M Kozlowski v J Kozlowski (No 2)
[2011] SADC 108
•7 July 2011
District Court of South Australia
(Civil: Application)
M KOZLOWSKI v J KOZLOWSKI (No 2)
[2011] SADC 108
Reasons for Ruling of His Honour Judge Stretton (ex tempore)
7 July 2011
PROCEDURE - COSTS
Application for costs and agreement as to appropriate orders where the plaintiff has failed to establish a life interest in land sufficient to maintain its caveat, but has established a personal non exclusive right to live in the defendant’s property for the term of the plaintiff’s life.
Held: Declaration made that the plaintiff has a right to live in the property, together with an injunction restraining the defendant from interfering with that right granted. Order that the plaintiff’s caveat be removed.
No order as to costs.
M KOZLOWSKI v J KOZLOWSKI (No 2)
[2011] SADC 108
I will rule now on what orders are appropriate and on costs, and I do so primarily in light of costs. I am very aware that the parties have both incurred significant costs in this matter. Each further hearing incurs further cost for each party. Whilst in a perfect world, given the extensive and helpful submissions I have had from both counsel together with an outline and the extensive citation of authorities particularly by Mr Lazarevich I would normally, in deference to that, prefer to give more detailed reasons. In all the circumstances I think it is appropriate that I proceed now and make the orders, for the certainty of the parties and to minimise any further costs to them. The parties have agreed that I do so.
Essentially the plaintiff has succeeded only to some extent in this matter. She has asserted a life interest in the land and sought to maintain a caveat and in those two respects she has been, I have found and I find, unsuccessful. On the other hand a substantive thrust of her case in the matter has been to allow her to stay in the property at 3A Farr Street, Woodville North based on an agreement she asserted with her daughter, the defendant, and in that respect she has been successful.
It is a matter of regret in a general and personal sense that relations between these two family members have reached the sorry state that they have, and recourse has needed to be made to the court to resolve their differences. In saying that I do not criticise either of them. Courts are here to resolve those differences in exactly such a situation.
I have found that there was an agreement between the parties that the plaintiff be entitled to live in the premises for life but that that agreement amounted only to the granting of a right to live in the premises herself for her lifetime and that did not amount to a right of disposition of the property for her whole life, whether to rent out or otherwise deal with it short of sale. I have also found that it contemplated the defendant also living there and that as such it was not the granting of a right of exclusive possession that would amount to an interest in land.
All that is agreed that I should know about negotiations between the parties is that both sides have made various offers over time. Mr Keith has said that he has an affidavit concerning negotiations on the morning of trial or at around that time which he would wish to pursue on the basis that those negotiations were clearly understood by him to be without prejudice save as to costs rather than simply without prejudice. Should I not, on the basis of submissions already made, be of the view that each party should pay their own costs, he pursues the tender of that affidavit. Mr Lazarevich opposes its tender on the basis that he says the discussions were without prejudice.
Weighing up all the matters put today, including all the submissions put by each party, which for brevity I do not repeat but I have given full consideration to, I am of the view that each party should pay their own costs in this matter. To put it another way, that there be no order as to costs. In those circumstances Mr Keith has indicated he does not need to press his application to tender the affidavit he has referred to.
In brief summary, the plaintiff has succeeded to a significant degree but not in relation to either of the formal matters it has sought, of maintaining the caveat by establishing a life interest in the land. I have taken into account everything put to me.
The parties are also happy for me to make orders today without the need for a further formal judgment or further reasons. In my view, that is a very sensible position, again in light of the costs of the matter and the need for timeliness and certainty in relation to this property and the rights of each party.
Again I take into account the helpful submissions put on both sides as to the appropriate order. I make the following orders:
1I declare that the plaintiff is entitled to reside at 3A Farr Street, Woodville North, being the whole of the land comprised and described in certificate of title register book vol.5157 folio 234 for the term of her life, and that the defendant is estopped from denying the agreement that I have found occurred in this matter between the plaintiff and the defendant to that effect.
2An injunction is granted restraining the defendant from interfering with the right of occupation of the plaintiff pursuant to the agreement.
3Caveat No.11232996 over Certificate of Title Register Book Vol. 5157 Folio 234 be removed.
4That there be no order as to costs.
HIS HONOUR: Anything further?
MR KEITH: No, thank you.
HIS HONOUR: Very well, and I thank counsel again for their assistance in the matter. The court will adjourn.
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