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Kyriacou v Makis

Kyriacou v Makis

Case [2025] NSWSC 1010 8 September 2025

Partnership Formation

Unconscionable Conduct

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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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kyriacou v Makis

Details

AGLC: Kyriacou v Makis [2025] NSWSC 1010
Case: [2025] NSWSC 1010
Decision Date: 08 September 2025

CaseChat Overview and Summary

Kyriacou v Makis involved a dispute regarding the existence of a partnership between the parties and the scope of an agent's authority. The case was heard in the Supreme Court of Queensland. The central issue was whether the parties had entered into a partnership and, if so, the extent of their obligations to each other. Additionally, the court needed to determine whether there was an agency relationship between the parties and the nature and scope of any such authority.

The court first examined whether a partnership existed between the parties. It found that there was no partnership as the joint activities were essentially transactional in nature and the co-ownership of investment property did not, by itself, establish a partnership. However, the court did find an estoppel by convention, estoppel by encouragement, and estoppel by acquiescence, which prevented one party from denying the existence of a partnership. The court also found that there was an agency relationship, and the agent's knowledge was imputed to the principal. The court determined that the agent, a solicitor, had actual authority to act for both parties in the transaction.

The court concluded that the parties had entered into an agreement that amounted to an estoppel by convention and estoppel by encouragement. This prevented one party from denying the existence of a partnership, despite the lack of a formal partnership agreement. The court found that the agent had actual authority to act for both parties, and the principal was bound by the agent's actions within the scope of that authority. The court did not make any orders in this particular judgment, but the reasons for the judgment were published. The court found that the publication of the reasons for the judgment did not amount to an abuse of process, given the circumstances of the case.

Orders