Aronis v Aronis [2022] QSC 39
SUPREME COURT OF QUEENSLAND
CITATION: Aronis v Aronis [2022] QSC 39
PARTIES: THEODORA LOULA ARONIS AS EXECUTOR OF
THE ESTATE OF PETER GEORGE ARONIS
(DECEASED)
(first plaintiff)
AND
THEODORA LOULA ARONIS
(second plaintiff)
v
MATINA ARONIS AS EXECUTOR OF THE ESTATE
OF MARIA ARONIS (DECEASED)
(defendant)
FILE NO: BS12875/15
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 30 March 2022
DELIVERED AT: Brisbane
HEARING DATE: 30-31 August 2021 and 1-6 September 2021
JUDGE: Jackson J
ORDER: The judgment of the court is that:
1. The plaintiff’s claim is dismissed.
2. On the counterclaim the plaintiff pay the defendant
the sum of $211,327.87.
3. The parties make submissions in writing limited to
5 pages in respect of interest, other orders and costs
within 10 days.
4. The counterclaim is otherwise dismissed.
CATCHWORDS: ESTOPPEL – ESTOPPEL BY CONDUCT – EQUITABLE
ESTOPPEL GENERALLY – where the plaintiffs claimed to
be beneficially entitled to five properties – where the plaintiffs
assisted in managing the properties – where the plaintiffs
alleged that there were agreements, common intentions or
representations that they were the equitable owners of the
properties – where the plaintiffs alleged that they acted on
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those agreements, common intentions or representations to
their detriment – where there was no documentary evidence of
those agreements, common intentions or representations –
where there were inconsistencies in the plaintiff’s evidence –
whether the alleged agreements were made – whether the
alleged common intentions were held – whether the alleged
representations were made – whether the plaintiffs acted in
reliance upon the alleged agreements, common intentions or
representations to their detriment
EQUITY – GENERAL PRINCIPLES – FIDUCIARY
OBLIGATIONS – FIDUCIARY DUTY – ACCOUNT FOR
BENEFITS GAINED – where rents were not distributed in
accordance with the owners’ entitlements as joint proprietors
– whether either plaintiff was acting as agent for the defendant
– whether the first plaintiff was required to account to the
defendant for the rents – whether the deceased first plaintiff
owed fiduciary obligations not to allow a conflict between his
duties as agent and his personal interest
EQUITY – TRUSTS AND TRUSTEES – POWERS,
DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES –
LIABILITY FOR BREACH OF TRUST – where the plaintiff
as trustee was required to make distributions to the defendant
beneficiary pursuant to a trust deed – whether the plaintiff
failed to make the distributions to the defendant or made the
distributions but did not pay them to the defendant – whether
the plaintiff was required to account to the defendant for the
distributions to which the defendant was entitled but was not
paid
REAL PROPERTY – TORRENS TITLE – JOINT
TENANCY AND TENANCY IN COMMON –
GENERALLY – where the defendant alleged that the
distribution of rents received by the plaintiff was
disproportionate to the plaintiff’s interest in the properties –
whether the plaintiff as co-owner was liable to account to the
defendant under s 43 of the Property Law Act 1974 (Qld) in
respect of receipt of that rent
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4)
(2012) 202 FCR 564, applied
Giumelli v Giumelli (1999) 196 CLR 101, applied
Legione v Hately (1983) 152 CLR 406, applied
Riches v Hogben [1985] 2 Qd R 292, applied
Sydney South West Area Health Service v Stamoulis [2009]
NSWCA 153, applied
Property Law Act 1974 (Qld) s 43
COUNSEL: K Howe, T O’Brien and B Coyne for the plaintiff
D Clothier QC and S Webster for the defendant
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SOLICITORS: MacDonald Lawyers for the plaintiff
Cooper Grace Ward for the defendant
Jackson J
[1] This unfortunate family dispute stems from the family and business arrangements of
a once close family of four. The relevant family history was of immigration to this
country from Greece in the 1950s and financial success in the decades that followed,
built on hard work and thrift. The efforts of all of them contributed to the small retail
service businesses they ran until the early 1970s when the parents stopped working
in those businesses. The two children had other occupations by then. But from at
least the middle of the 1970s, the son devoted his energies to running the business of
the rental properties that the parents had acquired and continued to acquire, while the
daughter continued to be employed outside the family property business. In 1993,
the father died and the son continued his management of the properties. In 2015, the
son died and relations between his widow and his mother and sister soured in a dispute
as to the parties’ respective entitlements. In 2016, after the claim was started, the
mother died. The dispute continued between the son’s widow as plaintiff, as the son’s
executor and personally, and the daughter as defendant, as the mother’s executor,
until the trial was heard last year.
[2] Simplified, the plaintiff’s claim is that by reason of a proprietary or equitable estoppel
five claimed properties, initially held by the father and mother as joint tenants (and
after the father’s death solely by the mother) as registered proprietors of the fee simple
in the land, became beneficially owned in 1979 by the son and the plaintiff, and that
all of the income generated by those properties after that time was also their property.
[3] Also simplified, the defendant’s principal counterclaim is that the son and the plaintiff
were the managing agents of the properties after the father’s death, and failed to
properly account for the rental income generated by the properties. There are other
smaller subjects of counterclaim.
[4] By the time of the trial, two of the claimed properties had been sold but the
circumstances of the sales do not form part of the claim or counterclaim.
[5] For the reasons that follow, the claim must be dismissed and only limited relief should
be given on the counterclaim.
Simplified chronology of purchases and trusts
[6] George Aronis (“George”) was born in 1922 in Greece. Maria Aronis (“Maria”) was
born in 1924 on Kythera, an island in Greece. They were married in 1946 on Kythera.
Their daughter, Matina Aronis (“Matty”), was born in 1947 in Fratsia on Kythera.
Their son, Panayotis Aronis (“Peter”), was born in 1952 in Fratsia.
[7] In or about 1953, George immigrated to Australia. He was followed by Maria, Matty
and Peter in late 1955.
[8] In or about 1959, the family moved to Brisbane.
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[9] On 19 October 1959, George purchased 95 Burn Street, Camp Hill (“95 Burn Street”),
a combined corner shop and residence near a local primary school, and became sole
registered proprietor. George and Maria ran the business of the shop and 12 year old
Matty, who had the best English, also worked there. A loan that partly funded the
purchase was repaid to the bank in about 12 months.
[10] In about 1960, George leased the shop at 95 Burn Street to a tenant and George and
Maria purchased a leasehold fish and chip shop at 216 Days Road, the Grange, which
they operated. The Grange fish and chip shop had a residence at the back where the
family lived.
[11] In 1963, Matty left Kelvin Grove High School, aged 16. She went to work for HC
Sleigh and continued to help in the Grange fish and chip shop after hours and on
weekends.
[12] On 4 November 1964, George and Maria purchased another corner shop at 3 Hayling
Street, Salisbury (“3 Hayling Street”), and became registered proprietors as joint
tenants. The land purchased included another vacant block nearby, described as Lot
4, 17 Hayling Street, Salisbury.
[13] In February 1967, George and Maria purchased a residence at 7 Carberry Street, the
Grange (“7 Carberry Street”), and became registered proprietors as joint tenants, for
the family to live in.
[14] In 1967, Peter finished high school at age 15. He worked for RT Edwards and
Queensland Newspapers over the next 18 months or so.
[15] In 1969, George and Maria purchased another leasehold fish and chip shop business
at Clayfield. In 1970, George, Maria and Peter entered into a partnership agreement
for the business. Matty continued to work for HC Sleigh but assisted in the business
as well, although she was not made a partner. By 1971, Peter was working in the
Queensland Police Service (“QPS”) but assisted in the cooking part of this business
after work.
[16] In the late 1960s or early 1970s, George suffered from a kidney infection and
developed a chronic kidney disease or illness.
[17] On 19 February 1971, Peter was sworn in as a police officer. In this role, he was
stationed and lived in western Queensland for a period of time.
[18] In 1973, the Clayfield fish and chip shop business was sold.
[19] Also in 1973, Peter was charged with arson. He was acquitted.
[20] On 31 August 1974, Peter retired from the QPS, on medical grounds, with a partial
pension of approximately $4,200 per annum at that time, aged 22.
[21] On 17 October 1974, George and Maria purchased a commercial shops and office
building at 74 Vulture Street, West End (“74 Vulture Street”) and became registered
proprietors as joint tenants. The purchase was funded by George and Maria’s savings,
and a bank loan to them of $36,000.
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[22] In April 1978, Peter met the plaintiff.
[23] In August 1978, Peter and the plaintiff purchased a residence at 15 Cranbourne Street,
Chermside West, and were registered as tenants in common in three quarters to one
quarter shares.
[24] In March 1979, Peter and the plaintiff were married.
[25] On 31 October 1979, George, Maria and Matty purchased a new residence (near to
Peter and the plaintiff’s residence) at 16 Whittaker Street, Chermside West (“16
Whittaker St”). Matty became the sole registered proprietor, in part to access the first
home buyer’s grant. The purchase price was funded largely by George and Maria or
from their accounts and George borrowed $19,000 to assist with funding, possibly
until 7 Carberry Street was sold.
[26] On 16 May 1983, George and Maria purchased Lots 5 and 6 at 17 Hayling Street,
Salisbury and were registered as proprietors as joint tenants. Subsequently, buildings
on that land and the land at Lot 4, 17 Hayling Street (previously acquired with 3
Hayling Street) were developed (“17 Hayling Street”). The construction funds were
sourced in 1984 by bank loan to George.
[27] On 22 May 1984, the Aronis Family Trust was settled (at Peter’s instigation) for the
development of 17 Hayling Street. George and Maria’s solicitor, David Jacobson,
was settlor. George was the initial trustee. The primary beneficiaries were George,
Maria, Matty and Peter. The secondary beneficiaries were George and Maria’s
grandchildren. The tertiary beneficiaries were spouses and widows or widowers of
George and Maria’s children and grandchildren.
[28] On 1 May 1985, the Aronis Family Trust deed was amended. The trust was renamed
the Aronis Investment Trust (“AIT”) and Peter and Matty replaced George as trustees.
On 21 May 1986, the plaintiff replaced Peter as trustee. On 17 May 1990, Matty was
removed as trustee, leaving the plaintiff as sole trustee.
[29] On 20 September 1985 the Aronis Development Trust (“ADT”) was settled (at Peter’s
instigation). Matty was trustee.
[30] On 10 October 1985, Matty (as trustee for the ADT) purchased 69 Boyland Avenue,
Coopers Plains (“69 Boyland Avenue”) and was registered as sole proprietor as
trustee. The purchase price was funded as to $21,000 from a term deposit held by
Matty and as to $62,000 by a bank loan to Matty as trustee.
[31] In 1989, George purchased 99 Burn Street, Camp Hill (“99 Burn Street”), and became
registered as sole proprietor. The property was adjacent to 95 Burn Street that George
already owned.
[32] On 20 August 1989, George, Maria and the plaintiff purchased a commercial site at
24 Selhurst Street, Coopers Plains (“24 Selhurst Street”) and they became registered
as proprietors as joint tenants. The purchase was funded in part with a bank loan to
the purchasers of $160,000.
[33] In 1991, Peter and the plaintiff moved their place of residence from 15 Cranbourne
Street to 99 Burn Street. They retained 15 Cranbourne Street as their own property.
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[34] The disputed properties (“Claimed Properties”), of which Maria was registered as
sole proprietor at the dates of both Peter’s and Maria’s deaths, are:
(a) 95 Burn Street;
(b) 3 Hayling Street;
(c) 74 Vulture Street;
(d) 17 Hayling Street; and
(e) 99 Burn Street.
[35] Of those, the defendant, as executor of Maria’s estate, sold 95 Burn Street and 74
Vulture Street before trial, under orders permitting their sale to fund estate expenses
including defence of the proceeding. 95 Burn Street and 74 Vulture Street are subject
to a claim by the plaintiff for an account.
[36] The properties not claimed by the plaintiff are:
(a) 16 Whittaker Street;
(b) 69 Boyland Avenue; and
(c) 24 Selhurst Street.
[37] Of those, 24 Selhurst Street was sold by the plaintiff on 20 March 2020. Cross claims
were made by each of the parties for an account of the received rents of 24 Selhurst
Street. Otherwise, the relevance of those properties is as context to the alleged
circumstances under which the Claimed Properties were held and managed.
Peter’s management
[38] There is common ground that Peter played a role in managing the Claimed Properties
and other properties from his retirement from the police force in 1974. The plaintiff
alleges that from the early 1970s, George was so incapacitated that Peter did all the
management from some time before the acquisition of 74 Vulture Street in 1974.
