Kyriacou v Makis - [2025] NSWSC 1010

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Makis [2025] NSWSC 1010
Hearing dates: 9-12; 17-19 September 2024; 30 October 2024 plus written submissions
Decision date: 08 September 2025
Jurisdiction: Equity
Before: Lindsay J
Decision:
Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, costs and any ancillary or residual business, DECLARE that the defendant holds on trust for the plaintiff her interest in the properties known as “the MacDonald Street Units”

Catchwords:
PARTNERSHIP – Determining existence – Persons not carrying on a business in common – No partnership – Joint activities essentially transactional in nature
PARTNERSHIP – Determining existence – Co-ownership of investment property not of itself sufficient to establish a partnership
EQUITY – Estoppel – Principles – Estoppel by convention – Estoppel by encouragement – Estoppel found
AGENCY – Actual or apparent (ostensible) authority – Nature and scope of authority
AGENCY – Knowledge of agent – Imputed to principal – Manager of business – Solicitor – Agent acting for both parties to a transaction
JUDGMENTS AND ORDERS – Publication of reasons for judgment without orders – No estoppel of record – In circumstances of this case no abuse of process arising from earlier judgment in same proceedings

Legislation Cited:
Evidence Act 1995 NSW
Family Law Act 1975 (Cth)
Limitation Act 1969 NSW
Partnership Act 1892 NSW
Supreme Court Act 1970 NSW

Cases Cited:
Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464
Bradley v Riches (1878) 9 Ch D 189
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Dixon v Winch [1900] 1 Ch 736
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Jackson v Goldsmith (1950) 81 CLR 446
Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126
Kyriacou v Makis (No 3) [2023] NSWSC 1098
Kyriacou v Makis (No 4) [2023] NSWSC 1261
Kyriacou v Makis [2021] NSWSC 60
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Reichel v McGrath (1889) 14 App Cas 665
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Shultz v Corwill Properties Pty Ltd (1969) WN (Pt 1) (NSW) 529
United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1
Wiltshire v Kuenzli (1945) 63 WN (NSW) 47

Texts Cited:
Lindley & Banks on Partnership (Sweet and Maxwell, 21st ed, 2022)
Keith L Fletcher’s The Law of Partnership in Australia (Lawbook Co, 9th ed, 2007)

Category: Principal judgment
Parties: Cross Claimant (Defendant): Andrea Makis
Cross Defendant (Plaintiff): Kyriacos Kyriacou
Representation:
Counsel:

Cross Claimant (Defendant): FM Douglas KC
Cross Defendant (Plaintiff): JA Darvall

Solicitors:
Cross Claimant (Defendant): Swan Lawyers
Cross Defendant (Plaintiff): KP Lawyers & Barristers

File Number(s): 2018/00081547

JUDGMENT

Introduction

These proceedings (on a cross claim filed by the defendant, Andrea Makis against the plaintiff, Kyriacos Kyriacou) arise out of a judgment published by Robb J on 9 February 2021 as Kyriacou v Makis [2021] NSWSC 60 in which he determined (on a statement of claim) that an unsigned document styled “Partnership Dissolution Agreement” (described by the parties as “the PDA”) ostensibly made between the plaintiff and the defendant (providing, inter alia, for a division of properties held by the plaintiff and the defendant in co-ownership) was not an enforceable contract (because not signed as contemplated by the document and the defendant had not authorised entry into an unsigned agreement), reserving to the defendant an opportunity (subsequently taken up by a cross claim) to advance a case for the existence, terms and dissolution of a partnership, or partnerships, and for an accounting for partnership property.
The defendant filed a statement of cross claim on 12 May 2021 (to which a defence was filed on 23 June 2021) which was the subject of an unreported interlocutory judgment of Black J published on 18 July 2023, and “post-judgment” supplementary judgments published by Robb J as Kyriacou v Makis(No 2) [2021] NSWSC 802, Kyriacou v Makis(No 3) [2023] NSWSC 1098 and Kyriacou v Makis(No 4) [2023] NSWSC 1261.
A judgment published by Robb J as Kyriacou v Makis [2020] NSWSC 1068 on 14 August 2020 is mentioned here for completeness. It related to interlocutory arrangements for dealing with rent to be received and mortgage payments to be made in respect of a property known to the parties as “the MacDonald Street units”, the core subject matter of these proceedings.
The respective reasons for judgment of Robb and Black JJ are before the Court subject to the constraints of the Evidence Act 1995 NSW, section 91. A finding of fact made in those judgments is not evidence of the fact in these proceedings.
For convenience, the parties are described in the current judgment by their original designations as “plaintiff” and “defendant” although, on the cross claim, the defendant was the moving party.
The pleadings which govern the current proceedings comprise the defendant’s amended statement of cross claim filed on 27 November 2023 and the plaintiff’s defence to that cross claim filed on 21 December 2023. No reply to the defence was filed.
The parties articulated their respective cases in “opening” and “closing” written submissions, with supplementary tables (with leave) filed after judgment was reserved. The plaintiff’s tables reflected a revision of Exhibit D3; the defendant’s tables reflected a revision of Exhibit D5. For convenience, the plaintiff’s revision of Exhibit D3 is designated as MFI P3A and the defendant’s revision of Exhibit D5 is designated as MFI D5A.
Apparent from the pleadings is a dispute as to the existence and terms of competing versions of a “partnership” or the like.
In her cross claim the defendant contends that in December 1995 the parties and their respective spouses entered a partnership agreement (which was varied in 2002 by the retirement of the spouses from the partnership), contemplating a broad range of investment activities, continuing up to the present time.
By his defence to the cross claim, the plaintiff contends that there was no such partnership but that, in 2002 following his divorce, he, the defendant and her husband agreed that he and the defendant would establish a partnership (to carry on a business of property investment in Australian real estate) commencing with the purchase of a unit in Darling Island Road, Pyrmont, with a view to making profit.
What appears to be common ground between the parties is that some form of accounting is, or may be, required for disengagement of their affairs. It is in this context that the plaintiff, in his defence to the cross claim, pleads that the defendant is estopped from asserting that there should be an accounting otherwise than in accordance with representations he alleges were made to him closely aligned with the terms of the PDA.
By her cross claim the defendant seeks, in summary terms:

Declarations to the effect that a partnership has existed, in one form or another, between the plaintiff and the defendant since December 1995.

A declaration that the plaintiff and the defendant and their respective spouses (the plaintiff’s wife Anastasia and the defendant’s husband John) comprised the members of the partnership, in equal shares, between formation of the partnership in December 1995 and March 2002.

A declaration that (their respective spouses having, for one reason or another, retired from the partnership) the plaintiff and the defendant alone have since March 2002 comprised the membership of the partnership, in equal shares.

A declaration that the plaintiff, the defendant and their respective spouses, in or about December 1995, made an agreement (ancillary to the partnership agreement said to have been made at the same time) for the defendant and her spouse to provide loan funds to the plaintiff for the benefit of himself and his family, for which the plaintiff is now accountable to the defendant.

Declarations identifying what are alleged to have been assets and liabilities of the partnership.

An order pursuant to section 35 of the Partnership Act 1892 NSW that the partnership be dissolved and that the partnership business be wound up under the direction of the Court.

An order that accounts be taken upon a referral to a referee.

The relief claimed in the cross claim is limited to orders directed to enforcement of the partnership agreement allegedly made in December 1995 (as varied in March 2002), and the ancillary loan agreement, by way of a taking of accounts. There is no separate claim for relief.
By his defence to the defendant’s cross claim, the plaintiff pleads a case in estoppel to the effect that their affairs should be separated on the basis of a division of their Australian real estate investments (and an apportionment of associated liabilities) and mutual releases.
As a practical matter, it is common ground between the parties, that their ultimate dispute is about competing entitlements to a residential block of eight units (said to be the residual asset of a partnership), located at Lakemba in Sydney which the parties describe as the “MacDonald Street units”, presently registered in the names of the plaintiff and defendant as tenants-in-common in equal shares, subject to a mortgage to the Australia and New Zealand Banking Group Ltd (“the ANZ Bank”).
The defendant contends, and the plaintiff does not dispute, that there are no outstanding creditors of “the partnership” (however defined) other than the ANZ Bank.
Land Title Searches of the MacDonald Street Units, Lots 1-8 in Strata Plan 31426 (effected on 16 September 2024 and 25 August 2025) are consistent with this. They record the plaintiff’s caveat (Dealing No AM589674) over the interest of the defendant in the units, ranking only behind the ANZ Bank’s mortgage (Dealing No AH18846).
The plaintiff’s caveat claimed (in respect of the defendant’s interest in the Units) “an equitable interest pursuant to agreement to transfer subject land to caveator by virtue of Dissolution of Partnership Agreement” between the defendant and the plaintiff to which was attributed the date 1 July 2012.
The caveat has remained on title undisturbed since recorded on 25 July 2017. Its fate, in substance, must abide the outcome of these proceedings.
In passing, I note that as recorded in a title search dated 24 September 2018 and an historical title search, the caveat was preceded by one caveat (Dealing No AM479619 recorded on 15 June 2017) and followed by another (Dealing No AN223063 recorded on 28 March 2018), each claiming an unquantified debt against the defendant’s interest in the units, not the interest of the plaintiff. One was withdrawn on 8 November 2019. The other on 11 September 2020.
The first of the two third-party caveats was lodged by George Georgiou, the second by Sam Pambris.
The Georgiou caveat claimed an equitable charge by virtue of an alleged “agreement [by the defendant] to charge property” dated 7 June 2017.
The Pambris caveat claimed an equitable charge by virtue of an alleged “loan agreement” of unspecified date between Sam Pambris and the defendant. An anomaly in Mr Pambris’ caveat is that his statutory declaration in support of the caveat is dated “23/11/18”, ostensibly 23 November 2018 but possibly 23 February 2018. The caveat was withdrawn when challenged, but, it can be noted, Sam Pambris was a long standing friend of, and lender to, John, if not also the defendant. At one point he did a deal with the Commonwealth Bank to take over the mortgage on the defendant’s house and, at the time of the hearing before Robb J, he was her mortgagee.
Several problems attend any definition of the parties’ legal relationship and working out a disengagement of their affairs following a breakdown in their relationship.
In so far as they relate to the case the defendant seeks to make on her cross claim, those problems include the following:

Although the defendant insists that all dealings between her and the plaintiff can be accommodated within the ambit of a single “overarching” partnership formed (by express agreement) in or about December 1995 and continuing (with changes in membership) until the present time:

there has never been a material written partnership agreement of any description;

the terms of the alleged partnership have never been reduced to writing in any form;

partnership tax returns have never been lodged in respect of the alleged partnership;

financial records associated with the parties’ joint activities have never taken the form of regular partnership accounts; and

the alleged partnership has never operated with a registered “Australian Business Number”.

Whether or not characterised as a partner of the alleged partnership, the dominant personality in the conduct of the parties’ joint activities has generally been the (now former) husband of the defendant, John, to whom the plaintiff from time to time lent his name in support of John’s separate business interests in a social environment no respecter of boundaries.

What pass for “partnership accounts” in the evidence adduced by the defendant are merely schedules in the form of “spreadsheets” reconstructed by John based, he says, on documents held by him but not self-evidently complete or formally discovered in the course of the proceedings.

The evidence of the defendant and John from which the Court is invited to determine whether there was one or more partnerships (and, if so, the terms of any partnership) is permeated with statements of conclusions which impede the fact finding process.

The existence of a significant term of the alleged global partnership (that, upon a winding up of the partnership each partner would be entitled to a return of “contributions” made to the partnership plus interest at a particular rate) depends upon disputed evidence of conversations given by John, in particular, but also the defendant, unsupported by uncontentious contemporaneous records.

