Kyriacou v Makis - [2021] NSWSC 60

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Makis [2021] NSWSC 60
Hearing dates: 21 to 25 September 2020. Final submissions 20 November 2020.
Decision date: 09 February 2021
Jurisdiction: Equity
Before: Robb J
Decision:
The plaintiff has failed to establish that the Partnership Dissolution Agreement is an enforceable contract. See par [222]. Note pars [223] to [231] and the directions stated therein.

Catchwords:
CONTRACTS –– Formation –– Agreement –– Intention to make concluded bargain –– where alleged draft written contract provided that it would become binding when signed by the parties –– where the draft was not signed by either party –– no contract created –– no point of principle
CONTRACTS –– Formation –– Agreement –– where the defendant had not authorised the person who provided the alleged draft written contract to the plaintiff to enter into a contract on the defendant’s behalf –– no contract created –– no point of principle
CONTRACTS –– Formation –– Agreement –– where there were a number of different draft contracts and other documents referring to different and inconsistently worded terms of the alleged contract –– no contract created –– no point of principle
EQUITY — General principles and maxims — Statute of Frauds — Part performance — whether specific performance of an unsigned agreement should be ordered — where it is alleged that one party has performed their obligations but the other party has not — where the Court holds that there was no agreement made — where, even if there was an agreement, the acts relied upon for part performance are not consistent only with partial performance of the alleged agreement –– no point of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
G R Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Kyriacos Kyriacou (plaintiff)
Andrea Makis (first defendant)
Tina Georgiou as Executor of the Estate of the Late George Georgiou (second defendant)
Sam Pambris (third defendant)
Representation:
Counsel: J Darvall (plaintiff)
B May (first defendant)
Solicitors: Valenti & Valenti Solicitors (plaintiff)
Allsop Glover Lawyers (first defendant)

File Number(s): 2018 / 81547

Judgment

The plaintiff in these proceedings is Mr Kyriacos Kyriacou, who is employed as a kitchen cabinet maker.
The first defendant, and now the only active defendant, is Ms Andrea Makis. She is a primary school teacher.
It will be convenient to note the other significant witnesses.
Mr Ioannis Papatheodotou is the former husband of Ms Makis.
Ms Maria Sinanis is a solicitor who acted for Mr Kyriacou and Ms Makis on a number of relevant real estate transactions, and provided certain legal services to Mr Kyriacou.
The parties and the witnesses are members…

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 [2021] NSWSC 60
Case: [2021] NSWSC 60
Decision Date: 09 February 2021

CaseChat Overview and Summary

In the matter of Kyriacou v Makis, the parties were involved in a dispute regarding the formation of a contract, the authority of an agent to enter into a contract, and the applicability of the doctrine of part performance. The matter was heard in the Supreme Court of Queensland.

The court was required to determine whether a binding contract had been formed between the parties. The central legal issues involved whether an agreement had been reached, whether the defendant had authorised an agent to enter into a contract on his behalf, and whether the plaintiff's alleged performance of the contract could be recognised under the doctrine of part performance.

The court found that no binding contract was formed between the parties. The alleged draft written contract was never signed by either party and therefore did not constitute a concluded bargain. The court also held that the defendant had not authorised the person who provided the draft to the plaintiff to enter into a contract on his behalf. Furthermore, the court found that the different draft contracts and other documents referring to inconsistently worded terms of the alleged contract did not establish a clear agreement. The court also determined that the acts of the plaintiff were not consistent with partial performance of the alleged agreement, and therefore could not be recognised under the doctrine of part performance. The court concluded that there was no point of principle that would warrant further appeal.

The court's final order was that the defendant was not liable to the plaintiff under the terms of the alleged contract, and that the plaintiff's claim for specific performance was dismissed. The court found that there was no contract between the parties and that the plaintiff's claim for part performance was unsuccessful.

Orders