[39] However, the plaintiff was not involved in what happened at that time. She did not
meet Peter until 1978. Matty said that in 1974 it was George who bought 74 Vulture
Street and he who purchased the properties acquired before then. And she said that
George continued to be concerned in the management and maintenance of the
properties until not long before his death in 1993.
[40] Maria said that from or after George’s kidney illness in the early 1970s, they shut
down the Clayfield fish and chip shop. Still, George was managing the properties
after then. But after Peter retired from the QPS (which in fact occurred in August
1974) Peter took over more of the management and George’s responsibilities were
reduced to maintenance tasks like cleaning the toilets and mowing the grass.
However, George and Peter discussed the decisions to be made about managing the
properties.
[41] The plaintiff said that from 1978 Peter managed and maintained the properties and
George was either not involved or not substantially involved.
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[42] Long before George’s death, it is clear from the documents that Peter had financial
management of the properties. He managed the buildings and the tenants and oversaw
the rental receipts deposited into the bank accounts. Up to 1984, at least, all the bank
accounts associated with the group of properties purchased by George or by George
and Maria as proprietors were in their account names. But it seems likely that even
by then Peter had authority to operate the accounts and possession of the cheque
books. After 1984, the bank accounts of the AIT and ADT were or ought to have
been in the trustees’ names. Receipts from the income earning properties were paid
into the various accounts, being those in George and Maria’s or the trustees’ names.
Peter had practical or day-to-day control of the bank accounts and of the funds
deposited into them by tenants of the properties. He managed transfers of funds
between the various accounts, payments of outgoings from the accounts to third party
suppliers or creditors and payments to family members.
[43] Peter also dealt with the accountants for the preparation of the relevant tax returns.
And he dealt with the lawyers who acted for George and Maria in relation to their
business and personal affairs.
[44] To the extent that Matty said that George continued in a more significant management
role up to the time of his death in 1993, I prefer what was said by Maria and the
plaintiff and the objective evidence of the documents as to the extent of Peter’s role.
That role also brings context to a number of events that occurred in relation to the
family’s financial, legal and tax affairs from the early 1980s onwards.
George and Maria’s wills
[45] On 13 January 1984, George and Maria made what were in effect mutual wills
prepared by and executed in the presence of Mr Jacobson. Each of the wills appointed
the other executor and left the testator’s estate to the other, or if the other predeceased
the testator, to Matty and Peter in equal shares (or their children if they too
predeceased the testator).
[46] On 11 July 1991, Maria (but not George) made another will prepared by and executed
in Mr Jacobson’s presence. It revoked prior wills, appointed Peter and the plaintiff
as executors and gave Maria’s estate to them only. The 1984 will was not retrieved
or considered by Mr Jacobson or Maria in preparation for the 1991 will. In 2015 or
2016, Maria denied that the 1991 will was her will at all, although it is not disputed
that it bears her signature.
[47] On 5 September 2016, after this proceeding was started, Maria made her last will,
prepared by the solicitor who acted for her in this proceeding until her death. It
revoked prior wills, appointed Matty executor and left Maria’s estate to Matty.
After George’s death
[48] On 25 September 1993, George died, aged 70, shortly after surgery for a brain tumour
from which he did not recover. Maria was aged 69 at the time.
[49] In 1994, in accordance with the laws of joint tenancy for the properties George and
Maria owned jointly and under George’s 1984 will as to the properties that were
owned solely by George, Maria became registered as sole proprietor of all the
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Claimed Properties. The transfers were prepared by Mr Jacobson’s firm and
executed by Maria as executor of George’s will where necessary.
[50] Maria and Matty continued to live in 16 Whittaker Street. Matty was Maria’s carer
in her advancing years. Peter continued the financial management of the properties
and their maintenance for the next 21 years.
After Peter’s death
[51] On 5 August 2015, Peter died, aged 63. Maria was aged 91.
[52] Peter’s funeral was held on 10 August 2015.
[53] Communications between the plaintiff (and her daughter Marietta), on the one hand,
and Matty and Maria, on the other hand, quickly broke down over their relative
entitlements to the properties and their management.
[54] On 18 December 2015, this proceeding was started with the plaintiff claiming to be
entitled to a declaration of constructive trust over the Claimed Properties and other
relief.
[55] On 26 October 2016, Maria died, aged 92.
Draining the accounts on Peter’s death
[56] At the time of his death, Peter retained full financial management of the properties
and accounts.
[57] Before 5 August 2015, Peter signed a number of cheques. On a date between 4
August 2015 and 11 August 2015, the plaintiff filled in the details of two cheques
drawn upon bank accounts in the name of George and Maria as follows:
Date Account Number Amount
4 August 2015 110-723 $44,000
4 August 2015 167-703 $49,000
[58] On 11 August 2015, the plaintiff deposited the two cheques to the bank account
named “Theodora Loula Aronis trading as Aronis Investments Trust” number 139-
913.
[59] Also on 11 August 2015, the plaintiff withdrew from a bank account in the name of
“George Aronis and Maria Aronis and Theodora Loula Aronis” number 167-690 the
amount of $56,353.08, leaving a balance of $1,000. That account was associated
with the property at 24 Selhurst Street. On the same day, the plaintiff deposited the
amount of $56,353.08 into the AIT account number 139-913.
[60] On 21 August 2015, the plaintiff opened a new account in the name “Theodora Loula
Aronis” number 10051572. She withdrew $160,000 from the AIT account number
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139-913 and deposited it into the new account. The new account was opened as a
personal account, not an account as trustee of the AIT.
[61] The withdrawal of $160,000 from the AIT account and deposit of that sum into the
new personal account were made by the plaintiff to retain personal control of those
funds.
[62] Also on 21 August 2015, the plaintiff sent a letter to Maria enclosing a
Commonwealth Bank of Australia authority for the plaintiff to operate the bank
accounts in the account name of Maria and George, “so the business can continue to
be run”. Maria did not sign or return the authority.
Plaintiff’s case
[63] The plaintiff alleges that in or about 1979 at a meeting between George, Peter, Maria
and the plaintiff an agreement was made (“the Family Agreement”) that:
“(a) Despite George and Maria being the registered or, sole or joint, owners of the
initial Properties… Peter was the equitable owner of them and any future
property purchased using the initial Properties;
(b) Peter was to be responsible for the management of the initial Properties and any
future property purchased using the initial Properties;
(c) Peter was to pay the costs of George and Maria in respect to:
(i) the costs associated with George’s and Maria’s private place of residence
in respect to rates, water and electricity;
(ii) George’s and Maria’s private health insurance;
(iii) George’s motor vehicle;
(iv) a monthly allowance for living costs to be agreed between Peter, George
and Maria from time to time.”
[64] Alternatively, the plaintiff alleges George, Maria and Peter had the common intention
(“the Common Intention”) or Maria represented to Peter and the plaintiff
(“Representation”) that:
“(a) If Peter:
(i) was responsible for the management of the initial Properties and any
future properties;
(ii) paid the costs of George and Maria in respect to:
(A) the costs associated with George’s and Maria’s private place of
residence in respect to rates, water and electricity;
(B) George’s and Maria’s private health insurance;
(C) George’s motor vehicle;
(D) a monthly allowance for living costs to be agreed between Peter,
George and Maria from time to time;
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(b) Then Peter would have:
(i) a 100% interest in the initial Properties and any future properties
purchased using the initial Properties from time to time.”
[65] The plaintiff further alleges that at a meeting before 11 July 1991 between George,
Peter, Maria and the plaintiff, an agreement was made (“the Varied Family
Agreement”) that:
“(a) Despite George and Maria being the registered or, sole or joint, owners of the
Properties…Peter and [the plaintiff] were the equitable owners of them;
(b) Peter and [the plaintiff] were to be responsible for the management of the
Properties;
(c) Peter and [the plaintiff] were to pay the costs of George and Maria in respect to:
(i) the costs associated with George’s and Maria’s private place of residence
in respect to rates, water and electricity;
(ii) George’s and Maria’s private health insurance;
(iii) George’s motor vehicle;
(iv) a monthly allowance for living costs to be agreed between Peter, George
and Maria from time to time.”
[66] Alternatively, the plaintiff alleges George, Maria and Peter had the common intention
(“the Varied Common Intention”) or Maria represented to Peter and the plaintiff (“the
Second Representation”) that:
“(a) If Peter and [the plaintiff]:
(i) were responsible for the management of the Properties;
(ii) paid the costs of George and Maria in respect to:
(A) the costs associated with George’s and Maria’s private place of
residence in respect to rates, water and electricity;
(B) George’s and Maria’s private health insurance;
(C) George’s motor vehicle;
(D) a monthly allowance for living costs to be agreed between Peter,
George and Maria from time to time;
(b) Then Peter and [the plaintiff] would have:
(i) each have (sic) a 50% interest in the Properties”.
[67] The plaintiff alleges next that in or about September 1993, in a discussion between
George, Maria, Peter and the plaintiff on the day before George was due to have
surgery for the brain tumour, George said, “…Maria, you know the properties at 3
Hayling Street, 17 Hayling Street, 95 Burn Street, 99 Burn Street and 74 Vulture
Street are Peter’s and [the plaintiff’s]” and Maria said, “Yes – of course the properties
are Peter’s and [the plaintiff’s]”.
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[68] The plaintiff alleges finally that in late 1993, at the offices of Gilshenan and Luton,
Maria said to the plaintiff: “These properties are Peter’s, yours and the children’s.
Even though they are in my name, they are your properties. I am only holding them
for you.”
[69] The plaintiff alleges that pursuant to the original Family Agreement or Common
Intention or Representation, Peter acted to his detriment by: managing the properties
for no remuneration; cleaning and maintaining the properties; and paying the costs of
George and Maria in respect of the costs associated with their private place of
residence such as rates, water and electricity, private health insurance, George’s
motor vehicle and a monthly allowance for living costs. The plaintiff further alleges
that Peter purchased the “remainder properties”, being those acquired after the initial
properties, using rental income from the initial properties and his and the plaintiff’s
“own funds”.
[70] Further or alternatively, the plaintiff alleges that all those things were done by Peter
and the plaintiff to their detriment pursuant to the alleged Varied Family Agreement
or the Varied Common Intention or acting in reliance on the Second Representation.
[71] It was common ground that the pleaded case alleged an equity as to the acquisition of
ownership of property induced by representations upon which there had been
detrimental reliance by the plaintiff. As the defendant submitted, the equity claimed
is of the kind described as follows by the High Court in Giumelli v Giumelli:
“the equity… was found in an assumption as to the future acquisition of
ownership of property which had been induced by representations upon which
there had been detrimental reliance by the plaintiff. This is a well recognised
variety of estoppel as understood in equity and may found relief which requires
the taking of active steps by the defendant.”1
[72] Another penetrating analysis of principle that has influenced subsequent cases,
including Giumelli,2 was given by McPherson J in Riches v Hogben, including:
“What distinguishes the equitable principle from the enforcement of contractual
obligations is, in the first place, that there is no legally binding promise … The
second distinguishing feature is that what attracts the principle is not the promise
itself but the expectation which it creates … Finally, the equitable principle has
no application where the transaction remains wholly executory on the plaintiff’s
part. It is not the existence of an unperformed promise that invites the
intervention of equity but the conduct of the plaintiff in acting upon the
expectation to which it gives rise. That is why in Dillwyn v Llewelyn (1862) 4
De G F & J 517, 552; 45 ER 1285, 1287, where the son built on land promised
but not effectively conveyed to him by a memorandum signed by his father,
Lord Westbury LC said that the only inquiry was “whether the son’s
expenditure, on the faith of the memorandum, supplied a valuable consideration
and created a binding obligation”.” 3
1 (1999) 196 CLR 101, 112 [6].
2 (1999) 196 CLR 101, 121 [35].
3 [1985] 2 Qd R 292, 300-301.
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Defendant’s case
[73] The central issues in the present case resolve into two questions. First, were the
alleged agreements made or common intentions held or representations made?
Second, did Peter and the plaintiff act in reliance upon them or any of them?
[74] The defendant denied both questions and set up a number of facts alleged to be
inconsistent with them as grounds of denial or positive pleas. The relevant denials
were made during the time when Maria was defendant in the proceeding until her
death in 2016 and subsequently maintained when Matty as Maria’s executor was
substituted as defendant.
[75] Maria’s denials were supported by her evidence on oath in an affidavit that the
relevant conversations did not occur. Matty was not alleged to be a party to any of
the relevant conversations, agreements, common intentions or representations but she
too said that she knew nothing about them on oath and in oral evidence.
[76] There is no documentary record of the alleged family agreements, common intentions
or representations (although the plaintiff alleges that Maria’s 1991 will was consistent
with them).
