Kozjak v Oswin

[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,…