Xenou v Katsaras
[2002] VSC 515
•29 November 2002
| 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 Ms Xenou, was lodged and entered in the Register Book on 14 August 1990 and Pavlidis became the sole registered proprietor. The consideration stated in the transfer was “mutual agreement”. The defendant has since become registered in her capacity as the legal personal representative of Pavlidis. Ms Xenou, by her witness statement, swore that she had never agreed to transfer her interest in 48 Beverley Street to Pavlidis nor was she aware of having signed such a transfer. She did not say in her witness statement that the transfer did not bear her signature (although her solicitor had earlier so stated on her behalf) - instead she described an occasion in early 1990 when she attended a solicitor's office to sign some documents which, she was told, related to the "insurance" of 48 Beverley Street. She relied upon undue influence and unconscionable conduct by Pavlidis. However, as part of her case, she also challenged the authenticity of her supposed signature on the transfer dated 26 March 1990. She claims that she is entitled to be restored to the title of 48 Beverley Street, as a tenant in common in equal shares with the defendant executrix.
[2]Certificate of Title Vol 8142 Fol 651.
Facts
Ms Xenou was born in Lepron in Greece on 31 December 1926. She had no formal education after the age of ten because she had to look after her sick mother and three younger sisters. Ms Xenou was married at 18 years of age but she separated from her husband after one year. She then worked at various factory jobs.
In 1957, Ms Xenou migrated to Australia, arriving on 14 August 1957. At that time she had a Greek passport, dated 17 July 1957, which bore her signature.
Ms Xenou could not speak, read or write English when she arrived in Australia. She did not receive any formal tuition in English. She worked during the day as a machine operator, a tea lady (1970-1), a machinist (1973-5), and again as a machine operator for Ansell Rubber (1975-89). At trial, her spoken English was still rudimentary, and she required a Greek interpreter. I am satisfied that she cannot read English to any significant extent. For example, she said she could not read the labels on tablets.
In 1962, Ms Xenou opened a Greek coffee shop, which she operated at 201 (and later 183) Gertrude Street, Fitzroy for ten years, in the evenings and at weekends. The café was patronised almost exclusively by Greek men, as was customary with such venues. If she needed to understand a business document, she had a customer translate it for her.
In about 1962, Ms Xenou entered into a terms contract to purchase 201 Gertrude Street. She retained a Greek-speaking solicitor, Mr Papas, of N.C.Papas & Co. He also acted for her in or about 1963 when she entered a terms contract to purchase a property at 181-183 Gertrude Street, Fitzroy.
By a transfer bearing her signature as transferee and dated 24 April 1968, Ms Xenou became registered as sole proprietor of 201 Gertrude Street on 4 October 1968. In her evidence in chief, Ms Xenou (who is in very poor health and was visibly ill) gave contradictory evidence about this transfer which demonstrated a degree of confusion, something which typified a good deal of her evidence and rendered it somewhat unsatisfactory. At first, she testified that this signature was not hers because she would not sign like that. Then a little later, she said that the signature on this transfer was her signature. Clearly Ms Xenou was aware that a major issue in the case related to whether her signature on a number of documents was genuine, and I have little doubt that this caused her to rush to deny the authenticity of her signature on this transfer. However, I think her confusion was genuine because she was puzzled by a number of the signatures in the case which resembled her signature but which she felt were not hers. There is no reason to doubt that this particular signature is genuine, written as it was in 1968, well before Pavlidis was on the scene. I would add that, to my admittedly inexpert eye, the handwriting on this transfer bears a strong resemblance to her signature on her Greek passport of 1957 and also is quite similar to her signature on her affidavit of documents in this proceeding sworn 11 February 2002. It is somewhat striking that three signatures of the plaintiff spanning 45 years appear to be so similar. This striking similarity might be contrasted with a number of questionable signatures which came into existence from about 1977 to 1995, when Pavlidis was associated with Ms Xenou.
In or about 1970, Ms Xenou met Pavlidis, a married man aged 41. Pavlidis came to the café regularly. He apparently spent his time gambling and conducting a bookmaking business and was otherwise unemployed. In the Greek community, he was known as “Ten-Jack”. Over time Ms Xenou permitted him to use the café premises for his gambling activities. Pavlidis was a strong personality and spoke, read and wrote English.
By her witness statement, Ms Xenou testified:
“In the period from about 1970 to about 1972 we became very friendly. He was a constant customer at my coffee shop. In that period I began to notice a progressive decline in his appearance and his emotional stability. He often appeared to be unkempt or dishevelled. On some occasions he was emotionally distressed and crying. He said to me that his family did not want anything to do with him and that his wife would not look after him. He lived near my residence. I rented a house at 116 Napier Street, Fitzroy. He lived with his family in a nearby street, Moore Street. My mother lived with me between 1970 and 1972. She returned to Greece in about 1972.
