Kozjak v Oswin (No 2) [2011] NSWCA 15

Kozjak v Oswin (No 2) [2011] NSWCA 15

The respondent's short minutes better reflected the principal judgment, but they required modification because payment to the appellant from the controlled monies account should not be delayed until the respondent's costs below were assessed. The appropriate course was to set aside order 7(f) and retain specified sums from each party's share to secure the respondent's costs below and the appellant's costs of appeal if those costs had not been assessed or paid.

Jurisdiction
Australia
Judgment Date
16 February 2011
Procedural Posture
Consequential Orders in Appeal / On the Papers After Principal Judgment; Orders to Give Effect to Judgment
Outcome
Appeal allowed.
Legal Topics
['consequential Orders' 'short Minutes of Order' 'controlled Monies Account' 'deed of Release' 'costs Assessment and Retention']
['procedure' 'civil Appeals' 'costs'] ['consequential Orders' 'short Minutes of Order' 'controlled Monies Account' 'deed of Release' 'costs Assessment and Retention']

Case Brief

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Procedural Posture

Consequential Orders in Appeal / On the Papers After Principal Judgment; Orders to Give Effect to Judgment

Legal Issues

  1. 1 ["Which short minutes of order better reflected the Court's principal judgment in Kozjak v Oswin [2010] NSWCA 260." 'Whether specified orders made by Associate Justice McLaughlin on 16 November 2009 should be set aside and substituted.' 'How the controlled monies account should be distributed between the appellant and respondent.' "Whether payment to the appellant should be delayed pending assessment of the respondent's costs below." "What sums should be retained from each party's share to secure costs entitlements."]

Ratio Decidendi

The respondent's short minutes better reflected the principal judgment, but they required modification because payment to the appellant from the controlled monies account should not be delayed until the respondent's costs below were assessed. The appropriate course was to set aside order 7(f) and retain specified sums from each party's share to secure the respondent's costs below and the appellant's costs of appeal if those costs had not been assessed or paid.

Court Disposition

Appeal allowed.

Orders

  • ['Orders 3(a), 4(b), 4(c), 7(c) and 7(f) made by Associate Justice McLaughlin on 16 November 2009 set aside and 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...