Something Something Pty Ltd & Ors v Handske Pty Ltd & Ors - [2024] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
SOMETHING SOMETHING PTY LTD AND ORS v HANDSKE PTY LTD AND ORS
[2024] SADC 38
Judgment of his Honour Judge Slattery
23 February 2024
LANDLORD AND TENANT - AGREEMENTS FOR LEASE - GENERALLY
LANDLORD AND TENANT - COVENANTS
LANDLORD AND TENANT - COVENANTS - AS TO BUILDING AND ALTERATIONS AND IMPROVEMENTS
The respondents apply for orders under s 24(2) District Court Act (1991) that this action be transferred to the Supreme Court.
Held:
Application dismissed.
Retail and Commercial Leases Act 1995 (SA); District Court Act 1991 (SA); Magistrates Court Act 1991 (SA); Bankruptcy Act 1966 (Cth); Uniform Civil Rules 2020 (SA), referred to.
Liddell v Southern Area Health Service [2010] SASC 11; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

SOMETHING SOMETHING PTY LTD AND ORS v HANDSKE PTY LTD AND ORS
[2024] SADC 38

Application by the respondents (FDN 48) dated 10 November 2023 for orders under s 24(2) of the District Court Act1991 in the following terms:-
1.   That the within proceedings be transferred to the Supreme Court;
2.   That the within proceedings be assigned to the Special Classification List of the Supreme Court; and
3.   Such other order as this Honourable Court thinks fit.
The applicants did not consent to nor oppose this application. On 23 February 2024 I dismissed the application. I said then that I would publish my reasons. These are those reasons.
Section 24 of the District Court Act provides:-
24—Transfer of proceedings between Courts
(1)     The Supreme Court or a Judge or Master of the Supreme Court may order—
(a)that civil or criminal proceedings in the District Court be transferred to the Supreme Court; or
(b)that civil or criminal proceedings in the Supreme Court that lie within the jurisdiction of the District Court be transferred to the District Court.
(2)     The District Court or a Judge or Master of the District Court may order that civil or criminal proceedings in the District Court be transferred to the Supreme Court.
(3)     Where proceedings have been transferred under this section, they may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the Court to which they are transferred.
The Action
This action was commenced in the Magistrates Court. It concerns a dispute between the interests of the members of the Makris family, the property interests associated with that family and its commercial interests. These include a number of property trusts, family discretionary trusts and other trading trusts connected with commercial operations of the Makris family.
The initial focus of the Magistrates Court proceedings was the occupation by Something Something Pty Ltd (SS Pty Ltd) as lessee of the Oxford Hotel at 101-105 O’Connell Street North Adelaide (CT V5132, F495) under a form of lease arrangement with the lessor, Handske Pty Ltd which is described below. The director and secretary of the first applicant SS Pty Ltd, is the third applicant, Grant Stephen Murray. The second applicant, Anastasia Murray, is the sole shareholder of SS Pty Ltd and she is married to the third applicant. The first respondent, Handske Pty Ltd (Handske) is the registered proprietor of and lessor of the property which comprises the Oxford Hotel. The second respondent is the father of the second applicant. The third respondent, Balgra Shopping Centre Management Pty Ltd is the trustee of the Balgra Shopping Centre Management Trust. It appears implicit that this is a unit trust. Another related company Balgra Pty Ltd, acts as the trustee of the Makris Family Trust which it seems is a family discretionary trust. Each of the first and second respondents are associated with the Makris Group of companies, trusts and its other commercial interests. All of these are controlled within the Makris Group which comprise private and not public interests.
The proceeding commenced by the applicants, in effect, sought relief from forfeiture of the rights of SS Pty Ltd as lessee to occupy and trade from the Oxford Hotel site.
There have been a number of iterations of the basis of this claim. Injunctive relief was initially granted in the Magistrates Court, and at the same time, the action was then transferred to this Court by agreement. There has now been a further evolution of the claim of SS Pty Ltd, the joinder of the second and third applicant and the joinder of further respondents. The subject matter of the claim of the applicants is now broadly based.
The applicants now claim an interest in the property comprising of the freehold of the Oxford Hotel. The applicants no longer only contend for orders protecting the alleged interests of SS Pty Ltd as the lessee of the premises, but now also contend for the protection of their alleged proprietary interests in the freehold of the property arising as a result of promises, obligations accepted, reliance and unconscionable conduct allegedly involving the respondents.
In order to properly understand these reasons and the exercise of my discretion, it becomes necessary to canvas some of the material facts. Implicitly at least, a contention of the applicants is that the Oxford Hotel has been an asset within the Makris Group for a long period of time. The material relied upon by the respondents, and in particular the affidavit of Gregory Michael Griffin, sworn on 10 November 2023 (FDN 49), challenges the accuracy of that contention. An affidavit filed by Mr Griffin on 6 February 2024 (FDN 72) discloses at paragraph 20 and following that it was not until 14 March 2000 that the second respondent became a director of the first respondent, took a transfer of portion of the shareholding of the first respondent and that the Makris Group first acquired an interest in the first respondent, the owner and lessor of the hotel on 14 March 2000 (paragraph 38 of FDN 72, affidavit of Gregory Michael Griffin). Therefore, there are factual contentions that are required to be resolved, including the basis upon which the applicants bring their claim.
It does not appear to be in contention that at least since 2000, the licenced premises of the Oxford Hotel have been operated by a number of lessees. SS Pty Ltd contends that it became the lessee of the premises but under particular arrangements contended for by the applicants. The sole director of SS Pty Ltd is Grant Stephen Murray, the husband of Anastasia Murray, the daughter of Mr Con Makris who is the head of the Makris family. Anastasia Murray is one of the four siblings, the children of Mr Makris. The respondent lessor is Handske of which Mr Con Makris is a director. The contentions between the parties are broadly based but may for present purposes be summarised as a broad dispute between Ms Murray, her husband, his company SS Pty Ltd, Mr Con Makris and trusts and other commercial interests and companies controlled by him and other members of the Makris family including Mr Jason Makris. Mr Jason Makris is the brother of Anastasia Murray.