Initially I only offered encouragement and comfort to him. However, as his appearance declined, and as he apparently did not have any money to look after himself, I began to look after him and purchase clothing for him from time to time.
He was a strong personality. He appeared to me to speak English fluently (and other languages) and read and write English well. On occasion he would translate for me documents written in English. Progressively I began to depend upon him emotionally and for advice as a good friend.”
In 1971, Ms Xenou sold 201 Gertrude Street which she leased back for the business until she was ready to move the café to 183 Gertrude Street, Fitzroy.
By September 1972, Pavlidis and Ms Xenou had developed a close friendship.
On 13 November 1972 Ms Xenou was issued with an Australian passport which bears her signature.
By a transfer bearing her signature as transferee and dated 5 September 1972, 181-183 Gertrude Street was transferred to Ms Xenou in completion of the 1963 terms contract. Ms Xenou denied that the signature on this transfer was her signature, a denial perhaps stemming from the confusion referred to above. It is unnecessary for the purposes of this case to determine the authenticity of this signature, although it does appear to be her signature and a handwriting expert called on her behalf, Mr Holland, so opined.
Then in about October 1972, Ms Xenou sold 181-183 Gertrude Street and she and Pavlidis purchased two properties, one at 161 Gertrude Street and the other at 189 Gertrude Street, Fitzroy. Pursuant to a transfer bearing her signature (among others) and dated 26 October 1972, Ms Xenou and Pavlidis were registered as joint proprietors of 161 Gertrude Street on 16 January 1973, subject to a mortgage to the ANZ Bank. In relation to these purchases, Ms Xenou testified that she relied upon Pavlidis for information and advice and to explain documents to her. She said that she was presented with relevant documents written in English to sign, was told that they were for the purchase of these two properties and that she signed what documents were placed before her. She could not read them.
On 8 April 1974, Ms Xenou was bankrupted for reasons not now material. In evidence is an affidavit signed by her and sworn 24 May 1974 verifying her statement of affairs.
Ms Xenou was discharged from bankruptcy in late 1977. In evidence is an application for order of discharge dated 1 July 1977 and purportedly signed by Ms Xenou. At first, in cross-examination, Ms Xenou was uncertain, saying that “maybe” this was her signature. Later in her cross-examination she in substance denied that it was her signature, saying “I don’t know who was signing these things”. Again it is unnecessary to decide on the authenticity of this signature, but it is noteworthy that Mr Holland expressed the opinion that the signature on the application was not Ms Xenou’s signature.
By a transfer dated 6 October 1977, the Official Receiver transferred back to Ms Xenou her undivided half-share in 161 Gertrude Street. This transfer purports to be signed by Ms Xenou as transferee and is witnessed by a solicitor, Mr Pantelis Pandeli, of Papasavas & Co, who was known to and used by Pavlidis and who was (or later became) a partner in that firm. There is a similar transfer of the same date in relation to 189 Gertrude Street. The substance of Ms Xenou’s evidence concerning her purported signatures on these two transfers was that they were not her signature. I note also that Mr Holland was of the view that they were not.
In October 1977, Ms Xenou and Pavlidis purchased as tenants in common a house property at 116 Napier Street, Fitzroy which Ms Xenou had been renting for some years as a residence for herself. A transfer dated 21 October 1977 purports to bear the signature of Ms Xenou as one of the transferees. Mr Pandeli signed as witness to her signature (and that of Pavlidis). Ms Xenou denied that this was her signature and, again, Mr Holland agreed. 116 Napier Street was sold in about September 1986.
In or about December 1980, Ms Xenou and Pavlidis sold 161 Gertrude Street and it was transferred by an instrument dated 16 January 1981. The transfer purports to bear the signature of Ms Xenou as one of the transferors. All signatures on the transfer were witnessed by the solicitor who acted for the purchasers. Ms Xenou denied that the signature was hers. It is unnecessary to reach any conclusion, although her evidence may be correct.
A transfer dated 16 December 1981, shows that Ms Xenou and Pavlidis purchased a property at 178 Brunswick Street, Fitzroy. The transfer purports to bear Ms Xenou’s signature as one of the transferees. However Ms Xenou said that she had not agreed to this purchase and had no knowledge of it. I consider that this evidence was truthful. The property was sold in the next year – the transfer dated 30 September 1982 purports to bear the signature of Ms Xenou as one of the transferors. Ms Xenou denied that the signatures on these transfers were hers and, in the light of her evidence that she had no knowledge of the purchase of the property, this seems likely to be correct. Mr Holland’s evidence supported her denial in relation to the transfer dated 30 September 1982.