[77] The facts alleged by the defendant to be inconsistent with the alleged family
agreements, common intentions and representations and the conversations in which
the plaintiff alleged that they were made included that:
(a) Peter did not look after George and Maria for the ten years between 1969 and
1979;
(b) Peter did not have the financial resources to give any substantial sums of money
to George and Maria between 1974 and 1979, or to pay their expenses;
(c) George and Maria did not need financial support in the period from 1969 to
1979;
(d) George was the instigator of the purchase of 74 Vulture Street;
(e) responsibilities for managing the initial properties were shared among family
members;
(f) George and Maria’s 1984 wills left their estates to each other, and if the other
pre-deceased the testator, to Matty and Peter equally;
(g) the establishment of the AIT in 1984 and the ADT in 1985 created beneficial
interests in the property of the trusts for George and Maria, Matty and others;
(h) before George’s death in 1993, the allocation of income from 74 Vulture Street
was made equally between George, Maria, Peter and Matty in 25 per cent
shares;
(i) after George’s death in 1993, the allocation of income from 74 Vulture Street
was made 50 per cent to Maria, 25 per cent to Peter and 25 per cent to Matty;
and
(j) the overall allocation of income from the properties was inconsistent with the
alleged family agreements, common intentions or representations.
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The plaintiff as a witness
[78] The plaintiff gave evidence both by affidavit and orally. There were four affidavits
sworn on dates between 27 April 2018 and 9 April 2021. Her cross-examination
extended over two sitting days. The plaintiff relies upon her oral evidence as being
consistent with her affidavit evidence as to the alleged conversations constituting the
family agreements, common intentions or representations.
[79] The defendant submits that her evidence under cross-examination was inconsistent
with her affidavit evidence or contemporaneous documents or both and was tailored
to suit her case. The defendant also alleges non-disclosure of some documents that
would have been relevant. A number of specific submissions were made as to the
plaintiff’s credibility and as to the unlikelihood of the plaintiff’s pleaded case.
[80] As previously discussed, on 11 August 2015 the plaintiff withdrew three sums from
accounts held in Maria’s name and transferred them into the AIT account controlled
by her. Following that, on 21 August 2015, the plaintiff withdrew the total amount
of $160,000 from the AIT account and deposited it into a new personal account.
[81] When asked about these transactions, the plaintiff initially said that Peter drew a
couple of cheques but when shown the cheques accepted that the visible handwriting
on them other than his signature was her own. The plaintiff said that she transferred
the money in anticipation of paying for renovations to be made for 17 Hayling Street,
on the basis of quotes she had received but that she had later lost the quotes because
they were on an old computer and she had also deleted or lost relevant emails.
However, the plaintiff eventually accepted that her purpose in making the transfer
from the AIT account to her new personal account was to keep the funds under her
personal control. The defendant submitted this conduct demonstrates an
understanding by the plaintiff that the money in Maria’s accounts and in the AIT
account was not Peter’s or her money. The defendant also submitted that the
plaintiff’s statement (in her affidavit sworn 14 May 2020 at paragraph 361) that she
was unable to look after the properties or pay Maria’s expenses because she did not
have access to money in the bank accounts was knowingly misleading because she
made no mention of the substantial withdrawals and transfer into her personal account
that she had made.
[82] In my view, this conduct shows that at least from 11 August 2015 the plaintiff had an
appreciation or expectation that Maria and Matty may not agree to her continued
control of the financial affairs of the properties after Peter’s death or her continued
use of the money in the relevant bank accounts.
[83] Second, the defendant placed particular reliance on the inconsistency between George
and Maria’s 1984 wills and the original alleged Family Agreement, Common
Intention or Representation. The plaintiff’s evidence was that she did not see those
wills but that George and Maria told her in 1984 that they had left everything to Peter.
It would have been a lie for George and Maria to say that. There is no reason identified
in the evidence why they would have told such a lie to the plaintiff. Not only that, it
was not suggested in the evidence that the contents of George and Maria’s wills were
kept secret from Peter. From before 1984, Peter was involved intimately in George
and Maria’s financial affairs and was involved in their contacts with their solicitors.
Matty said that Peter arranged for the 1984 wills to be prepared. The solicitor
responsible for the preparation of the wills, Mr Jacobson, generally dealt with Peter
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over Aronis family matters. It is highly unlikely that if Peter knew of their contents,
and that they were inconsistent with the alleged Family Agreement, Common
Intention or Representation, he would not have discussed that with the plaintiff.
[84] In my view, it is unlikely that George and Maria falsely told the plaintiff that they had
left everything to Peter in their 1984 wills. I reject that evidence given by the plaintiff.
[85] The defendant relied on the plaintiff’s failure to disclose statement 319 for the AIT
bank account as going to her credit as a witness, when every other statement for that
account up to 2016 was disclosed. The missing statement showed that on 4 July 2011
there was a $346,000 deposit to the account and on the next day a withdrawal of
$330,000 from that account to an account of Lepta Pty Ltd (“Lepta”). The defendant
submitted that the plaintiff’s evidence about Lepta, that Peter started it off for his own
thing or own reasons, was vague, given that the plaintiff was involved in Lepta’s
incorporation. She filled out part of the registration form. The only purpose for Lepta
revealed by the evidence was to receive income or funds to be held on deposit. At
least some of the funds came from the Aronis family bank accounts either in George
and Maria’s or the AIT account. Lepta was owned or controlled by Peter and the
plaintiff. None of George, Maria or Matty had any interest in Lepta. The defendant
submits that it was incorporated and utilised to receive money from the AIT’s
accounts derived from the estate properties that were not Peter or the plaintiff’s
property.
[86] In my view, to the extent that the evidence showed Lepta’s activities, there was
substance in the defendant’s submissions that funds from the AIT or otherwise
derived from the income of the properties were transferred to Lepta.
[87] It will be recalled that 16 Whittaker Street was George, Maria and Matty’s home.
There was contradictory evidence about the sources of funds and contributions that
were made to purchase that property. At the commencement of the proceeding and
at the trial, the plaintiff made no claim to 16 Whittaker Street. However, in
interlocutory proceedings some time before the trial the plaintiff sought to add 16
Whittaker Street to the list of Claimed Properties but was refused leave to amend the
claim and statement of claim to do so. Nevertheless, the evidence dealt with the
contributions to the purchase of 16 Whittaker Street. The defendant submitted that
the plaintiff’s answers to questions about that subject matter affected the credibility
of her evidence otherwise.
[88] When the plaintiff sought to add 16 Whittaker Street to the Claimed Properties and
lodged a caveat over that property, she alleged that Matty had contributed only $925
to the purchase. In the plaintiff’s main affidavit, she said that Peter and her own
contributions were recorded on a handwritten note that had been in their possession
since 1979. In cross-examination she initially accepted that the note represented her
understanding of the relevant contributions. She accepted that Matty contributed
$4,000 of her own money as set out in the note. However, she did not accept that
George and Maria provided the money attributed to them in the note.
[89] The plaintiff’s refusal to accept the contributions of George and Maria as provided in
the note was consistent with the plaintiff’s case that all of the money in the various
accounts belonged to Peter and to her after the alleged original Family Agreement,
Common Intention or Representation. That might explain her denial that George and
Maria provided the money attributed to them in the note. However, the evidence did
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not establish whether the conversations said to constitute the original alleged Family
Agreement occurred before or after the purchase of 16 Whittaker Street. If it was
beforehand, it is not explained why separate contributions for George and Maria were
recorded on the note, as that would be inconsistent with the plaintiff’s case as to the
agreed ownership of the funds in the accounts in George and Maria’s names. In my
view, it is more likely than not that George and Maria did provide the money
attributed to them and did so from their own funds.
[90] The defendant also submits the plaintiff’s evidence as to the source of monies used
to purchase 69 Boyland Avenue damages the credibility of her evidence otherwise.
[91] In her affidavit in reply, the plaintiff said that she and Peter had provided Matty with
approximately $21,000 that, together with a bank loan to Matty of $62,000, funded
the purchase of 69 Boyland Avenue. Matty said her contribution of approximately
$21,000 came from a term deposit that was held by Matty in her own name and were
her own funds and the contemporaneous banking documents in evidence are
consistent with that. That is not consistent with the plaintiff’s evidence. The
defendant submitted that this aspect of the plaintiff’s evidence was another part of the
plaintiff’s false narrative that George, Maria and Matty had no money of their own,
which was also rooted in the false assertion that the money in George and Maria’s
accounts and the AIT account and ADT account were Peter and the plaintiff’s monies.
[92] The defendant also submitted that the plaintiff’s evidence that Peter and the plaintiff
did not pay themselves for cleaning of toilets at 74 Vulture Street damaged the
credibility of her evidence otherwise, as did her evidence that in 2004 there was a
$250,000 renovation of 74 Vulture Street. As to the first point, notes on cheque butts
were inconsistent with it. As to the second point, the plaintiff’s evidence that there
were a lot of renovations done to 74 Vulture Street, including a renovation of the full
office upstairs, and the expenditure was about $250,000 overall, was directly
inconsistent with the evidence of the tenant of the upstairs office that between 1994
and 2006 there was no renovation.
[93] More generally as to the use of the net rental income from the properties, the
defendant submitted that the plaintiff’s failure to accept that the income was used to
support Peter, the plaintiff and their children damaged her credibility. This dispute
must be seen in the light of the plaintiff’s case that from the original Family
Agreement, Common Intention or Representation, all of the income from the
properties belonged to Peter or to Peter and herself. Nevertheless, it is significant to
note that:
(a) from August 1974, Peter’s only sources of income were his police pension and
income derived from managing properties, so far as the evidence revealed;
(b) from 1986, the plaintiff did not work, except to the extent that she assisted Peter
in managing the properties;
(c) in 1986, Peter and the plaintiff’s fourth child was born; and
(d) Peter and the plaintiff did use substantial funds derived from the rental
properties for their own purposes, including between October 1996 and April
2008 substantial cheque withdrawals nominally made to their children which
those children did not receive. There is a dispute about the extent of the
utilisation of those funds that I deal with later.
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[94] The defendant also submitted that the plaintiff’s alternative claim to a money sum in
relation to the net income of 24 Selhurst Street damaged the credibility of her
evidence otherwise. The defendant submitted that the plaintiff falsely alleged that
Maria and Matty retained property agents for 24 Selhurst Street, ignored that Peter
and the plaintiff were the only people who transacted on the bank account for 24
Selhurst Street and also ignored the withdrawal she made from that account on 11
August 2015 of about $56,000 as part of the funds transferred into the AIT account
and subsequently transferred from that account into her personal account.
[95] In my view, there is substance in these criticisms.
Other inconsistencies
[96] The plaintiff said in her main affidavit (sworn on 14 May 2020 at paragraph 227) that,
in the conversation in or about 1979 during which the original Family Agreement was
made, George said there was an agreement between Maria, Peter and himself that the
original properties as at that time, including 74 Vulture Street, West End, were Peter’s
properties. As to the other properties at that time, the plaintiff said George said:
“Peter has been looking after them for 10 years. Peter has also been looking after me
and Maria for 10 years by giving us money and paying our expenses.”
[97] In 1967, Peter left school aged 15. He then worked for RT Edwards in Fortitude
Valley for approximately twelve months and after that was employed by Queensland
Newspapers for a period of more than six months. In 1969, George and Maria
purchased the Clayfield leasehold fish and chip shop business. They both actively
worked in that business. Peter helped with cooking at the Clayfield shop although he
was working elsewhere. In 1970, Peter was shown as a partner in the Clayfield fish
and chip shop business with George and Maria. Matty said that was done for tax
minimisation by George and Maria. In 1971, Peter entered the QPS, aged 18. In
1974, Peter retired from the QPS, aged 22.
[98] In 1969, the properties that had been purchased were 95 Burn Street purchased by
George in 1959, the leasehold fish and chip shop business at 216 Days Road, the
Grange purchased in 1960, 3 Hayling Street (and the additional Lot 4, 17 Hayling
Street) purchased by George and Maria in 1964 and 7 Carberry Street purchased by
George and Maria in 1967.
[99] In my view, it is not credible that, from 1969, aged 17, Peter had been looking after
the properties and had been looking after George and Maria by giving them money
and paying their expenses. I am fortified in that conclusion by the fact that until Peter
and the plaintiff opened a joint bank account in July 1978, Peter had no bank account
in his own name.
[100] As previously mentioned, George and Maria’s 1984 wills were inconsistent with the
alleged original Family Agreement, Common Intention or Representation. I have
rejected the plaintiff’s evidence that George and Maria lied to her about what those
wills contained. But more than that, under the terms of the alleged family agreements,
common intentions or representations, Matty was not a party to any of the
arrangements. Nor is it suggested that she knew of or was told of either the original
or varied forms of that agreement, common intention or representation over the period
between 1979 and 2015. As at 1979, the Aronis family appears to have been a close
family. Matty was the oldest sibling, had lived with her parents for almost her entire
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life (as had Peter except while stationed in the country as a police officer and after his
marriage to the plaintiff) and had made substantial financial contributions to the
family, including the purchase of the first family car. No explanation appears in the
evidence for George and Maria to promise all their bounty to Peter in 1979 or to Peter
and the plaintiff in 1991, to the exclusion of Matty.