The defendant’s claim for the taking of accounts upon dissolution of a long standing partnership appears calculated to circumvent a defence based upon the Limitation Act 1969 NSW if individual, alleged debts were sought to be enforced.

The defendant’s allegation of a single overarching partnership appears calculated to maximise her claim to full beneficial ownership of the MacDonald Street units.

The defendant’s claim to an order for the taking of accounts upon a reference to a referee, or for the conduct of an accounting by the Court, is accompanied by a submission that, because (it is said) the defendant’s likely entitlement on the taking of accounts far exceeds the value of the one asset (the MacDonald Street units) allegedly available for distribution (and the defendant has no intention of pursuing a claim for a personal remedy against the plaintiff), the Court should dispense with the taking of accounts and merely declare that the defendant is entitled to full beneficial ownership of that asset.

The “partnership records” kept by John are said by the plaintiff to be unreliable (and, if only because of the passage of time and the unavailability of third party records such as that those ordinarily held by banks, unverifiable), casting doubt on the utility or fairness of any order for the taking of accounts.

The case sought to be made by the plaintiff is not without its own problems, including the following:

proof of his financial contribution to the joint activities of the defendant and himself (in particular, the sum of $224,475.13 recorded in a bank statement of the plaintiff on 27 January 2004 as a “closing transaction”);

characterisation of his dealings with John, particularly in relation to investments other than Australian real estate;

characterisation of his “Australian real estate” activities, with the defendant, as a “property investment partnership” distinct from the overarching partnership for which the defendant contends; and

proof of an estoppel claim (based upon representations made by reference to the PDA) which, if established, would operate to disengage the parties’ affairs;

proof that John had actual or apparent authority to bind the defendant to the PDA.

The determination of a single issue in the principal judgment Robb J, with the agreement of the parties (namely, whether the unsigned PDA was an enforceable contract), in the absence of a cross claim (seeking an order for dissolution of a partnership and an accounting for partnership property) foreshadowed but not filed by the defendant, gave rise to a question (noticed by Robb J in paragraph [225] of his judgment) whether the plaintiff had “abandoned his conventional estoppel case”.
In paragraph [26] of his judgment his Honour summarised paragraphs [17]-[21] of the plaintiff’s amended statement of claim filed 14 June 2019 in which what he described as the plaintiff’s “conventional estoppel case” was then pleaded:

“[26] Then, in pars 17 to 21, Mr Kyriacou [the plaintiff] made a further claim, that in performance of the matters alleged in par 12 of the ASOC, being his performance of the alleged PDA, Mr Kyriacou "assumed that he and [Ms Makis, the defendant] had concluded and were bound by the terms of the Partnership Dissolution Agreement and that they would each distribute the assets in accordance with thereof": par 17. He then alleged in par 18 that Ms Makis induced him to hold the assumption, and that he suffered a detriment by reason of Ms Makis' failure to transfer her interest in the MacDonald Street Units to him: pars 18 and 19. Mr Kyriacou alleged in par 20 that "it would be unconscionable, and would occasion detriment to [Mr Kyriacou] for [Ms Makis] to deny the truth of [Mr Kyriacou's] assumption as to his entitlement to receive [Ms Makis'] interest in the MacDonald Street Units". Finally, Mr Kyriacou alleged in par 21 that Ms Makis "is liable in equity to reverse the detriment occasioned under paragraph 19 above to [Mr Kyriacou].”

By her Amended Defence filed 16 August 2019 the defendant denied paragraphs 17-21 of the amended statement of claim and asserted that there never was a “Partnership Dissolution Agreement” signed by the plaintiff and herself; between 2011-2017 she never met in person or discussed over the telephone with the plaintiff in relation to a “Partnership Dissolution” with the plaintiff; and she never “authorised anyone to negotiate a Partnership Dissolution with the plaintiff on her behalf”.
Robb J’s determination that the PDA was not an enforceable contract was made in the current proceedings, implicitly as the determination of a separate question (but, in fact, not attended by an order under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW for definition of a “separate question”) presented for consideration in circumstances in which the defendant was in default of orders for the filing of a cross claim so that (in conformity with section 63 of the Supreme Court Act 1970 NSW) “all matters in controversy between the parties [could not] be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”.
Robb J was conscious of the limited nature of his determination and the need for directions to be given, in the context of ongoing proceedings, to ensure that the Court could determine “all matters in controversy”.
His Honour was particularly careful to leave open the possibility that the Court might be called upon to determine a question of estoppel.
Having noted the pleadings between the parties as they then stood (the plaintiff’s amended statement of claim and the defendant’s amended defence) his Honour (under the heading “Agreed Statement of Issues”) noted that, in paragraphs [33]-[35] of his judgment, the nature and scope of the issues submitted to him for determination:

“[33]   Nonetheless, by the agreed statement of issues dated 17 September 2020 provided to the Court, the parties stated the issues to be decided in the following terms:
1.   Was there an agreement made between the Plaintiff and the First Defendant in or about June 2012 relating to the separation of assets and liabilities then jointly owned by them (as evidenced in the form of the Partnership Dissolution Agreement produced by the Plaintiff)?
2.   If so, has the agreement been partially performed?
3.   If so, should specific performance, or alternatively damages be ordered?

[34] By their agreed statement of issues, the parties limited the issues to be determined at the hearing to the validity and enforceability of the PDA.
[35] Nothing was said in the agreed statement of issues or in submissions at the hearing concerning Mr Kyriacou's alternative case that appears to have been based upon the principles of conventional estoppel.”

Under the heading “Response to Agreed Issues”, his Honour in paragraph [222] answered those questions in the following terms:

“[222] I therefore answer the questions posed by the parties in their statement of agreed issues as follows:
(1) Was there an agreement made between the Plaintiff and the First Defendant in or about June 2012 relating to the separation of assets and liabilities then jointly owned by them (as evidenced in the form of the Partnership Dissolution Agreement produced by the Plaintiff)?
No.

(2) If so, has the agreement been partially performed?
This question does not arise. If it had arisen, the answer would have been: No.
(3) If so, should specific performance, or alternatively damages be ordered?
This question does not arise.”

No formal orders were made or entered embodying these answers or consequential upon them. A search of the Court’s Justice Link website suggests that none were made. The parties agree that none were made.
There were no orders ever made for dismissal of the plaintiff’s amended statement of claim or any part thereof.
The parties appear to have proceeded on the basis that their ongoing disputation (in a context in which no formal steps appear to have been taken, pending the filing of a cross claim to dissolve the “partnership” alleged by the defendant) would be dealt with on a hearing of the defendant’s foreshadowed cross claim, leaving any undetermined balance of the amended statement of claim undetermined.
On 1 July 2021 Robb J (for reasons published as Kyriacou v Makis (No 2) [2021] NSWSC 802) caused the following entry to be recorded on Justice Link:

“The only costs order that the Court will make at this stage in respect of the hearing that commenced on 21 September 2020 [culminating in his Honour’s judgment, Kyriacou v Makis [2021] NSWSC 60 published on 9 February 2021] is:
(i) Save for any costs orders that have been made to date, the costs of the proceedings to the point of the delivery of judgment handed down on 9 February 2021 are reserved.”

This is consistent with no orders having been made dispositive of the statement of claim.
As manifested in his supplementary judgments, published as Kyriacou v Makis (No 2) [2021] NSWSC 802, Kyriacou v Makis(No 3) [2023] NSWSC 1098 and Kyriacou v Makis(No 4) [2023] NSWSC 1261, the business conducted by Robb J after the publication of his principal judgment on 9 February 2021 was directed to multiple applications of the defendant, after she filed a cross claim on 12 May 2021, to amend that pleading, and costs orders made in respect of those applications.
Although his Honour traversed a broader question (as to whether John had authority to enter into a contract on behalf of the defendant) the critical factor in his determination that the PDA was not an enforceable contract was that the document specifically contemplated that it would not operate as an agreement unless and until signed. That critical factor was reinforced by an understated impression that there was no contract because the parties, had they signed the PDA, nevertheless intended that there would be no contract without the solicitor Ms Sinanis attending to formalities.
That appears in paragraphs [128]-[132], [158]-[162] and [211]-[215] and (under the heading “Future of the proceedings”) paragraphs [223]-[225] with emphasis added:

[128] The most significant aspect of the PDA is that it was not signed by either party to it, being Mr Kyriacou and Ms Makis.
[129] The absence of signatures was made more significant by reason of the fact that the PDA commences with the following words:
By signing this agreement ("Agreement") the Partners [Mr Kyriacou and Ms Makis] henceforth known as "Partnership" acknowledge and consent to dissolving said Partnership on the 30th day of June Two Thousand and Twelve.

[130] After the names of the supposed partners were set out, the PDA then stated:
The previously listed Partners undersign this Agreement and acknowledge and agree to the following provisions…”

[131] At the end of the PDA, the document states:
By signing below, the Partners, [Mr Kyriacou and Ms Makis] agree to dissolve partnership between them, freely and willingly, according to the terms listed above.

[132]   The document provided for Ms Sinanis to be the witness.
…
[158]   I find that, although the evidence establishes that Ms Makis agreed to the sale of the Yerrick Road and Wangee Road units, because she signed the documents necessary to effect the transfers, she at no time gave her consent to be bound by the terms of the PDA.
[159]   I also find, on the balance of probabilities, that Mr Papatheodotou did not discuss the PDA specifically with Ms Makis at the time it was prepared because Mr Kyriacou had not first agreed to those terms. Mr Papatheodotou and Ms Makis must have had some discussion about the need or desirability of selling some of the properties, but there is no evidence that he discussed the particular PDA upon which Mr Kyriacou relies in these proceedings, particularly insofar as that document deals with the Cyprus investments and the Commercial Loan Facility. The Court simply does not have a sound evidentiary foundation to make any positive findings of fact concerning the terms of relevant discussions between Mr Papatheodotou and Ms Makis.
[160]   I find that Mr Papatheodotou did not have Ms Makis' authority to make an agreement on her behalf in the terms of the PDA without her explicit authority. There was no positive evidence that Ms Makis had ever given Mr Papatheodotou such authority. At the time Mr Papatheodotou and Ms Makis had been separated for a number of years, and although Mr Papatheodotou continued to provide assistance to Ms Makis in respect of her financial affairs, it is inherently improbable that Ms Makis would have agreed to give Mr Papatheodotou authority to enter into binding contracts on her behalf in respect of subjects as significant as those dealt with in the PDA.
[161]   I make no findings of fact concerning what was specifically said in the discussions between Mr Kyriacou and Mr Papatheodotou in relation to the PDA. Mr Kyriacou has acted as if he understood that the PDA, or some similar agreement, was binding between him and Ms Makis notwithstanding that the PDA was not signed by the parties to it. I do not consider it to be likely that Mr Kyriacou would have acted in the manner that he has if he had been explicitly warned that the PDA would not be binding until it was either specifically agreed by Ms Makis, or signed by the parties. Mr Kyriacou appears to have acted on the basis of his understanding as to the terms of the agreement and on the basis that Mr Papatheodotou had the authority to bind Ms Makis. In doing so, he took the risk that the unsigned PDA, which expressly required the signature of the parties, would not bind Ms Makis.
[162]   Given the authority to the effect that it is improbable that parties who make informal agreements to sell real estate intend to be legally bound until they have agreed and exchanged formal contracts for sale, it would be difficult for the Court to find that the parties intended to be immediately bound by the PDA, even if they had executed it: see G R Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634 per McHugh JA (as his Honour then was). However, it is not in the circumstances necessary to decide that question.
…
[211]   I have already explained above in context why the evidence does not satisfy me that Ms Makis agreed to be bound by the terms of the PDA, or that Ms Makis had given Mr Papatheodotou the authority to enter into a contract on her behalf with Mr Kyriacou on the terms of the PDA without reference to her.
[212]   There is simply inadequate evidence to enable me to feel an actual persuasion of the existence of the agreement or agency in the terms described in Watson v Foxman that are extracted above.
[213]   I have reached that conclusion not simply because the PDA was not signed, but because the document in the clearest terms specified that it was the parties' signatures to the document that would cause them to be bound.
[214]   Mr Kyriacou has established, by means of the evidence concerning the disposition of the proceeds of sale of the Yerrick Road and Wangee Road units and the Cessnock Motel, as well as the transfer of management of the MacDonald Road Units and the repayments of the mortgage and the receipt of rents, that there must have been some agreement or understanding between Mr Kyriacou and Ms Makis that at least dealt with some of the subjects contained in the PDA. The evidence may also establish that Mr Kyriacou genuinely believed that there was an agreement in the terms of the PDA.
[215]   However, apart from the fatal circumstance, as I see it, of the absence of sufficient evidence of agreement and authority, there is the difficulty of the multiplicity of documents that could be the record of the agreement and the inconsistency within those documents. That is primarily so in relation to the PDA and the 7 May 2012 email, both of which were given or sent by Mr Papatheodotou to Ms Sinanis. The evidence provides no resolution of the issue as to why the email provides for prices for the transfers of the MacDonald Street Units and the interest in the Cessnock Motel while the PDA does not. I am not satisfied that the PDA is objectively anything more than a broadly stated proposal.
…
[223]   The failure of Mr Kyriacou to prove that the PDA is an enforceable agreement against Ms Makis does not finally determine the dispute between them.
[224]   Mr Kyriacou has not received any of the proceeds of sale of the properties in this State, and it is an arguable matter whether or not Ms Makis has received more than her proper share of the proceeds of sale of the properties that have been sold. The issue of the entitlement of the parties to the MacDonald Street Units is unresolved.
[225]   There is a question about whether the issues that were agreed by the parties to be determined by the Court at the hearing that has occurred deal fully with all of the issues raised by the ASOC; in particular, whether Mr Kyriacou has abandoned his conventional estoppel case.”