Ms Xenou testified by her witness statement that:
“[f]rom about 1980 I looked upon John Pavlidis as my 'husband' even though we were not married. I trusted him and depended upon him to manage my personal and financial affairs. I did not challenge his authority to manage my personal and financial affairs and make decisions on our joint behalf. I was rarely consulted about anything to do with the management of my financial affairs. I was usually informed by him after he had decided to take action. If I challenged his authority on any matter he was abusive, and on occasion physically violent, and threatened to kill me. I had become afraid of him. Rather than having constant threats and abuse, I did not challenge his authority to control my financial and business affairs in the course of our relationship…”
It is convenient to note here that Ms Xenou also answered, to cross-examination:
“Do you have any records of any of the money that you spent on any of the properties which you have owned since you moved to Australia? --- No. All the contracts we would get for the properties he would put his name down and then they would disappear. I wouldn’t see any of the contracts. I wouldn’t see the contract again ever, never. Even when he sold them. I didn’t see anything, not money, not anything.
…
OK, and this property that you bought at 161 Gertrude Street, did you sign any documents to buy this property? --- I didn’t sign. He would sign everything because I trusted him, yes.
Did you sign any transfer to buy this house? --- I don’t remember darling. I didn’t see papers, I didn’t see anything, contracts, nothing.”
Whether those last answers were correct in relation to 161 Gertrude Street, I need not decide, but I find that they are truthful answers in relation to the general relationship which existed between Ms Xenou and Pavlidis. In that regard I would also refer to the following passage in her cross-examination:
“…when you bought the shops in 189 Gertrude Street in 1972 with John Pavlidis did you sign any documents for that purchase? --- No, no.
None at all? --- He didn’t bring me anything to sign, no.”
There was much other evidence from Ms Xenou as to the considerable control exercised by Pavlidis over their or her financial affairs and their or her money (including on occasions her passbook savings account).
Ms Xenou further testified that by 1981 she and Pavlidis had decided to purchase a house together where they would live together and that, having discussed the purchase of a house at which they could both live, she “was agreeable to a joint purchase of such property”. In so far as admissible, I do not accept this evidence as proof of any agreement between Pavlidis and Ms Xenou that 50 Beverley Street should be purchased “jointly” or as evidence that 50 Beverley Street was purchased by them for the purpose of a residence. Indeed I was told by Ms Xenou’s Senior Counsel, in opening, that his instructions were that 50 Beverley Street was purchased as an investment property, a statement which was later repeated. I am satisfied that 50 Beverley Street was purchased for investment purposes and I am fortified in that conclusion by the fact that it was let to various tenants for the next ten years.
As I have said, 50 Beverley Street was purchased by Ms Xenou and Pavlidis for $54,000 and, pursuant to a transfer dated 21 February 1983, they became registered as joint proprietors on 1 March 1983. Mr Pandeli witnessed their signatures on the transfer. They let the property to tenants. Pavlidis collected and retained the monthly rent.
In relation to the genuineness of her signature as transferee on the transfer of 50 Beverley Street, Ms Xenou’s evidence vacillated considerably. However, Mr Holland was of the view that it was not her signature. It may well be that Pavlidis signed for her as Ms Xenou suggested he was accustomed to do.
In or about June 1986, the unregistered transfer (dated 5 June 1986), purporting to sever the joint tenancy of 50 Beverley Street, was prepared by Mr Pandeli and he purported to witness the signatures of Ms Xenou and Pavlidis thereon. Ms Xenou in substance denied that this transfer bore her signature and her denial was supported by the evidence of Mr Holland.
In or about July 1986, Ms Xenou and Pavlidis sold 189 Gertrude Street and it was transferred by an instrument dated 18 August 1986. The transfer purports to bear the signature of Ms Xenou as one of the transferees. Her signature and that of Pavlidis are witnessed by Mr Pandeli. Ms Xenou said that she did not think that this was her signature. I note that the handwriting expert called by the defendant, Mr Storey, was of the view that this was one of a very few of the documents in evidence which (he thought) was not in fact signed by Ms Xenou. Mr Holland was unable to express a concluded view about this signature.
Further, in or about July 1986, 48 Beverley Street was purchased by Ms Xenou and Pavlidis for $106,000 and, pursuant to a transfer dated 8 August 1986, they were registered as tenants in common in equal shares. Again Mr Pandeli witnessed their signatures on the transfer. In her witness statement, Ms Xenou seemed to be saying that this was her signature, but in oral evidence, she denied it, although not in unequivocal terms. I note, however, that Mr Holland was of the view that it was not her signature.
