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
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…
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- Case
- [2011] VSCA 307
- Decision Date
CaseChat Overview and Summary
The court held that it was appropriate to consider the fresh evidence regarding the appellant's tax issues, as this materially affected the valuation of the assets and the capacity to satisfy any adjustment order. It found that the evidence of the new asset position could be adduced. In re-exercising its discretion under section 285 of the Property Law Act, the court awarded the respondent a sum broadly representing 27 per cent of the pool of property interests of the parties, valued at $1,175,000 at the present time. The court found this adjustment to be just and equitable, taking into account the contributions of both parties during the relationship.
The final orders included granting leave to the appellant to adduce fresh evidence, allowing the appeal and cross-appeal, and readjusting the interests of the parties by awarding the respondent a sum broadly representing 27 per cent of the total property interests.
Orders
Orders of the court
We grant leave to A to adduce fresh evidence. We allow the appeal and cross-appeal. In the re-exercise of the discretion under s 285 of the PLA, we adjust the interests of A and K by awarding to K a sum broadly representing 27 per cent of the pool of property interests of the parties, valued as at the present time at $1,175,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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