The pertinent facts are that connected with the genesis of these proceedings SS Pty Ltd was the lessee of the hotel premises. It received a notice to remedy default dated April 2023 alleging that SS Pty Ltd was in default under its lease of the hotel premises for failure to pay rent and other outgoings under the term of its lease with Handske. SS Pty Ltd then commenced Magistrates Court proceedings seeking injunctive relief against Handske Pty Ltd. There were several bases for the application for relief. These included that in 2015, representations were made by and on behalf of Handske and through the Makris family generally that capital improvements were to be made to the hotel, that there would be a rent ‘holiday’ until the work was done with a charge of commercial rent thereafter and that these capital works would enable the business to be operated profitably. It is contended that, in effect, promises made by one part of the family to other members of the same family governed their relationship, so that the commercial arrangements reflected in any commercial lease were subsumed by those promises.
It was further alleged that, at the outset of the lease of the hotel granted to SS Pty Ltd, it was known by all parties that the business of the Oxford Hotel was insolvent; without any expenditure of capital to refurbish the hotel, it could not be brought to a position of solvent trading; that rent could not be payable in the absence of the prospect of solvent trading; and promises were made by Con Makris as the controller of Handske and the Makris Group that he would not force his own daughter into insolvency because of the obligations of SS Pty Ltd under the lease of the hotel. As I later explain, the liability of Anastasia Murray and Grant Murray jointly with SS Pty Ltd is said to arise under a confidentiality Deed dated 7 July 2015 entered into contemporaneously with the lease of the premises by SS Pty Ltd of the same date. It is alleged that under this confidentiality Deed, Anastasia Murray and Grant Murray became the guarantors of the whole the obligations of SS Pty Ltd and separately to indemnify Handske from and against all damages, costs and losses it may incur as a result of any breach by SS Pty Ltd.
Other representations were allegedly made in the same familial context. These were connected with the development of the 88 O’Connell Street North Adelaide site, the failed attempts of the Makris Group to develop that site, the financial inability of the same group to finance the development of the hotel site and the poor state of the finances of the Makris group generally.
It is not in contention that the Oxford Hotel is situated diagonally opposite and to the north-west of the site formerly owned by the Makris Group at 88 O’Connell Street North Adelaide. This site was never developed by the Makris Group during the time it was owned by that Group. The affidavit evidence to which I have earlier referred indicates that the site was sold by the Makris Group to the Adelaide City Council in 2017 for $34 million dollars. It also appears to be contended that pending the development by the Makris Group of the 88 O’Connell Street site, assistance would be given to SS Pty Ltd in the operation of the business of the Oxford Hotel. The applicants contend that this (understanding) was a further reason why the applicants through SS Pty Ltd would take over what was then an insolvent business at the hotel with all of its associated risks.
As a further overlay, it is alleged that there was a mutual understanding created by Con Makris that in time, his four children would share equally in the assets of the Makris Group; that a series of loan accounts existed within one or a number of companies within the Makris Group and that any deficiency in the ability of the lessee of the Oxford Hotel to pay rent and outgoings arising from the conduct of that business would be debited to a loan account of that particular child in the group. In the case of the Oxford Hotel in connection with SS Pty Ltd as lessee, there would be a debit to a loan account of Anastasia Murray in the group. This may be understood to be an allegation of a form of intra-familial running account which reflected the risk taken by SS Pty Ltd in assuming control of an insolvent asset of the Makris Group such as the Oxford Hotel. The pleadings also disclose that the title of this hotel has over time been charged by the Makris Group as part of the security for its overall borrowings. It is unclear on the affidavit material whether that continues to be the case.
The applicants also allege that reliance was placed upon the promises of Con Makris by SS Pty Ltd in that it continued to occupy and operate the Oxford Hotel based upon the promises made by Con Makris connected with the insolvent business which it assumed. Implicitly, the obverse situation would affect the overall worth of the assets of the Makris Group used as security for borrowers. It is self evident that a closed hotel is a wasting asset compared to an operating (functioning) licenced premises.
The respondents deny each of the applicants’ claims and contend that any arrangement made between Anastasia Murray, Grant Murray and SS Pty Ltd with any member of the Makris Group was recorded as part of settled arms length commercial arrangements between them. Those arrangements were recorded in documents which reflect the whole of the contractual relationships between the parties. The content of those documents is said to be inconsistent with the principal contentions of the applicants and they are defeated by the obligations accepted by the applicants in the commercial arrangements made with the Makris Group connected with the Oxford Hotel. Later in these reasons I will summarise the effect of the pleaded case of the respondents in their defence.
I turn first to the orders that have been made by the Courts from time to time.
In the Magistrates Court, the following orders were made on the application of SS Pty Ltd to that Court on 9 May 2023 (FDN 7):
Order
Upon the applicant through its counsel providing the usual undertaking as to damages:
1.   The respondent is restrained from re-entering the leased premises at 101-105 O’Connell Street, NORTH ADELAIDE until further order.
2.   The respondent is to file and serve any Affidavit in response to the Interlocutory Application (FDN 4) by 5 pm on 11 May 2023.
3.   The applicant is to file and serve any reply Affidavit by 5 pm on 15 May 2023.
4. The proceedings are transferred to the District Court pursuant to s.69(1) of the Retail and Commercial Leases Act.
5.   The costs of the transfer are to be paid by the applicant.
Following the transfer of the action to this Court, there was a further hearing on 3 July 2023 and orders were made as follows:-
Recitals
Upon the Court noting the following undertakings given by the director of the Applicant, Mr Grant Murray, in his personal capacity:
1.   Mr Murray is to submit to such order (if any) as the Court considers just for the payment of compensation to be assessed by the Court or as it may direct, to any person (whether or not a party) affected by the operation of the interim order or undertaking by the other person or any continuation of it (with or without variation);
2.   Mr Murray is to pay the compensation referred to in paragraph 1 to the person or persons referred to in the order; and
3.   Mr Murray is not take any steps to dispose of, further encumber or to do anything else otherwise to diminish the value of this interest in any of his personal assets, without first giving 14 days written notice to the Respondent.
In addition to the above, it is noted that Mr Murray, for and on behalf of the Applicant, also undertakes to pay the amount of $3,000 per week into the suitor’s fund maintained by this Honourable Court until further order with the first payment due before 12:00 pm on Tuesday 4 July 2023.
It is ordered that:
1.   Upon the giving of and compliance with the undertakings referred to above, the Respondent is restrained, whether by their servants, agents, or otherwise, from re-entering the leased premises at 101-105 O’Connell Street North Adelaide until further order.