Upon obtaining possession, Ms Xenou and Pavlidis resided together at 48 Beverley Street. In a number of the transfers in evidence there is set out what purport to be earlier joint residential addresses of Ms Xenou and Pavlidis, but in fact they had not previously lived together under the same roof. As to the relationship when they lived together, Ms Xenou said, inter alia:
“John Pavlidis did not permit any of my friends, acquaintances or relatives to visit at our house. He informed me that he did not want me to visit my friends or my acquaintances or relatives.”
On 29 October 1987 Ms Xenou was issued with a new Australian passport which purports to bear her signature. Not surprisingly, Ms Xenou confirmed that the signature on her passport was her signature. However, Mr Holland expressed the opinion that it was not. It is unnecessary to decide. Mr Holland’s view in relation to the passport arguably casts doubt upon the credibility of his opinions generally but, in the end, that was not my assessment.
In August 1989 the plaintiff was retrenched from her employment with Pacific Dunlop Ltd (Ansell Rubber) and she received a termination payment of $21,575.69. She also received money from the sale of employee shares. It is convenient to note here that there was a deal of unsatisfactory evidence from both sides about Ms Xenou’s sources of funds and how they were used and also about Pavlidis’ sources of funds and how they were used. Suffice it to say that I am unable to reach any conclusion other than that I cannot find that they made other than equal contributions to the various properties which they bought and sold, including the Beverley Street properties.
Mr Pandeli, who left Papasavas & Co and was from January 1999 a sole practitioner with an office in Doncaster East, prepared the 1990 transfer (dated 26 March 1990) in relation to 48 Beverley Street. Ms Xenou seriously vacillated as to whether the 1990 transfer bore her signature whereas the expert evidence was that it was not her signature (Mr Holland) or that there was some support for the conclusion that it was not her signature (Mr Storey).
On or about 14 May 1990, Mr Pandeli lodged the 1990 transfer with the Stamp Duties Office for assessment of stamp duty. Following receipt of a letter from that Office, Mr Pandeli wrote to Pavlidis on 7 June 1990 asking him to attend his office to sign a statutory declaration. The statutory declaration went to prove the existence of a de facto relationship and to thereby obtain a stamp duty exemption. The statutory declaration made by Pavlidis was lodged by Mr Pandeli on or about 12 June 1990. On 21 June 1990, the Stamp Duties Office denoted the 1990 transfer as not chargeable with stamp duty and returned it to Mr Pandeli, who lodged it with the Titles Office on 14 August 1990.
On 9 August 1990, Mr Pandeli wrote to Pavlidis enclosing a memorandum of his costs and disbursements relating to the 1990 transfer. The memorandum referred to “…attendances upon and correspondence with yourself and Mrs Xenou…”. Mr Pandeli noted on his file copy of the letter his instructions (which he testified were received from Pavlidis) not to lodge a Notice of Acquisition or a Notice of Disposition in relation to 48 Beverley Street. The effect of this was, as the evidence showed, that rate notices and the like came in the mail to 48 Beverley Street still addressed to both Ms Xenou and Pavlidis. If Ms Xenou was otherwise ignorant of the change in proprietorship, these notices would not have disturbed her belief that she remained a co-owner.
By a registered mortgage dated 29 April 1993, Ms Xenou and Pavlidis mortgaged 50 Beverley Street to Wynco Finance Pty Ltd to secure a sum of $25,000 repayable in one year (the Wynco mortgage). I am unable to make any finding as to how the moneys advanced were used or for whose benefit. The Wynco mortgage was extended, by a variation dated 31 May 1994, to 26 March 1995 (the first variation). The Wynco mortgage was again extended, by a variation dated 20 May 1995, to 26 March 1996 (the second variation). The Wynco mortgage was paid out by Ms Xenou in July 1998 and replaced by a new mortgage obtained by her for a larger amount.
Ms Xenou denied the authenticity of her signatures on the Wynco mortgage and the two variations. Mr Holland was of the view that each of the signatures was not that of Ms Xenou. On the other hand, her signature on the mortgage was witnessed by a solicitor, Mr Demetris, and it appears that Ms Xenou was aware of the granting of the mortgage. Her signatures on the variations were each witnessed by the defendant who swore that Ms Xenou had signed the variations in her presence (which Ms Xenou also denied). As I understand the parties’ submissions, it is unnecessary to resolve this conflict.
The defendant for some time had lived in Coober Pedy with her husband, Dionisis (or Danny) Katsaras, and her two children. When, in late 1993, the Katsaras family wished to move to Melbourne, Pavlidis informed Ms Xenou that his daughter and family would live next door in 50 Beverley Street. He arranged for the tenants to leave and invited his daughter and her family to move in. This the Katsaras family did in early 1994; they were not required to pay rent.