[101] That inconsistency between the terms of the alleged original Family Agreement,
Common Intention or Representation and Matty’s involvement in the family
arrangements may be seen in even greater relief over the following years. Matty
continued to live with her parents and to make substantial financial contributions,
including contributions towards repayment of the loan for 74 Vulture Street, paying
expenses for her parents, contributions to repay the loan for 16 Whittaker Street and
a contribution to the purchase price for 69 Boyland Avenue. In the absence of any
explanation in the evidence, it is not likely that George and Maria or for that matter
Peter would have permitted Matty to do all of those things in circumstances where it
was agreed and intended as between George, Maria, Peter and the plaintiff, as alleged
by the original Family Agreement, Common Intention or Representation, that Matty
would be wholly excluded from a share of or any entitlement to the properties.
[102] Another point of inconsistency is that the alleged original Family Agreement does not
reconcile with the actual pattern of purchase of properties from 1979 onwards. First,
15 Cranbourne Street was purchased in 1979 by Peter and the plaintiff as tenants in
common as to three quarters and one quarter respectively, suggesting some difference
in their contributions to the purchase. As at that date, however, Peter had no capital
of his own of any significance. He had been unemployed since August 1974 when
he retired from the QPS. Second, 16 Whittaker Street was purchased in 1979 by
Matty, although the contributions for the purchase by and large came from George
and Maria’s accounts and loan funds. Matty said that at least one reason that the
property was purchased in her name was to access a first homeowner’s grant. Third,
in 1985, 69 Boyland Avenue was purchased by Matty as trustee for the ADT. On
creation, Matty was the principal of the trust who retained control over the
appointment of the trustee from time to time. The primary beneficiaries were George,
Maria and any children of Peter or Matty. Fourth, 24 Selhurst Street was purchased
in 1990 by George, Maria and the plaintiff as joint tenants. Fifth, the borrowings
made to acquire the various properties were loans and mortgages taken out in
George’s name (and in Matty’s name for 69 Boyland Avenue). On the evidence,
Peter and the plaintiff neither borrowed nor provided any security or guarantee for
those loans.
[103] The AIT deed was settled on terms that George was the principal who retained control
of the appointment of the trustee from time to time and Peter and Matty were both
primary beneficiaries. Years later, the plaintiff as trustee of the AIT leased a number
of the Claimed Properties from Maria and the trustee sub-leased those properties to
third party tenants.
[104] The distribution of income earned from the initial properties was inconsistent with
the terms of the alleged original Family Agreement, Common Intention or
Representation. Between 1975 and 1984, the income from 3 Hayling Street was
allocated to George and Maria according to their tax returns. Between 1975 and 1991,
the income from 74 Vulture Street was allocated equally between George, Maria,
Matty and Peter according to their tax returns. Matty accepts that prior to
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approximately 1989, income from 74 Vulture Street allocated to her was not in fact
received by her but from that time Peter arranged for her to receive the 25 percent
that was allocated to her in the tax returns.
Sources and application of funds
[105] A significant body of evidence was led by each of the parties at the trial as to relevant
sources and application of funds. That evidence logically began with the sources of
funds to acquire the properties starting in 1959 with 95 Burn Street and ending in
1990 with the purchase of 24 Selhurst Street (or 1991 with the improvement of 99
Burn Street, or 2000 with the improvement or renovation of 95 Burn Street). It also
included the business of renting the properties over many years, except for 16
Whittaker Street and 99 Burn Street. There were a number of issues to which the
evidence related.
[106] The relevant evidence was both testimonial and documentary. As to the witnesses,
both the plaintiff and the defendant gave evidence as to numerous relevant
transactions and financial transactions relating to them. One critical allegation
alleged by the plaintiff was that from 1978 all relevant payments were made by Peter
and the plaintiff from their “own monies”. Another was that Peter and the plaintiff
received no remuneration for any of their work in maintaining, improving, acquiring
or managing any of the properties. The defendant contended that the contribution of
monies to the acquisition of various properties was inconsistent with the alleged
family agreements, common intentions or representations. She also contended that
the allocation of income from 74 Vulture Street, the creation of and operation of the
AIT and ADT and the overall allocation of income from the properties were
inconsistent with the alleged family agreements, common intentions or
representations.
[107] From 1979, there were copies of relevant bank statements, cheque book stubs and
other documents evidencing receipts and payments made in relation to the properties.
The most relevant bank statements were in George’s name or George and Maria’s
names and in the names of the trustees of the AIT or ADT for relevant periods. As
well, there were bank statements for the personal accounts of George and Maria. The
statements cover the period from 1979 until 2015 that is relevant, although some
statements were missing. On the other hand, only some of the personal bank accounts
of Peter and the plaintiff were disclosed or in evidence. Nor were the bank accounts
of Lepta fully disclosed.
[108] As well, the tax returns of the relevant parties and entities were disclosed and the
subject of evidence.
[109] From these sources, a range of opinion expert evidence was obtained by the parties
in the form of reports that were tendered at the trial. In order to explain some of the
disputes that arose upon those reports, it is necessary to summarise them briefly.
[110] A report by Kasey O’Sullivan of BDO dated 15 October 2018 (“BDO Report”)
provided a reconciliation of the money deposited into and withdrawn from 1979 for
the following accounts:
(a) bank account 110-723 in the names of George and Maria;
(b) bank account 167-703 in the names of George and Maria;
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19
(c) bank account 139-913 mostly in the name of the plaintiff as trustee for the AIT;
and
(d) CBA account 167-690 in the names of George, Maria and the plaintiff.
[111] The summary of the deposits and withdrawals for those accounts were:
[112] The BDO Report broke those amounts into unknown and known sources of the
deposits and unknown and known applications of the withdrawals.
[113] Elia Lytras of Lytras & Company produced a forensic accountant’s report dated 23
December 2020 (“First Lytras Report”) in relation to a range of matters relevant to
the dispute and the ten properties acquired by members of the Aronis family
previously mentioned. That report reviewed the BDO Report, considered the primary
affidavit of the plaintiff and focused on the four bank accounts the subject of the BDO
Report but also considered other information and the effect of the available relevant
tax returns, being those for George for the years ended 30 June 1970 to 1994
(excluding 1971, 1972 and 1974), Maria for the years ended 30 June 1970 to 2014
(excluding 1971, 1972 and 1974), Maria’s estate for the years ended 30 June 2017 to
2019, Matty for the years ended 30 June 2002 to 2019, Peter for the years ended 30
June 1978 to 2014, the plaintiff for the years ended 30 June 1978 to 2015 (excluding
1986 to 1999), the AIT for the years ended 30 June 1987 to 2016 and the ADT for the
years ended 30 June 1995 to 2019.
[114] Some information about the relevant individuals and entities reported in the tax
returns and from other sources may be summarised from the First Lytras Report.
[115] George reported income from the fish and chip shop in 1970. From 1973, his reported
primary income was from rental properties, predominantly 3 Hayling Street and 74
Vulture Street and from 1988, from trust distributions from the AIT. Except for 1973,
George reported no rental income from 95 Burn Street, 99 Burn Street or 24 Selhurst
Street. From 1970 to 1994, George’s reported income sources totalled $196,351.
[116] Maria’s reported income sources were similar to George’s. From 1993, her reported
25 per cent share of the net rent from 74 Vulture Street doubled to include George’s
share. From 2015 (when Matty assumed management), Maria received distributions
from the ADT. From 1970 to 2015, Maria’s reported income was $909,885.
[117] Matty’s reported income prior to 1975 was not available, although from 1963 to 1974
she was employed full-time by HC Sleigh. From 1975 to 2001, Matty’s reported
income included a 25 per cent share of the net rent from 74 Vulture Street. From
1974 to 1987, Matty was employed by HH Robertson. Thereafter, Matty worked as
a self-employed distributor of books and products for the trading arm of the Seventh
Description Account
110-723
Account
1167-703
Account
139-913
Account
167-690 Total
Total
Deposits 1,451,304.47 2,726,866.09 3,266,019.32 517,521.90 7,961,714.78
Total
Withdrawals 1,429,228.77 2,667,878.10 3,226,132.63 519,824.76 7,843,064.26
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Day Adventist Church. From 2002, Matty’s reported income sources were from book
distribution, her share of rent from 74 Vulture Street and interest income. The total
income over that period was $618,656, of which $228,443 was rental income from
74 Vulture Street. Matty’s reported income did not include any distribution from the
AIT or ADT.
[118] Peter reported income from the Clayfield fish and chip shop partnership business in
1970. There was no information as to Peter’s reported income for the period between
1971 and 1974 when Peter worked for the QPS. From 1975 to 1994, Peter’s reported
sources of income were his QPS pension and his 25 per cent share of the net rent of
74 Vulture Street. From 1995 to 2014, Peter’s reported income included a share of
net rent from 15 Cranbourne Street and interest income. From 1978 to 2014, Peter’s
reported income was $1,162,403, of which $681,928 was attributable to the QPS
pension and net rent from 15 Cranbourne Street.
[119] From 1978 to 1985, the plaintiff reported income from employment by the State of
Queensland averaging $10,541 per annum. The plaintiff’s personal tax returns for
1986 until 1990 were not available. However, in 1987 and between 1991 and 1998
the plaintiff was reported as receiving trust distributions from the AIT and in 1988
and 1999 she was recorded as receiving a wage from the “G & M Aronis Partnership”.
In 1986 and 1988, the plaintiff was recorded as receiving distributions from the ADT
and from 1995 to 1998, a 50 per cent share of the net rent of 15 Cranbourne Street.
From 1999 to 2015, the plaintiff was recorded as receiving distributions from the AIT
of $380,213 and distributions from the ADT of $68,146, as well as net rent from 15
Cranbourne Street and interest income. Her total recorded income from 1999 to 2015
was $594,100.
[120] The trustee of the AIT became the lessee of a number of the properties from the
owner, whether it was George or George and Maria or George and Maria and the
plaintiff. The AIT conducted the business of renting the relevant properties to tenants.
Excluding 1994, from 1990 to 2016, it reported a gross income of $2,271,037 and
deductions of $1,200,065 resulting in a net income of $1,113,165. From 1987 to
2016, the AIT reported distributions to George, Maria, the plaintiff, the plaintiff’s
children, the ADT and Lepta totalling $1,163,650 of which $598,535 was reported as
distributed to the plaintiff and $198,939 was reported as distributed to Lepta.
[121] Lepta was registered on 20 June 2011 with Peter as the sole director and shareholder.
Marietta was recorded in the application for registration as the contact person. After
Peter’s death, the plaintiff replaced Peter as sole director and shareholder. On 10
March 2017, Hoang Nguyen, an acquaintance or associate of Marietta, became sole
director and shareholder. On 10 November 2019, it was deregistered. There has been
no disclosure in the proceeding relating to Lepta and no information made available
as to its income or assets or liabilities from time to time.
[122] The trustee of the ADT was the owner of 69 Boyland Avenue. From 1995 to 2019
(excluding 2010), the ADT reported $207,980 rental income, $20,000 in trust
distribution from the AIT and $11,506 interest income, totalling $239,486. After
deductions of $118,752, it reported a net income of $125,171. From 1995 to 2018,
the ADT reported distributions to the plaintiff of $74,116 with other distributions of
$11,487 not being determinable. From 2015 to 2018, the ADT reported distributions
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to Matty of $53,106 and a total of $138,709. Prior to 2015, all identifiable
distributions were to the plaintiff alone.
[123] From these sources of information as further detailed in the annexures to the First
Lytras Report, Mr Lytras expressed a number of points as to the sources and amounts
of the incomes of Peter, the plaintiff and their children and Lepta from 1979. From
1974, Peter’s independent income source was his QPS pension. From 1975 to 1987,
Peter’s only reported income from the properties was his share of the net rent from
74 Vulture Street. From 1978 to 1985, the plaintiff’s independent income source was
her wage or salary from employment by the Queensland Government. From 1995,
her source of independent income was her share of the net rent from 15 Cranbourne
Street. From 1987 to 2016, Peter, the plaintiff and their children and Lepta started to
receive reported distributions from the AIT and ADT and the plaintiff and Peter’s
interest incomes increased. Over time, substantial income from the properties was
received. Over the period reviewed, approximately 60 per cent of the total income
identifiable as being received by Peter, the plaintiff and their children and Lepta was
derived from the properties. Peter and the plaintiff had four children between 1980
and 1986 and neither of them worked other than in managing the properties from that
time. They were dependent upon income from the properties for their livelihoods
from that time.