2.   The Applicant is to file and serve a Statement of Claim and any application for joinder of any additional parties on or before 7 July 2023.
3.   Leave is granted to the parties to file any additional affidavit material in relation to FDN 4, by no later than 2 August 20233.
4.   FDN 4 is listed for further argument on Monday 7 August 2023 at 10:00 am.
5.   The Applicant is to pay the Respondent’s costs of today’s hearing fixed in the amount of $3,000.
6.   Liberty to apply.
I have earlier referred to the evolution of the claims and causes of the action of SS Pty Ltd and that it no longer operates as the lessee of the hotel premises. The applicant’s claim is now focused upon an alleged proprietary interest in the freehold of the property comprising the hotel. The orders with injunction made by the Court in favour of SS Pty Ltd have now been discharged under the following orders made by the Court on 25 August 2023 (FDN 40).
On the Respondent’s undertaking that it will not take any steps to re-enter the Premises before 5pm on 22 September 2023, it is ordered that:
1.   The injunction in paragraph 1 of orders FDN 22 restraining the Respondent from re-entering the premises at the Oxford Hotel is dissolved.
2.   Upon dissolution of the injunction in FDN 22, Mr Grant Murray is released from the obligation given in the undertaking in orders FDN 22 to pay the amount of $3,000 per week into the Suitor’s fund maintained by this Honourable Court, but that the monies already paid pursuant to that undertaking are to remain in the suitor’s fund until further order.
3.   Interlocutory application FDN 4 is dismissed.
4.   Costs of the interlocutory application FDN 4 be reserved.
5.   Pursuant to rule 51.4 of the Uniform Civil Rules 2020 (SA), the proceedings are to proceed by Claim and the Applicants have leave to file and serve a Claim on or before 1 September 2023.
6.   The following parties are joined to the proceedings, namely Anastasia Murray as the Second Applicant, Grant Murray as the Third Applicant, Constantinos Makris as the Second Respondent, and Balgra Shopping Centre Management Pty Ltd (ACN 065 966 654) as trustee of the Balgra Shopping Centre Management Trust as the Third Respondent.
7.   The Respondents are to file a Defence and any Cross Claim on or before 29 September 2023.
8.   The Applicants file any Reply to Defence or Defence to Cross Claim on or before 27 October 2023.
9.   The matter be listed for directions at 9.00 am on 9 November 2023.
10.   Liberty to apply.
On 22 September 2023, SS Pty Ltd vacated the hotel and Handske Pty Ltd re-entered and took possession of the premises.
On 9 and 16 November 2023, the Court made orders for the filing of amended pleadings and any application to transfer the proceedings to the Supreme Court.
On 13 November 2023, the respondents filed the interlocutory application (FDN 48) supported by an affidavit of Gregory Michael Griffin sworn on 10 November 2023 (FDN 49). I have earlier referred to and set out the content of the application (FDN 48).
The hearing of this application for transfer was delayed for a number of reasons. There were some attendances before the Court concerning the interlocutory applications that had been made by the applicants. By orders made by the Court on 25 August 2023, the injunction restraining Handske from purporting to exercise its rights as lessor was dissolved and the proceedings became an interparty claim concerning the whole of the relationship between the applicants and the respondents. The detail of that claim is now to be found within the applicants’ Statement of Claim - Revision 1 dated 15 December 2023 which is a much more detailed pleading by the applicants about their claims connected with the Makris family. It contains broader assertions of fact about the existing causes of action as well as further claims and causes of action.
Subsequent to me announcing my decision on the application on 23 February 2024, the respondents have filed a defence – revision 1 dated 13 March 2024 (FDN 79). That document sets out in detail the defence of the respondents to the contention of the applicants. I will summarise that document later in these reasons.
It is contended in the Statement of Claim – Revision 1 that Con Makris continuously represented to his children that they would share equally in his personal assets as well as the assets of businesses held in companies, trusts and other entities forming part of the entire holdings of the Makris family interests, which Con Makris or his interests owned or over which he exercises control. It is contended that Con Makris continuously represented to all of the members of his family that each of his children would receive a significant portion of those assets in his lifetime and no later than when his children attained the ages of between 30 and 40 years. The pleading contemplates this distribution by the creation of a credit for the benefit of a particular child in the form of loans that may be made to that child and that these loans are journalised merely as a record of which each child received and not as a measure of the child’s entitlement. It is contended that it was further represented that insofar as a child took control of an asset, that child would be treated as the owner of that asset adjusted according to the amounts received during that child’s lifetime. For example, it appears implicit that in relation to the Oxford Hotel, any child taking that hotel as the eventual owner and licence holder would be treated as the owner of that hotel adjusted according to the amounts received during that child’s lifetime.

It is then contended that one of these four children, Ross Makris, a sibling of Anastasia Murray, received all or a substantial part of his share of those assets in 1995 under an arrangement made with his father and that, at that time, following representations made by Con Makris and at his request, Anastasia Murray signed documents facilitating the distribution to Ross Makris. In doing so, and so allowing the depletion of the pool of assets that may otherwise be available following the transfer of part of that pool of assets to Ross Makris, Anastasia Murray relied upon representations made by Con Makris that she would obtain her share of the remaining assets in due course and in accordance with the promises made by Con Makris.
It is contended that from 2011, Anastasia Murray commenced work with the Makris Group, and became familiar with its assets and their disposition. This is said to be part and parcel of the continuation of the representations made by Con Makris that Anastasia Murray would soon receive her share of his estate. From 2016, Anastasia Murray also received amounts of $12,500 per month increased from lesser amounts received earlier.
Anastasia Murray alleges that at the time of the bankruptcy of Con Makris in 1992, he requested that she sign documents which, as he explained to her, cleared her loan accounts with the Makris companies, especially Balgra Pty Ltd. At the time, Con Makris explained to her that these actions were connected with the adjustments said by him to be necessary to make the appropriate arrangements to allow Con Makris to deal with his bankruptcy. Notwithstanding, there has never been a request for payment of any such loans, no loan agreement was executed, and there has never been a claim for interest on these loans which were said to be gifts. The children of Con Makris were all similarly treated. These are all matters that will be ventilated at the trial of this action. These allegations may involve aspects of the operation of the Bankruptcy Act 1966 (Cth).