In 1996, Pavlidis became seriously ill. Ms Xenou said that she was unaware that she no longer had any interest in 48 Beverley Street until she was so informed by the defendant in that year. As stated above, Pavlidis died on 20 December 1996. By his will, prepared by Mr Pandeli and dated 13 May 1996, he left all his estate and interest in 48 Beverley Street to his grandchildren, Kalliopi Katsaras and Vasilios Katsaras, and he left all his estate and interest in 50 Beverley Street and the residue of his estate to his two children, Helen Katsaras (the defendant) and George Pavlidis in equal shares. Ms Xenou received nothing under the will.
After Pavlidis' death, the present dispute arose. In early 1997, Ms Xenou asked the defendant and her family to move out of 50 Beverley Street and they refused. Her then solicitors also wrote to Mr Pandeli stating that she knew nothing of the change in proprietorship of 48 Beverley Street. On 3 March 1997, Ms Xenou caused her solicitors to serve a notice on the defendant, requiring her to vacate 50 Beverley Street. On 27 March 1997, the defendant caused her solicitors to serve a notice on Ms Xenou requiring her to move out of 48 Beverley Street. This proceeding was commenced on 13 June 1997. Subsequently, Ms Xenou lodged a caveat dated 19 September 1997 over 48 Beverley Street, claiming “all of the estate in fee simple…as the beneficiary of a resulting trust she having paid 100% of the purchase price and on going costs and outgoings…”. However, in final submissions, the plaintiff abandoned the claim in her caveat and confined her claim to a right to be restored as a tenant in common of 48 Beverley Street.
On 22 April 1999, Ms Xenou was issued with a new Australian passport which bears her signature. Again evidencing her confusion, she denied that this was her signature.
By letter dated 3 February 2000, Ms Xenou’s present solicitors asked Mr Pandeli to advise of the circumstances surrounding the 1990 transfer. Mr Pandeli failed to reply to this letter.
By letter dated 2 May 2000, Ms Xenou’s solicitors again wrote to Mr Pandeli, this time informing him that Ms Xenou denied signing a number of transfers which he had witnessed and asking him to explain the relevant circumstances in which he signed as witness to Ms Xenou’s signature. The documents listed were: the 1990 transfer and the unregistered transfer and also transfers relating to the sale of 116 Napier Street, Fitzroy (3 October 1986), the purchase of 50 Beverley Street (21 February 1983) and the retransfer of 161 Gertrude Street (6 October 1977). Again Mr Pandeli did not reply to this letter.
Mr Pandeli’s evidence
Mr Pandeli testified that he commenced acting for Pavlidis and Ms Xenou at about the same time “in the 70s”. He could not recall whether either of them could read English. He identified his signature on the various transfers which he had signed as a witness. He had no specific recollection of any of these transfers being signed in his presence, but said that his practice always was to be present when a document was signed by a person and then to sign as a witness. He also said that, with Greek speaking clients, he would, in respect of each document being signed in his presence, explain to the client what the document was and what effect it had and what transaction it related to.
In relation to the acquisition of 50 Beverley Street in 1983, he said that he had put it into their names as joint proprietors but that he could not recall on whose instructions. He later said that he may have just registered them as joint proprietors without seeking any instructions. I am satisfied that he had no instructions on this point.
In relation to the unregistered transfer, Mr Pandeli said that he had no recollection of the circumstances in which it was executed. However, he went on to say that:
“I recollect that it was to be…stamped and placed in a deed register of Papasavas & Co and not to be registered at that time. I believe that – I’m recollecting now as a matter of hindsight that it was because the property was subject to a mortgage at that time and…to avoid the necessity of having the bank make the title available, that it was decided to just retain the document in safekeeping.”
In relation to the 1990 transfer, Mr Pandeli testified that the initial approach to prepare this transfer was from Pavlidis, but that he had “no specific recollection at this time” of its execution. He made no file notes. He could not recall where it was signed. He did recall some details in relation to the assessment of stamp duty. He said that he obtained instructions from Pavlidis that they were a de facto couple (of which he had not been aware earlier). He said that Pavlidis signed the statutory declaration at his office, and that Ms Xenou was not present or consulted about it. He said that he did not recall any specific discussions with Ms Xenou regarding this transaction but he “would have had some”. His file referred to Pavlidis as the client, and he sent his bill to Pavlidis.