In his supplementary judgment Kyriacou v Makis (No 2) [2021] NSWSC 802 (published on 1 July 2021) Robb J made the following observations about the course of the proceedings before him:

“[1]   As these proceedings were originally constituted, the plaintiff, Mr Kyriacou, sued to enforce an agreement allegedly made between himself and Ms Makis, in about June 2012, to the effect that Ms Makis’ interest in a set of units that were called the MacDonald Street units would be transferred to him. The agreement was said to be contained in a document called the “Partnership Dissolution Agreement”.
[2]   On 9 February 2021, I published the primary judgment in these proceedings on Mr Kyriacou’s claim: Kyriacou v Makis [2021] NSWSC 60. I dismissed Mr Kyriacou’s claim. Although Mr Kyriacou apparently believed that a final and binding agreement had been made with Ms Makis, and the evidence supported a conclusion that negotiations had been undertaken for that purpose, Mr Kyriacou failed to prove that a specific agreement had been made with Ms Makis’ authority.
[3]   Prima facie, under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, the costs of the proceedings should follow the event, which would mean that an order would be made that Mr Kyriacou pay Ms Makis’ costs of the proceedings on the ordinary basis. However, UCPR r 42.1 maintains the Court’s discretion as to the costs order that is appropriate and the Court may make a different order if it is satisfied, on the application of judicial principle, that some other order should be made.
[4]   This matter raises special circumstances, as it has become apparent that, by reason of the manner in which Ms Makis has conducted the litigation, the hearing of the claim made by Mr Kyriacou has not remotely determined all of the issues in dispute between the parties.
…
[8]   It appeared to me that the course taken by Ms Makis, in not filing her foreshadowed cross claim, would have the effect that it would not be possible for the Court, in deciding the case before it, to determine all the issues in contest between the parties. Furthermore, a substantial portion of the evidence that had been served did not relate to the issues that had been pleaded, but instead supported a case that Ms Makis intended to mount that was not actually before the Court. Ms Makis had not sought any declaration concerning the existence of the alleged partnership, its commercial ambit, or its terms. That created a forensic problem because, although Ms Makis had foreshadowed an application for a partnership accounting, that process could not be undertaken efficiently unless the existence and the terms of the partnership had first been determined.
[9]   It appeared to me that not only would the determination of the case limited to the issues raised by the amended statement of claim not resolve the real dispute between the parties, but furthermore, there was likely to be a substantial costs overlap, in the sense that much of the evidence introduced at the hearing would not be of significance to the issues that were to be determined, but would potentially be significant to the resolution of the partnership dispute that had not been brought before the Court.
[10]   After the primary judgment was delivered on 9 February 2021, case management orders were made on 29 March 2021 for Ms Makis to file her cross claim by 10 May 2021 and for Mr Kyriacou to file his defence to the cross claim by 21 June 2021. Those pleadings have now been filed by the parties.
[11]   Ms Makis in her cross claim has elaborately pleaded the terms of a partnership said to have initially been entered into in 1995 between Mr Kyriacou, Ms Makis and their respective spouses, and, from October 2002, carried on by Mr Kyriacou and Ms Makis alone. The cross claim contains detailed allegations concerning the transactions entered into by the alleged partnership, including at pars 154 to 164 the purchase of the Macdonald Street units.
[12]   Mr Kyriacou’s defence to the cross claim responds in detail to the allegations made by Ms Makis. It is not necessary for the purpose of these reasons to analyse in detail the allegations contained in the cross claim and the defence to the cross claim. It may be noted, however, that a particular theme of the defence to the cross claim is the allegation made by Mr Kyriacou that his involvement in many of the transactions that Ms Makis alleges were partnership transactions involved only notional transactions in so far as Mr Kyriacou was concerned, because he agreed at the request of Ms Makis’ former husband to lend his name to transactions entered into by the former husband in which Mr Kyriacou had no real interest.
…
[15]   The Court is presently unable to forecast the outcome of the dispute between the parties on the issues raised by Ms Makis in her cross claim. It is possible that, after all the issues have been determined by the Court, it will appear that Mr Kyriacou’s claim for an order enforcing the alleged agreement that Ms Makis would transfer to him her interest in the Macdonald Street units was sufficiently separate from all other issues in dispute between the parties to justify a costs order being made against Mr Kyriacou in favour of Ms Makis in respect of that claim. However, I do not consider that that possibility is sufficiently clear at this stage to justify the Court making a costs order in favour of Ms Makis on the issues determined by the primary judgment. I consider that, even if ultimately the Court thinks that the claim brought by Mr Kyriacou was a discreet one, it will also conclude that Ms Makis has been responsible for the wastage of considerable costs because much of the evidence traversed at the first hearing was not in fact relevant to the issues, but rather will be relevant and will be required to be reconsidered for the purposes of the determination of the issues raised by Ms Makis’ cross claim.
…
[18]   Ms Makis also relied upon the submission that, given the extensiveness of the issues raised by the cross claim and the defence to the cross claim, it is inevitable that it will be a considerable time before these proceedings are finally determined.
[19]   That submission is most likely to be true, but the problem substantially lies at the feet of Ms Makis for failing to have served her draft cross claim on Mr Kyriacou by 23 April 2019, as the first case management order dealing with that subject made on 7 March 2019 required. If Ms Makis had complied with the Court’s order, there is every possibility that the Court would have been able to deal with all of the issues in dispute between the parties in the hearing that commenced on 21 September 2020, although it is possible that a somewhat longer hearing time would have been required.
…
[23] I consider that the failure of Ms Makis to bring the claims now made in her cross claim before the Court in a timely way was a serious breach of the duty imposed upon her by s 56 of the Civil Procedure Act.
[24]   It will not be appropriate for the Court to make an order in favour of Ms Makis that Mr Kyriacou pay her costs of the proceedings to date, or even of the hearing in so far as it dealt with the claim raised by Mr Kyriacou’s amended statement of claim. I am also not prepared to make an interim lump sum costs order in Ms Makis’ favour, as I consider that any attempt by the Court to estimate an appropriate amount to be paid by Mr Kyriacou would be an artificial and essentially speculative exercise. I consider that it would be impossible for the Court, in any judicially principled manner, to make a proper allowance for the wastage of costs that is likely to have been caused by the failure of Ms Makis to comply with the Court’s directions on the many occasions that she has failed to do so, in so far as her conduct has had the effect that the Court was required to conduct the hearing limited only to one issue of many overlapping issues that will now have to be determined after separate preparation and a new hearing.”

I note, in passing, that the plaintiff’s “Defence to Cross Claim” then before Robb J (filed on 23 June 2021) included an estoppel pleading in the same terms (in paragraphs [221]-[228]) pleaded in the “Defence to Cross Claim” filed on 21 December 2023, the operative pleading the subject of this judgment of mine. Nothing in any of the judgments of Robb J suggests that the plaintiff was precluded, by reason of his principal judgment, from advancing that estoppel case.
In his supplementary judgment Kyriacou v Makis(No 3) [2023] NSWSC 1098 (published on 14 September 2023) at paragraph [2] Robb J summarised his principal judgment in the following terms (emphasis added):

“[2] The Court published its principal judgment in these proceedings on 9 February 2021: see Kyriacou v Makis [2021] NSWSC 60 (the "principal judgment" or "J"). The Court found that Mr Kyriacou had failed in his attempt to establish that a document called the "Partnership Dissolution Agreement" was an enforceable contract. By his proceedings, Mr Kyriacou had hoped to prove that he and Ms Makis had made a binding agreement to dissolve a partnership that existed between them and to distribute the partnership property. The Partnership Dissolution Agreement was negotiated with Mr Kyriacou by Mr Ioannis Papatheodotou, the former husband of Ms Makis. I found at J [160] that Mr Papatheodotou did not have Ms Makis' authority to make an agreement on her behalf in terms of the Partnership Dissolution Agreement, without her explicit agreement.”

Paragraphs [223]-[225] of the principal judgment demonstrate his Honour’s consciousness that all of the issues between the parties had not been determined by him.
That was confirmed by his criticism of the failure of the defendant to file a then proposed cross claim, as appears in paragraphs [228]-[231]; his criticism of the defendant in observations in Kyriacou v Makis (No 2) [2021] NSWSC 802 about costs; and by his criticism in Kyriacou v Makis(No 3) [2023] NSWSC 1098 of the defendant’s manoeuvres in reformulation of her cross claim, noting (in paragraph [9] of that judgment) that the “basic reason” for the defendant to have sought leave to amend her cross claim was that John had “provided evidence in support of a number of claims that were plainly outside the issues that were pleaded in the cross claim”.
At paragraph [38] his Honour noted that “the objective of [the defendant] in seeking leave to amend her cross claim [was] to obtain declarations from the Court as to the existence of a partnership in the form claimed by her [a “Global Partnership”], and declarations that, in historical terms, certain assets were partnership assets and certain liabilities were partnership liabilities” rather than a conventional order for dissolution of a partnership and a consequential order for the taking of partnership accounts.
In paragraphs [229]-[231] of his principal judgment his Honour contemplated that he may have been “part heard” in the proceedings generally:

“[229]   Much of the evidence that has been tendered, and many of the submissions made, arguably concern wider issues that would be relevant if the proceedings had encompassed the issue of whether there was a partnership, its terms, and the need for a partnership account. The Court has received evidence of dealings between the parties that extend much wider than was necessary to determine the issues relevant to the existence and enforcement of an agreement in the terms of the PDA. As a practical matter, there is a basis for concluding that the Court is part heard in the determination of issues that have not strictly been raised by proper initiating process.
[230]   Even in respect of the issue of costs, the Court has received evidence and submissions that extend wider than was necessary to determine the agreed issues, but may well be relevant to the foreshadowed partnership issues.
[231]   I will require the parties to confer as to what orders should be made by the Court based upon these reasons for judgment, and what, if any, further orders should be made to ensure that the Court is able to perform its obligation … under s 63 of the Supreme Court Act [to determine all issues in dispute]. I will arrange for my Associate to fix a telephone directions hearing for the purpose of the consideration of the future course of these proceedings. The parties should provide to my Associate proposed short minutes of order before that hearing.”