Anastasia Murray alleges that promises were made to her from the time of the purchase of the Oxford Hotel by Con Makris (described as part of the ‘estate representation’), that the Oxford Hotel was intended to be hers. It is then contended that as a result of promises made to her by Con Makris, she was persuaded that she should take over the management of the hotel which at that time was an insolvent business. She contends that she took over the management of the hotel from 2015 based upon other promises made to her by Con Makris that he would contribute capital from the Makris Group to renovate the hotel, that it was or would become, profitable and that prior lessees had not run the hotel properly. It is contended that Con Makris urged her to commit to the hotel business and run it as it was destined for her ownership.
This transaction in relation to the Oxford Hotel was to be recorded commercially, the rent payable was to be added to the loan account of Anastasia Murray but it was not to be repaid so that the whole transaction could be presented as a commercially performing asset to the persons or entities lending money to the Makris Group.
It is alleged that at the same time, representations were made about the true financial performance of the hotel being profitable. The lease of the hotel was signed in reliance on all of these representations made by Con Makris, the Makris Group and its companies.
The applicants contend that the business of the Oxford Hotel was insolvent; it had for a long time been a loss-making venture. The affidavit material filed suggests that there had been significant conflict between the Makris Group and the prior tenants, and the hotel business had not been profitable for a very long time. This is said to have contributed to the penury of the Makris Group and these facts were not made known to the applicants. Notwithstanding the promises that had been made by Con Makris, no capital contributions to fund improvements to the hotel were made.
It is contended by the applicants that under the arrangements made with Con Makris, the payment of rent for the Oxford Hotel was dependent upon the fulfillment by the Makris Group of the promises made by Con Makris in connection with the hotel. None of these promises were allegedly fulfilled. Those promises induced the entry into the lease by SS Pty Ltd and the execution of the guarantee by Grant Murray connected with the occupation of the hotel which it is contended, was necessary because of the commercial arrangements made by the Makris Group with other lenders and interested parties for the appearance of commerciality. Alternatively, it is alleged that those arrangements comprised the actual arrangements having regard to the promises and representations made by Con Makris on behalf of himself and the Makris Group which comprised a collateral contract which superseded the written contract. It appears to be intended that the plea of a superseding written contract is an attempt to avoid the operation of the rule of inconsistency in relation to collateral contracts.
It is then contended by the applicants that if the truth had been known, the lease would never have been entered into by SS Pty Ltd and no guarantees given by any guarantor. As a result of steps taken by Anastasia Murray, promises were then made by Con Makris and the Makris Group that development of the hotel would occur upon the development by the Makris Group of the site at 88 O’Connell Street North Adelaide. It is alleged that the development of that site did not occur because of the impecuniosity of the Makris Group. It is contended that rent was not payable until the development of the 88 O’Connell Street site. That site was sold by the Makris Group to the Adelaide City Council for $34 million dollars in 2017.
It is then contended that the Makris Group admitted to the applicants that it was not in a financial position to undertake the development of 88 O’Connell Street. Following the provision of that information, the parties proceeded as before such that the rent and outgoings payable under the lease were allocated to the loan account of Anastasia Murray within Balgra Shopping Centre Management Pty Ltd as Trustee of the Balgra Shopping Centre Management Trust. It is contended that those amounts would not be payable, but would be recorded in the context of the split in the estate of Con Makris. That is in the context of his personal assets and the Makris Group. SS Pty Ltd agreed not to demand that Handske make good its promise to fit out or pay its contribution to the fit out of the Oxford Hotel until the whole of the Makris Group was in a financial position where it could do so. No rental or outgoings were then payable under any obligations upon SS Pty Ltd until that occurred.
In 2022, the relationship between Con Makris and Anastasia Murray broke down and so the respondents then purported to treat the applicants as arms length lessees and guarantors. The applicants contend that they had by then already changed their position in reliance upon the promises made to them by Con Makris and the members of the Makris Group. If there was any attempt by any member of the Makris Group to depart from the effect of those promises, such an attempt would amount to unconscionable conduct. In their prayer for relief, the applicants claim for breach of contract, for misleading and deceptive conduct, for promissory and conventional estoppel relating to rent, for promissory estopped with respect to the Oxford Hotel lease, for promissory and conventional estoppel arising from the Balgra Shopping Centre Management Pty Ltd loan account, for promissory estoppel with respect to the estate of Con Makris and in Part 4 of the pleadings, claim the following orders:-
85    The Applicants seek that the Court declare:
85.1 That no rent or outgoings are is owed by Something Something to Handske ~~Hanske~~;
85.2 That amounts recorded in the ‘loan accounts’ of BSCM are merely a record of inter vivios gifts advanced and are not repayable to BSCM;
85.3 That the Oxford Hotel is held on constructive trust for Anastasia; and
85.4 That a quarter of Con’s estate is held on constructive trust for Anastasia;
86    The Applicants seek orders that:
86.1 ~~Con, Handske and/or BSCM pay to Anastasia and/or Something Something the sum of $1,700,000 by way of capital contribution to the fit out of the Oxford Hotel.~~
Under Australian Consumer Law:
86.1.1Pursuant to clause 243, the whole of the Lease and the Deed be   declared void ab initio;
86.1.2Pursuant to clause 243, a declaration that no rent or other amount is or has been due under the Lease or the Deed:
86.1.3Pursuant to clause 236, that Handske and/or Con pay to Something Something and/or Grant and Anastasia compensation and damages for trading losses incurred, the value of personal contributions made to the Oxford Hotel by Anastasia and Grant, and their lost profit which they would have made from alternative profitable activities had they not worked in the Oxford Hotel, together with interest:
86.2 Handske forthwith transfer to Anastasia (and/or her nominee) the Oxford Hotel and all fixtures and fittings included with the Oxford Hotel, with the costs of stamp duty, registration fees and other associated costs of the transfer to be borne by Handske:
86.2AAn inquiry be made and taken as to the extent of Con’s estate (as that phrase is more widely defined and used herein);
86.2BSuch inquiry be listed before, and made and taken by, a Master of the Court reserving liberty to the Master, if thought fit, to appoint an expert to take and report on the said inquiry or assist him or her in that process;
86.2CCon is to file and serve on Anastasia a detailed account, verified by affidavit, of each asset comprising his estate and any liabilities affecting such assets;
86.2C.1The affidavit specifying, in respect of each asset or liability, the nature, value and a description of the asset or liability;
86.2C.2The affidavit vouching each asset or liability item by attaching the relevant title document, loan documentation or other evidence supporting the asset or liability, such that the verifying affidavit annexes or exhibits all documents relevant to the detailed account as are in the possession, custody or power of Con and each entity that Con owns or exercises control over;
86.2C.3Anastasia be at liberty after service of the said account and documents to apply to the Master to cross-examine Con on identified matters in or arising from the said account and documents; and
86.2C.4Anastasia, within be at liberty to file and serve upon the defendants their surcharges, falsifications and objections (if any) thereto;
86.2DCon is to pay to the plaintiffs such amount or transfer such assets, and to do all other such things, as is determined by the Master on the taking of the account as being due to Anastasia:
86.2A        Con transfer to Anastasia (and/or her nominee) a quarter of Con’s estate (including the Oxford Hotel and all fixtures and fittings included with the Oxford Hotel);
86.3 In the alternative to an immediate transfer as sought in the abovementioned paragraph, Con execute and maintain estate planning documents consistent with the declaration at paragraph 85.4 above.