Cross-examined about the 1990 transfer, Mr Pandeli said that he did not “know…whether it was a gift”. He said that “[i]t was an agreement that they entered into. Whether it was a gift or otherwise I don’t know.” He said that he put the consideration “mutual agreement” in the transfer and that it was a standard consideration that he used in a transfer of this kind. Then he said that Pavlidis initially instructed him to put “mutual agreement”. He was then asked was there any stage when Ms Xenou gave him any instructions about what was to go on the transfer and he answered that he could not recall, but that “I can only recall explaining the document to her”. That last statement of course contradicted his earlier evidence that he could not recollect the execution of the document. In fact it appears that the initial instructions from Pavlidis were received on 21 March 1990 and the transfer was dated 26 March 1990 and Mr Pandeli could not remember the occasion on which the transfer was signed or Ms Xenou coming into his office for that purpose (or earlier). I do not accept that Mr Pandeli had any recollection of explaining the document to Ms Xenou or did in fact explain it to her. Indeed Mr Pandeli later said that he told Ms Xenou that she was transferring her interest in 48 Beverley Street to Pavlidis, and then immediately conceded that he had no recollection of doing that, but that it was “what I would have done”. There were further passages in the cross-examination of a similar nature.
Mr Pandeli said that the “mutual agreement” was an agreement that they had reached between themselves, and that he did not know the contents of that agreement. Further answers disclosed that Mr Pandeli had known very little about Ms Xenou – indeed he said that, at one stage, he recalled asking Pavlidis whether Ms Xenou was his mother and, when pressed as to the time of asking that question, Mr Pandeli said that it was after January 1989. Given that Mr Pandeli had been acting, according to him, for both of them since the 70s, it is extraordinary that he would be asking in 1989 or later whether Ms Xenou was the mother of Pavlidis. I am satisfied on the whole of his evidence that he had very little to do with Ms Xenou and that he probably did not see her or explain the 1990 transfer to her.
Later in his cross-examination, Mr Pandeli’s attention was directed to his note on the letter enclosing the bill of costs recording his instructions not to lodge a Notice of Acquisition or a Notice of Disposition. Mr Pandeli said that those instructions probably came from Pavlidis but he could not recall any reason for the instructions. It appeared from his file that those instructions were followed and no such notices were lodged. Mr Pandeli agreed that it was unusual to be instructed not to lodge such a notice or notices. He said that he did not ask Pavlidis the reason for the instructions and could not recall asking him for how long he was not to lodge the notices. He said that although the instructions were unusual (indeed, he said, highly unusual), he could not recall them troubling him. Mr Pandeli said that he could not recall having received such instructions at any other time during his long and extensive conveyancing practice. Finally Mr Pandeli said that he had no recollection of advising Ms Xenou of these instructions, or of seeking her approval of them.
In my opinion, it is quite likely that the reason why Pavlidis instructed Mr Pandeli not to lodge a Notice of Acquisition or a Notice of Disposition was that he wished to avoid Ms Xenou being alerted to the transfer of her interest in 48 Beverley Street.
Handwriting evidence
In her evidence, Ms Xenou said that in signing her name, she “never” used a reverse “N”. I note that among the signatures in evidence, there is (with one exception) no reverse N used, either in “Panagiota” or in “Xenou”, in the period 1957 to 1974 (or in the period after Pavlidis’ death). On the other hand, in the period 1977 to 1995, most of the signatures in evidence, where written clearly, contain two reverse Ns where her full name was signed or one reverse N where “P Xenou” was signed (as it was in most cases).
Ms Xenou also said that she did not use the short form “P Xenou” on documents but, in effect, on papers of lesser importance where she had less time to sign. This stance I think contributed to her confusion and was in error: the short form signature appeared on a number of documents, some of which could not be questioned, such as her 1999 passport and a mortgage signed in 1998, and on other documents where it was probably genuine, such as her 1972 passport and two transfers in 1972.
As I have mentioned, the plaintiff called Mr Neil Holland to give evidence as a handwriting expert. Mr Holland is a very well qualified expert in this field and I found his evidence persuasive. Taking as his standards Ms Xenou’s signatures on her 1957, 1972 and 1999 passports, and a number of post-1999 documents, Mr Holland expressed the opinion that there were a large number of questionable signatures to be found on the documents in evidence which were signed between 1974 and 1995. I have already noted, in the course of referring to the specific documents, what his view was in relation to signatures which he examined in the period from 1974 to 1995. He identified about 12 signatures over that period which he considered were not those of Ms Xenou. In particular, he expressed the opinion that the signature on the unregistered transfer and the signature on the 1990 transfer were not the signature of Ms Xenou. For the reasons which he gave in a written report (Exhibit K), and upon which he elaborated in evidence, he was of the view that the various signatures which he said were not those of Ms Xenou had all been written by the one writer. He pointed to “uncanny similarities” in shape, letter design and signature construction, whereas the signature standards of Ms Xenou showed a great deal of variation. He said that it was highly probable that the “Xenou” signatures on the unregistered transfer and the 1990 transfer were written by the same writer but not by Ms Xenou.