As earlier noted, no orders appear to have been made by Robb J, other than directions for and on the defendant’s cross claim, based on his Honour’s reasons for judgment. No pleading objection appears to have been taken, by way of a reply or otherwise, to the plaintiff’s inclusion in his Defence to Cross Claim of the defence of estoppel on which the proceedings before me were conducted.
With the benefit of later experience of the proceedings his Honour made the following observations in paragraphs [5]-[6] of Kyriacou v Makis(No 3) [2023] NSWSC 1098 which evidence a shift in perspective on the question whether he was “part heard”:

“[5] As foreshadowed in J [226], Ms Makis filed a cross claim on 12 May 2021. This is the pleading that Ms Makis now seeks leave to amend. As will be seen, it alleges the one overarching partnership referred to at J [226].
[6] As I noted at J [229], much of the evidence that was tendered at the hearing appeared to relate to issues that would have been relevant to Ms Makis' cross claim had she filed it. I observed that, as a practical matter, there was a basis for concluding that the Court was part heard in the determination of issues that were not strictly raised by a proper initiating process. As I explained to the parties at the hearing of the notice of motion with which these reasons are concerned, I do not consider that I am strictly part heard on the cross claim. Because at the initial hearing the Court had received evidence that had been prepared by the parties, principally, Ms Makis, in anticipation that she would have filed her cross claim before the hearing, the Court was appraised of evidence and had heard submissions that might be relevant if Ms Makis subsequently filed her cross claim. However, the issues now raised in the cross claim were not formally before the Court, and it did not conduct the hearing on the basis that I would necessarily determine any cross claim that was subsequently filed.”

From the outset of pleadings on the defendant’s cross claim (filed after the publication of Robb J’s principal judgment) the plaintiff has asserted an estoppel case substantially in the form pleaded by him in the current pleadings. The defendant’s original statement of cross claim was filed on 23 June 2021. The plaintiff’s Defence to that pleading (filed on 23 June 2021) contained (in paragraphs [221]-[228] and [229]-[230]) a pleading substantially the same as that found in equivalent paragraphs of his current Defence (filed on 21 December 2023) to the defendant’s current statement of cross claim (filed on 27 November 2023).
No notice of motion was ever filed to strike out the plaintiff’s estoppel pleading. No formal objection was taken by the defendant to the plaintiff relying upon his estoppel case.
Counsel for the defendant did not address the plaintiff’s estoppel case in his opening submissions, written or oral. Nor did he address the case in his oral closing submissions.
The parties’ closing written submissions only briefly (and without exposition of any authorities) addressed the entitlement of the plaintiff to rely upon his estoppel case.
In the defendant’s written closing submissions (MFI D51.1) the following appears in paragraph [60], the penultimate paragraph of the submissions:

“Reference also needs to be made to the case of conventional or promissory estoppel. This is an abuse of process, as it should have been run conjointly with the case seeking to establish a contract for the termination of the partnership. Secondly, to the extent already embraced by the propositions put to Robb J it is contrary to the principles in Anshun. Thirdly, issues estoppel arise in relation to the judgment of Robb J, particularly in relation to the authority of John to bind Andrea which are fatal to any claim for promissory estoppel as the same questions of authority arise.”

In the absence of any detailed reference to authority by counsel, I record that I apprehend that this submission on behalf of the defendant alludes to cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (dealing with a subcategory of estoppel by judgment); Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 at 531-533 and Jackson v Goldsmith (1950) 81 CLR 446 at 466-467 (in relation to issue estoppel, a subcategory of estoppel by judgment); and Reichel v McGrath (1889) 14 App Cas 665 and Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (in relation to an abuse of process falling short of an issue estoppel).
In his closing written submissions responsive to those of the defendant (MFI P52.1), at [37]-[39] the plaintiff advanced the following contentions:

“[37]   Kyriacou's estoppel claim relies on a number of representations made by John and conduct by Makis, repeated and furnished in the Partnership Dissolution Agreement given to Kyriacou and Ms Sinanis.
[38]   As a preliminary point we address Makis' submission that the estoppel claim is an abuse of process or is subject to the principles in Anshun or an issue estoppel. The estoppel claim set out in the Defence to Cross Claim was not, and could not, be run in conjunction with the initial claim because at that time no claim for an accounting had been made by either party. While a claim had been foreshadowed by Ms Makis it did not eventuate despite repeated Orders from this Court requiring her to do so. The failure to ventilate these issues at the original hearing was a result of Ms Makis' failure to comply with the Court Orders in relation to the filing of a Cross Claim and she cannot now rely on that failure to seek to prevent Mr Kyriacou from making an estoppel claim in relation to the terms of the dissolution of the partnership.
[39]   Further [citing Bushby v Dixon Holmes du Pont (2010) 78 NSWLR 111 for the proposition that promissory estoppel is available as a defence as well as founding a claim for relief, available to be used as a “shield” as well as a “sword”], here, the claim for relief is brought defensively, as a shield for an estoppel by convention. In short, they are not the same claim and an estoppel by convention could not have been brought in the Plaintiff's claim. Put simply, John's representations set out in the Partnership Dissolution Agreement ("PDA"), his provision of a copy of the PDA to both Sinanis and Kyriacou, his instruction to Sinanis to prepare documents and to act on the transfer the Wangee Road and Yerrick Road units, coupled with the authority of Makis (noting she had not spoken to Kyriacou since 2011) she provided to John and her direction to the agent to account to Kyriacou and the various council and utilities to bill Kyriacou (a state of affairs that continued until after the commencement of these proceedings) constituted the conduct of the relations between Kyriacou and Makis as to her agreement or their assumption that the terms of the PDA would be given effect. In that context, Kyriacou signed the transfers to the various properties and permitted Makis to take the whole of the net property sale proceeds for her use and benefit, with the detriment to Kyriacou now being that he parted with his interest in the properties and has suffered the detriment of not having title to the MacDonald Street units transferred to him. The estoppel arises to prevent Makis from denying the fact that Kyriacou was to obtain the MacDonald Street units.”

The defendant’s written closing submissions in reply (MFI D51.4), at paragraph [19], simply responded to the following effect:

“[19] So far as [the plaintiff’s estoppel claim] is concerned, it is precluded by the simple fact that Robb J in Kyriacou v Makis [2021] NSWSC 60 has found that John did not have any capacity to bind Makis in relation to those negotiations: [see Corpers (No 664) Pty Ltd v NZI Securities Australia Ltd 1989 ASC 55-714; 20 ATR 1084, Young J].”

The judgment of Young J here cited draws attention (by reference to the then recent judgment of the High Court of Australia in Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387) to the historical distinction between common law estoppel (based on an assumption about an existing state of affairs, including an assumption induced by representation) and an equitable estoppel (based on a representation about a future state of affairs).
In my assessment, no estoppel of record (including issue estoppel) precludes the plaintiff from maintaining his estoppel claim in his defence to the defendant’s cross claim.
Neither, in my assessment, is it an abuse of process for the plaintiff to plead and maintain his estoppel case despite the fact that Robb J found against him on the specific question whether John had actual authority to enter into a contract on behalf of the defendant in the terms of the unsigned PDA, an issue substantially different from the plaintiff’s estoppel case (which case, under Robb J’s continuing case management of the proceedings, remained unlitigated and undetermined pending the defendant’s foreshadowed filing of a cross claim). If there has been any abuse of process in these proceedings it has been in the defendant’s failure to file a cross claim in a timely manner and then to recast her cross claim substantially, allowing the cross claim to be heard without taking an early, formal objection to litigation of the plaintiff’s estoppel case as an answer to relief claimed in the cross claim.
Nor, in my assessment, do the “principles in Anshun” operate to defeat the plaintiff’s estoppel claim bearing in mind, particularly, the limited nature of the questions stated for Robb J’s determination and the reasonableness of deferring any broader questions to a later phase of the very same proceedings under the ongoing case management of the Court.
It was open to the defendant, relevantly, to apply for an order that the plaintiff’s statement of claim (including an estoppel claim) be dismissed. She never did so. Any entitlement she may have had to object to the plaintiff’s entitlement to maintain his estoppel case might be said to have been waived by a failure to object in a timely manner. That said, the plaintiff advanced no submission of waiver and I have no occasion to consider the question.
In my opinion, the plaintiff is entitled to maintain his estoppel case as pleaded in his Defence to Cross Claim and the interests of a due administration of justice point in the direction of allowing that case to be determined on its merits .
The fact that, on the hearing of the stated questions, the parties lacked discipline in confining their evidence and submissions to those questions does not mean it was unreasonable for the plaintiff to proceed on the basis that any determination of his estoppel case should await the defendant’s belated filing of a cross claim. It was the defendant’s case on a foreshadowed but delayed cross claim that was the subject of an estoppel claim.
In any event, the defendant’s characterisation of Robb J’s determination is inaccurate. His Honour did not find “that John did not have any capacity to bind Makis in relation to those negotiations”. His finding was much more precise: that John had no actual authority to enter into a contract on behalf of the defendant in the terms of the unsigned PDA. He did not find that John had no actual or apparent (ostensible) authority to make representations by reference to the unsigned PDA. Nor was he required to address the elements of the plaintiff’s estoppel case, whether it be characterised as a “conventional” or “promissory” estoppel or, as it seems to me, an estoppel by encouragement. The focus of attention before Robb J was on the question whether the (unsigned) PDA constituted a contract.
A determination (such as was made by Robb J) that John had no actual authority to enter into a contract on behalf of the defendant in the terms of an unsigned PDA does not preclude a determination that John had actual or apparent (ostensible) authority to make representations pleaded in the plaintiff’s Defence to Cross Claim or to give instructions to Ms Sinanis referable to those representations.
The question whether any estoppel could operate against the defendant as alleged by the plaintiff could not, in any event, be determined in the absence of the foreshadowed cross claim of the defendant for an order that the “global partnership” alleged by the defendant be wound up. In essence, the plaintiff’s claimed estoppel operates against the defendant at a time (after the PDA would have been made had it been attributed contractual force) when, on the hearing of her cross claim, the defendant contended for the existence of a partnership and an order that it be wound up. The estoppel case is based not upon an assertion that the PDA was a contract, or that John had authority to enter into the PDA as a contract, but upon conduct and knowledge of the defendant after John provided a copy of the PDA to the plaintiff and Ms Sinanis.
The plaintiff’s estoppel case does not challenge the correctness of Robb J’s finding (at its highest in favour of the defendant) that “John did not have the defendant’s authority to make an agreement on her behalf in terms of the unsigned PDA without her explicit agreement”.
Even if John had no authority to “negotiate” with the plaintiff, or to make representations to the plaintiff, on behalf of the defendant (which I find he did) that fact would not be determinative of the plaintiff’s estoppel case. If (as I find) the defendant had knowledge of the PDA and the plaintiff’s reliance on it at the time he gave up property rights in the interests of the defendant (whether the defendant’s knowledge was actual or imputed to her by reason of the knowledge of her agents, John and Ms Sinanis), and (as is plain) she allowed him to give up rights in her interests without disabusing him of what she now suggests was an erroneous assumption on his part, that would be sufficient to ground an estoppel.
The principal significance of the PDA on the hearing of the defendant’s cross claim is its evidentiary value as a fact material to the factual matrix bearing upon:

the plaintiff’s estoppel case; and

the plaintiff’s contention that any partnership between him and the defendant was limited to Australian property held by the two parties in co-ownership.

