Kozjak v Oswin

Case [2010] NSWCA 260



New South Wales


Court of Appeal


CITATION: Kozjak v Oswin [2010] NSWCA 260
HEARING DATE(S): 7 October 2010
 
JUDGMENT DATE: 

7 October 2010
JUDGMENT OF: Beazley JA at [1], [55], [57]; Hodgson JA at [2]; Handley AJA at [56]
EX TEMPORE JUDGMENT DATE: 7 October 2010
DECISION: 1. That the parties are directed to bring in agreed short minutes of order reflecting the court’s judgment within seven days from today’s date.
2. Should the parties not be able to agree to the orders to be made, then the appellant should bring in his form of short minutes within seven days and the respondent is to bring in her form of short minutes within seven days, together with any accompanying submissions, not exceeding three pages, and that these documents be lodged in the Court of Appeal submission box located on Level 12.
CATCHWORDS: FAMILY LAW – De facto relationships – Adjustment of property interests – Whether error by primary judge – Re-determination by Court of Appeal.
LEGISLATION CITED: Conveyancing Act 1919 s.66G
Property Relationships Act 1984 s.20
CATEGORY: Principal judgment
PARTIES: Richard Charles KOZJAK (appellant)
Kerin Jayne OSWIN (respondent)
FILE NUMBER(S): CA 2007/255779
COUNSEL: R THOMAS (appellant)
E A COHEN (respondent)
SOLICITORS: Trevor Barker (appellant)
Broun Abrahams Burreket (respondent)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 3604/07
LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ
LOWER COURT DATE OF DECISION: 22 May 2009, 5 August 2009
LOWER COURT MEDIUM NEUTRAL CITATION: Oswin v Kozjak [2009] NSWSC 433, Oswin v Kozjak [No 2] [2009] NSWSC 1232


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                          CA 2007/255779
                          SC 3604/2007

                          BEAZLEY JA
                          HODGSON JA
                          HANDLEY AJA

                          THURSDAY 7 OCTOBER 2010
Richard Charles KOZJAK v Kerin Jayne OSWIN
Judgment

1 BEAZLEY JA: I will ask Justice Hodgson to deliver the first judgment.

2 HODGSON JA: This appeal arises out of proceedings in which the respondent, Ms Oswin, sued the appellant, Mr Kozjak, claiming relief under the Property (Relationships) Act 1984 (the Act), and in which Mr Kozjak put on a cross-claim.

3 In reasons for judgment given on 22 May 2009, McLaughlin AsJ determined to the effect that:

      (a) each party was entitled to retain beneficially his or her share of the property in Keith Street, Clovelly;

      (b) Ms Oswin was entitled to receive from Mr Kozjak one half of the net rental income from that property from 25 July 2005 to the date of the orders in the case, and Mr Kozjak was entitled to retain the other half of that income;

      (c) Ms Oswin was entitled to be paid a sum calculated at $182,272 at the time of the hearing, by Virtual Developments Pty Limited (Virtual Developments) a company owned and controlled by Mr Kozjak;

      (d) unless the parties reached some other agreement, trustees should be appointed for the sale of the Keith Street property under s.66G of the Conveyancing Act 1919.

4 On 16 November 2009, the associate judge gave a second judgment, and made orders giving effect to his determination providing, inter alia,…

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AGLC
Kozjak v Oswin [2010] NSWCA 260
Case
[2010] NSWCA 260
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for adjustment of property interests arising from a de facto relationship. The parties, Kozjak and Oswin, sought to have the decision of the primary judge reviewed by the Court of Appeal.

The Court of Appeal was required to determine whether the primary judge had erred in their assessment of the parties' contributions and in the ultimate division of the property. Specifically, the court considered whether the primary judge had given sufficient weight to the non-financial contributions of the parties and whether the resulting property division was just and equitable.

The Court of Appeal found that the primary judge had made errors in the assessment of contributions and the subsequent property adjustment. The court undertook a re-determination of the property interests, applying established principles of family law concerning the assessment of financial and non-financial contributions, the consideration of future needs, and the overarching requirement for a just and equitable outcome.

The parties were directed to bring in agreed short minutes of order reflecting the Court of Appeal’s judgment within seven days. If agreement could not be reached, each party was to submit their proposed short minutes of order, with the respondent also to provide accompanying submissions not exceeding three pages, for lodging in the Court of Appeal submission box.

Orders

Orders of the court

1. That the parties are directed to bring in agreed short minutes of order reflecting the court’s judgment within seven days from today’s date.

2. Should the parties not be able to agree to the orders to be made, then the appellant should bring in his form of short minutes within seven days and the respondent is to bring in her form of short minutes within seven days, together with any accompanying submissions, not exceeding three pages, and that these documents be lodged in the Court of Appeal submission box located on Level 12.

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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