The defendant called a handwriting expert, Mr Gary Storey. Mr Storey considered that nearly all of the signatures in evidence were those of Ms Xenou. In respect of the period 1974 to 1995, he queried the authenticity of two or three signatures in relation to which Mr Holland had said that he was unable to reach a conclusion. Apart from that, in respect of the same period, his written opinion partly approached that of Mr Holland only on the 1990 transfer, where he said in substance that there was supporting but limited evidence that the writer was not Ms Xenou. When cross-examined about the 1990 transfer, Mr Storey said that there was “some doubt” as to whether Ms Xenou had signed the 1990 transfer because there were a number of inconsistencies between the signature on the 1990 transfer and the signature standards. He assented to the proposition that his final position was that there was “some support for the conclusion that Ms Xenou did not write that signature”.
There was, I think, a flaw in Mr Storey’s opinion because he included in the signature standards the signature on Ms Xenou’s 1987 passport. That inclusion had the effect of rendering it more likely that he would find all similar signatures to be genuine, because the experts were in agreement that a considerable number of the signatures in the period 1974 to 1995 (including the 1987 passport signature) were by the same writer. Mr Holland found that the 1987 passport signature did not match the signature standards, whereas Mr Storey assumed that the 1987 passport signature was a signature standard.
While recognising that there are some oddities whichever opinion be accepted, on balance I prefer that of Mr Holland. I found his evidence and overall reasoning and approach to be more logical and satisfactory than that of Mr Storey.
48 Beverley Street
I am satisfied on the balance of probabilities that the signature purporting to be that of Ms Xenou on the 1990 transfer is not her signature. I reach that conclusion in part on the basis of the evidence of Ms Xenou as to the degree of control exercised by Pavlidis over her affairs and her evidence that he signed her name on some documents. Her evidence gains credibility from the evidence of Mr Holland that a number of documents were signed in Ms Xenou’s name by another writer. The conclusion that Ms Xenou did not sign the 1990 transfer is independently supported by Mr Holland’s evidence, and to some extent, by Mr Storey’s evidence. Furthermore, this conclusion is also supported by the inference which I have said is to be drawn from the contemporaneous conduct of Pavlidis in instructing Mr Pandeli not to lodge Notices of Acquisition and Disposition.
It follows that I am satisfied that Ms Xenou did not sign the 1990 transfer in the presence of Mr Pandeli. I am also satisfied that he gave her no explanation concerning it at any other time. I am further of the view, having heard Ms Xenou’s evidence, that it is improbable that she would have signed the 1990 transfer had she known what it was. The evidence disclosed no reason for her to act in a way so contrary to her own interest.
Had I been of the view that Ms Xenou had signed the 1990 transfer, I would have concluded that her signature was procured by Pavlidis in circumstances in which she was given no explanation concerning, and did not know or understand, what she was signing. In my opinion, having regard to the control which Pavlidis exercised, and her inability to read English, she was in a position of special disability or disadvantage and I would have concluded that Pavlidis was guilty of unconscionable conduct in procuring her signature to the 1990 transfer.
It was accepted that, if such conclusions were reached, Ms Xenou was entitled to be restored to the title of 48 Beverley Street as a tenant in common with the defendant in equal shares. Appropriate orders will be made accordingly.
50 Beverley Street
I am satisfied on the balance of probabilities that the signature on the unregistered transfer is not that of Ms Xenou. I so find on the basis of the general evidence of Ms Xenou and the handwriting evidence of Mr Holland. The probabilities are strengthened having regard to the evidence relating to, and the circumstances surrounding, the subsequent 1990 transfer. In any event, I am certainly not satisfied that it is her signature on the unregistered transfer.
Having found that the unregistered transfer is ineffective, the basis first advanced to disturb Ms Xenou’s sole proprietorship of 50 Beverley Street would fail. However, the defendant advanced an alternative argument. The defendant contended that although registered as joint proprietors, Ms Xenou and Pavlidis held as tenants in common in equity. The main basis relied on for that contention was that they purchased 50 Beverley Street as an investment property, pursuant to their then long-standing business partnership or relationship, and thus they held the property beneficially as tenants in common in equal shares.
“Equality is equity” is a maxim which:
“has long been illustrated by equity’s dislike of a joint tenancy. On the death of a joint tenant, the whole estate belongs to the survivor, and the representatives of the deceased take nothing. There is here no equality, except, perhaps, an equality of chance. Equity, therefore, leans in favour of a tenancy in common…the presumption arises in three main classes of case to which however it is not restricted…”[3]
[3]Snell’s Equity (30th edition, Sweet & Maxwell, 2000) at 36.
The third class of case referred to above is that of partnership. Where partners acquire property, they are presumed to hold it as beneficial tenants in common.[4] The right of survivorship has no place among merchants.[5] A joint business venture or undertaking of “of a more informal kind lacking the system and continuity or pursuit of profit of a business would still give rise to equities [sic] leaning towards a tenancy in common of the beneficial interest.”[6]
[4]Snell’s Equity (30th edition, Sweet & Maxwell, 2000) at 36 and cases there cited.