[124] From 1974 George and Maria were in receipt of income derived from the properties.
They had no other source of income.
[125] From before 1979, as independent sources of income, Matty was employed by HC
Sleigh, then HH Robertson and she later earned income as a book distributor.
[126] Broadly speaking, from 1975 to 1987, the net rent of 74 Vulture Street was allocated
as to 25 per cent each for George, Maria, Matty and Peter. As reported, during that
period, the other properties net rents were allocated to George and Maria.
[127] From 1987 onwards, the net rents for a number of the properties were received by the
AIT and ADT. In effect, from 1987, approximately $1.4 million was allocated to
Peter and the plaintiff and a similar amount was allocated to George, Maria and Matty,
as reported or recorded.
[128] Marietta Aronis, who is a qualified accountant, also prepared a reconciliation of
deposits and withdrawals from the four bank accounts the subject of the BDO Report
and the First Lytras Report as well as twelve other bank accounts as follows:
(a) Matina Aronis as trustee for the Aronis Developments Trust 279-417;
(b) Matina Aronis as trustee for the Aronis Developments Trust 279-505;
(c) Aronis Investment Trust account 5004-551;
(d) Georges Aronis 21-5501;
(e) Georges Aronis 110-715;
(f) Georges Aronis 21-5528;
(g) Georges Aronis 157-444;
(h) Georges Aronis 110-053;
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(i) Maria Aronis 5899542-01;
(j) Maria Aronis 5899542-06;
(k) George and Maria Aronis 2.409147; and
(l) Maria Aronis 5899542.
[129] Marietta then further undertook a process to identify the deposits and withdrawals for
seven of the properties for each financial year as follows:
(a) 74 Vulture Street;
(b) 3 Hayling Street;
(c) 17 Hayling Street;
(d) 95 Burn Street;
(e) 99 Burn Street;
(f) 16 Whittaker Street; and
(g) 24 Selhurst Street.
[130] She further allocated deposits and withdrawals to various categories identified on the
source documents including bank statements, passbooks, cheque book stubs, deposit
books, the affidavit of the plaintiff and the affidavit of Matty, although significant
information was missing. In order to assist her analysis, she made a number of
assumptions including that the notes on the source documents were accurate and that
corresponding amounts and dates of withdrawals from one account and deposits to
another should be categorised as transfers. The financial reports prepared by Marietta
were exhibited to an affidavit sworn 4 June 2021 that included a statement pursuant
to r 428(3) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) as to
compliance with her duty as an expert. The duty of an expert to assist the court
overrides any obligation the witness may have to any party to the proceeding,
pursuant to r 426 of the UCPR. An important aspect of expert opinion evidence is
that the expert should be independent. The report of an expert who is not independent
may still be considered by the court but may be given less weight than the evidence
of a truly independent expert.4 This factor is relevant in relation to one aspect of
Marietta’s accounts and financial reports.
[131] Paul Vincent of Vincents Chartered Accountants produced a forensic accountant’s
report dated 15 June 2021 (“First Vincent Report”). His instructions were to consider
the financial reports prepared by Marietta for the four bank accounts the subject of
the BDO Report and the First Lytras Report, to consider the reconciliation of the bank
accounts undertaken in the BDO Report and to provide opinions about the deposits
and sources of the deposits and withdrawals and the purpose of expenditures to the
extent that they related to the properties or other purposes such as medical expenses
of George and Maria, income tax of George, Maria, Matty, Peter and the plaintiff or
personal expenses of George, Maria, Matty, Peter and the plaintiff as well as other
matters. He was also requested to provide an opinion as to the First Lytras Report.
4 Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564, 570 [35]; Sydney South
West Area Health Service v Stamoulis [2009] NSWCA 153 [204]-[211].
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[132] For the purpose of the First Vincent Report, Mr Vincent was provided with the
financial reports prepared by Marietta exhibited to her affidavit. However, it appears
from his report that he was also provided with a second set of data (but not a second
set of the financial reports exhibited to Marietta’s affidavit) based on a second
electronic account file in MYOB prepared by Marietta. The results of the financial
reports prepared by Marietta exhibited to her affidavit were described in the First
Vincent Report as “Scenario 1”. The First Vincent Report’s “Scenario 2” was
described as “[b]ased on revised cashbooks where withdrawals that can be inferred
as property expenditure have been reallocated from unknown withdrawals and
deposits that can be inferred as rent deposits have been reallocated from unknown
deposits”.
[133] The tables below set out summary information of the four relevant bank accounts
based on those two scenarios for deposits and withdrawals, respectively:
Summary of 4 Rental Bank Accounts
Deposits
Scenario 1 Scenario 2
Identified Sources:
Rent deposits received $4,348,490 $5,288,863
Deposits by family members $22,493 $22,493
Other deposits (ATO receipts, bank bills) $300,412 $300,427
Transfers from bank accounts $1,031,451 $1,031,451
Transfers from term deposits $280,999 $280,999
Unidentified Sources:
Unknown deposits $2,067,682 $1,127,299
Total $8,051,528 $8,051,533
Summary of 4 Rental Bank Accounts
Withdrawals
Scenario 1 Scenario 2
Identified Sources:
Property expenditure $1,377,855 $1,508,348
Property administration costs $135,588 $138,923
Property purchases $93,351 $93,351
Interest and loan payments $623,933 $626,271
ATO payments $997,985 $1,00,733
Family member withdrawals $1,151,588 $1,151,588
Transfers to bank accounts $1,824,703 $1,824,703
Transfers to term deposits $156,864 $156,864
Unidentified Sources:
Unknown withdrawals $1,451,743 $1,312,834
Total $7,813,610 $7,813,615
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24
[134] The First Vincent Report accepts as accurate the financial reports and underlying
account files prepared by Marietta. As will subsequently appear, in my view, there
are significant errors in Marietta’s allocation of withdrawals. The First Vincent
Report then expresses criticisms of both the BDO and the First Lytras Report based
on errors that were found in the BDO Report and impliedly at least taken into the First
Lytras Report. Some of the criticisms, in my view, were not helpful. One was that
BDO incorrectly identified income tax payments made on the plaintiff’s behalf to the
ATO as trust distributions to the plaintiff. Although not explained in the report, the
basis of the criticism appears to have been that a payment made by the trustee of the
AIT or ADT to the ATO for the plaintiff’s tax liability for a trust distribution was not
itself necessarily a distribution but might be an amount by way of loan. However, Mr
Vincent did not have any financial statements or accounts of either of the trusts that
supported the classification of the relevant amounts as loan funds and he did not
explain how it was relevant to deciding any issue between the parties in the
proceeding that the payment was for the benefit of the plaintiff as a distribution on
the one hand or as a loan on the other hand.
[135] It is unnecessary to analyse exhaustively the criticisms made by the First Vincent
Report of the BDO Report and the First Lytras Report. It is also unnecessary to
analyse the detail of Scenario 2 based on Marietta’s second set of accounts or account
file to decide the disputed questions necessary to resolve this proceeding. Looking at
the matter generally, where opinions or statements are made in the First Vincent
Report that are not themselves supported by ascertainable facts or material, I have
treated them with some care because of the wholesale acceptance of Marietta’s
accounts, even though I have largely accepted her work in relation to Scenario 1. An
example, however, of why I have treated the First Vincent Report with care may
suffice. One opinion or conclusion stated is that 95 Burn Street was renovated in
about 2000 at a cost of approximately $300,000 which is sourced to the plaintiff’s
main affidavit. Mr Vincent then states that a review of CBA account 139-913 shows
that unknown withdrawals totalling $50,000 in 2000 and $20,000 in 2001 could be
partly attributed to those renovations. In my view, that reasoning is unlikely to be
correct. On the same page of the First Vincent Report where it is made there is a
graph that depicts the annual rent deposits and property expenses for 95 Burn Street.
They show that both were virtually zero for the whole of the period between 1993
and 2006. In the 2007-year property expenses of $70,000 were made on 95 Burn
Street and in the 2008-year rent started to be paid and was thereafter paid at levels in
excess of $35,000 until the 2015-year. The more likely explanation of those known
deposits and expenses for 95 Burn Street is that the relevant renovation did not take
place in about 2000 or 2001 at all.
[136] Similarly, the First Vincent Report says that 74 Vulture Street was renovated in 2004
at a cost of approximately $250,000 from rent derived from the property, relying on
the plaintiff’s main affidavit. However, Mr Vincent expresses the view that repairs
and maintenance increased in the 2006 and 2007 financial years compared to the prior
years but he was unable to determine from which bank accounts the cost of the 2004
renovation was paid. On the prior page of the First Vincent Report there is a graph
setting out the known deposits and expenses for 74 Vulture Street. The approximate
amount of those expenses in 2004 and 2005 was $20,000. In 2006 to 2007 the
expenditure increased to $40,000 and thereafter decreased in 2008 and 2009 to
approximately $20,000 again. That is not consistent with a large capital expenditure
in 2004 of $250,000 on the property. In my view, at the time of the First Vincent
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25
Report, Mr Vincent had access to all the accounts that had been identified as rental
property accounts. Nothing in them suggests or supports that they were likely to have
funded expenditure in 2004 of $250,000.
[137] Mr Lytras produced a further forensic accounting report dated 16 August 2021
(“Second Lytras Report”). He was instructed to prepare a further report in response
to the First Vincent Report and Marietta’s affidavit. Among the summary of points
made by Mr Lytras in response were:
(a) Scenario 2 of Marietta’s revised accounting file did not appear to have been
reviewed or sample tested by Mr Vincent or those assisting him;
(b) the First Vincent Report did not challenge significant elements of the First
Lytras Report; and
(c) it was not possible to check a number of statements and conclusions in the First
Vincent Report because their bases were not apparent.
[138] A significant difference between the First Lytras Report and the First Vincent Report
was Mr Vincent’s approach that Peter and the plaintiff may not have received the
amounts allocated to them in the disclosed income tax returns. Surprisingly, Mr
Vincent did not say that he had sought further financial information from the plaintiff
in order to ascertain the true facts before taking that approach. In the Second Lytras
Report, Mr Lytras observed that the First Vincent Report did not demonstrate the
amounts were not received or explain how Peter and the plaintiff might otherwise
have supported their family’s living costs without that income. Against that,
however, it should be accepted that both Marietta and Matty gave evidence that some
of the amounts shown as trust distributions to them were not received. However, their
statements did not concern amounts paid to Peter or the plaintiff. Mr Lytras also
observed that some of the statements and conclusions in the First Vincent Report
concerning the properties’ financial performance were inconsistent with the income
tax returns.
[139] In the Second Lytras Report, Mr Lytras repeated a number of statements he made
about the conclusions of the BDO Report in the First Lytras Report, as follows:
(a) BDO identified $1,619,237 as being withdrawn from the bank accounts for the
benefit of George, Maria and Matty. This amount is broadly similar to the
$1,532,318 Mr Lytras identified as being recorded as income attributable to the
Aronis family properties in the disclosed income tax returns of George, Maria
and Matty;
(b) BDO identified $289,417 as being withdrawn from the bank accounts for the
benefit of Peter, the plaintiff and their family. This amount is materially less
than the $1,436,765 Mr Lytras identified as being recorded as income
attributable to Peter, the plaintiff and their related parties from the Aronis
family properties (excluding 15 Cranbourne Street) as disclosed in their income
tax returns;
(c) on the basis of the two points above, it appeared to Mr Lytras that, in
maintaining the Aronis family properties’ bank accounts, Peter and the plaintiff
were specific in recording disbursements and amounts paid to or on behalf of
George, Maria and Matty but not so for themselves;
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(d) BDO identified $1,249,898 withdrawals for the Aronis family investment
properties which was materially greater than the $817,569 sum of rental
deductions Mr Lytras identified for those properties in the disclosed income
tax returns. Mr Lytras noted that his analysis of the income tax returns rental
property schedules was affected by the unavailability of some years’ data; and
(e) BDO identified $3,067,133 withdrawals in the bank accounts which were
unidentifiable. If the $1,147,348 difference in amounts attributable to Peter,
the plaintiff and their related parties ($1,436,765 in the income tax returns
compared to the $289,417 in the BDO analysis) were deducted from BDO’s
reported unidentifiable withdrawals figure, then unidentifiable withdrawals
reduced to $1,919,785.
