Kozak v. Matthews - [2007] QCA 296

SUPREME COURT OF QUEENSLAND

CITATION:

Kozak v Matthews [2007] QCA 296

PARTIES:

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

FILE NO:

Appeal No 2501 of 2007
SC No 8920 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2007

JUDGE:

Jerrard JA, Cullinane and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. That the appeal be dismissed
2. That the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – where the appellant was the de facto husband of the deceased – where the appellant and the deceased signed a deed in relation to his claim to her property upon her death – where the primary judge held that the deceased’s will made adequate provision for the appellant’s maintenance and support – where the primary judge held that the deed was a relevant consideration in assessing the totality of the relationship between the appellant and the deceased – whether the primary judge’s discretion miscarried

Succession Act 1981 (Qld), s 41

Golosky v Golosky Unreported, New South Wales Court of Appeal, Kirby P, Handley and Cripps JJA, 5 October 1993, cited
Goodman v Windeyer (1980) 144 CLR 490, cited
House v The King (1936) 55 CLR 499, followed
Singer v Berghouse (1994) 181 CLR 201, followed

COUNSEL:

K T Magee for the appellant

D R M Murphy SC and S J Armitage for the respondents

SOLICITORS:

Haney Lawyers for the appellant

Lewis & McNamara for the respondents

JERRARD JA: In this appeal I have read the reasons for judgment of Wilson J, and respectfully agree with those, and with the orders proposed by Her Honour.

CULLINANE J: I have read the reasons for judgment of Wilson J in this matter. I agree with those reasons and the orders she proposes.

WILSON J: The appellant Peter George Kozak was the de facto husband of the late Jacqueline Clare Messer (“the deceased”). She made some provision for him in her will, but he considered it inadequate and brought an application for further provision under Part 4 (ss 40-44, family provision) of the Succession Act 1981 (Qld). This is an appeal against the dismissal of that application.

Section 41(1) of the Act provides –

“41 Estate of deceased person liable for maintenance
(1) If any person (the ‘deceased person’) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant,…

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] QCA 296
Case: [2007] QCA 296
Decision Date: 14 September 2007

CaseChat Overview and Summary

The appeal before the Court of Appeal involved Kozak, the appellant, who was the de facto husband of the deceased, and Matthews and others, the respondents. Kozak sought an increase in the amount of property awarded to him from the estate of the deceased, who had died intestate. The deceased and Kozak had entered into a deed regarding his claim to her property upon her death, which was a factor considered by the primary judge in assessing the relationship between the parties. The primary judge found that the deceased’s will made adequate provision for Kozak’s maintenance and support, and that the deed was a relevant consideration in evaluating the totality of the relationship between the parties.

The central legal issues addressed by the Court of Appeal were whether the primary judge's determination that the deceased’s will made adequate provision for Kozak's maintenance and support was correct and whether the primary judge’s consideration of the deed in assessing the relationship between the parties was appropriate. The Court of Appeal needed to determine if the primary judge's discretion miscarried by failing to consider all relevant factors in making their decision.

The Court of Appeal found that the primary judge did not miscarry in their discretion. They affirmed that the primary judge correctly considered all relevant factors in determining that the deceased's will made adequate provision for Kozak's maintenance and support. The Court also held that the primary judge appropriately considered the deed in assessing the relationship between the parties. The Court of Appeal concluded that the primary judge's decision was sound and dismissed the appeal. The Court further ordered that Kozak pay the respondents' costs of and incidental to the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1. That the appeal be dismissed

2. That the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kozak v Matthews [2007] QCA 296
PARTIES:	PETER GEORGE KOZAK (applicant/appellant) v TRACEY ANNE MATTHEWS (as executrix of the will of Jacqueline Clare Messer deceased) (first respondent) KAYLENE JOY MESSER (as executrix of the will of Jacqueline Clare Messer deceased) (second respondent)
FILE NO:	Appeal No 2501 of 2007 SC No 8920 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 September 2007
JUDGE:	Jerrard JA, Cullinane and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. That the appeal be dismissed 2. That the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – where the appellant was the de facto husband of the deceased – where the appellant and the deceased signed a deed in relation to his claim to her property upon her death – where the primary judge held that the deceased’s will made adequate provision for the appellant’s maintenance and support – where the primary judge held that the deed was a relevant consideration in assessing the totality of the relationship between the appellant and the deceased – whether the primary judge’s discretion miscarried Succession Act 1981 (Qld), s 41 Golosky v Golosky Unreported, New South Wales Court of Appeal, Kirby P, Handley and Cripps JJA, 5 October 1993, cited Goodman v Windeyer (1980) 144 CLR 490, cited House v The King (1936) 55 CLR 499, followed Singer v Berghouse (1994) 181 CLR 201, followed
COUNSEL:	K T Magee for the appellant D R M Murphy SC and S J Armitage for the respondents
SOLICITORS:	Haney Lawyers for the appellant Lewis & McNamara for the respondents