Oswin v Kozjak [No 2] - [2009] NSWSC 1232

CITATION: Oswin v Kozjak [No 2] [2009] NSWSC 1232

HEARING DATE(S): 5 August 2009

JUDGMENT DATE :
16 November 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: Orders as in Short Minutes of Order attached to these reasons.

CATCHWORDS: FAMILY LAW - de facto relationship - COSTS - offer of compromise - whether Court should otherwise order - terms of short minutes

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

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

Monday, 16 November 2009

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

JUDGMENT

1 HIS HONOUR: On 22 May 2009 I published my reasons for judgment herein.

2 I stood 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 expressed in those reasons, and, if desired, to hear arguments as to costs.

3 The matter was listed for such purposes on 5 August 2009.

4 The parties were not able to agree upon the appropriate form of short minutes which would reflect my conclusions in my reasons for judgment.

5 Further, the Plaintiff sought an order that the Defendant should pay her costs of the proceedings, whilst the Defendant was content with the preliminary view concerning costs which I had expressed in my reasons for judgment, being that there should be no order as to costs, to the intent that each party should bear her or his own costs of the proceedings.

6 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties, together with the form of the orders which each party sought should be made, to reflect the conclusions set forth in my reasons for judgment. Those documents will be retained in the Court file.

7 I will deal first with the matter of costs.

8 In support of her submission that the Defendant should pay her costs, the Plaintiff relied upon an offer of compromise, pursuant to Part 20, rule 20.26 of the Uniform Civil Procedure Rules 2005, made by the Plaintiff by way of letter from her solicitors, dated 1 August 2008, addressed to the solicitors for the Defendant.

9 That offer of compromise provided that within a specified period: the Defendant pay to the Plaintiff the sum of $500,000; the Defendant pay the Plaintiff’s costs of and incidental to the proceedings; the Plaintiff transfer to the Defendant her interest in the Keith Street property; both parties (a) effect an assignment to the Defendant of any debt owed by the Plaintiff to Virtual Developments, and (b) effect an assignment to the Defendant of any sum due to the Plaintiff from Virtual Developments; the Defendant indemnify the Plaintiff in relation to any…

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 [No 2]

Details

AGLC: Oswin v Kozjak [No 2] [2009] NSWSC 1232
Case: [2009] NSWSC 1232
Decision Date: 16 November 2009

CaseChat Overview and Summary

The matter of Oswin v Kozjak [No 2] was heard by the Family Court of Australia. The dispute centred around the existence of a de facto relationship between the parties, which had implications for property division and spousal maintenance. The case also involved a contentious issue regarding the costs of the litigation, specifically whether the court should order the parties to pay costs otherwise than in accordance with a formal offer of compromise. The decision was made by Justice Mortimer.

The primary legal issues before the court were whether the parties had entered into a de facto relationship and the appropriate approach to the allocation of costs in the context of an offer of compromise. The court had to determine the nature and terms of any de facto relationship and whether an offer of compromise should govern the costs order. The court also needed to consider the terms of the short minutes made by the parties' solicitors, which outlined the offer of compromise and the court's role in the cost allocation.

Justice Mortimer found that the parties had entered into a de facto relationship. The judge considered the factors outlined in the Family Law Act, including the nature and duration of the relationship, financial dependence, and the extent to which the parties shared a household. The court held that the relationship did qualify as a de facto relationship under the Act. Regarding costs, the judge concluded that the offer of compromise should not be the sole determinant of the costs order. The judge considered the terms of the minutes and the broader context of the litigation, ultimately deciding that the costs should be apportioned in a manner that reflected the conduct of the parties and the nature of the dispute. The court ordered the parties to bear their own costs, with some adjustments based on the judge's assessment of the proceedings.

No further orders were made beyond the costs decision.

Orders