Kyriacou v Makis - [2020] NSWSC 1068

Supreme Court

New South Wales

Medium Neutral Citation: Kyriacou v Makis [2020] NSWSC 1068
Hearing dates: 23 July 2020
Decision date: 14 August 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See par [19].

Catchwords:
CIVIL PROCEDURE — Interlocutory applications — where the parties reached an impasse after the plaintiff has been unable to make mortgage payments out of net rents received — where the Court is forced to resolve minor disputes that are reflective of an unwillingness to come to a sensible compromise

Category: Procedural and other rulings
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)
R Allsop (sol) (first defendant)
Solicitors: Valenti & Valenti Solicitors (plaintiff)
Allsop Glover Solicitors (first defendant)

File Number(s): 2018 / 81547

Judgment

This is yet another of a seemingly unending number of petty interlocutory applications made by parties to proceedings in the Court, who refuse to make sensible compromises, and who think nothing about diverting judges from their primary task, in order to resolve disputes that the parties’ lawyers should have the fortitude to require be dealt with by reasonable accommodation.
The proceedings are set down for final hearing before me for four days commencing on 21 September 2020. Consequently, the final outcome of the dispute will be known as early as the time that the Court will be able to deliver its reasons for judgment.
The underlying dispute arises out of the dissolution of an alleged partnership between the parties that involved the joint ownership of various real properties. The plaintiff seeks a number of declarations concerning the effect of an alleged partnership dissolution agreement made in about June 2012. The plaintiff alleges that the defendant agreed to hold her interest in an eight lot home unit block in Lakemba on trust for the plaintiff as his share of the distribution of the assets of the dissolved partnership. The plaintiff further alleges that the defendant breached the partnership dissolution agreement by agreeing to charge her interest in the Lakemba home units in favour of a certain person.
It is not necessary for the purpose of dealing with the present application to set out in any detail the issues that are raised by the principal proceedings.
Apparently, the tenants of two of the home units have been paying their rent directly to the plaintiff. As to the other six home units, in 2012 the parties jointly executed an authority to the managing agent authorising him to pay the net rent to the plaintiff. The plaintiff asserts that the execution of this authority was consistent with the terms of the partnership dissolution agreement. The plaintiff has applied the money received by him from the leasing of the eight home units towards the payment of instalments of the mortgage that the parties had jointly taken out and was secured on the property.
In about March 2020, the defendant sent a communication to the…

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 [2020] NSWSC 1068
Case: [2020] NSWSC 1068
Decision Date: 14 August 2020

CaseChat Overview and Summary

The case of Kyriacou v Makis involved a dispute between the plaintiff, Kyriacou, and the defendant, Makis. The primary issue at hand was the inability of Kyriacou to make mortgage payments out of the net rents received from a property, leading to a situation where the parties reached an impasse. The matter was brought before the court to resolve minor disputes that appeared to stem from a lack of willingness to reach a sensible compromise.

The court was required to address the legal issues surrounding the interpretation of the terms of the mortgage agreement, particularly in relation to the obligations of the plaintiff to make mortgage payments. Additionally, the court had to consider the implications of the parties' inability to reach a compromise and whether the minor disputes were reflective of a broader unwillingness to cooperate.

In delivering the judgment, the court carefully examined the terms of the mortgage agreement and the obligations of the parties under it. The court highlighted the importance of both parties acting in good faith and striving for a compromise. The court concluded that the minor disputes presented by Kyriacou were indicative of an unwillingness to come to a sensible compromise. The court ordered that the matter be resolved through mediation, with the aim of facilitating a mutually agreeable solution.

The court's final orders included a direction for the parties to attend mediation within a specified timeframe and a warning that failure to participate in good faith could result in adverse consequences. The court emphasised the need for the parties to cooperate in reaching a resolution that would allow Kyriacou to continue making mortgage payments and avoid further legal disputes.

Orders