[140] It is not necessary to set out or to analyse in detail Mr Lytras’ responses in the Second
Lytras Report to the First Vincent Report. Again, many of the points in the range of
dispute are not critical to the resolution of the issues in the proceeding. Nevertheless,
many of Mr Lytras’ responses appear to have substance when looked at in detail. One
identified error in the Second Lytras Report is in the Table 1 unknown withdrawals
analysis and calculations on page 37. The identified withdrawals to Peter, the plaintiff
and their associates were overstated at $860,191 in the Scenario 1 and Scenario 2
columns, when that amount should have been $460,800. The revised unidentifiable
withdrawals ought to have been $399,391 for Scenario 1 and $337,286 for Scenario
2, respectively. However, except that the amount of the unidentifiable withdrawals is
reduced in each case, those differences are not material.
[141] Mr Vincent produced a further forensic accounting report dated 27 August 2021
(“Second Vincent Report”). The instructions for that report were to review the
calculations included in the BDO Report in further detail and set out further details
of the process that was undertaken in performing sample testing of the financial
reports prepared by Marietta for Scenario 1 in the First Vincent Report and to consider
the Second Lytras Report.
[142] Generally speaking, I found the Second Vincent Report unhelpful as it did not add
significant further analysis or discussion, but generally reiterated the prior
differences. In particular, Mr Vincent again relied upon the financial reports prepared
by Marietta without qualification and adopted them as his opinion. I deal with a
substantial subject matter of dispute that is relevant in relation to Marietta’s reports
and accounts next. However, Mr Vincent did clarify that the sample testing that was
done for the accounts and revised accounts prepared by Marietta for Scenario 1 and
Scenario 2 included checking of cash book ledgers prepared by Marietta for Scenario
2. It is unnecessary to further discuss the details of the Second Vincent Report.
[143] In final submissions, the defendant accepted that Marietta’s accounting work could
generally be regarded as reliable on internal bank account transfers and payments to
unrelated third parties. However, it submitted that her categorisations were not
reliable in relation to transactions involving family members, including lump sum
withdrawals, particularly those allocated to Maria. A copy of Annexure 4 to the
defendant’s written submissions (“Annexure 4”) that identifies each of the challenged
allocations by Marietta is attached to these reasons. The challenged transactions fell
into two categories. First, there were withdrawals that Marietta had allocated to Maria
but which are traceable to accounts in the name of the plaintiff (as trustee for the AIT)
on the documents tendered in evidence. There were four such transactions (line entry
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27
numbers 1-4 on Annexure 4), totalling $180,000. Second, there were withdrawals or
transfers that are either unexplained (except for a handwritten note “Maria” in some
cases) or traceable to an account in the name of the plaintiff, (including accounts as
trustee for the AIT) or Lepta. There were forty-six such transactions totalling
$1,438,447.94. Three of them (line entry numbers 12, 13 and 15 on Annexure 4),
totalling $65,000 were allocated by Marietta to withdrawals for Maria.
[144] In my view, it is more likely than not that these withdrawals have been misattributed
by Marietta to Maria. They form a substantial reason for caution before accepting
Marietta’s allocation of withdrawals to family members.
Conclusions of the claim
[145] The findings made above inevitably lead to the conclusion that the plaintiff’s claim
must fail. The plaintiff has not proved on the balance of probabilities that the alleged
agreements, common intentions or representations were made or existed. In reaching
that conclusion, I have taken into account the principle that a representation must be
clear before it can found an estoppel including an equitable estoppel.5
[146] There were arrangements in place for more than 30 years under which Peter had the
running and management of the family financial affairs. The plaintiff had a
substantial involvement assisting Peter and after 1990 as sole trustee of the AIT. Peter
and the plaintiff enjoyed a substantial amount of the net proceeds of the initial and
Claimed Properties. But those facts do not directly support the alleged agreements,
common intentions or representations. Nor does Maria’s 1991 will, although it was
consistent with Maria at that time intending that Peter and the plaintiff would inherit
her estate.
[147] As well, the many inconsistent facts make it less likely than not that, on the balance
of probabilities any of the alleged agreements, common intentions or representations
were made or existed.
Counterclaim
[148] By the end of the trial, the defendant as executor of Maria’s estate made five
counterclaims against the plaintiff. It was not entirely clear which of the
counterclaims were made against her as executor of Peter’s estate or personally.
[149] Summarised, the individual counterclaimed entitlements of Maria’s estate as finally
submitted were for:
Property Amount
Rents from 74 Vulture Street $850,069.24
Rents from 3 Hayling Street $37,613.33
Rents from 24 Selhurst Street $96,859.00
Distributions from AIT $117,176.01
5 Legione v Hately (1983) 152 CLR 406, 436.
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Rates for 17 Hayling Street $13,499.70
Total $1,115,217.28
It will be necessary to consider each of those subject matters of counterclaim.
Rents from 74 Vulture Street
[150] It will be recalled that the defendant’s case was that the net rents of 74 Vulture Street
were distributed until George’s death in 25 per cent shares among George, Maria,
Matty and Peter, and thereafter as to 50 per cent to Maria, and that this was
inconsistent with the plaintiff’s claim as to the family agreements, common intentions
or representations.
[151] The defendant’s pleaded counterclaim for the rents from 74 Vulture Street alleges
that Maria’s entitlement prior to George’s death was to 50 per cent of the net rents as
co-owner and after George’s death was 100 per cent as sole owner. It is alleged that
Peter and the plaintiff collected the net rents as agent for Maria.
[152] However, there was no evidence that the plaintiff was appointed as agent for Maria.
Accordingly, there was no proved basis for a personal claim against her as agent on
that basis. It is unnecessary to consider any personal claim against her further.
[153] As to Peter, it is alleged that he was the agent for Maria and owed her fiduciary
obligations not to allow a conflict between his duty as agent and his personal interest.
It is then alleged that Peter did not cause Maria’s proportion of the net rents to be paid
to Maria, being 25 per cent of the net rent from 1977 to 1993 and 50 per cent from
1994 to 2016, totalling $850,069.14. Of that, $120,480.75 was claimed until 30 June
1994 and $729,588.39 from then to July 2016.
[154] As finally submitted, the claim against Peter was calculated only from the year ended
30 June 1995 to the year ended 30 June 2015. The total amount was calculated on
the basis of Maria’s alleged entitlement to 50 per cent of the net rents, less an
allowance for what were submitted to be payments fairly attributed to Maria in the
relevant financial years for both 74 Vulture Street and 3 Hayling Street. For present
purposes, it is sufficient to treat all those allowances as allocated to 74 Vulture Street.
The submitted totals were:
Financial year Maria’s net rents
entitlement
Amount received (also
attributable to 3
Hayling St)
1994-1995 $24,662.00 $5,480.00
1995-1996 $27,606.00 $5,480.00
1996-1997 $27,225.00 $6,006.60
1997-1998 $23,470.50 $6,076.25
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1998-1999 $28,216.50 $6,003.40
1999-2000 $27,892.50 $6,328.40
2000-2001 $29,848.50 $5,933.40
2001-2002 $24,285.00 $5,826.55
2002-2003 $31,454.00 $5,641.85
2003-2004 $25,266.50 $6,854.00
2004-2005 $18,398.50 $6,412.24
2005-2006 $26,224.00 $7,695.46
2006-2007 $23,437.00 $7,297.85
2007-2008 $27,895.00 $13,123.10
2008-2009 $44,554.50 $13,012.85
2009-2010 $46,649.50 $15,815.05
2010-2011 $40,729.50 $19,485.08
2011-2012 $48,498.00 $18,795.05
2012-2013 $57,240.50 $13,581.65
2013-2014 $42,261.00 $21,725.39
2014-2015 $42,533.35 $33,820.78
Total $688,347.35 $230,394.95
[155] As to the defendant’s pleaded counterclaim in respect of 74 Vulture Street, based on
the entitlement of a sole owner to the net rents of a property against an agent who
manages the property but who fails to account for the net rents, I do not accept that
basis of claim as Maria did not give evidence in support of it and there is ample
evidence that suggests that the family arrangements over 74 Vulture Street over a
long period of time were not that the net rents would be paid to the title holders.
[156] I also note that the ultimate amount counterclaimed for net rents of 74 Vulture Street
was not the amount pleaded and claimed as the loss, without any amendment or
application for amendment of the counterclaim for the different basis of claim or
amount.
[157] From much earlier than 1995 the net rents of 74 Vulture Street were not distributed
in accordance with George and Maria’s entitlements as joint proprietors of the
property. Instead, until the year of George’s death they were reported in relevant tax
returns on the basis that George and Maria were paid 50 per cent and Matty and Peter
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were each paid 25 per cent. After George’s death, they were reported as being paid
50 per cent to Maria and 25 percent to each of Matty and Peter. Underlying those
reported arrangements, after George’s death, Maria was the sole registered proprietor
of 74 Vulture Street.
[158] The assumptions underlying the defendant’s final submissions on the counterclaim
for net rents of 74 Vulture Street are not identified but appear to be that there was an
agreement among Maria, Matty and Peter for the distribution of the net rents in those
proportions and that Maria was not aware of and did not agree to the actual
distributions to her that were in lesser amounts than 50 percent of the net rents. The
defendant submits, although it was not pleaded, that the parties conducted themselves
on the basis of payment of 50 percent.
[159] There is no evidence in Maria’s affidavit as to those matters. Nor do Matty’s
affidavits deal with them, except that she said the net rents of 74 Vulture Street were
split and in around 1990 (that is, before George’s death) she approached Peter about
her allocation of 25 per cent and demanded that he cause her either to be paid the 25
per cent or to be paid the tax she had to pay on that amount in her declared income.
In my view, the fact that payments were reported to be made on the basis of the 50
per cent, 25 percent and 25 percent allocations is not enough, of itself, to make the
relevant finding of an agreement to that effect.
[160] Accordingly, there should be judgment that this part of the counterclaim is dismissed.
Rents from 3 Hayling Street
[161] The defendant’s pleaded counterclaim for 3 Hayling Street is that from George’s
death, Maria was entitled to 100 percent of the net rents and that Peter and the plaintiff
as agents managed the property but did not account to Maria for net rents in the
amount of $37,613.71.
[162] As finally submitted, the defendant’s counterclaim for 3 Hayling Street was for much
more than $37,613.71, as follows:
Financial year Maria’s net rents
entitlement
Amount received (also
attributable to 74
Vulture Street)
1994-1995 $6,688.18 $5,480.00
1995-1996 $6,155.45 $5,480.00
1996-1997 $2,201.00 $6,006.00
1997-1998 ($1,806.80) $6,076.00
1998-1999 ($1,812.00) $6,003.00
1999-2000 $1,210.20 $6,328.00
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2000-2001 $17,217.80 $5,933.00
2001-2002 $17,889.60 $5,826.00
2002-2003 $17,773.20 $5,641.00
2003-2004 $17,970.35 $6,854.00
2004-2005 $17,450.55 $6,412.00
2005-2006 $7,734.85 $7,695.00
2006-2007 $25,584.95 $7,297.00
2007-2008 $26,080.52 $13,123.00
2008-2009 $11,000.90 $13,012.00
2009-2010 $10,136.10 $15,815.00
2010-2011 $8,519.41 $19,485.00
2011-2012 $9,107.45 $18,795.00
2012-2013 $11,375.07 $13,581.00
2013-2014 $9,919.47 $21,725.00
2014-2015 ($5,066.87) $33,820.00
Total: $215,329.38 $230,387.00
[163] There are similarities and differences in the pleading and evidence relating to the
defendant’s counterclaim for 3 Hayling Street and that for 74 Vulture Street. Both
were pleaded as being based on Maria’s legal entitlement as owner of the property
and Peter and the plaintiff’s alleged role as agent and their failure to account for the
net rents. An underlying assumption was that Maria as sole registered proprietor was
entitled to 100 percent of the net rents.
[164] In any event, just as there was no evidence by Maria or of any substance by Matty
about the basis of Maria’s dealings with Peter or the plaintiff over the 74 Vulture
Street net rents, there was no evidence about any dealings over the 3 Hayling Street
net rents.
[165] However, unlike 74 Vulture Street, the tax returns of Maria, Peter and Matty did not
report any distribution of the net rents from 3 Hayling Street among them.
[166] For the same reasons as given for 74 Vulture Street, I am not satisfied that Peter or
the plaintiff was acting as Maria’s managing agent by agreement in relation to 3
Hayling Street. It follows that the counterclaim in relation to 3 Hayling Street alleged
on that basis should not succeed.
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[167] However, even if the counterclaim might otherwise have succeeded, in the absence
of an amendment or acceptance by the plaintiff of the increased amount of the claim,
it should not be allowed beyond the claimed amount.
[168] In view of these findings, it is unnecessary to make further findings about the
reliability or relevance of some of the opinion evidence as to the amounts given in the
Lytras or Vincent reports.
[169] Accordingly, there should be judgment that this part of defendant’s counterclaim is
dismissed.