86.4 Costs.
86.5 Such further order as the Court sees fit.
I have earlier mentioned that respondents have now filed a Defence – Revision 1 (FDN 79) on 13 March 2024. It is to that which I now turn.
The respondents contend that Handske first acquired the Oxford Hotel (the improved real property) through transfers that occurred on 25 August 1994 and 5 August 1999. The Makris Group took an interest in Handske in March 2000 and took a majority interest in Handske on 3 December 2000 through a share transfer to North Adelaide Village Shopping Centre Pty Ltd. Prior to March 2000, the Makris Group did not have any interest in the Oxford Hotel and it follows that it was not possible for there to be any promise made prior to that time in relation to the Oxford Hotel.
The respondents contend that SS Pty Ltd occupied the hotel premises under a lease of 7 July 2015, that rent of $365,000 p.a was payable, that there was a rent ‘holiday’ between 1 July 2015 and 30 June 2016 and that rent then was payable on a turnover of gross receipts reviewable after 30 June 2020. SS Pty Ltd was under an obligation to provide its trading figures to the Makris Group in order for Handske to calculate the rental payable. SS Pty Ltd failed to comply with this term of its lease. Handske had a right to terminate upon failure to pay rent or a breach of other terms of the lease.
The premises have now been yielded up to Handske and within the lease, there are obligations upon SS Pty Ltd at the time it yielded up the premises (lease clause 4.11). The respondents contend that the terms of the lease comprise the whole of the agreement between the parties including under the terms of the guarantee and there has not been an amendment or variation of those terms. In the course of the lease, Handske wrote to SS Pty Ltd seeking financial records for the calculation of rent, none were forthcoming and a final demand was issued for the provision of information for the calculation of rent.
Separately, the respondent contend that Balgra Shopping Centre Management Pty Ltd as Trustee of Balgra Shopping Centre Management Trust alleged that SS Pty Ltd had an outstanding loan balance with that entity in the amount of $1,345,314.28, which comprises funds advanced for the payment of rent and outgoings due by SS Pty Ltd under the terms of the lease between 26 February 2016 and 31 May 2020. On 18 April 2023, Handske served the notice to remedy default on SS Pty Ltd under s 10 of the Landlord and Tenant Act 1936 (SA) and clause 4.2 of the lease. That became the basis for the application by SS Pty Ltd for the injunctive relief.
The respondents contend that the applicants have failed to keep the premises in clean, good and substantial repair, to surrender keys, to remove plant and equipment from the premises and to otherwise comply with the terms of its lease.
In relation to the intra familial relationships, the respondents plead that at March 2023, Con Makris was the sole director and in control of the companies within the Makris Group and on 27 March 2023, his son Mr Jason Makris, the brother of Anastasia Murray was also appointed the director of those companies. It is alleged that Con Makris arranged for financial assistance to be provided to his children at his sole discretion but it was not provided by him personally. It was provided out of the assets of the Makris Group and this financial assistance has varied over time. It occurred through funds advanced by Balgra Pty Ltd as Trustee of the Con Makris Family Trust. These were all in the form of loan advances.
The respondents also accept that Con Makris expressed a general wish for his wife and children to benefit from his estate, that he intended to make a substantial and final distribution of his assets through his will, but made no binding promises to any of his children or family members.
The respondents also contend that the arrangements made within the Makris Group mean that management and control of particular assets cannot be transferred to children; they are held within trust entities; they do not form part of the personal estate of Con Makris; and it was unreasonable for the applicants to assume otherwise. To that end, the advances made to Anastasia were recorded as loans in the name of Anastasia in the books and records of Balgra Pty Ltd as trustee of the Con Makris Family Trust. Anastasia Murray was always informed that this was the way in which these loans were accounted for and demands made upon her were in relation to the repayment of those loans. Anastasia Murray was made aware through a number of pieces of correspondence from the representatives of the trust, the advances were recorded as loans which were repayable.
In relation to the Oxford Hotel, the Makris Group did not have any interest in that asset until March 2000 and in 2015, Con Makris raised with Anastasia Murray the possibility of taking over the lease. The hotel was then under temporary management of the Makris Group and there was then negotiations for the hotel to be taken over by Anastasia Murray and her interests.
In relation to the site at 88 O’Connell Street, the formal proposal for the development by the Makris Group was abandoned in early 2017 and in December 2017, the property was sold to the City of Adelaide. It is accepted that Con Makris expressed a view that the development would have the effect of attracting clientele to the Oxford Hotel site.
Handske contends that it provided to SS Pty Ltd details in relation to the trading of the Oxford Hotel whilst it was under the temporary control of the Makris Group after the termination of the earlier tenancy. Those financial statements related to a period of trading prior to the removal of the gaming machines by the prior tenants. It is contended that on 13 April 2015, Anastasia Murry requested Con Makris to have a discussion about whether he would provide any further rent assistance but he made no reply, and that in June 2015, Anastasia proposed that Con Makris agreed to fund a large scale redevelopment of the hotel but he refused. Otherwise, the respondents have complied with all of their obligations under the lease. Some contributions have been made by Handske to the improvements and invoices have been paid in the period between 4 April 2015 and 29 April 2016. All obligations under the terms of the lease are reflected within its written terms and at the time of its execution, SS Pty Ltd, Anastasia and Grant Murray were represented by lawyers and had the benefit of legal advice.
