michael Marinos is a reasonable explanation consistent with the existence of a lease of the business. 
   149 In arriving at my findings concerning the reliability of the evidence given by the various witnesses to whom I have referred, I have considered the evidence of those witnesses in the context of all the evidence, both oral and documentary.  My rejection of the evidence of the plaintiffs where it conflicts with those witnesses to whom I have referred has caused me to approach the evidence of the plaintiffs with additional caution.  Similarly, the failure to declare the cash payments received from the plaintiffs has caused me to approach the evidence of Tony and Michael Marinos with the same degree of caution.  I gained the clear impression that Mr Ioannou, Tony Marinos and Michael Marinos all adopted pre-determined positions in favour of their respective cases and were unwilling to acknowledge the accuracy of matters which tended to undermine their case or support the case of the other party.
   150 Notwithstanding the reservations I have already expressed by reason of the tendency of Tony Marinos to give answers that he assumed were correct and arising out of his involvement in the failure to declare the cash payments, I found that Tony Marinos was a witness who spoke with candour concerning the events in question.  He is an astute and successful businessperson and I was impressed by the content of his evidence concerning the background to and the formation of the arrangement between the parties.  I have concerns about the reliability of the evidence of Michael Marinos.  He is an intelligent person who attempted to appear casual, but was well rehearsed in the evidence concerning primary issues.  I formed the opinion that he was willing to tailor his evidence to best suit the case for the defendants.
   151 The plaintiffs are likeable persons who each gave evidence in an uncomplicated fashion.  As mentioned, however, Mr Ioannou displayed an unwillingness to acknowledge the existence of any fact or conversation which tended to undermine the case for the plaintiffs.  In particular, Mr Ioannou was not a truthful witness concerning the conversations to which I have referred.
   152 The evidence of Tony and Michael Marinos is supported by their conduct at the relevant time.  I find that their statements concerning leasing the businesses were genuine and accurately reflected their states of mind.  Importantly, their evidence is supported by the conduct of Mr Ioannou which I have previously canvassed.  Bearing in mind all of the evidence and the findings previously discussed, I accept the evidence of Tony and Michael Marinos on the critical issues concerning the content of the agreement reached between the parties at the Marinos family home in October 1992 and subsequent amendments to that agreement.  I reject the evidence of the plaintiffs that they purchased the business and find in favour of the defendants on that critical issue. 
   153 I find that in October 1992 the parties agreed that the defendants would lease the Sea Shanty business to the plaintiffs for an indefinite period on the basis that either party could give the other one week's notice to terminate and that all expenses associated with the running of the shop were to be borne by the plaintiffs.  While the plaintiffs were free to improve the business by purchasing additional equipment or by replacing older equipment, it was a term of the agreement that the cost would be borne by the plaintiff and would not be recoverable upon termination of the lease.  The plant and equipment purchased for use in the course of the business was intended to remain with the business if the lease was terminated.  The agreed rental was $1 000 per week, but the plaintiffs paid only $900 per week for the first year.  I find that the plaintiffs owe the defendants the balance of $5 200.  After the first year the defendants accepted $950 per week as the full amount of the rent.  While Tony Marinos may not have expressly stated that he agreed to accept $950 per week in full payment of the rent, by his conduct he accepted that amount on behalf of the defendants and it would now be inequitable to permit the defendants to recover an additional $50 per week.
   154 As to the stocktake, the evidence concerning the offsetting of amounts owed in respect of certain supplies is confusing and I am not satisfied that the defendants have discharged the onus of proving that any amount remains outstanding.
   155 I find that in 1996 the agreement was varied to the extent that rent was to be paid monthly and that either party was entitled to give the other one month's notice of termination of the lease.  By letter dated 22 October 1997 the defendants gave to the plaintiffs one month's notice of termination, but the plaintiffs have refused to surrender the business and the premises to the defendants. 
   156 The plaintiffs' claims are dismissed.  The defendants have succeeded in their counterclaim for a declaration that they are the owners of the business known as the Sea Shanty conducted at Shop 251A, West Lakes Mall, West Lakes and for associated orders including an order for possession.  I will hear the parties as to the precise terms of the orders.

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