Rents from 24 Selhurst Street
[170] Although 24 Selhurst Street was purchased in January 1990 with funding in part from
a bank loan of $160,000, it was not included in the plaintiff’s claim as one of the
Claimed Properties subject to either the family agreements, common intentions or
representations. As previously stated, 24 Selhurst Street was purchased in the names
of George, Maria and the plaintiff. It was not held by them as trustees for either the
AIT or the ADT. After George’s death, accordingly, Maria and the plaintiff became
the joint registered proprietors.
[171] The plaintiff alleged that from 25 September 1993 she and Maria as joint proprietors
were entitled to 50 per cent each of any rent paid by third parties who leased or
tenanted 24 Selhurst Street. The plaintiff further alleged that from 1 August 2010 to
31 July 2013 National Truck Hire Pty Ltd leased the property from Maria and the
plaintiff (“NTH Lease”) and from 14 September 2013 to 13 September 2015 GR Best
Pty Ltd leased the property from Maria and the plaintiff (“GRB Lease”). The plaintiff
alleged that having regard to the amounts paid by way of rent and the amounts paid
to Maria and the plaintiff respectively, Maria was obliged under s 43 of the Property
Law Act 1974 (Qld) (“PLA”) to account to the plaintiff for the plaintiff’s
proportionate share of the rent received and that the balance of the account between
Maria and the plaintiff was that Maria owed the plaintiff $26,355.84. However, that
claim by the plaintiff was abandoned or not pressed in final submissions.
[172] Conversely, the defendant alleged that under the NTH Lease and the GRB Lease,
rents were received by the plaintiff who failed to pay half or any of the rents to Maria.
Accordingly, the defendant maintained a claim against the plaintiff for Maria’s
entitlement, inter alia, as upon the plaintiff’s liability to account to Maria for receipt
of rent in excess of her just and proportionate share pursuant to s 43 of the PLA. It is
unnecessary to discuss any other alleged basis of liability.
[173] As pleaded by the defendant in the counterclaim, Maria’s alleged entitlement was to
the sum of $69,420.18 as her share of the rents paid under the NTH Lease and $40,392
as her share of the rents paid under the GRB Lease. In final written submissions,
delivered after the Court’s decision was reserved, the defendant set out the sums paid
by way of gross rent and expenses for the years ended 30 June 2011 to 30 June 2016.
Fifty per cent of that amount was $96,859.66.
[174] Neither of the parties devoted much attention to the other’s submissions in respect of
this counterclaim. The defendant noted in oral submissions that the plaintiff did not
press or had abandoned her claim in respect of a proportion of the rent received for
24 Selhurst Street. The defendant’s written submissions contended, and it is not
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apparently in dispute, that the lessees of 24 Selhurst Street paid substantial rent into
bank account 167-690. That was an account Maria did not control. As previously
mentioned, on 11 August 2015, the plaintiff withdrew the balance of $56,353.08 from
that account and ultimately transferred it to her new personal account. After that time
bank account 167-690 was closed. There was no evidence that Maria received any
rent proceeds from that account before its closure. The withdrawals that can be traced
were to the plaintiff. Others were unexplained. The plaintiff did not adduce any
evidence that she caused any rent or money from that account to be paid to Maria.
[175] The inference that follows from those facts is that Maria did not receive any of the
rent from the leases for the years ending 30 June 2011 to 30 June 2016 (or part
thereof). Consistently with that, Maria’s tax returns did not disclose any income by
way of rent from 24 Selhurst Street in the relevant years.
[176] There is a variation between the amounts of the rent income alleged to have been paid
under the leases in paragraphs 149 and 150 and 154 and 155 of the defendant’s
counterclaim, on the one hand, and the amounts deposited into account number 167-
690 as rent or income from 24 Selhurst Street in Annexure 7 to the defendant’s written
submissions (“Annexure 7”). However, the ultimate amount of the claimed
proportion of Maria’s entitlement to 50 per cent of the net rent claimed in the
statement of claim was more than the ultimate amount contended for under Annexure
7. It may follow that it should be found that Maria’s unpaid half share of the net rent
for 24 Selhurst Street was $96,859.66 and her estate is entitled to that sum against the
plaintiff by way of an account under s 43 of the PLA.
[177] In order to make that finding it is necessary to accept that the plaintiff received the
whole of the net amount of $193,719.32 as set out in Annexure 7. Despite the
evidence that some of the payments from that account were unexplained, I make that
finding. The starting point is that all of the rents were paid into account number 167-
690. As one of two joint proprietors of that account, and as a controller of that account
with Peter, it was the plaintiff’s responsibility to manage that account as between
herself and Maria as co-owners. It should be inferred from the plaintiff’s own claim
under s 43 of the PLA based on the contention that Maria had been overpaid on
account of the rent received for the property that the plaintiff was aware of the
respective entitlements that she and Maria had to those rents.
[178] Accordingly, there should be judgment that the defendant pay the plaintiff the sum of
$96,859.66 on this part of the counterclaim.
Distributions from the AIT
[179] After George’s death Maria became the sole registered proprietor of 17 Hayling
Street. However, on 15 March 2005 the plaintiff as trustee of the AIT leased 17
Hayling Street from Maria for a term of four years commencing retrospectively on 1
June 2004 with an option of four years. On 14 May 2012, the plaintiff as trustee of
the AIT leased 17 Hayling Street from Maria (the lease was executed by Peter as
Maria’s attorney) for a term of ten years commencing on 1 June 2012 (“14 May 2012
Lease”).
[180] After George’s death, Maria also became the sole registered proprietor of 95 Burn
Street. However, on 1 June 2008 the plaintiff as trustee of the AIT leased 95 Burn
Street from Maria for a term of ten years commencing on 1 June 2008.
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[181] Although the leases between Maria and the plaintiff as trustee of the AIT provided
that the rent would be agreed, there was no evidence that any agreement as to the rent
was ever reached. There is no recorded payment by the plaintiff as trustee of the AIT
of rent to Maria as the head lessor of the relevant properties.
[182] On 25 June 1985, bank account 139-913 was opened in the names of Peter and Matty
as trustees for the AIT. By May 1990 the plaintiff had become the sole trustee of the
AIT. Rent from the tenants of 17 Hayling Street and 95 Burn Street to the plaintiff
as trustee of the AIT was deposited into the account.
[183] The tax returns for the AIT recorded that it received income, it is to be inferred to be
rent from the tenants of 17 Hayling Street and 95 Burn Street, and paid expenses.
Those tax returns also showed distributions that were made to beneficiaries, including
Maria. They were lodged by the plaintiff as trustee.
[184] The defendant counterclaims amounts against the plaintiff as trustee of the AIT as
distributions that were required to be made or were made and not paid to Maria from
the year ended 30 June 1999 to the year ended 30 June 2011, as follows:
Financial Year Amount
1998-1999 $9,287.67
1999-2000 $10,104.00
2000-2001 $11,864.67
2001-2002 $64.67
2002-2003 $0
2003-2004 $0
2004-2005 $9,056.00
2005-2006 $4,128.67
2006-2007 $19,658.00
2007-2008 $16,129.33
2008-2009 $32,902.00
2009-2010 $1,981.00
2010-2011 $2,000.00
Total $117,176.01
[185] The amounts are claimed on two different bases. From the financial years 1999 to
2008, the defendant alleges that the plaintiff as trustee of the AIT was empowered to
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make a determination of the payment of annual income of the trust among the
beneficiaries (“Income Determination”) but failed to do so, with the consequence that
clause 3(b) of the AIT deed required the income to be distributed equally between
Maria, Peter and Matty as the surviving primary beneficiaries of the trust. From 2009
to 2011, the defendant alleges that the plaintiff did make an Income Determination,
including to Maria in the claimed amounts. In all cases, the defendant alleges the
yearly claimed amount was received by the plaintiff as trustee but was not paid to
Maria.
[186] By final addresses, it was common ground that the plaintiff did not make a written
income distribution determination for the financial years 1999 to 2008 and there was
no evidence that she did so orally. The plaintiff denied that the AIT’s income from
1999 to 2008 was required to be distributed equally so that one third was to be paid
to Maria on the ground that the income received by the AIT was treated by Maria,
Peter and the plaintiff as belonging to Peter and the plaintiff.
[187] The plaintiff admitted that she made the alleged Income Determinations for the 2009
to 2011 years, including the amounts claimed as Maria’s entitlements for those years.
However, inconsistently with that and with the tax returns that the plaintiff lodged,
the plaintiff alleged that the income received by the AIT was treated by Maria, Peter
and the plaintiff as belonging to Peter and the plaintiff.
[188] The plaintiff also did not admit that she received the claimed amounts as trustee of
the AIT but there was nothing in the evidence to suggest that the amounts of the
income received by the AIT that were declared in the tax returns lodged by the
plaintiff as trustee were not received from the tenants under the subleases or
otherwise.
[189] The evidence of Marietta, Mr Lytras and Mr Vincent was directed in part to the
payments made to and from various bank accounts, including the AIT account 139-
913. It may be accepted that a full reconciliation of the account and other accounts
might have been able to falsify the reported amounts according to the tax returns
lodged by the plaintiff as trustee of the AIT. However, it should not be assumed that
the relevant amounts were incorrectly stated by the plaintiff in the tax returns in the
absence of better evidence. It is not enough to say, as Mr Vincent sought to do, that
amounts recorded in the accounts attached to the tax returns as distributions might
not have been paid to the beneficiary but were treated as owing on a beneficiary’s
loan account or paid on the beneficiary’s behalf to a third party even though proper
accounts were not kept. It was the plaintiff as trustee who had the obligation to
account to the beneficiaries of the AIT in respect of their entitlements.
[190] It may also be accepted, as the plaintiff alleged in her answer, that Peter and the
plaintiff treated the income of the AIT as though it belonged to them. However, the
critical element of the plaintiff’s denial of Maria’s estate’s claim for breach of trust
in so doing was the plaintiff’s allegation that Maria also “treated” the income received
by the AIT in that way. But there was no evidence from the plaintiff that Maria did
any act after 1993 which showed her assent to that course, or that she was aware of
the income received by the AIT, or even of its existence. The alleged ground of
defence to what would otherwise be a breach of trust is not made out.
[191] The remaining question is whether Maria received all or any of the required
distributions.
-- 35 of 47 --
36
[192] For the financial years 1999 to 2008 (except perhaps for 2007 and 2008) it would not
be thought that she did as no resolution of any income distribution in her favour was
made. On the other hand, amounts received by Maria in 2007 of $5,000 and in 2008
of $5,888 from the AIT bank account 139-913 could have been received as AIT trust
distributions as they were paid from the AIT bank account. Accordingly, credit
should be given for those amounts.
[193] I have not overlooked the defendant’s submission that while accepted payments made
to Maria in the financial years 1999 to 2008 and from 2009 to 2011 might be treated
as payments by way of AIT distributions, they were allowed for in the amounts
allowed as paid to Maria in respect of her estate’s counterclaim for the alleged unpaid
share of rents received for 3 Hayling Street and 74 Vulture Street. Nevertheless, in
my view, credit should be given for amounts actually paid from the AIT bank account
139-913 to Maria against this counterclaim, and not against the counterclaims for 3
Hayling Street or 74 Vulture Street.
[194] For the financial years 2009 to 2011, there were a number of withdrawals from the
AIT bank account 139-913 that Marietta’s “Special Purposes Report” for a relevant
year allocated to Maria. Those amounts were included in the amounts misallocated
by Marietta to withdrawals by Maria as shown in Annexure 4. Four of the
withdrawals or transfers (line entry numbers 1-4 on Annexure 4) allocated by
Marietta to Maria from bank account 139-913 in the years 2007 to 2012 were in fact
deposited into accounts in the plaintiff’s name as trustee for the AIT. Three other
withdrawal or transfers (line entry numbers 12, 13 and 15 in Annexure 4) allocated
by Marietta to Maria were not shown to have been received by her. Nor was it shown
that Maria received any other amount from accounts held by the plaintiff as trustee
for the AIT.
[195] In the result, in my view, the defendant has proved an entitlement of Maria’s estate
to an account from the plaintiff as trustee of the AIT for the sum of $106,288.01,
whether as a sum due in equity or by way of breach of trust in failing to pay that
amount.
[196] Accordingly, there should be judgment that the plaintiff pay the defendant the sum of
$106,288.01 on this part of the counterclaim.
Rates for 17 Hayling Street
[197] The 14 May 2012 Lease provided in clause 3.2 that the plaintiff as lessee was to pay
local authority rates to the relevant assessing local authority. For 17 Hayling Street,
they were the rates payable to the Brisbane City Council as a local government.