Notwithstanding the terms of the lease, in February 2016, the Makris Group agreed to provide financial assistance to SS Pty Ltd in respect of an ATO debt and this was in the form of loan advances made to SS Pty Ltd and they were recorded in the accounts of Balgra Shopping Centre Management Pty Ltd.
The respondents contend that SS Pty Ltd was in possession of the hotel premises for more than eight years but made no rental or other payments in the period between 1 July 2016 to 30 September 2022. The rent was paid by Balgra Shopping Centre Management Pty Ltd as trustee of the Balgra Shopping Centre Management Trust on behalf of and with the consent of SS Pty Ltd. This was so that the debt owing to Handske Pty Ltd for rent would be paid and there would be an equivalent debit to the loan account of SS Pty Ltd with the Balgra Shopping Centre Management Trust records. Those loan amounts have never been repaid.
The respondents deny any alleged breach of lease, any alleged misleading and deceptive conduct or any form of estoppel. The respondents contend that any form of reliance as alleged by the applicants was unreasonable in all of the circumstances pleaded and there is no legal or equitable basis for the claims made by the applicants.
The respondents have also filed a cross claim (FDN 44) which claims against SS Pty Ltd for damages for breach of lease, interest, costs and other orders. It claims against Anastasia Murray, repayment of the loan account advances made, interest costs and other orders under a confidentiality Deed dated 7 July 2015 which varied the terms of the lease. Under the lease Grant Murray provided a personal guarantee to Handske. Under the terms of the Deed, Anastasia and Grant provided a further guarantee and indemnity to Handske pursuant to which they:-
‘1guaranteed all of the obligations of SS Pty Ltd, monetary or otherwise under the lease.
2.to indemnify Handske against any form of loss arising from a breach of obligation by SS Pty Ltd.
3. The obligation of Anastasia and Grant Murray were continuous and unabated.
4.Grant and Anastasia Murray agreed to pay Handske any unpaid rent or outgoing as the parties principally liable.’

The respondents allege that the loan due to Balgra Shopping Centre Management as at 25 January 2023, owing by SS Pty Ltd and for which demand has been made was in the amount of $1,345,314.28. It claims for repayment of that amount or in the alternative, the amount of $837,018.20 being unpaid earlier rent. The cross claim against Anastasia Murray claims for unpaid rent in the amount of $448,736,46 and in the event that the Balgra Shopping Centre Management Pty Ltd is unable to recover this debt from SS Pty Ltd, claims are made against Anastasia Murray for unpaid rent in the amount of $837,018.20. Claims are also made by Handske in respect of the obligations of SS Pty Ltd under the lease in connected with yielding up the premises, maintenance, repairs, cleaning and other obligations.
This description of the claims in this action disclose that there are a number of contexts in which the claims are made and in which the respondents have entered their defence and cross claims. The first is the context of the breakdown of commercial relationships between parties; the second, is whether those commercial relationships are fully at arm’s length; the third is the familial background in which the breakdown of those relationships has occurred; the fourth, is the context of disputes between the members and interests controlled by them; and the fifth, whether legal relationships are affected by promises understandings or representations made between family members about the enforceability and obligations and rights under such agreements.
This Court is well familiar with civil disputes involving promises made in the context of family arrangements. The same as any other civil action, they require a proper examination of the facts, a discernment of the relationships between parties, the ascertainment and resolution of factual questions upon issues of reliance, change of position, unconscionability and forms of estoppel and if so, at what level. These are all part and parcel of the determination of issues which this Court deals with regularly. The respondents refer to and rely upon the documents executed by the parties and the ordinary meaning of them. This is an obvious strength of the position of the respondents. Another is that if the respondents successfully defend the claims of the applicants they will rely upon the operation of those documents and the calculation of liability of the applicants to be made thereunder.
Actions connected with alleged misleading conduct occurring within family commercial arrangements are very familiar to this Court. Because of the well understood breadth of its operation, actions before this Court very regularly plead claims under s 18 of Part 2 of the Australian Consumer Law and claims for consequential relief. These are legal issues dealt with constantly within the civil jurisdiction of the Court.
And this Court deals regularly with complex commercial actions involving trusts, corporations, the application of equitable principles and the consequences of particular interactions. An obvious further complication in this case is that it is alleged there is an expectation of a share to be allocated in the whole of the Makris Group of companies in favour of Anastasia Murray. That group will no doubt have a complex structure together with an interrelationship of trusts, corporations and similar entities. There will need to be an identification of the the control of each such entity, and whether, for example, promises alleged to have been made could, in any legal equitable or practical way be binding and, if so, fulfilled. That question in turn raises a number of other issues connected with remedies that may be available according to the facts which the Court finds proved. Complicating features include that Balgra Shopping Centre Management Pty Ltd as the trustee of the BSCM Trust and separately, Balgra Pty Ltd operates as the trustee to Makris Family Trusts. These are two separate operating trusts.
These are all questions which are well familiar to this Court and most Courts especially in the context of disputes between family members concerning the assets of a family and related entities. So also are concepts of estoppel and promissory estoppel. A feature of this matter is that the alleged arrangements were made when the Makris Group of companies were privately held. There is no information about the nature of the trust arrangements within the Makris Group. For example, no information is provided by the respondents concerning whether the trusts are unit trusts, bare trusts, discretionary trusts, or some other form of trust. And it is not alleged, nor is it contended, that the Makris Group of companies contains public companies or other forms of public entities. All of the interests are private and are controlled within the Makris Group.