Nothing in the principal judgment of Robb J deprives the PDA document of its status as evidence of a fact.
The plaintiff’s estoppel case points both to the central role played by John in orchestrating dealings between the plaintiff and the defendant in the management of their financial affairs and to the evidentiary significance of the PDA.
In the course of these proceedings the “estoppel” relied upon by the plaintiff has been characterised as both “estoppel by convention” and “promissory estoppel”. As pleaded, it is open to characterisation as an “estoppel by encouragement”. The precise characterisation appears to be of no significance. Nor does it seem important to distinguish between the historical origins of the different concepts of estoppel at common law and in equity.
In these proceedings, although the defendant has contended that it is not open to the plaintiff to maintain his estoppel case (which she contends was pre-empted by Robb J’s principal judgment), the defendant has not submitted that:

the plaintiff’s Defence to Cross Claim does not plead all the elements required to establish an estoppel;

if the facts pleaded by the plaintiff are taken to have been established, an estoppel would not operate against the defendant on her claim to beneficial ownership of the MacDonald Street units; or

if the plaintiff is found to have established his estoppel case, an appropriate remedy would not be a declaration that she holds her beneficial interest in the MacDonald Street units on trust for the plaintiff, with consequential orders.

The primary focus of the defendant’s substantive (as distinct from procedural) challenge to the plaintiff’s estoppel case appears to be that:

whatever John may have said to the plaintiff in relation to the PDA, he had no authority as her agent to bind her without her consent; and

she entered transactions relating to the transfer of the Yerrick Road property, the Wangee Road property and the Maitland Road property and arranged for the plaintiff to assume management of the MacDonald Street units in the ordinary course of business of the global partnership between the plaintiff and herself for which she contends.

Paragraphs [221]-[228] of the Defence to Cross Claim are in the following terms:

“221. In the period March - June 2012 Makis (by John on her behalf) made a number of representations to Kyriacou to the effect that the Australian investments and all associated claims and liabilities would be finally and exhaustively separated on the following terms (the “2012 Representations”):
a. Kyriacou would receive Makis’ interest in the MacDonald Street Units and would also assume sole liability for the ANZ Banking Group Ltd mortgage loan in the sum of $1,310,000;

b.   Makis would receive Kyriacou’s interest in the Maitland Road property;
c.   Makis would receive Kyriacou’s interest in the Yerrick Road Unit (which would be transferred to Makis’ son);
d.   Makis would receive Kyriacou’s interest in the Wangee Road Unit (which would be transferred to Makis’ daughter);
e.   Makis would assume all liability of Kyriacou pursuant to the Pambris Laiki Bank Loan;
f.   while the legal transfer of the MacDonald Street Units and the Maitland Road property would be deferred, the parties would henceforth be entitled to rental income, and be liable for all expenses, as though the described transfers had occurred; and
g.   the parties would mutually release each other from any claims relating to the investments.

PARTICULARS
a.   Conversations between John and Kyriacou in late March and early April 2012, including a conversation in the carpark at loannis’ then place of work in Bardwell Park.
b.   Conversation between John and Maria Sinanis, the solicitor engaged by Kyriacou and Makis, in early May 2012, at which John furnished Ms Sinanis with a document titled ‘Partnership Dissolution Agreement’.
c.   Conversation between John and Kyriacou in June 2012 at Kyriacou’s home in which John furnished Kyriacou with a document titled ‘Partnership Dissolution Agreement’.
d.   Execution by Makis of various documents and authorities required to enable Kyriacou to receive all rent, and pay all expenses, for the MacDonald Street units.

222.   Encouraged and induced by, and in reliance upon, the representations made by Makis, and to the knowledge of Makis, Kyriacou:
a.   on or about 17 July 2012, transferred his interest in the Yerrick Road Unit to Makis’ son Polycarpos Paul Papatheodotou and permitted Makis to retain the whole of the proceeds of sale;
b.   on or about 20 July 2012, transferred his interest in the Wangee Road Unit to Makis’ daughter loanna Yianna Papatheodotou and permitted Makis to retain the whole of the proceeds of sale;
c.   on or about 12 November 2013, transferred his interest in the Cessnock Motel as part of the sale of that property and permitted Makis to retain the whole of the proceeds of sale;
d.   assumed responsibility for management of the MacDonald Street Units from June 2012 onwards, including payment of expenses to the extent not funded through the rental income;
e.   permitted Makis to retain the joint share of the net rental proceeds from the Maitland Road property from June 2012; and
f.   paid $50,000 to reduce the principal amount of the ANZ loan secured by a mortgage on the MacDonald Street Units.

223.   By reason of Kyriacou’s performance of the matters set out in paragraph 222 above and Makis’ failure to effect a transfer of the Macdonald Street Units in accordance with the 2012 Representations, Kyriacou has suffered a detriment.
224.   In the premises, it would be unconscionable, and would occasion detriment to Kyriacou, for Makis to assert an accounting of the partnership assets and liabilities on terms other than set out in the 2012 Representations.
225.   In the premises, the accounting of the partnership assets and liabilities should be undertaken in accordance with the 2012 Representations, so as to put the parties in the position as though the 2012 Representations had been implemented.
226.   In further answer to the Cross Claim generally, Kyriacou further says that:
a.   the amounts now claimed by Makis, some of which relate to alleged contributions from the 1990s and early 2000s, were never set out in any partnership accounts or claims provided to Kyriacou; and
b.   the 2012 Representations referred to in paragraph 221 above did not refer to the historical claims now made pursuant to the Cross Claim.

227. In the premises, by making the 2012 Representations, Makis represented to Kyriacou that no accounting for historical contributions was owed and/or would be sought.
228. In the premises, it would be unconscionable, and would occasion detriment to Kyriacou, for Makis to assert an accounting of the alleged historical contributions set out in the Cross Claim in a manner inconsistent with the 2012 Representations.”

Implicit in this pleading is an allegation that John, in making representations “on behalf of” the defendant had her actual or apparent authority to do so and to provide the parties’ solicitor (Ms Sinanis) with a copy of the PDA as the basis of her retainer to act (as she did act) for all parties on conveyancing transactions contemplated by the PDA. Ultimately, however, the focus for attention is not on John’s authority to make representations but on the fact that he did so, and her conduct and knowledge after he had done so.
In presentation of his case, the plaintiff emphasised a contention that John had “apparent authority” to act on behalf of the defendant (a contention which dovetails with the plaintiff’s case of an estoppel by encouragement and accommodates a forensic difficulty associated with proving communications between John and the defendant) but I do not understand that an allegation of “actual authority” was not pressed by the plaintiff. In any event, it remains open on the pleadings.
The plaintiff’s closing written submissions (MFI P52.1) encapsulate his estoppel case, in paragraph [39]:

“… John’s representations set out in the Partnership Dissolution Agreement (‘PDA’), his provision of a copy of the PDA to both Sinanis [the parties’ solicitor] and [the plaintiff], his instructions to Sinanis to prepare documents and to act on the transfer of the Wangee Road and Yerrick Road units [to children of John and the defendant], coupled with the authority of [the defendant] (noting she had not spoken to [the plaintiff] since 2011) she provided to John and her direction to the [real estate] agent to account to [the plaintiff] and the various Council and utilities to bill [the plaintiff] (a state of affairs that continued until after the commencement of these proceedings) constituted the conduct of relations between [the plaintiff and the defendant] as to her agreement or their assumption that the terms of the PDA would be given effect. In that context, [the plaintiff] signed the transfers to the various properties and permitted [the defendant] to take the whole of the net property sale proceeds for her use and benefit, with a detriment to [the plaintiff] now being that he parted with his interest in the properties and has suffered the detriment of not having title to the MacDonald Street units transferred to him. The estoppel arises to prevent [the defendant] from denying the fact that [the plaintiff] was to obtain the MacDonald Street units.”

That case was twice articulated by counsel for the plaintiff in the course of the defendant’s cross examination so that (genuflecting towards Browne v Dunn) she and her lawyers would be fairly apprised of the estoppel case being advanced against her. On the first occasion, near the beginning of her cross examination, she was asked to step outside as I invited counsel for the plaintiff to explain the plaintiff’s estoppel case. On the second occasion, the plaintiff’s case (including his estoppel case) was expressly put to her in propositional form.
On the first occasion (recorded at transcript pages 73-74) the following exchange between bench and bar occurred:

“His Honour:   What do you say the estoppel question is?
Darvall:    What we say is that she [the defendant] conducted herself as leaving us [the plaintiff] in no uncertain terms that John was the one that negotiated on her behalf.
His Honour:    Is that something that Robb J found against?
Darvall:   No, he didn’t, because the estoppel case wasn’t run. It was limited to the specific performance of the partnership agreement. The partnership agreement was, ‘You give us the proceeds of these’ …
His Honour:   This is the dissolution agreement that you alleged?
Darvall:    Dissolution agreement. ‘You give us these three properties you get that. We’ll take responsibility for the rest, and we each go our own ways’. We then handed over the proceeds of the three properties to her and the property wasn’t transferred to us. Ultimately, when we got tired of waiting for it that’s when these proceedings commenced. The estoppel is the way she conducted herself in having John conduct all the dealings with us on her behalf led us into the impression that if we handed all all this over things …
His Honour:    You handed things over to John.
Darvall:    Handed the proceeds of the property to her, the three properties to her, that we would end up with this block of units. We did hand over the proceeds of the properties to her. She disputes that [but, in this judgment, on that issue I find for the plaintiff] … Our detriment is obviously that we’ve handed them over, got no money out of it, and don’t get the benefit of what the partnership dissolution agreement was.”

