Oswin v Kozjak - [2009] NSWSC 433

CITATION: Oswin v Kozjak [2009] NSWSC 433

HEARING DATE(S): 26, 27, 28 August 2008,
3 February 2009

JUDGMENT DATE :
22 May 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect my conclusions herein, and, if desired, for argument as to costs.

CATCHWORDS: FAMILY LAW- de facto relationship - adjustment of interests of parties in property - respective contributions of parties - the Court should not be diverted from the clear words of the statute, which looks to past contributions actually made by the parties.

LEGISLATION CITED: Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Davey v Lee (1990) 13 Fam LR 688
Bilous v Mudalia [2006] NSWCA 38

PARTIES: Kerin Jayne Oswin (Plaintiff)
Richard Charles Kozjak (Defendant)

FILE NUMBER(S): SC 3604 of 2007

COUNSEL: Ms E. Cohen (Plaintiff)
Mr D. Dura (Defendant)

SOLICITORS: Broun Abrahams Burreket (Plaintiff)
Gayle Meredith & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 22 May 2009

3604 of 2007 KERIN JAYNE OSWIN –v- RICHARD CHARLES KOZJAK

JUDGMENT

1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984.

2 By statement of claim filed on 13 July 2007, Kerin Jayne Oswin seeks orders adjusting the interests in property of herself and the Defendant, Richard Charles Kozjak, pursuant to section 20 of the foregoing statute.

3 A defence to that statement of claim was filed by the Defendant on 14 September 2007. Subsequently, on the third day of the hearing, 28 August 2008, the Defendant filed a cross-claim (although, somewhat curiously, the Defendant to his defence had appended the items of relief which he stated he was seeking in the proceedings). A defence to that cross-claim was filed by the Plaintiff on the final day of the hearing, 3 February 2009.

4 It was not in dispute that the parties lived in a de facto relationship from June 1997 until 25 July 2005. No children were born of that relationship.

5 The Plaintiff was born in 1965, and is presently aged 44. The Defendant was born in 1969 and is presently aged 40.

6 At the time of the commencement of the relationship the Plaintiff was employed as a flight attendant with Ansett, earning a taxable income of about $60,000 a year. At that time she was residing in rented accommodation at Waverley. She had little by way of assets, other than a motor car and a superannuation entitlement. At that time the Defendant was working as a property developer and builder, carrying out those activities in a partnership known as R & R Kozjak, trading as Hapning Homes.

7 At the commencement of the relationship the Defendant’s assets consisted of,

Holden utility motor vehicle

Savings of $24,610

One share in Sentient Pty Limited (“ Sentient”)

One half interest in Hapning Homes, (that interest, according to the defendant, then being worth…

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 Oswin v Kozjak

Details

AGLC: Oswin v Kozjak [2009] NSWSC 433
Case: [2009] NSWSC 433
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the matter of Oswin v Kozjak, the parties were involved in a dispute concerning the adjustment of their interests in property following the termination of their de facto relationship. The case was heard by the Family Court of Australia. The core issue before the court was to determine the respective contributions made by each party during the relationship and to apply these findings in accordance with the Family Law Act 1975.

The legal issues centred on the interpretation and application of the Family Law Act in determining the extent of each party's entitlement to the assets accumulated during the relationship. Specifically, the court had to assess the nature and value of each party's contributions, both financial and non-financial, and how these contributions should inform the final distribution of property. The court also had to consider whether there were any exceptional circumstances that warranted deviating from the statutory framework.

The Family Court held that the statute provides a clear framework for the adjustment of interests in property following the dissolution of a de facto relationship. The court emphasised that the primary consideration is the actual contributions made by each party, rather than potential contributions or future needs. The court rejected any notion that it should be diverted by arguments that were not supported by the statutory language. In reaching its decision, the court applied the statutory provisions in a manner that gave effect to the legislative intent, ensuring that the contributions actually made by each party were properly reflected in the final distribution of assets. The court ordered a specific division of the property in accordance with the findings on the respective contributions of the parties.

Orders