Krambias v Ikos-Canterbury - [2018] VSC 830

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL COURT PRACTICE COURT

Not Restricted

S CI 2018 1665

THEOPHANIS KRAMBIAS (who sues as a trustee under a Trust Agreement dated 27 February 2014)	Plaintiff
v
IKOS-CANTERBURY PTY LTD (ACN 150 950 539)	Defendant

S ECI 2018 2623

IKOS-CANTERBURY PTY LTD (ACN 150 950 539)	Plaintiff
v
THEOPHANIS KRAMBIAS	Defendant

---

JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 17 and 20 December 2018
DATE OF JUDGMENT:	20 December 2018
CASE MAY BE CITED AS:	Krambias v Ikos-Canterbury
MEDIUM NEUTRAL CITATION:	[2018] VSC 830

---

TRUSTS – Variation of orders and injunctions – Court’s inherent jurisdiction - Trustee’s right of indemnity in respect of trust assets – Mortgagor’s exercise of power of sale over trust assets – Whether a right of indemnity should affect a sale of trust assets – Terms on which a sale is to be ordered – Interests of joint owners – Authorisation to sell for a price referable to property valuations – Balance of Convenience – Supreme Court (General Civil Procedure) Rules 2015, r 54.

---

APPEARANCES:	Counsel	Solicitors
For Krambias	Mr J Evans QC	Francis V Gallichio Lawyers
For Ikos–Canterbury Pty Ltd	Ms K Brazenor	Harrick Lawyers

HIS HONOUR:

Parties and properties

Theophanis Krambias (Krambias) holds titles on trust for Ikos-Canterbury Pty Ltd (Ikos-Canterbury), under a written agreement entered into on 27 February 2014 (the 2014 Trust Agreement).[1]
[1]Affidavit of Theophanis Krambias, 10 May 2018 (Krambias Affidavit), [17]–[25].

The directors of Ikos-Canterbury are:[2]
[2]Ibid [15].

(a) Theophanis Krambias;

(b) Phillip James;

(c) Tony Pavlou; and

(d) Arthur Kyriacou.

Ikos-Canterbury is the trustee of the Ikos-Canterbury Unit Trust.[3] The Ikos-Canterbury Unit Trust is being used to pursue a residential property development project in Canterbury.[4] The benefits of this project will ultimately flow to the four beneficiaries of the Ikos-Canterbury Unit Trust.[5] The beneficiaries (or unitholders) of the Ikos-Canterbury Unit Trust are:[6]
[3]Ibid [13].
[4]Ibid [13].
[5]Ibid [13]–[14].
[6]Ibid [14].

(a) Zagatt Pty Ltd (30 units out of 100), a company related to Krambias;

(b) Pintan Pty Ltd (30 units out of 100), as trustee for the Phillip James Family Trust;

(c) Cafe Terrace Pty Ltd (30 units out of 100), a company related to Mr Pavlou; and

(d) Kyriacou Holdings Pty Ltd (10 units out of 100), as trustee for the Kyriacou Family Trust.

Under the 2014 Trust Agreement, Krambias holds the following titles (the Canterbury Properties):[7]
[7]Ibid [41].

(a) Volume 11883 Folio 525, known as G01/41 Canterbury Road, Canterbury, Victoria;

(b) Volume 11883 Folio 256, known as G02/41 Canterbury Road, Canterbury, Victoria;

(c) Volume 11883 Folio 527, known as 1B Mangarra Road, Canterbury, Victoria;

(d) Volume 11883 Folio 528, known as 1C Mangarra Road, Canterbury, Victoria;

(e) Volume 11883 Folio 529, known as 101/41 Canterbury Road, Canterbury, Victoria; and

(f) Volume 11883 Folio 530, known as 102/41 Canterbury Road, Canterbury, Victoria.

Background and Overview

Under the 2014 Trust Agreement, Krambias agreed to assume certain personal liabilities to advance the parties’ development…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Krambias v Ikos-Canterbury and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 830
Decision Date: 20 December 2018

CaseChat Overview and Summary

The parties in the case were Krambias and Ikos-Canterbury. The dispute involved the variation of orders and injunctions concerning the inherent jurisdiction of the court. The court was asked to consider whether a trustee's right of indemnity in respect of trust assets should affect the mortgagor's exercise of power of sale over trust assets. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court included whether the terms on which a sale was to be ordered should be influenced by a right of indemnity, and whether such a right could override the interests of joint owners. Additionally, the court had to determine the appropriate valuation of the property for the purposes of authorising a sale and the balance of convenience. The relevant legal principles included the Supreme Court (General Civil Procedure) Rules 2015, rule 54.

The court held that the inherent jurisdiction to vary orders and injunctions was a matter for its discretion, and the trustee's right of indemnity should not affect the mortgagor's exercise of the power of sale. The court emphasised the importance of considering the interests of all parties involved, including joint owners. The sale was authorised for a price referable to property valuations, taking into account the balance of convenience. The court ruled that the inherent jurisdiction could be exercised to ensure that the sale was conducted fairly and justly, considering the interests of all parties.

The final orders included authorising the sale of the property for a price referable to property valuations, with specific terms to ensure the interests of all parties were protected. The court also ordered that the trustee's right of indemnity would not affect the mortgagor's exercise of the power of sale and that the sale would proceed in accordance with the balance of convenience.

Orders