Towards the end of the defendant’s cross examination (at transcript pages 317-318), counsel for the plaintiff put Browne v Dunn questions to the defendant which, in the presence of the defendant, led to an exchange that included the following explanation of the plaintiff’s estoppel case (with editorial adaptation):

“Darvall:   … I am informing you of this now so that you understand the case that [the plaintiff] brings. Firstly, we have submitted to his Honour that part of [the plaintiff’s] case is that he seeks to prove that there was an estoppel against you [the defendant] from resiling from the terms of the partnership dissolution agreement.
His Honour:   I think what that means is it’s going to be submitted against you [the defendant] that in some way you adopted a document called a partnership dissolution agreement, and having adopted it in some way, you’re stuck with it. I think that’s, in essence …
Darvall:   It’s more than that. What we’re saying is that you [the defendant] - in the course of your dealing was to cloak John with your apparent authority for transactions and dealings with [the plaintiff] on your behalf throughout the course of these matters, and I’m just putting the proposition to you first, and so that having conducted yourself in that way, he was entitled to accept that he was dealing with John, with your authority, and that he acted on that authority by letting you take the proceeds of the various properties that you took.
Douglas [Counsel for the defendant]: Your Honour, I do object.
Defendant:   I don’t understand what you’re trying …
His Honour:    I am not sure this is altogether helpful, because you’re putting a series of propositions - ultimately, they’ll be submissions - to a witness …
Darvall:   I don’t think it’s going to …
His Honour:   … who’s a lay witness.
Darvall:   I’m just making clear that one possible outcome is that his Honour will be invited to accept is that the partnership dissolution agreement should be given effect to, effectively, in which case you get the properties that you had, he gets [the MacDonald Street units]. Alright? That’s one possible outcome. You may or may not accept, but that’s an outcome …”

The objection of counsel for the defendant was not to the case advanced by the plaintiff, but to the form of counsel’s cross examination.
Understandably, although the form of cross examination articulated the plaintiff’s estoppel case it did not elicit a productive response from the defendant as a witness. As I understand her case, as pleaded and confirmed as an abstract proposition in cross examination, she gave authority to John to conduct “the business of the partnership” on her behalf and in her name subject to her prior consent to any investments: cross claim, paragraphs 28(c)(i) and 29(a); transcript page 39 lines 47-50.
In practice, the defendant appears to have left all business decisions relating to dealings between the plaintiff and her to John without communicating to the plaintiff any limitation on John’s authority to act on her behalf.
In the course of cross examination of the defendant, counsel for the plaintiff drew her attention to a bank statement in the name of the plaintiff and herself. The following exchange took place (with editorial adaptation), recorded at transcript page 296:

“Darvall:   This was a joint loan that was secured by mortgage over the MacDonald Street units, correct?
Answer:   Correct.
Defendant:   Let me make it clear, your Honour, if you’re asking me about the accounts, about the loans, about the withdrawals, about the deposits, it was [the plaintiff] and [John] organising that. If, if, even if I say something, it will be just ‘I don’t know’. There were, the anything to do with the accounts, I was not involved …
His Honour:   … What I’m hearing is that you’re telling us that when it comes to matters of detail, you were never involved in matters of detail because everything was dealt with by John and …
Answer:   And [the plaintiff].
His Honour:   And [the plaintiff].
Answer:   Any details of the loans that their, their accounting, I was not involved.”

The evidence is replete with statements made by the defendant that John had acted on her behalf in the conduct of business she characterised as partnership business. To the knowledge of both the plaintiff and the defendant John generally spoke for the defendant in dealings with the plaintiff. That was the ordinary course both before and after the marriage of John and the defendant was dissolved and during John’s bankruptcy.
John was a conduit between the plaintiff and the defendant (on the one hand) and (on the other hand) the solicitor (Maria Sinanis of Constantine & Co, Lawyers) who acted for the plaintiff, the defendant and the children of the defendant and John in real property transactions that closely aligned with the terms of the PDA, save for a want of a contemporaneous transfer of the MacDonald Street units into the name of the plaintiff alone, which the plaintiff had expected when given a copy of the PDA by John shortly before that time.

THE CENTRAL PERSONALITIES

Introduction

A resolution of these proceedings necessarily requires an assessment of the credit and credibility of the four central personalities (the plaintiff and his former wife, Anastasia, the defendant and her former husband, John) in a drama buried in a mass of disordered and controversial documentation.
In resolving conflict between the competing case theories of the parties, it is necessary to endeavour to engage in a fact-finding process that is objective in character and identifies facts that are material to questions in dispute; and to do so with due regard to context, mindful of the principle associated with Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363 embodied in the Evidence Act 1995 NSW, section 140:

“140   Civil proceedings: standard of proof
(1)   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)   the nature of the cause of action or defence; and
(b)   the nature of the subject - matter of the proceeding; and
(c)   the gravity of the matters alleged.”

The Nature of Personal Relationships

The plaintiff (in 1956) and the defendant (in 1961) were born in the same village (Asha) in Cyprus. They knew each other as children.
They both emigrated to Australia in 1976.
They reconnected in Sydney through social events enjoyed by the local Cypriot community.
The plaintiff is sometimes known by the Anglicised name “Kerry”. The defendant was known as “Androulla” before she adopted the name “Andrea”. She might also have been known at times by the names “Anastou” and “Anastasia”, although the evidence on this point is not clear. The Cypriot version of John’s name is “Ioannis”.
The defendant knew the plaintiff’s wife Anastasia before her marriage to the plaintiff because her mother was an employee of the defendant’s parents dressmaking business.
Anastasia was born in Nicosia, Cyprus in 1962. She emigrated to Australia with her family in 1976.
John was born in Cyprus in 1959. He met the defendant there in 1981. They became engaged to be married in about September 1983, about which time John emigrated to Australia.
John met the plaintiff in about late 1983 through social events of the Cypriot community in Sydney. They bonded through a common love of soccer, they played in the same team and they became the best of friends, quasi-family.
In retrospect, the starting point in the deterioration of the close relationship between the plaintiff and John might be the encounter between the two men recorded in paragraph [36] of the affidavit affirmed by the plaintiff on 25 September 2018 under the heading “Separation of the Investments”:

“[36]   In around 2011 I started hearing rumours in the Cypriot community about Ioannis [John] that made me concerned. I heard that he had been sacked from his job at Bank of Cyprus and that people were saying he owed them money. At some time in late 2011 I met with Ioannis at his house in Fowler Street, South Coogee and spoke to him as follows:
Me:   ‘People are saying you lost their money and they are going to come after you. Some people are wondering if I was involved because I invest with you and Androulla [the defendant]. What is happening?’
Ioannis:   ‘They are saying I owe them money but it’s bullshit and it’s not my fault. But some people might try and take me to Court.’
Me:   ‘I don’t want to be involved in any of that. This is embarrassing for me. I think it’s better if we split up the investments and invest separate from now on. I don’t want to be mixed up with all this trouble.’
Ioannis:   “Ok we will think about how to split the properties and once we agree we will separate them.’”

In her cross examination before Robb J the defendant acknowledged that in 2012 various people were looking for John, making demands for the payment of money and that she and John needed to sell property to pay pressing debts, including a mortgage over their former matrimonial home.
Further discussions took place between John and the plaintiff in the first half of 2012 culminating in John’s provision of a copy of the PDA to the plaintiff (and Ms Sinanis, the solicitor acting for all parties to conveyancing transactions) in about May or June 2012, followed by property transfers closely aligned with the text of the PDA, followed in turn by controversy arising from the plaintiff’s unfulfilled expectation that the MacDonald Street units would be transferred into his name alone.

John as a Dominant Personality

Whatever the correct characterisation of the business relationships between the plaintiff and the defendant (and various people from time to time characterised by John as members of a “global” partnership), John played a dominant role in initiating, organising, managing and keeping records of business transactions.
Some insight into John's role, his assumption of authority in business dealings concerning others, and the culture in which he conducted business can be found in paragraphs 24-26 of an affidavit sworn by him on 20 July 2022, speaking about events reaching back to 1995 or thereabouts:

“[24]   After my discussions with Andrea and Kyriacos about the Partnership, my understanding of my role was that had authority to negotiate finance and make investments on behalf of the partners for the Partnership. I understood that I would also be responsible for keeping the records of the Partnership.
[25]   Over the next two decades, I arranged finance for the Partnership and arranged Investments on behalf of the Partnership. In arranging finance, I would often utilise my extensive contacts built up through my career in banking, who were usually members of the Greek and Cypriot community.
[26]   Many of the loans I arranged were informally documented, and often the only document recording the loan was an acknowledgment of the funds advanced that I would sign. I believe that my reputation in the community was such that people trusted me and were happy to deal with me on that basis. In my experience of the Cypriot community, it is not uncommon for members of the community to lend money to other members outside of the regulated financial system.”

Undertakings:
The partners are undertaking the obligation to sign any paperwork, authorizations, or powers of attorney or any other documentation required in order to effect the above dissolution of partnership and transfer of properties as required by law or from the other partner.
Jurisdiction:
This agreement is bound by the laws and regulations of the State of New South Wales.
By signing below, the Partners, Kyriacou Kyriacos and Andrea Makis, agree to dissolve partnership between them, freely and willingly, according to the terms listed above.
Signed this [blank] of June 2012 by:
Kyriacou Kyriacos
Partner Name
_____________ [unsigned]
Partner Signature
Andrea Makis
Partner Name
_____________ [unsigned]
Partner Signature
Maria Sinanis
Witness Name
_____________ [unsigned]
Witness Signature”

The address attributed to the defendant in the PDA (in Fowler Crescent, South Coogee) is the same address attributed to both John and the defendant in their Financial Agreement dated 18 January 2010 (in Fowler Crescent, Maroubra), the former matrimonial home of the defendant and John. When John gave evidence at the hearing of these proceedings (on 10 September 2024) he was still resident there although, by that time the defendant had moved to live elsewhere.
By reference to the PDA document (which the plaintiff contends corresponds with representations made to him by John before he signed over the Yerrick Road and Wangee Road properties in favour of the defendant’s children and allowed the defendant to appropriate the proceeds of sale of their interest in the motel in Maitland Road, Cessnock):

by several “direct debit request forms” addressed to Sydney Water dated 9 May 2012, signed by both the plaintiff and the defendant, accounts for water rates for the MacDonald Street units were to be addressed to the plaintiff, with contact details including the plaintiff’s residential address and mobile number, and rates were to be debited to an ANZ Bank account (into which rental income from the units was directed).

by a letter dated 14 May 2012, signed by both the plaintiff and the defendant, addressed to the Manager of Canterbury Council, the Council was requested to change the signatories’ postal address for accounts relating to the eight MacDonald Street units to the plaintiff’s residential address and invited to ring the plaintiff on his mobile phone for any “clarifications”.

by a letter dated 25 May 2012, signed by both the plaintiff and the defendant, addressed to the real estate agent managing the MacDonald Street units, the rental income from the units was to be credited to the ANZ bank account in the name of the plaintiff the subject of the direct debit requests made for the payment of water rates referable to the units, such a direction for the payment of rental income to operate “as from today and until further notice”.

by a letter dated 27 May 2012, signed by both the plaintiff and the defendant, addressed to GIO General Limited, the insurer was requested and authorised “as from today and until further notice” to change their postal address in respect of the MacDonald Street units building to the plaintiff’s residential address.

by a letter dated 27 May 2012, signed by both the plaintiff and the defendant, addressed to Energy Australia, Energy Australia was requested and authorised “as from today, and until further notice” to change the parties’ postal address to the plaintiff’s residential address.

by a letter dated 15 June 2012, signed by both the plaintiff and the defendant, addressed to a named manager of the ANZ Bank, the bank was invited to arrange for the method of operation for the account referable to the bank’s mortgage over the MacDonald Street units to change to “anyone to sign” and for loan instalments to be paid out of the account in the name of the plaintiff into which rental income had been directed.

