Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kozjak v Oswin (No 2) [2011] NSWCA 15 Hearing dates: On the papers Decision date: 16 February 2011 Before: Beazley JA; Hodgson JA; Handley AJA Decision: (1) Appeal allowed. (2) Orders 3(a), 4(b), 4(c), 7(c) and 7(f) made by Associate Justice McLaughlin on 16 November 2009 set aside and the following Order substituted: "The plaintiff/respondent to be paid forthwith the sum of $486,000 from Westpac Statutory Trust Account number 032-102 72-4786 in the name of Broun Abrahams Burreket Kerin Oswin and Richard Kozjak Controlled Monies Account ("the controlled monies account") together with a proportional share of the interest earned on the said controlled monies account from the date of the creation of the said controlled monies account, subject to Order 8 of these orders." (3) The balance of the monies in the said controlled monies account to be paid to the appellant forthwith provided that the appellant complies with Order 7 of these orders, and subject to Order 8 of these orders. (4) The respondent to pay the appellant's costs of the Appeal. (5) The respondent to have a certificate under the Suitors' Fund Act if otherwise eligible in relation to those costs and the respondent's costs of the Appeal. (6) All other Orders made in the Court on 16 November 2009 to be confirmed including the costs order being Order 8 below. (7) The appellant to prepare a Deed of Release by Virtual Developments Pty Limited in a form acceptable to the respondent's solicitors releasing the respondent from all liability in respect of any loans or other sums due or alleged to be due by the respondent to Virtual Developments Pty Limited, and in return for payment to the appellant or as directed by him of the monies in the controlled monies account, as required by Order 3 of these orders, the appellant shall provide to the respondent the Deed of Release duly executed by Virtual Developments Pty Limited. (8) (a) If the respondent's costs below have been assessed but not paid, they are to be paid forthwith from the share of the controlled monies account which otherwise would be paid to the appellant; and if those costs have been neither assessed nor paid, the sum of $60,000 is to be deducted from the amount otherwise payable to the appellant and is to be retained in the controlled monies account to be available to satisfy the respondent's entitlement to costs below. (b) If the appellant's costs of the appeal have been assessed but not paid, they are to be paid forthwith from the share of the controlled monies account which otherwise would be paid to the respondent; and if those costs have been neither assessed nor paid, the sum of $40,000 is to be deducted from the amount otherwise payable to the respondent and is to be retained in the controlled monies account to be available to satisfy the appellant's entitlement to the costs of appeal. (c) Each party is to take all reasonable and necessary steps to finalise the amount due in respect of costs and to act with due diligence to that end, and any balance of these respective amounts and interest accrued on them, after payment of the costs, is to be paid to the party whose share was thus retained. The Court Notes: (9) That the appellant has complied with Orders 1 and 7(d) below. (10) The appellant and the respondent have complied with Orders 5, 6, 7(a), 7(b), 7(d) and 7(e) below. (11) That the property at 25 Keith Street, Clovelly has been sold for $1,455,000. (12) That the sum of $216,185.28 has been paid to the respondent pursuant to the terms of Orders 1 and 7(d) below from the proceeds of sale of 25 Keith Street, Clovelly. (13) That the net proceeds of sale of 25 Keith Street, Clovelly after the payment to the respondent as referred in Notation 12, in the sum of $1,205,019,01 were placed in a Westpac Statutory Trust Account number 032-102 72-4786 in the name of Broun Abrahams Burreket ATF Kerin Oswin and Richard Kozjak on or about 31 August 2010. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - Orders to give effect to judgment. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22 Criminal Procedure Act 1986 ss 257B, 257G Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 ss 48, 144(1), 169(1), 241, 250(1)(a) Cases Cited: Kozjak v Oswin [2010] NSWCA 260 Category: Consequential orders Parties: Richard Charles KOZJAK (Appellant) Kerin Jayne OSWIN (Respondent) Representation: Counsel: Mr E Bateman (solicitor) (Prosecutor) Mr J Johnson (Defendants) Solicitors: Trevor Barker (Appellant) Broun Abrahams Burreket (Respondent) File Number(s): 2007/255779 Judgment 1THE COURT: The principal judgment in this matter was given on 7 October 2010: Kozjak v Oswin [2010] NSWCA 260. The parties did not agree to short minutes of order to give effect to the judgment. Each side submitted its own short minutes, without identifying the significance of differences and without submissions. 2In our opinion the short minutes submitted for the respondent better reflect the Court's decision. They identified appropriate parts of the orders of the Associate Judge to be set aside and appropriately provided that provision of the Deed of Release by Virtual Developments Pty Limited should be in return for payment of the balance of the controlled monies account (rather than prior to the entry of the orders). However, some modifications are appropriate. 