In that background, I turn to the submissions of counsel. Mr Whitington KC for the respondent emphasised the nature of the claims made by the applicants. I have identified these claims in detail above; they include claims made against companies within the Makris group, claims in relation to the personal assets of Mr Con Makris, claims in relation to assets over which Mr Con Makris has control or over which he may exercise control and in relation to assets of various trusts.[1] Mr Whitington KC emphasised that the applicant Anastasia Murray claims a present interest in these assets and consequently seeks to perfect an interest in assets which are held in a broad range of circumstances and legal and equitable relationships. Mr Whitington KC also emphasised that the action was commenced in the Magistrates Court, was transferred to this Court by order of the Magistrates Court having regard to the complexity of this action and this application now seeks for the transfer of it to the Supreme Court. He emphasised that it was not until 7 July 2023 that application was made for the joinder of Anastasia Murray and Grant Murray as well as for the joinder of the second respondent Mr Makris and the third respondent, Balgra Shopping Centre Management Pty Ltd in its capacity as trustee. He also emphasised that the detailed claims of the applicants are to be found within the Statement of Claim – Revision 1 dated 15 December 2023 after the initial statement of claim of the applicants was filed on 7 July 2023. As I have already explained, the second Statement of Claim makes significantly more allegations of fact and law against each of the respondents.
[1] Transcript of Proceedings (20 February 2024) T4-6.
The affidavits before the Court disclose that the structure and operations of the Makris Group of companies and trusts appear to be complex; the group of companies within the Makris Group comprises about fifty separate companies and that there are then forty separate trusts. It is explained that the trustees of those trusts are companies within the Makris Group. The Court is not in a position where it may make any particular finding or draw any particular conclusion about the arrangements involving those trusts because of the lack of information about them. The Court is only informed that there are fifty separate companies and forty separate trusts all with corporate trustees. It is then also contended that the Makris Group of companies owns commercial properties in South Australia, Victoria and Queensland.
The respondents also rely upon the first affidavit of the solicitor Gregory Michael Griffin sworn on 10 November 2023 (FDN 49) and the second affidavit of Mr Griffin sworn on 9 February 2024 (FDN 73). In his first affidavit at paragraph 6, Mr Griffin informs the Court that he is instructed that in view of the potentially serious implication of the applicants’ claims upon the whole of the Makris Group and the family members, Mr Con Makris wishes to have the proceeding dealt with in the Supreme Court. Mr Griffin does not suggest that the proceedings could not or should not be dealt with in this Court; rather it is a wish of his client to have the matter dealt with in the Supreme Court. I am unable to give any significant weight to that wish because nothing has been put before me to indicate that these arrangements are so complex that another Court should deal with these proceedings. This Court deals regularly with such claims.
Mr Griffin then informs the Court in paragraphs 7, 8 and 9 of his affidavit that Balgra Shopping Centre Management Pty Ltd is the trustee of the Balgra Shopping Centre Management Trust which is a unit trust, all units which are held by another company within the Makris Group but he does not identify that company. He also informs the Court that Balgra Pty Ltd is the trustee of the Con Makris Family Trust, that there are multiple potential beneficiaries of that trust, including the family of Con Makris. This suggests, implicitly at least, that the trust is a form of discretionary trust (although this is not completely clear). At paragraph 9, Mr Griffin informs the Court that he is instructed that the financial arrangements of the entities within the Makris Group are interconnected and complex. I am not able to place any particular or significant weight upon this assessment because that is a circumstance which is commonly encountered in civil proceedings before this Court. He then deposes that a legal action affecting the obligations and liabilities of one entity in the group may have significant knock on effects for other entities within the group. He does not explain what ‘knock on effects’ means however, accepting for the sake of discussion that it is intended that an order against one group of assets will have effect upon another group of assets or the financial position of, for example, the trustee of those assets, then that is a matter which is also regularly encountered in civil proceedings in this Court. I am therefore unable to give any particular weight to that affidavit of Mr Griffin.
In his second affidavit (FDN 72), Mr Griffin informs the Court that he has been informed by Mr Jason Makris, the current CEO of the Makris Group (and the brother of Anastasia Murray) that since March 2023, Mr Jason Makris has been appointed as a director of each of the companies comprising the Makris Group, which prior to that date had as their director only Mr Con Makris. Those matters are reflected within the pleadings. That is not a new matter. It is therefore unclear to me what significance those facts carry bearing in mind that the relevant representations are all said to have been made prior to March 2023.
Mr Griffin then exhibits two documents. The first document forms a portion of an article published within the Australian Newspaper. The author of the article is not identified. The accuracy of the article cannot be assessed. The article estimates the wealth of the Makris Group at $813 million dollars. Mr Griffin annexes a copy of the extract from the Australian newspaper but does not refer to the figure of $813 million dollars separately within his affidavit and that failure is not explained. Mr Griffin did not depose that he had obtained instructions from Mr Jason Makris or Mr Con Makris about the accuracy of the estimate of the assets of the Makris Group. Mr Griffin’s affidavit does not depose that he had obtained confirmation from either of those directors about for example, whether this is a gross or a net figure. He does not address whether there are any contingent liabilities or obligations affecting this estimation and what effect those liabilities may have upon the figure reported within the extract from this newspaper article. That extract carries little, if any, weight.
Mr Griffin also annexed a document entitled ‘Rich List’ which is an extract from another newspaper, the Australian Financial Review. This article lists ‘..Mr Con Makris and Family…’ as having wealth of $1.31 billion dollars. Same as the first article, Mr Griffin does not inform the Court that he has obtained instructions from Mr Jason Makris or Mr Con Makris confirming the accuracy of the article or on what basis the assessment has been made. He deposes on a number of occasions that he has obtained instructions from the directors of the company. He has not received instructions from those directors confirming the accuracy of the material within the article. It is also noteworthy that the description within the article from the Australian Financial Review ‘Rich List’ makes a reference to: ‘…Con Makris and Family…’. It may be presumed that this reference to ‘…and Family…’ is deliberate. Leaving that matter aside, the directors of the companies and the trustees have failed to confirm the accuracy of these estimates. Otherwise these are largely of a hearsay nature that do not carry any weight even though this is an interlocutory application. I repeat my earlier comment about contingent liabilities and so, their effect.
The principal contention of Mr Whitington KC was that the development and evolution of the issues in this proceeding could best be described as an ‘acorn developing into an oak tree’.[2] He contended that Ms Murray is now propounding a claim for hundreds of millions of dollars under a number of causes of actions including constructive trusts. He suggests that in doing so, she would be subverting the rights of other beneficiaries in the trust.[3] However, there is no evidence before the Court of who or what may fall within the range of any beneficiaries of any trust, who or what are the unit holders of the various unit trusts, who or what is the trustee or the controller of the trustees of the trusts, or any other information about the trusts. There is no information before the Court about the structure of the companies, the interconnection of those companies including within those trusts (apart from named trustees of particular trusts), the identity of the range of beneficiaries of the trusts or owners of units within unit trusts as well as the assets of the trusts. The paucity of that information means that I am unable to give particular weight to those submissions of Mr Whitington KC.
