Apostolidis v Kalenik (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3882

IOANNIS (JOHN) APOSTOLIDIS

First Appellant

DSK HOLDINGS PTY LTD

(ACN 007 416 257)

Second Appellant

AZURA PTY LTD (ACN 063 939 720)

Third Appellant

YARRABEE INVESTMENTS PTY LTD

(ACN 093 518 275)

Fourth Appellant

v

ZORICA KALENIK

First Respondent

and

DEPUTY COMMISSIONER OF TAXATION

Second Respondent

AND BETWEEN:

ZORICA KALENIK

Cross-Appellant

v

IOANNIS (JOHN) APOSTOLIDIS

First Cross-Respondent

DSK HOLDINGS PTY LTD
(ACN 007 416 257)

Second Cross-Respondent

AZURA PTY LTD (ACN 063 939 720)

Third Cross-Respondent

YARRABEE INVESTMENTS PTY LTD

(ACN 093 518 275)

Fourth Cross-Respondent

and

DEPUTY COMMISSIONER OF TAXATION 

Fifth Cross-Respondent

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JUDGES	NETTLE, ASHLEY and TATE JJA
WHERE HELD	MELBOURNE
DATES OF HEARING	8 and 9 September 2011
DATE OF JUDGMENT	13 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 307
JUDGMENT APPEALED FROM	[2009] VSC 208 (Hargrave J)

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PROPERTY – De facto partners – Adjustment of property interests under Part IX of Property Law Act 1958 – Appellant grew successful business during relationship – Respondent made contributions to business and as homemaker – Appeal and cross-appeal as to quantum of adjustment sum – Whether adjustment sum just and equitable – Appeal and cross-appeal allowed – Discretion re-exercised – Giller v Procopets (2008) 24 VR 1, Kardos v Sarbutt (2006) 34 Fam L R 550, discussed.

EVIDENCE – Fresh evidence – Appellant’s tax evasion disclosed and relied upon by respondent at trial – Amended taxation assessments and freezing orders greatly affected worth of business – Assumption at trial that assets sufficient to satisfy adjustment order in favour of respondent and judgment debt in favour of Deputy Commissioner of Taxation – Whether evidence of new asset position could be adduced as fresh evidence.

COURTS AND JUDGES – Jurisdiction – Whether Court had jurisdiction to make adjustment order if apparent to court that there are insufficient assets to meet third party creditors – Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217, considered.

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Appearances:	Counsel	Solicitors
For the Appellants/Cross-Respondents (First to Fourth)	Mr S K Wilson QC and Mr P G Little	David Tonkin & Associates
For the First Respondent/Cross-Appellant	Mr P H Solomon SC and Ms M Wilkening-Le Brun	Dimos Lawyers
For the Second Respondent/Fifth Cross-Respondent	Mr C Young	Australian Government Solicitor

NETTLE JA:

ASHLEY JA:
TATE JA:

Introduction

1. This is an appeal from three judgments given in the Common Law Division.  The principal judgment determined the amount to be paid by the appellant, Ioannis Apostolidis, (‘A’) to the respondent, Zorica Kalenik (‘K’), pursuant to Part IX of the Property Law Act 1958 (‘PLA’), by way of an adjustment of interests in relation to the property of A, his companies, namely, DSK Holdings Pty Ltd (‘DSK’), Yarrabee Investments Pty Ltd (‘Yarrabee’), and Azura Pty Ltd (‘Azura’), and the property of K, after the ending of a de facto relationship of a number of years’ duration between A and K. The parties agreed…