3The appellant's short minutes provided for retention of $60,000 on account of the appellant's costs from the controlled monies account. Neither short minutes said anything about payment from the controlled monies account of the respondent's costs below, but we note that the appellant's short minutes would have set aside order 7(f) below, which said that these costs should be paid before payment of the balance of the account to the appellant. Neither party put on submissions to explain the present position about costs below or appeal costs. 4We do not think that payment to the appellant out of the account should be delayed until the respondent's costs below have been assessed (assuming they have not yet been assessed). Accordingly, we think order 7(f) below should be set aside, and replaced by an order to the effect that if the respondent's costs below have been assessed but not paid, they should be paid out of the account; and if they have not been assessed, that $60,000 should be retained from the appellant's share on conditions similar to those proposed by the appellant for the respondent's share. We would order that the amount to be retained from the respondent's share be $40,000 rather than $60,000 as proposed by the appellant. 5Accordingly, the Court makes the following orders: (1) Appeal allowed. (2) Orders 3(a), 4(b), 4(c), 7(c) and 7(f) made by Associate Justice McLaughlin on 16 November 2009 set aside and the following Order substituted: "The plaintiff/respondent to be paid forthwith the sum of $486,000 from Westpac Statutory Trust Account number 032-102 72-4786 in the name of Broun Abrahams Burreket Kerin Oswin and Richard Kozjak Controlled Monies Account ("the controlled monies account") together with a proportional share of the interest earned on the said controlled monies account from the date of the creation of the said controlled monies account, subject to Order 8 of these orders." (3) The balance of the monies in the said controlled monies account to be paid to the appellant forthwith provided that the appellant complies with Order 7 of these orders, and subject to Order 8 of these orders. (4) The respondent to pay the appellant's costs of the Appeal. (5) The respondent to have a certificate under the Suitors' Fund Act if otherwise eligible in relation to those costs and the respondent's costs of the Appeal. (6) All other Orders made in the Court on 16 November 2009 to be confirmed including the costs order being Order 8 below. (7) The appellant to prepare a Deed of Release by Virtual Developments Pty Limited in a form acceptable to the respondent's solicitors releasing the respondent from all liability in respect of any loans or other sums due or alleged to be due by the respondent to Virtual Developments Pty Limited, and in return for payment to the appellant or as directed by him of the monies in the controlled monies account, as required by Order 3 of these orders, the appellant shall provide to the respondent the Deed of Release duly executed by Virtual Developments Pty Limited. (8) (a) If the respondent's costs below have been assessed but not paid, they are to be paid forthwith from the share of the controlled monies account which otherwise would be paid to the appellant; and if those costs have been neither assessed nor paid, the sum of $60,000 is to be deducted from the amount otherwise payable to the appellant and is to be retained in the controlled monies account to be available to satisfy the respondent's entitlement to costs below. (b) If the appellant's costs of the appeal have been assessed but not paid, they are to be paid forthwith from the share of the controlled monies account which otherwise would be paid to the respondent; and if those costs have been neither assessed nor paid, the sum of $40,000 is to be deducted from the amount otherwise payable to the respondent and is to be retained in the controlled monies account to be available to satisfy the appellant's entitlement to the costs of appeal. (c) Each party is to take all reasonable and necessary steps to finalise the amount due in respect of costs and to act with due diligence to that end, and any balance of these respective amounts and interest accrued on them, after payment of the costs, is to be paid to the party whose share was thus retained. The Court Notes: (9) That the appellant has complied with Orders 1 and 7(d) below. (10) The appellant and the respondent have complied with Orders 5, 6, 7(a), 7(b), 7(d) and 7(e) below. (11) That the property at 25 Keith Street, Clovelly has been sold for $1,455,000. (12) That the sum of $216,185.28 has been paid to the respondent pursuant to the terms of Orders 1 and 7(d) below from the proceeds of sale of 25 Keith Street, Clovelly. (13) That the net proceeds of sale of 25 Keith Street, Clovelly after the payment to the respondent as referred in Notation 12, in the sum of $1,205,019,01 were placed in a Westpac Statutory Trust Account number 032-102 72-4786 in the name of Broun Abrahams Burreket ATF Kerin Oswin and Richard Kozjak on or about 31 August 2010. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2011