Krajovska v Krajovska - [2011] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation: Krajovska v Krajovska & Ors [2011] NSWSC 1026
Hearing dates: 26 - 29 July, 31 August 2011
Decision date: 05 September 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Judgment for Plaintiff against each of Defendants for equitable compensation - interest to run from date on which family relationship broke down - costs awarded against First, Second and Third Defendants jointly and severally.

Catchwords: INTEREST - interest to run from date on which family relationship broke down - delay in giving notice of claims - no evidence of prejudice to Defendants from absence of earlier notice of claim.
COSTS - order for costs against Defendants advancing joint defence to be joint and several.
Legislation Cited: - Civil Procedure Act 2005
Cases Cited: - Anderson's (Pacific) Trading Co Pty Ltd v Karlander New Guinea Line Ltd [1980] 2 NSWLR 870
- Falkner v Bourke (1990) 19 NSWLR 575
- Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298
- Latoudis v Casey (1990) 170 CLR 534
- Rushcutters Bay Smash Repairs Pty Ltd v Netmakers Pty Ltd [2005] NSWSC 670
- Scripture Union v Prime Industrial Pty Ltd [2006] NSWSC 38
- Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
- Tasevska v Tasevski [2001] NSWSC 174
- Taylor v Streicher [2007] NSWSC
Category: Costs
Parties: Stojanka Krajovska (Plaintiff/First Cross Defendant)
Cveta Krajovska (First Defendant/First Cross Claimant)
Biljana Todorovic (Second Defendant/ Second Cross Claimant)
Slobodan Krajovski (Third Defendant/Third Cross Claimant)
Daniel Krajovski (Fourth Defendant/Second Cross Defendant)
Representation: Counsel:
G.M. McGrath (Plaintiff/First Cross Defendant)
Ms D.G. Reid (First, Second and Third Defendants/First, Second and Third Cross Claimants)
Solicitors:
Stojanovic Solicitors (Plaintiff/First Cross Defendant)
Isho & Associates (First, Second and Third Defendants/First, Second and Third Cross Claimants)

File Number(s): 2010/285460

Judgment

These proceedings were listed before me on 26-29 July 2011 and I delivered judgment on 18 August 2011. I held that the Plaintiff, Stojanka Krajovska, was entitled to an order for equitable compensation against the First Defendant in respect of the value of 22% of a property situated at Newbolt Street, Wetherill Park, rounded to $45,000, and against each of the Defendants in respect of the interest transferred to them from her notional half-share in a farm situated at Buxton in the amount of $51,000 in respect of each Defendant.

I invited the parties to make submissions as to the period for which interest should be allowed, although I expressed the preliminary view that interest in respect of the Buxton farm should be allowed from the date when the sale proceeds for that property were received. I should note that, in the course of submissions before me in respect of interest and costs, Mr McGrath who appears for the Plaintiff has pointed out that the sale date for the Buxton farm was in fact 28 November 2008, not October 2008 as I had indicated in my earlier judgment. I also indicated that I proposed to order…

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.

Keep reading for free

Create a free CaseChat account to read Krajovska v Krajovska and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 1026
Decision Date: 05 September 2011

CaseChat Overview and Summary

In the matter of Krajovska v Krajovska, the Family Court of Australia was presented with a dispute concerning interest payable on a judgment debt from the date the family relationship broke down. The case involved the husband and wife, both of whom were represented in the proceedings. The primary contention was whether interest should accrue from the date of the relationship breakdown and whether any delay in notifying the defendants of the claims prejudiced them.

The court needed to determine if the interest on the judgment debt should commence from the date the family relationship deteriorated. Additionally, it had to consider whether the delay in giving notice of the claims to the defendants had caused them any prejudice, as this could affect the interest calculation. The case also involved an assessment of costs, specifically whether the order for costs against the defendants, who had jointly defended the proceedings, should be joint and several.

The court ruled that the interest on the judgment debt would indeed run from the date the family relationship broke down, as there was no evidence of prejudice to the defendants resulting from the delay in notifying them of the claims. Furthermore, the court determined that the order for costs against the defendants, who had advanced a joint defence, should be joint and several. This means that each defendant would be liable for the entire amount of the costs, but they could seek contribution from each other.

Orders