The timing of these transactions is consistent with a finding that the defendant had knowledge of the instructions John gave to Ms Sinanis on 7 May 2012 and the terms of the PDA.
By a contract for sale dated 7 June 2012 and a memorandum of transfer dated 20 July 2012 (the date of settlement of the sale), the Wangee Road property was sold to the defendant’s daughter for a price of $235,000. The contract (and, I infer, the memorandum of transfer) bears the signatures of both the plaintiff and the defendant.
The Yerrick Road property was sold to the defendant’s son for $235,000 at about the same time. The memorandum of transfer associated with the sale bears no date but bears a stamp duty receipt dated 20 July 2012 (the date of settlement of the sale). A tax invoice signed by Ms Sinanis, addressed to the plaintiff and the defendant, under cover of a letter addressed to the defendant’s son, reporting on the sale bears the date 9 July 2012. That correspondence was addressed to a property in Fowler Crescent, South Coogee, the then residence of both the defendant and John.
By an undated memorandum of transfer registered as dealing number AI 2466796, the plaintiff and the defendant joined (with two other persons) in a sale of the Cessnock Motel for $1.47 million. Both signed the memorandum of transfer.
The documents reproduced as an exhibit to Ms Sinanis’ affidavit (left in evidence after the affidavit itself was withdrawn from evidence) include an unsigned copy of a contract for the sale by the defendant to the plaintiff of a “half share interest” in the MacDonald Street units for $825,000, together with an unsigned form of memorandum of transfer consistent with the contract document.
I infer that the declared price of $825,000 (representing one half of a valuation of the property) was nominated by John rather than agreed with the plaintiff. The PDA identifies no such price, but stipulated that the plaintiff bear the burden of the ANZ Bank mortgage on title.
An email exchange between Ms Sinanis and John on 15 June 2012 evidences that Ms Sinanis looked to John for the payment of disbursements in relation to “searches” and “valuations” relating, inter alia, to the Wangee Road, Yerrick Road, MacDonald Street and Cessnock properties, and that he undertook to provide a cheque for disbursements.
The documents produced by Ms Sinanis and related transactional documents are consistent with an inference (which, on the whole of the evidence, I draw) that:

by reference to the unsigned PDA, John (ostensibly on behalf of the defendant and himself) represented to the plaintiff that, if he assumed responsibility for the mortgage debt secured against the MacDonald Street units and management of the units, transferred the Yerrick Road and Wangee Road properties to his and the defendant’s children and ceded to the defendant his share in the Cessnock motel property (as well as property and operations in Cyprus), and allowed the defendant to appropriate all net proceeds of sale, he would be entitled to keep ownership of the MacDonald Street units in dissolution of any partnership between him and the defendant (and John).

John’s representation was promissory in nature, bearing the character of a bargain.

in reliance upon John’s representation (and in performance of the bargain) the plaintiff assumed responsibility for the mortgage debt on the MacDonald Street units and for management of the units, and joined in transfers for the benefit of the defendant of the Yerrick Road, Wangee Road and the Cessnock motel, allowing the defendant to appropriate all net proceeds of sale.

on reasonable grounds, the plaintiff expected that if (as he did) he assumed responsibility for the debt secured against the MacDonald Street units, assumed responsibility for management of the units, transferred the Yerrick Road and Wangee Road properties to the children of the defendant and John, and ceded his interest in the Cessnock motel (and any interest he had in property or operations in Cyprus) to the defendant, allowing the defendant to appropriate all net proceeds of sale, he would be entitled to full beneficial ownership of the MacDonald Street units and a release from any claims the defendant might have against him.

in causing the transfers of the Yerrick Road, Wangee Road, Cessnock motel to be effected, and in instructing Ms Sinanis in respect of those transactions, John ostensibly acted as an agent for the defendant (as well as for the children of the defendant and John).

Ms Sinanis acted as solicitor for both the plaintiff and the defendant and in that capacity she knew of the PDA, the plaintiff’s reliance on the bargain it recorded in taking steps to give effect to the PDA, and his expectation that he would be entitled to keep ownership of the MacDonald Street units in accordance with the PDA if he performed his side of the bargain it recorded.

That the defendant joined with the plaintiff in executing documents to effect transfers of property, and documents associated with the plaintiff assuming responsibility for management of the MacDonald Street units supports an inference of actual knowledge on the part of the defendant that, in giving up property interests and assuming responsibility for the MacDonald Street mortgage, the plaintiff believed, on reasonable grounds, that he was entitled to full ownership of the MacDonald Street units.
For her part, the defendant allowed the plaintiff to transfer property, and to assume responsibility for the MacDonald Street units without disabusing him of his expectation that he would thereby “keep ownership” of the MacDonald Street unit. She, at least implicitly, affirmed and reinforced that expectation.
No part of the net proceeds of sale of the Yerrick Road or the Wangee Road properties was retained by the plaintiff. Through the agency of John the net proceeds of sale were appropriated by the defendant, she says, in the payment of “partnership debts”, which I take to mean debts of John and/or herself.
Having secured the plaintiff’s performance of the transactions expected of him by John and the defendant, John and the defendant appear deliberately to have refrained from transferring to the plaintiff the defendant’s legal interest in the MacDonald Street units. Their conduct appears to have been directed to deferring a transfer of the defendant’s interest in the units to the plaintiff, wearing him down by resisting his claim to ownership of the units and, in the meantime, enjoying the convenience of having him manage the units and the ANZ Bank loan secured over the units.
In the instructions he gave Ms Sinanis (on 7 May 2012) John instructed her that the “settlement” of the transfer of the units was to take place on 1 July 2015. That is not a date to be found in the PDA, although the plaintiff may have acquiesced in it. The PDA simply records that the plaintiff “will keep ownership” of the units “with the current debt on the property with ANZ Bank”. This is similar to the language used in connection with the “distribution of assets and allocation of liabilities and/or debts” to the defendant (ie, “will keep ownership”) but stands in contrast with the nominated date (1 July 2012) for the sale of the Yerrick Road and Wangee Road properties to the children of John and the defendant.
The records of Ms Sinanis reflect the plaintiff’s frustration with the failure of the defendant (and John) to attend to a transfer of the MacDonald Street units to him.
They, for their part, when it suited them to do so, held out to him that he would have full title to the MacDonald Street units transferred to him. Then they told him that they would only agree to him retaining his half share of the title. As their case against him has been advanced in these proceedings, they have denied him any beneficial entitlement to the units. Viewed overall, their conduct has been calculated to terminate their business relationships with the plaintiff on terms that leave him with nothing he expected to obtain on a parting of the ways when he signed away his interest in land held in co-ownership with the defendant.

CONSIDERATION

John’s Authority to Negotiate and the Defendant’s Knowledge

In my assessment, the correct inference to be drawn on the whole of the evidence is that, in promoting the PDA as a means of separating the interests of the plaintiff and the defendant, John acted with the actual authority of the defendant, express or implied. She left everything to him to organise with the plaintiff. If his authority in negotiations falling short of entry into a contract was constrained by a limitation that he obtain her consent to the PDA, I infer that she gave that consent.
It was in her interest to do so. The PDA arrangement (including an implicit refinancing of the Laiki Bank mortgage on the MacDonald Street units with the ANZ Bank, with the associated discharge of Laiki Bank mortgages over the Wangee Road and Yerrick Road properties) allowed her to obtain urgently needed funds to meet pressing debts of John and herself and to cut John’s ties with the Laiki Bank.
Other factors which tell in favour of a finding of actual authority include the following:

The plenary authority attributed to John by the defendant in paragraphs 28(c) and 29(a)-(c) in her statement of cross claim.

John’s understanding of his authority after discussions with the plaintiff and the defendant, as recorded in paragraphs 24-26 of his affidavit sworn 20 July 2022.

The defendant’s unsolicited declaration in the course of cross examination (at transcript page 296) that when it came to “matters of detail” she was never involved because “everything was dealt with” by John and the plaintiff and she was “not involved” in any “details of the loans” or “their accounting”.

The conduct of the defendant between 9 May 2012 and 15 June 2012 (in close proximity to the instructions given to Ms Sinanis by John on 7 May 2012 and consistent with the terms of the PDA), in conferring on the plaintiff full management responsibility for the MacDonald Street units.

The defendant personally signed the ANZ Bank mortgage over the MacDonald Street units which, objectively, she must have understood allowed the Wangee Road and the Yerrick Road properties to be released from debt and to be sold, unencumbered, providing funds for her (and John) to pay down personal debts at a time when she and John were struggling to service a mortgage over their former matrimonial home.

The conduct of the defendant in allowing John to manage instructions given to Ms Sinanis, as solicitor for both the plaintiff and the defendant, in giving effect to transactions for the sale of real estate contemplated by the PDA and dealing with the proceeds of sale.

If there was a limitation on John’s authority to the effect that John could only act on behalf of the defendant with her consent, and if I am in error in concluding that she gave that consent, I am nevertheless satisfied that she held out to the plaintiff that John had plenary authority to act on her behalf in all property dealings the subject of the PDA (including the MacDonald Street units), and accounting for funds, and she did not apprise him of any limitation on that authority.
I do not regard the fact that the PDA itself was expressed not to take effect until it was signed detracts from that finding. It suited both John and the defendant that it not be signed and that the plaintiff be encouraged nevertheless to act upon John’s representation by reference to it. In my opinion, the “signature” provision of the PDA did not itself limit John’s authority or alert the plaintiff to a limitation upon his authority to make representations on behalf of the defendant. It was simply the nature of the transaction that if the PDA was to operate as a contract it was to be signed by both parties. The plaintiff trusted John (as the defendant’s agent), and the defendant, to honour the arrangement summarised in the PDA, signed or not.
In my opinion, if John did not have actual authority to act for the defendant in making representations to the plaintiff by reference to the PDA he nevertheless had apparent (or ostensible) authority to act on her behalf in that regard. The plaintiff, to the knowledge of the defendant, was accustomed to act on the basis that John (with plenary authority) was authorised to conduct business with the plaintiff on behalf of the defendant. The PDA was within the scope of the kind of business conducted by John on behalf of the defendant with the plaintiff. The PDA was presented in the usual way for real estate transactions through Ms Sinanis as John’s solicitor (and solicitor for all parties), known to and trusted by all parties to those transactions. The plaintiff reasonably believed, as he was intended by John (and the defendant) to believe, that John had authority to act on behalf of the defendant. If there was any limitation on John’s actual authority, it was not made known to the plaintiff or to Ms Sinanis.
Insofar as the PDA involved a matter of accounting, as between herself and the plaintiff, she concedes that she had no involvement, she left everything to John to organise with the plaintiff.
The records of Ms Sinanis support an inference that she knew that the plaintiff executed property transfers (as contemplated by the PDA) in reliance upon the PDA, and in expectation that he would thereby be entitled to ownership of the MacDonald Street units. Nobody disavowed the plaintiff of that expectation; not John, not the defendant, not Ms Sinanis.
Acting as solicitor for the defendant, Ms Sinanis’ knowledge of the facts can be imputed to the defendant: Sargentv ASL Developments Ltd (1974) 131 CLR 634 at 649 and 658-659. To paraphrase Stephen J (at 649) her knowledge was acquired both for the purpose of the conveyancing transactions she was retained to implement and in the course of implementing them. To paraphrase Mason J (at 658-659), as against a third party (here, the plaintiff) the law imputes to a principal (the defendant) knowledge gained by her agent (Ms Sinanis) in the course of, and which is material to, a transaction in which the agent is employed on behalf of the principal, under such circumstances that it is the duty of the agent to communicate it to the principal; the actual knowledge of the agent is equivalent to the actual personal knowledge of the principal; this being the principle applicable to information acquired by a solicitor in the course of acting for a client in a conveyancing matter.
Unless it be argued that John committed a fraud against the defendant in making representations to the plaintiff referable to the PDA (which it has not), the same principle of imputed knowledge applies to John’s knowledge as a manager of the affairs of the defendant. He was her agent (and she was his principal) in retaining Ms Sinanis and managing Ms Sinanis’ performance of her retainer. The fact that John acted as an agent for the plaintiff as well as the defendant is immaterial. He owed a duty to communicate his knowledge to the defendant and is presumed to have done so. The fact that John acted as an agent for the plaintiff as well is the defendant is immaterial.
The principles relating to imputation of the knowledge of an agent to a principal closely relate to estoppel, but have an independent operation: Shultz v Corwill Properties Pty Ltd (1969) WN (Pt 1) (NSW) 529 at 538-539; Dixon v Winch [1900] 1 Ch 736 at 747-748; Bradley v Riches (1878) 9 Ch D 189 at 195-197.
An imputation to the defendant of knowledge of John and Ms Sinanis in relation to the business that underpins the plaintiff’s estoppel claim involves no injustice to the defendant because they were actively engaged as her agents, and with her, in the conduct of that business to the detriment of the plaintiff.
John (as manager of her affairs), and Ms Sinanis (as her solicitor) were each in a relationship with the defendant such that she was “the principal” to each of them as her “agent”. Their knowledge of the PDA and the plaintiff’s reliance upon it was acquired by them in performance of their respective undertakings to act on her behalf in connection with the business the subject of Ms Sinanis’ retainer, evidenced by John’s email dated 7 May 2012, informed by the PDA given by John to both the plaintiff and Ms Sinanis. As a “principal” to both John and Ms Sinanis the defendant was charged with their knowledge of the PDA and the plaintiff’s reliance upon it whether she had actual knowledge of it or not.