[198] Between 1 October 2015 and 31 December 2016, the plaintiff as lessee failed to pay
the levied and assessed rates. The defendant pleaded a counterclaim for that period
in the amount of $8,023.95. In submissions, the defendant limited its claim to that
period. The pleadings raised other alleged breaches of the lease and the evidence
included that notice of breach prior to termination for breach was given by the
defendant. It was not explained why the claim over the alleged failure to pay rates
was limited in time to 31 December 2016, when the pleaded period was longer. The
evidence of Matty exhibited rate notices and statements that totalled $8,180.20 for
that period.
-- 36 of 47 --
37
[199] As well as the period to 31 December 2016, the evidence of Matty included an
additional amount of $5,346.75 for rates paid by her for 2017. If the claim period is
limited to 31 December 2016, that additional amount is not recoverable.
[200] The evidence includes correspondence between the solicitors that show that on 6
October 2017 Maria terminated the lease of 17 Hayling Street for breach. Because
on the evidence the lease was not terminated before then the rates paid in 2017 for
the period before then could be included in the amount of this counterclaim. But
because the defendant’s final submissions stated that the claimed period was up to 31
December 2016, the additional amount should not be included in the amount awarded.
[201] Accordingly, there should be judgment that the plaintiff pay the defendant the amount
of $8,180.20 for this counterclaim.
Conclusion
[202] There should be judgment on the counterclaim against the plaintiff for the sum of
$211,327.87.
[203] The parties will have the opportunity to make submissions on the questions of
interests and costs.
-- 37 of 47 --
Annexure 4 – Summary of lump sum withdrawals misattributed to Maria, unattributed by the plaintiff
Withdrawals allocated to Maria that are traceable to accounts in the name of Peter and/or Theodora Aronis
1. 02.04.2007 $45,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 182
Theodora
Aronis ATF
AIT Term
Deposit No.
418650046746
Exhibit 37
[DBTE.0139] pdf
page 11. See also
T4-20/40-45 and
T4-21/1-15.
‘Maria’ on
statement
Withdrawals for
Maria – Exhibit
57 [441] pdf
page 9 [sic]
2. 01.10.2007 $40,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 176
Theodora
Aronis ATF
AIT Term
Deposit No.
418650046746
Exhibit 37
[DBTE.0139] pdf
page 11
‘Maria’ on
statement
Withdrawals for
Maria – Exhibit
57 [457] pdf
page 9 [sic]
3. 18.03.2011 $45,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 111
Peter and
Theodora’s
CBA
Streamline
account no.
10031961.
Part 2 of Exhibit
82
[DBTE.0136] pdf
page 179
‘Maria’ on
statement
Withdrawals for
Maria – Exhibit
57 [493] pdf
page 10
4. 10.04.2012 $50,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 94
Theodora
Aronis ATF
Aronis
Investment
Trust
410750141728
Exhibit 37
[DBTE.0139] pdf
page 14
‘Maria’ on
statement
Withdrawals for
Maria – Exhibit
57 [515] pdf
page 9
Subtotal $180,000.00
Withdrawals traced to accounts in the name of Peter and/or Theodora Aronis (or related entities) or otherwise unexplained
5. 19.06.2000 $50,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 263
Unspecified Cash
& Non-Cash
Withdrawal –
-- 38 of 47 --
39
Exhibit 57 [341]
pdf page 12
6. 19.03.2001 $20,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 254
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [355]
pdf page 12
7. 01.05.2001 $25,000.00 G & M
Aronis
167-703
Exhibit 9
[PLOD.1453] pdf
page 238
Missing cheque –
relevant page
ripped from
cheque book (see
Exhibit 8
[PLOD.1454]
pdf pages 323
and 324.
‘Matina’ written
on bank
statement. Matty
characterises as
an unknown
withdrawal –
Exhibit 74
[DFCD.0006]
pdf page 408
Withdrawals for
Matty Aronis –
Exhibit 57 [356]
pdf page 9
8. 25.02.2003 $10,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 231
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [382]
pdf page 11
-- 39 of 47 --
40
9. 30.08.2004 $10,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 213
Theodora
Aronis ATF
AIT Term
Deposit No.
418650046746
Exhibit 37
[DBTE.0139] pdf
page 11
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [412]
pdf page 11
10. 28.02.2005 $10,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 207
Theodora
Aronis ATF
Aronis
Investment
Trust
418650046746
Exhibit 37
[DBTE.0139] pdf
page 11
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [412]
pdf page 11
11. 01.08.2005 $15,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 202
Theodora
Aronis ATF
AIT Term
Deposit No.
418650046746
Exhibit 37
[DBTE.0139] pdf
page 11
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [426]
pdf page 11
12. 31.01.2006 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 196; Exhibit
24 [PLOD.1455]
pdf page 776
Cheque butt
refers to “Maria
Aronis rental ac
Hayling St
Salisbury t/a
5007699”
Withdrawals for
Maria – Exhibit
57 [426] pdf
page 9
13. 27.03.2006 $10,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 194
‘Maria’ on
statement
(cheques for this
time not
available)
Withdrawals for
Maria – Exhibit
57 [426] pdf
page 9
-- 40 of 47 --
41
14. 27.03.2006 $45,000.00 G&M Aronis
167-703
Exhibit 9
[PLOD.1453] pdf
page 178
‘Maria’ on
statement
Withdrawals for
Maria – Exhibit
57 [427] pdf
page 12
15. 18.03.2009 $50,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 152
‘Maria’ on
statement
Withdrawals for
Maria - Exhibit
57 [471] pdf
page 10
16. 05.05.2009 $50,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 150
Theodora
Aronis ATF
Aronis
Investment
Trust
410750131714
Exhibit 37
[DBTE.0139] pdf
page 13
‘Maria’ on
statement
Transfer to Term
Deposits Exhibit
57 [471] pdf
page 10
17. 17.08.2009 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 144
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
18. 12.10.2009 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 140
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
19. 04.12.2009 $50,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 138
Transfer to Term
Deposits Exhibit
57 [487] pdf
page 10
20. 29.12.2009 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 136
Unspecified
Cheque
Withdrawals –
-- 41 of 47 --
42
Exhibit 57 [486]
pdf page 11
21. 01.03.2010 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 132
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
22. 01.06.2010 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 126
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
23. 30.08.2010 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 120
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
24. 15.11.2010 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 115
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
25. 04.01.2011 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 114
Unspecified
Cheque
Withdrawals –
Exhibit 57 [486]
pdf page 11
26. 14.03.2011 $5,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 111
Unspecified
Cheque
Withdrawals –
-- 42 of 47 --
43
Exhibit 57 [486]
pdf page 11
27. 14.03.2011 $20,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 39
Theodora
Aronis CBA
NetBank Saver
Account
06 4107
10289963
Exhibit 38
[DBTE.0134] pdf
page 1
T4-24/40-45 and
T4-25/1-35
Unspecified
Cheque
Withdrawals –
Exhibit 57 [502]
pdf page 9
28. 14.03.2011 $20,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 39
T4-24/40-45 and
T4-25/1-35
Unspecified
Cheque
Withdrawals –
Exhibit 57 [502]
pdf page 9
29. 18.03.2011 $45,000.00 G & M
Aronis
167-703
Exhibit 9
[PLOD.1453] pdf
page 96; Exhibit
8 [PLOD.1454]
pdf page 663
Cheque butt
refers to “Mrs
Maria Aronis
transaction a/c”.
Amount is not
paid into any
known account.
Withdrawals for
Maria - Exhibit
57 [501] pdf
page 12
30. 05.07.2011 $330,000.00 AIT 139-913 Exhibit 33
[DTFSLOD.0466]
pdf page 93
LEPTA Pty Ltd
Term Deposit
No. 064107
50141701
Exhibit 34
[DSFSLOD.0449]
pdf page 2
Not dealt with –
statement 319
missing from
[PLOD.1456]
31. 08.07.2011 $50,000.00 AIT 139-913 Exhibit 33
[DTFSLOD.0466]
pdf page 93
Theodora
Aronis ATF
AIT Term
Deposit No.
410750141728
Exhibit 37
[DBTE.0139] pdf
page 14
Not dealt with –
statement 319
missing from
[PLOD.1456]
32. 07.11.2011 $10,000.00 AIT 139-913 Exhibit 11 Unspecified
Cheque
-- 43 of 47 --
44
[PLOD.1456] pdf
page 104
Withdrawals –
Exhibit 57 [515]
pdf page 11
33. 05.01.2012 $40,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 100
LEPTA Pty Ltd
Term Deposit
No. 064107
50141701
Exhibit 34
[DSFSLOD.0449]
pdf page 2
Transfer Out
Branch
Coorparoo
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [515]
pdf page 11
34. 23.01.2012 $15,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 49
Theodora
Aronis CBA
Account 06
4107 10306217
Exhibit 40
[DBTE.0135] pdf
page 1
T4-25/40-45 and
T4-26/1-15
Unspecified
Cheque
Withdrawals –
Exhibit 57 [517]
pdf page 9
35. 25.01.2012 $15,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 49
Unspecified
Cheque
Withdrawals –
Exhibit 57 [517]
pdf page 9
36. 29.07.2012 $15,000.00 G & M
Aronis
167-703
Exhibit 9
[PLOD.1453] pdf
page 70
Written on
statement is “T/D
→50127571”.
This is an
unknown term
deposit number.
Transfer to Term
Deposits –
Exhibit 57 [530]
pdf page 12
37. 29.07.2012 $16,863.74 G & M
Aronis
167-703
Exhibit 9
[PLOD.1453] pdf
page 70
Written on
statement is “T/D
→”
Transfer to Term
Deposits –
Exhibit 57 [530]
pdf page 12
38. 29.07.2012 $15,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 55
Unspecified
Cheque
Withdrawals –
-- 44 of 47 --
45
Exhibit 57 [531]
pdf page 8
39. 27.08.2012 $27,500.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 84
‘Maria’ written
on statement. T4-
29/5-15.
Transfer to G &
M Acc 110723-
Exhibit 57 [529]
pdf page 9.
Amount not
received in
Account 110723-
Exhibit 12
[DLOD.0084]
pdf page 57
40. 27.08.2012 $15,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 56
Theodora
Aronis Term
Deposit No.
410350092867
Exhibit 37
[DBTE.0139] pdf
page 12
Unspecified
Cheque
Withdrawals –
Exhibit 57 [531]
pdf page 8
41. 29.01.2013 $8,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 61
Unspecified
Cheque
Withdrawals –
Exhibit 57 [531]
pdf page 8
42. 31.01.2013 $34,760.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 74
‘Maria’ written
on bank
statement
Withdrawals for
Maria - Exhibit
57 [529] pdf
page 9
43. 11.03.2013 $15,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 63
Unspecified
Cheque
Withdrawals –
Exhibit 57 [531]
pdf page 8
-- 45 of 47 --
46
44. 10.09.2013 $20,662.10 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 60
Theodora
Aronis ATF
AIT Term
Deposit No.
410750141728
Exhibit 37
[DBTE.0139] pdf
page 14
Transfer Out
Branch Bulimba
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [544]
pdf page 11
45. 20.01.2014 $45,662.10 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 50
Theodora
Aronis ATF
AIT Term
Deposit No.
410350092867
Exhibit 37
[DBTE.0139] pdf
page 14
Transfer Out
Branch Bulimba
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [544]
pdf page 11
46. 03.03.2014 $20,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 75
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [546]
pdf page 8
47. 11.08.2014 $25,000.00 Maria and
Theodora
167-690
Exhibit 38
[DLOD.0085] pdf
page 80
Unspecified Cash
& Non-Cash
Withdrawal –
Exhibit 57 [562]
pdf page 8
48. 21.08.2015 $160,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
pages 10 and 13;
Exhibit 12
[DLOD.0084] pdf
page 1; Exhibit
14 [DLOD.0083]
pdf page 102 and
Exhibit 15
[DTFSLOD.0479]
This amount
includes the
$44,000
withdrawn from
G&M Aronis
Account 110-
703, the $49,000
withdrawn from
G&M Aronis
Account 167-703
and the
Not addressed by
Marietta – report
ends on
05.08.2015
-- 46 of 47 --
47
$56,353.08
withdrawn from
the Maria and
Theodora Aronis
account 167-690
(see Exhibit 13
[DFSLOD.0397]
and Exhibit
[DTFSLOD.0480
49. 17.05.2016 $60,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 3
Wdl Branch
Carindale
Not addressed by
Marietta – report
ends on
05.08.2015
50. 21.09.2016 $20,000.00 AIT 139-913 Exhibit 11
[PLOD.1456] pdf
page 2
Wdl Branch
Springfield
Not addressed by
Marietta – report
ends on
05.08.2015
Subtotal $1,438,447.94
GRAND
TOTAL
$1,618,447.94
-- 47 of 47 --
Official source: https://www.sclqld.org.au/caselaw/QSC/2022/039