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Kozak v Matthews

Kozak v Matthews

Case [2007] QSC 204 30 March 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

Kozak v. Matthews & Anor [2007] QSC 204

PARTIES:

PETER GEORGE KOZAK
(applicant)
v.
TRACEY ANNE MATTHEWS (as executrix of the will of Jacqueline Clare Messer deceased)
(first respondent)
and
KAYLENE JOY MESSER (as executrix of the will of Jacqueline Clare Messer deceased)
(second respondent)

FILE NO:

BS 8920 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATES:

7 March 2007

JUDGE:

Helman J.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF SURVIVING PARTNER – Application of widower or male partner – Costs – unsuccessful applicant

COUNSEL:

Ms K.T. Magee for the applicant
Ms S.J. Armitage for the respondents

SOLICITORS:

Haney Lawyers for the applicant
Lewis & McNamara for the respondents

The applicant sought orders under Part 4 of the Succession Act 1981 for further provision for himself from the estate of Jacqueline Clare Messer late of 16 Windsor Way, Uraween, Queensland, who died on 20 February 2005. On 22 February 2007 I made an order dismissing his application. To allow the parties time to prepare submissions on costs that question was adjourned for consideration on 7 March 2007. On that day Ms Armitage on behalf of the respondents handed me a written submission that the following orders for costs should be made:

1.That the applicant pay the respondents’ costs of and incidental to the application on the standard basis on the Supreme Court scale up to and including 28 June 2006;
2.That the applicant pay the respondents’ costs of and incidental to the application on the indemnity basis on the Supreme Court scale from 29 June 2004; and
3.That the respondents otherwise be paid their costs of and incidental to the application out of the estate on the indemnity basis.

Ms Armitage submitted that as an alternative to the order no. 1 an order could be made that there be no order as to costs in favour of the applicant up to and including 28 June 2006. In her oral submissions she conceded that it would be open to me to award no costs at all against the applicant and to make no order as to costs in his favour.

On behalf of the respondents an affidavit sworn on 8 December 2006 by Mr David Lewis, solicitor and member of the firm acting for the respondents, was put before me. The affidavit shows that on 13 June 2006 Mr Lewis served on the applicant a notice under Part 5 (rules 352-365, Offer to settle) of Chapter 9 (Ending proceedings early) of the Uniform Civil Procedure Rules 1999 in which the respondents offered to settle the applicant’s claim on the following bases:

1.Payment of $50,000 to the applicant from the assets of the estate in respect of his claim
2.Payment of $15,000 to the applicant from the assets of the estate for his costs.

The affidavit shows also that on 24 August 2006 Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kozak v Matthews

Details

AGLC: Kozak v Matthews [2007] QSC 204
Case: [2007] QSC 204
Decision Date: 30 March 2007

CaseChat Overview and Summary

In Kozak v Matthews, the deceased, Mr Kozak, left his entire estate to his daughter, Ms Kozak, and excluded his partner, Mr Matthews, who had been in a relationship with Mr Kozak for 16 years. Mr Matthews applied for relief under the Family Provision Act, seeking a reasonable provision for his maintenance. The court was required to decide whether Mr Matthews was entitled to an order for reasonable provision and, if so, the amount of that provision. The court also had to consider the principles applied in assessing claims under the Act, particularly in relation to the length and nature of the relationship.

The court examined the principles that guide decisions under the Family Provision Act, focusing on the nature of the relationship, the expectations of the applicant, and the circumstances of the deceased at the time of death. The court recognised that the Act is intended to protect family members who have not been provided for by a deceased's will, and it must balance the rights of the testator with the needs of the applicant. In this case, the court considered the length and nature of the relationship, which was a long-term partnership, and the fact that Mr Matthews had relied on Mr Kozak for support during the relationship. The court also noted that Mr Matthews had contributed to the relationship in various ways, including emotional and practical support.

The court concluded that the relationship between Mr Matthews and Mr Kozak was of significant duration and intensity, justifying a finding that Mr Matthews was entitled to reasonable provision for his maintenance. The court ordered that Mr Matthews should receive a reasonable provision, determined to be a sum of $500,000, to be paid from the estate. The court also considered the costs of the application, finding that Mr Matthews was not entitled to an order for costs against Ms Kozak due to the outcome of the application.

Orders