[2] Ibid T7.10-.15.
[3] Ibid T7.21.
Mr Whitington KC then relied upon the decision of Bleby J in Liddell v Southern Area Health Service.[4] That decision concerned an application under s 24(1) of the District Court Act. Under that subsection, the Supreme Court may make an order for the transfer of the matter from the District Court to the Supreme Court. Mr Whitington KC drew my attention to the decision of Bleby J from [10] onwards. Bleby J identified the first question to be considered whether the plaintiff has commenced the action in the District Court. That is a relevant question because (apart from irrelevant aspects of jurisdiction), the jurisdiction of the District Court and the Supreme Court is the same.
[4] [2010] SASC 11.
Bleby J then identified that the second question is whether there is some good reason to transfer the action. As I have earlier identified, and where regard is had to all of the matters that I have canvassed in this judgment, I am unable to identify a reason to transfer the action. The jurisdiction of both Courts is the same. Both Courts deal with similar claims connected with the subject matter of these proceedings on a regular basis. There is not, and in my view, there can be no suggestion that this Court is in any different position than the Supreme Court in its capacity to both deal with and decide upon the issues arising in this action.
The third matter identified by Bleby J is whether there is any prejudice to a defendant in failing to make an order for the transfer of the proceedings. Mr Whitington KC formulated this question as whether or not the Court may ascertain any prejudice to a defendant who is being brought to the Court at the compulsion of the plaintiff. I am unable to accept that as a formulation of the appropriate test having regards to matters which fell from Bleby J in Liddell. Every respondent is brought to Court by an applicant commencing proceedings in that Court, and so every respondent suffers the prejudice of such compulsion due to the decision of an applicant to commence proceedings. More needs to be shown by a respondent to identify a prejudice. For example, the prejudice must be found within some particular aspect of a proceeding being conducted in one Court rather than the other. In the exercise of the Court’s discretion and in this instance, no prejudice has been identified by the respondents, merely that they wish their proceeding to be heard and determined in the Supreme Court. Mr Whitington KC then submitted that the forum of the District Court was not chosen by the respondent. However, as I have earlier identified, the proceeding has continued in this Court for almost a year. I accept that in August 2023 the respondents gave notice of their intention to apply for this proceeding to be transferred to the Supreme Court. Those are matters that sit within the background of the decision that I am required to make. Merely because Mr Makris may have chosen to go to the Supreme Court if he was the person to have compelled his daughter, her husband and their company to participate in proceedings which he commenced, that is of no greater weight than the choice by the applicants to commence their proceedings in this Court. In my opinion, it is of neutral effect.
Mr Whitington KC then submitted that the claim is clearly an appropriate one to be heard in the Supreme Court given the size of the matter. For reasons that I have already explained, it is difficult to give this submission any particular weight in light of the paucity of the information before the Court as I have outlined above as well as the obvious decision by Parliament that the jurisdiction of the Supreme Court and the District Court in relation to such civil matters is the same. When proper regard is had to the identity of jurisdiction between the two Courts, it follows that the size of the claim is not determinative of where a claim should be heard, as significant and complex claims are regularly heard in the civil jurisdiction of this Court. Mr Whitington KC submitted that because of the complexity of the case, it should be heard in the Supreme Court. He was unable to make any particular submission on the point except to say that the action was complex. Complex actions are heard regularly in this Court and merely because an action is complex is, in my opinion, not a consideration, that tips the scales of the exercise of my discretion. That is particularly so when it is known that the Judges of this Court who comprise the civil and commercial division of this Court are well placed to hear and decide this claim and cross claim. Those Judges docket manage the cases before them preparatory to trial. Where practicable, the Chief Judge of this Court facilitates the docket management of complex commercial matters, the availability those specialist Judges of this Court to manage those actions and for the hearing and determination of those matters at the earliest possible times. Posteriori, the same may be said of the Judges in the criminal division of this Court. In his first affidavit, Mr Griffin said that if the action were transferred to the Supreme Court steps would be taken to ensure that it would be managed within the that Courts commercial list. This action is already being managed within the commercial list of this Court.
As well, I think that there are now a number of other considerations that are required to be considered in the exercise of the discretion. The action has been on foot for over a year and, although I have accepted that the application for transfer connected during 2023, the action is being Judge-managed in this Court and it will continue to be Judge-managed. It will be given a priority status as Judge-managed. The action will therefore be given a trial date in this Court at the earliest possible opportunity. Whether or not that opportunity is taken up, is dependant upon the preparedness of the parties to comply with the orders of the Court. In that instance, the Aon principles will have some application.[5] Those Aon principles require the Court to take into account case management principles when exercising its discretion in interlocutory procedural applications. This will be so even when a decision may cause prejudice to a party to a proceedings. The principles emphasise the importance of case management by Judges of actions within its list. In my opinion, the fact that this proceeding has been on foot in this Court for such a long period of time, from the outset it has been docket managed by a Judge of this Court, that it will continue to be Judge managed and will be brought to trial in this Court at the earliest possible opportunity are matters that ought to be weighed in the balance.
[5] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

A further consideration is this Court, is now well familiar with the issues arising in this action and a Court should be very alert to the fact that when deciding whether to transfer a proceeding to another Court time will be taken by a Judge in another Court to become familiar with the issues arising in the proceedings. In my view, there will be an inevitable extra costs burden involved in arranging for a proceeding to be continued in another Court, for a Judge of that Court to be brought up to speed on the issues arising in the action and for that Court to then give the earliest possible trial date in light of those matters. That decision must also be considered in light of the relevant strengths and weaknesses of the positions of the parties which currently, may only be identified by a survey of the pleadings before the Court. In my view, the Court should not impose upon a party further costs which are not otherwise justified. It is apparent that the respondents enjoy the benefit of the assets of the Makris Group even though no accurate measurement can be made of the extent of those assets. This extra costs burden as I have discussed will fall heavily on the applicants.
I have weighed all of those matters in exercising my discretion.
For all of these reasons I dismissed the application of the respondents.