Equitable Estoppel

In my opinion, the plaintiff has established his estoppel case, substantially as pleaded, relying upon an equitable estoppel which arises by reason of encouragement by the making of a promise, most recently reviewed by the High Court of Australia in Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126.
In my opinion, characterisation of the plaintiff’s case as an “estoppel by convention” (Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244-245; Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 188-189; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 at [74]-[75]; TEC Desert Pty Ltd v State Revenue (WA) (2010) 241 CLR 576 at [49]) or as a “promissory estoppel” (Legione v Hateley (1983) 152 CLR 406 at 432; Bushby v Dixon Holmes Du Pont Pty Ltd (2010) 78 NSWLR 111) would not materially affect the outcome of this case. Nor would any formulation of the elements of an equitable estoppel by the High Court pre-dating the Court’s judgment in Kramer v Stone (eg Waltons Stores (Interstate) Ltd v Maker (1988) 164 CLR 387 at 428-429).
As a convenient point of reference, the majority judgment of the High Court in Kramer v Stone (published in a joint judgment of Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ) at [32] defined the ambit of their judgement in the following terms (omitting footnotes):

“[32] An estoppel arising from a promise upon which a plaintiff claims an entitlement to new property rights, such as a conveyance of land or "trust", has been described as promissory estoppel, proprietary estoppel or, more generally, as estoppel by conduct and equitable estoppel. As in Giumelli v Giumelli [(1999) 196 CLR 101 at [7]] there is no occasion in this appeal to consider whether there is any difference between these descriptions or if there is any "single overarching doctrine" of estoppel. In the appeal to this Court, the parties were agreed that the category of estoppel in issue should be described as "proprietary estoppel by encouragement". That agreed nomenclature can be accepted provided that "proprietary estoppel by encouragement" is understood to refer to an estoppel which affords relief in equity "found in an assumption as to the future acquisition of ownership of property ... induced by representations upon which there had been detrimental reliance by the plaintiff" and which arises in the circumstances of this case solely by reason of detrimental reliance on a promise of a future conferral of a proprietary interest in land. This case does not call for consideration of whether, or when, any doctrine exists which might permit the creation of rights through any broader form of "estoppel by encouragement".

Under a subheading, “The requirements of equitable estoppel” the majority, in paragraphs [36]-[41] of their judgment, summarised the elements that must be satisfied on a claim to relief based upon an equitable estoppel which arises by reason of encouragement from a promise, here extracted (omitting footnotes):

“[36]   In Waltons Stores (Interstate) Ltd v Maher, Brennan J set out six requirements for an equitable estoppel which, as senior counsel for David submitted and as explained below, were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence. When the focus is only upon an equitable estoppel which arises by reason of encouragement from a promise, the elements that must be satisfied can be refined as follows.
[37]   First, as with the requirement for representations in estoppels by representation generally, there must be a "clear and unequivocal" promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.
[38]   Secondly, a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an "encouragement" for the promisee to act.
[39]   Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".
[40]   Fourthly, the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise". Hence, the relief is "moulded accordingly to prevent th[e] detriment". In cases where the detriment suffered by a plaintiff is "a relatively small, readily quantifiable monetary outlay on the faith of the [defendant's] assurances" then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered "involves life-changing decisions with irreversible consequences of a profoundly personal nature", the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.
[41]   Once these elements are satisfied, it is commonly said that conscience requires that A redress the detriment suffered by B. As has been repeatedly emphasised by this Court, the description of circumstances as unconscionable "is to characterise the result rather than to identify the reasoning that leads to the application of that description".”

By reference to the undersigned PDA John (on behalf of the defendant) represented to the plaintiff (by way of a clear and unequivocal promise) that if the plaintiff assumed responsibility for the mortgage debt secured against the MacDonald Street units and management of the units, transferred the Yerrick Road and Wangee Road properties to the children of John and the defendant and ceded to the defendant his share in the Cessnock Motel property (as well as property and operations in Cyprus), and allowed the defendant to appropriate all net proceeds of sale, he would be entitled to keep ownership of the MacDonald Street units in dissolution of any partnership between him and the defendant.
The plaintiff relied upon the defendant’s promise by acting in the general manner that would have been expected, by performing his part of the bargain proposed on behalf of the defendant, giving up property rights and assuming financial obligations that he would not have given up or assumed in the absence of the promise made by John on behalf of the defendant.
The consequence of the plaintiff’s reliance upon the defendant’s promise is that he will (continue to) suffer detriment if the promise is not fulfilled in that, having assumed responsibility for debt, transferred property to which he otherwise had an entitlement and allowed the defendant to appropriate all net proceeds of sale of property held in co-ownership, he has borne the burden, without realising the benefit, of the bargain he was offered, and upon which he had reasonably relied.
The defendant’s promise, made through the agency of John, was expected, and intended, to be relied upon. His reliance upon the promise was reasonable.
Although it may not be necessary to explore the motivation of the defendant (or John) in making a promise to the plaintiff that he could “keep ownership” of the MacDonald Street units (subject to the current mortgage debt on the property) an inference able to be objectively drawn from the course of events is that the promise was made, by reference to the unsigned PDA, for the purpose of:

inducing the plaintiff to give up property rights and to assume sole responsibility for a substantial mortgage debt, which he would not have done but for the expectation that, if he performed his part of the bargain, he would be entitled to sole legal and beneficial ownership of the MacDonald Street units; and

facilitating a means by which John and the defendant (by refinancing Laiki Bank debt with ANZ funding secured over the MacDonald Street units) could obtain much needed, urgent funds to pay their personal debts and to cut John’s ties with the Laiki Bank following his departure from the Bank in unhappy circumstances.

The defendant’s promise was expected to be relied upon by the plaintiff. It was a promise, made deliberately and in a calculated manner, designed to bring the business relationship of the defendant (and John) with the plaintiff to an end.
If there was an element of compromise in the bargain, adjusting the parties’ respective rights so as to bring their business relationship(s) to an end without a formal process of accounting on some basis or another, the defendant’s promise was nonetheless a promise, expected to be relied upon and reasonably relied upon by the plaintiff to his detriment. Despite their protestations to the contrary, John and the defendant were not primarily motivated by a charitable desire to assist the plaintiff. In return for full ownership of the MacDonald Street units, he gave up a one half share of the proceeds of sale of the Wangee Road and Yerrick Road properties and assumed sole responsibility for an ANZ Bank debt that included debt formerly secured against the Wangee Road and Yerrick Road properties.
In my opinion, conscience requires that the defendant redress the detriment suffered by the plaintiff by submitting to orders of the Court declaring that she holds her interest in the MacDonald Street units on trust for the plaintiff and consequential orders either vesting that interest in the plaintiff or requiring the defendant to transfer it to the plaintiff.

Residual Questions

In light of my finding that the plaintiff has established his estoppel case it is not necessary to give detailed consideration to the plaintiff’s contention that, should the Court find (as I have found) that there was no “global partnership”, or the like, governing the relationship between the plaintiff and the defendant, such, if any, claims as might have been made by the defendant (or, the plaintiff submits, John) would be “statute barred” (more particularly, extinguished) by operation of sections 14 and 63 of the Limitation Act 1969 NSW.
Suffice to say, the defendant’s claims rely upon her allegation of a partnership and do not, as pleaded, include an alternative claim in debt. Neither the defendant nor John has advanced a case in debt. Had they done so in respect of causes of action all of which appear to have accrued (if at all) six years before the commencement of these proceedings (on the facts of the case, no later than 2011) their claims would have been bound to fail.

ORDERS

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and costs, I propose to make orders to the following effect in disposition of these proceedings:

DECLARE that the defendant holds on trust for the plaintiff her interest in Lots 1-8 in Strata Plan 31426, being the properties respectively known as Units 1-8, 2 MacDonald Street, Lakemba in the State of New South Wales.

ORDER that the defendant’s interest in Lots 1-8 of Strata Plan 31426 vest in the plaintiff.

RESERVE to the parties liberty to apply for consequential relief in the working out of these orders.

ORDER that the defendant’s amended statement of cross claim filed on 27 November 2023 otherwise be dismissed.

ORDER that the defendant pay the plaintiff’s costs of proceedings on the ordinary basis.

I invite the parties to consider whether an order for the transfer of the defendant’s interest in the MacDonald Street units should be made rather than a vesting order; whether interlocutory orders or undertakings need to be reviewed in light of disposition of the cross claim; and whether any (and, if so, what) formal orders are necessary to dispose of ancillary or residual business remaining to be done in the principal proceedings.

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Decision last updated: 08 September 2025

Medium Neutral Citation:	Kyriacou v Makis [2025] NSWSC 1010
Hearing dates:	9-12; 17-19 September 2024; 30 October 2024 plus written submissions
Decision date:	08 September 2025
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, costs and any ancillary or residual business, DECLARE that the defendant holds on trust for the plaintiff her interest in the properties known as “the MacDonald Street Units”
Catchwords:	PARTNERSHIP – Determining existence – Persons not carrying on a business in common – No partnership – Joint activities essentially transactional in nature PARTNERSHIP – Determining existence – Co-ownership of investment property not of itself sufficient to establish a partnership EQUITY – Estoppel – Principles – Estoppel by convention – Estoppel by encouragement – Estoppel found AGENCY – Actual or apparent (ostensible) authority – Nature and scope of authority AGENCY – Knowledge of agent – Imputed to principal – Manager of business – Solicitor – Agent acting for both parties to a transaction JUDGMENTS AND ORDERS – Publication of reasons for judgment without orders – No estoppel of record – In circumstances of this case no abuse of process arising from earlier judgment in same proceedings
Legislation Cited:	Evidence Act 1995 NSW Family Law Act 1975 (Cth) Limitation Act 1969 NSW Partnership Act 1892 NSW Supreme Court Act 1970 NSW
Cases Cited:	Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 Bradley v Riches (1878) 9 Ch D 189 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Dixon v Winch [1900] 1 Ch 736 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Jackson v Goldsmith (1950) 81 CLR 446 Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126 Kyriacou v Makis (No 3) [2023] NSWSC 1098 Kyriacou v Makis (No 4) [2023] NSWSC 1261 Kyriacou v Makis [2021] NSWSC 60 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Reichel v McGrath (1889) 14 App Cas 665 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Shultz v Corwill Properties Pty Ltd (1969) WN (Pt 1) (NSW) 529 United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1 Wiltshire v Kuenzli (1945) 63 WN (NSW) 47
Texts Cited:	Lindley & Banks on Partnership (Sweet and Maxwell, 21st ed, 2022) Keith L Fletcher’s The Law of Partnership in Australia (Lawbook Co, 9th ed, 2007)
Category:	Principal judgment
Parties:	Cross Claimant (Defendant): Andrea Makis Cross Defendant (Plaintiff): Kyriacos Kyriacou
Representation:	Counsel: Cross Claimant (Defendant): FM Douglas KC Cross Defendant (Plaintiff): JA Darvall Solicitors: Cross Claimant (Defendant): Swan Lawyers Cross Defendant (Plaintiff): KP Lawyers & Barristers
File Number(s):	2018/00081547