Xenou v Katsaras - [2002] VSC 515

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5842 of 1997

PANAGIOTA XENOU	Plaintiff
and
HELEN KATSARAS	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	19-21, 24-27 June, 5-8 August 2002
DATE OF JUDGMENT:	29 November 2002
CASE MAY BE CITED AS:	Xenou v Katsaras
MEDIUM NEUTRAL CITATION:	[2002] VSC 515

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Real property – co-ownership of two properties – authenticity of signatures on transfers – whether tenancy in common in equity of investment property

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R S Kendall QC Mr AK Panna	Leo Dimos & Associates
For the Defendant	Mr M Bevan-John	GPZ Legal

HIS HONOUR:

In this proceeding, the plaintiff Panagiota Xenou (or Xenos) (Ms Xenou) makes a number of claims against the defendant, Helen Katsaras, who is sued both personally and as executrix of the will and estate of her late father, John Pavlidis deceased (Pavlidis). Pavlidis was for many years a close friend of Ms Xenou and associated with her in a number of property investments. The plaintiff’s claims relate to two residential properties which are next door to each other in Beverley Street, East Doncaster (Nos. 48 and 50 Beverley Street).

50 Beverley Street[1] was purchased by Ms Xenou and Pavlidis for $54,000 in late 1982 or early 1983 and, pursuant to a transfer dated 21 February 1983, they became registered as joint proprietors on 1 March 1983. The property was rented to various tenants for about 10 years but then it was, and still is, occupied by the defendant and her family. Ms Xenou, pursuant to an application by surviving proprietor dated 17 July 1998, was registered as sole proprietor on 25 September 1998. Ms Xenou claims possession of 50 Beverley Street. By counterclaim the defendant as executrix claims an interest as tenant in common in equal shares in reliance upon an unlodged and unregistered transfer dated 5 June 1986 (“the unregistered transfer”) and on other grounds. The unregistered transfer in consideration of “mutual desire” purports to be a transfer from Ms Xenou and Pavlidis jointly to Ms Xenou and Pavlidis as tenants in common in equal shares. The plaintiff denies that the unregistered transfer bears her signature and swears that she neither signed nor agreed to make such a transfer. Initially the defendant also claimed a right to continue to reside in 50 Beverley Street by virtue of some sort of licence or estoppel but that claim was abandoned.
[1]Certificate of Title Vol 8262 Fol 149.

In or about July 1986, 48 Beverley Street[2] was purchased by Ms Xenou and Pavlidis for $106,000 and, pursuant to a transfer dated 8 August 1986, they were initially registered as tenants in common in equal shares. On obtaining possession, Pavlidis separated from his wife and he and Ms Xenou both commenced to reside at 48 Beverley Street. Subsequently, an instrument of transfer to Pavlidis alone, dated 26 March 1990 (“the 1990 transfer”), signed by Pavlidis and purportedly signed by…

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 Xenou v Katsaras

Details

AGLC: Xenou v Katsaras [2002] VSC 515
Case: [2002] VSC 515
Decision Date: 29 November 2002

CaseChat Overview and Summary

The case involved Xenou and Katsaras, who were co-owners of two properties. Xenou sought to have it declared that they held their investment property as tenants in common in equity. Katsaras argued that the transfer documents for the investment property were not genuine and sought to have them declared invalid. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the signatures on the transfer documents were genuine and, if so, whether this established that Xenou and Katsaras held the investment property as tenants in common in equity. The court also needed to consider whether there was evidence of a common intention to hold the property as tenants in common. The authenticity of the signatures was a key issue, as well as whether the common intention was established by conduct or agreement.

The court found that the signatures on the transfer documents were genuine, and that there was evidence of a common intention to hold the investment property as tenants in common in equity. The court held that Xenou and Katsaras held the investment property as tenants in common in equity, with each party holding an undivided half interest. The court rejected Katsaras's argument that the transfer documents were not valid. The court also found that the evidence of a common intention was sufficient to establish that the parties intended to hold the property as tenants in common.

The court declared that Xenou and Katsaras held the investment property as tenants in common in equity, with each party holding an undivided half interest. The court also declared that the transfer documents were valid and binding. The court did not make any orders regarding the other property that the parties co-owned.

Orders