[5]Jus accrescendi inter mercatores locum non habet.
[6]Minter v Minter [2000] NSWSC 100 per Santow J at [59].
The cases tend to involve some or all of the factors of unequal contributions, trading partnerships or the purchase of land for improvement or development and resale at a profit, and the like.[7]
[7]Hamond v Jethro (1611) 2 Brownl. & Golds. 98; 123 ER 836; Lake v Craddock (1732) 3 P Wms 158; 24 ER 1011; Buckley v Barber (1851) 5 Ex 164; 155 ER 498; Spence v Federal Commissioner of Taxation (1967) 42 ALJR 3; Malayan Credit Limited v Jack Chia-MPH Ltd [1986] 1 AC 549.
Due to equity’s dislike of joint tenancy, slight circumstances may be sufficient to give rise to a presumption of a tenancy in common.[8] Even where contributions are equal (in which case, equity will prima facie follow the law), equity will hold that there is a tenancy in common where the persons to whom the property is conveyed acquire it as partners or as participants in a joint undertaking; these are not rigid categories.[9]
[8]Delehunt v Carmody (1986) 161 CLR 464 per Gibbs CJ at 473.
[9]Delehunt v Carmody (1986) 161 CLR 464 per Gibbs CJ at 471.
In the present case, the evidence shows a pattern of business conduct by Ms Xenou and Pavlidis over a lengthy period of time involving the purchase and sale of real estate, both commercial and residential, for the purpose not only of deriving rental income, but of building up their assets by way of capital gain. I am satisfied that the acquisition of 50 Beverley Street was a continuation of that conduct. Irrespective of their close personal relationship, their property dealings were part of a continuing activity for their mutual commercial interest. In my opinion, the acquisition of 50 Beverley Street, in so serving their commercial interests, falls within the broad “partnership” category which will be treated in equity as giving rise to a tenancy in common. I conclude that the plaintiff holds 50 Beverley Street on trust for herself and the defendant, in her capacity as executrix of the estate of Pavlidis, as tenants in common in equal shares. It also follows that the plaintiff has no right to claim mesne profits, damages or any other payment in relation to the defendant’s occupation of 50 Beverley Street.
The plaintiff submitted that even if the Court were to hold that the defendant was to be treated in equity as a tenant in common in equal shares of 50 Beverley Street, the defendant did not come with clean hands and was not entitled to any equitable or other relief (except perhaps a declaration). However, applying the principles advanced by the plaintiff, I am satisfied that any impropriety by Pavlidis in relation to the unregistered transfer in 1986 has no immediate or necessary relationship to the relief to which the defendant is entitled stemming from the circumstances of the acquisition of 50 Beverley Street in 1983. The defendant can obtain such relief without seeking to take advantage of any wrong committed by Pavlidis. I would add that the defendant personally has not acted improperly.
An appropriate declaration will be made in relation to 50 Beverley Street, and I will hear submissions upon any consequential relief which is sought by the defendant in relation to the title or otherwise.
It was also submitted on the plaintiff’s behalf that “he who seeks equity must do equity” and that Ms Xenou was therefore entitled to an accounting from the estate of Pavlidis in relation to moneys obtained by him from or on the security of 50 Beverley Street and that there should be accounts and inquiries by the Master. In my opinion there is no evidentiary basis to order such accounts and inquiries, and to make such an order would place an impossible and ultimately futile burden upon a Master. It is clear from the evidence that I have heard that it would be impossible to establish, let alone untangle, the flow and application of moneys from and between Ms Xenou and Pavlidis in the period, say, from 1983 to the date of his death (or any other period). There are few records. Pavlidis is dead. The plaintiff is an unsatisfactory witness on such matters. A case has not been made out for such an order.
The Wynco mortgage
The plaintiff claims against the defendant in her capacity as executrix of the estate of Pavlidis the sum of $33,701.61, being the amount which she paid to obtain a discharge of the Wynco mortgage. When I asked Senior Counsel for the plaintiff what the cause of action was, and what evidence supported it, I received no satisfactory explanation. The plaintiff has failed to make out any cause of action for recovery of this or any sum from the estate in relation to the Wynco mortgage. I would also repeat what I said in the previous paragraph about the unsatisfactory state of the evidence in relation to the source and flow of moneys.
Orders
I will invite the parties to submit agreed minutes of appropriate declarations and orders in the light of the foregoing reasons. If the parties are unable to agree, I would ask them to each submit their own set. I will adjourn this proceeding to a convenient date in order to make final orders, and at that time, I will also hear submissions on costs.
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