JULIE HELENA KOZLOWSKI v MARIA KOZLOWSKI [2026] SADC 71

Applicant: JULIE HELENA KOZLOWSKI In Person : SELF REPRESENTED Respondent: MARIA KOZLOWSKI Counsel: MS M YULE - Solicitor: ADELTA LEGAL Hearing Date/s: 25/05/2026 File No/s: CIV-26-000641 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. JULIE HELENA KOZLOWSKI v MARIA KOZLOWSKI [2026] SADC 71 Judgment of his Honour Judge Burnett 16 June 2026 REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND REAL PROPERTY - LICENCES - GENERALLY - LICENCE DISTINGUISHED FROM OTHER INTERESTS IN LAND These proceedings concern the rights of the applicant, as the registered proprietor of a property, and the rights and obligations of the respondent who has, as previously found by this Court, a personal right to occupy that property for life. The applicant is the registered proprietor of certain property at Woodville North (the Property). The respondent, who is the mother of the applicant, was found in previous proceedings in this Court to have a personal right to occupy the Property for life. That right was derived from an oral contract (together with acts of part performance) entered into between the parties when the Property was purchased in 2002 (the oral agreement). The respondent has lived in the Property since 2002. The applicant has instituted proceedings in which she seeks access to the Property, a right of inspection and the right to carry out repairs to the Property. The applicant has brought the application pursuant to s 27 of the District Court Act 1991 (SA)(DCA), but the application should also be considered on the basis of an implied term of the oral agreement or as an incident of the applicant’s rights as the registered proprietor and the respondent’s right being limited to a personal right to occupy. Held: (1) The originating application is dismissed. (2) Section s 27 of the DCA is limited to authorising the Court to conduct an inspection and does not provide a basis for ordering an inspection by a party. Further, s 27 is limited to authorising an inspection for the purposes of the proceedings and is a procedural power and does not authorise the Court to provide substantive relief. (3) No term should be implied in the oral agreement. Such a term would not be reasonable and equitable, would not be necessary to give business efficacy to the agreement, and -- 1 of 11 -- was not so obvious that it goes without saying: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266, Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 applied. (4) It is not an incident of the applicant’s interest as the registered proprietor of the Property and the respondent’s personal right of occupation for life that the applicant has a right of inspection and repair of the Property. A right to occupy the Property is a personal right and is not transferrable: Re Hillier, Primrose v Kewley (1939) 39 SR (NSW) 71l considered. The registered proprietor can only enter property during the continuance of a lease (or in this case, during the continuance of a personal right of occupation) if it has statutory or contractual right of entry or repair or in the event of a breach of a covenant of the lease: Neale v Wyllie (1824) 3 B & C 533; Yelloly v Morely (1910) 27 TLR 20. The respondent is not liable for permissive waste: Re Cartwright v Newman (1889) 41 Ch D 532 applied. District Court Act 1991 (SA) s 27, 27(1), 42 ; Laws of Australia [28.10.390]; P Butt, Land Law, Lawbook Co, 6th ed., 2010, [10.06]; Woodfall’s Law of Landlord and Tenant, Sweet & Maxwell Limited, The Law Book Company Limited, 28th ed 1978, referred to. Barker v Barker (1829) 3 C & P 556; BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266; Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226; Doe on the Demise of the Trustee of the Schools and Almshouses of the City of Worcester v Rowlands (1841) 9 C & P 734; Elliott v Reading [1999] WASCA 11; Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679; Greco v Swinburne Ltd [1991] 1 VR 304; Jones v Jones (1868) LR 4 CP 422; Kozlowski v Kozlowski [2011] SADC 89; Neale v Wylie (1824) 3 B & C 533 ; Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472; Re Cartwright v Newman (1889) 41 Ch D 532; Re Hillier; Primrose v Kewley and Others (1939) 39 SR (NSW) 71; Re Hoppe, deceased [1961] VR 381; Shirlaw v Southern Foundries (1926) Ltd [1939] 2 All ER 113; Yelloly v Morley (1910) 27 TLR 20, applied. -- 2 of 11 -- JULIE HELENA KOZLOWSKI v MARIA KOZLOWSKI [2026] SADC 71 Introduction 1 These proceedings concern the rights of the applicant as the registered proprietor of a property and the rights and obligations of the respondent who has, as previously found by this Court, a personal right to occupy that property for life. 2 The applicant, Ms Julie Kozlowski (the applicant or Julie), is the daughter of the respondent, Ms Maria Kozlowski (the respondent or Maria). By an originating application dated 15 January 2026, Julie, as the registered proprietor of the property situated at Farr Street, Woodville North (the Property), sought orders for: (1) the inspection of the Property by the applicant and a qualified building professional, for the purpose of assessing the condition of the Property; (2) the provision of documentation relating to some work undertaken by the respondent to repair a water leak on the Property in about 2020; (3) the carrying out of any urgent protective measures that might be required to address any risks that might be identified or to protect the Property from damage or further damage; (4) access to the Property for the purpose of the inspection, documentation and the carrying out of works. 3 Julie has brought the application pursuant to s 27 of the District Court Act 1991 (SA)(the DCA). The application should also be considered on the basis that there is an implied term of the oral agreement by which the applicant acquired the Property and the respondent was held to have a right to occupy the Property for life, that the applicant be permitted to access, inspect and carry out repairs to the Property. Alternatively, the Court should also consider the application on the basis that such rights to access, inspect and carry out repairs to the Property are an incident of the applicant’s interest in the Property as the registered proprietor and the obligations of the respondent, having a personal right to occupy the Property for life. 4 Maria denies that the Julie is entitled to any orders. Maria pleads that she is entitled to live at the Property for life. Maria contends that in 2011, this Court held that there was an oral agreement between Julie and Maria entered into in 2002 to the effect that, inter alia, the Property would be purchased in the name of Julie and that Maria would be entitled to live in the Property for life.1 In these circumstances, Maria contends that she had no obligation to keep the Property in any particular state of repair and there is no right of inspection or repair or any of the other relief claimed by Julie. 1 Kozlowski v Kozlowski [2011] SADC 89. -- 3 of 11 -- [2026] SADC 71 2 5 Maria also contended that the application by Julie was an abuse of process. During the trial, counsel for Maria made it clear that any abuse of process was not an independent ground for refusing the application but arose because there was no proper basis for the Court to make the order. The trial 6 The trial was of very short duration. The parties each tended affidavits in which they provided evidence relevant to the issue in dispute. There was no cross- examination of any deponent. Maria was elderly and in a frail condition and had hearing difficulties. Previous proceedings between the parties 7 The circumstances in which Julie came to be the registered proprietor of the Property and Maria was found to have, pursuant to the oral agreement, the right to personally reside at the Property for life, are set out in the judgment of the Court in Kozlowski v Kozlowski.2 That case involved an application by Maria for a declaration that she had a life interest in the Property, that she was entitled to have that interest registered on the Certificate of Title and was entitled to a declaration that she had sole use and occupation of the Property.3 Julie sought, by way of a cross-action, a declaration that Maria had no legal or equitable interest in the Property and accordingly an order that the caveat placed on the Property be removed.4 8 The Court found that Maria had only a personal right to reside on the Property for life and not a life estate. Maria’s interest did not extend to renting out the Property or otherwise dealing with it short of sale.5 Maria’s interest was derived from the oral contract formed between Maria and Julie at the time of the purchasing of the Property. 9 Three different types of interest may have been created: a life interest, a lease for life or a personal right to reside at the Property for life.6 Which of the three interests is created is a question of construction of the terms of the contract by which the interest was created or the will.7 As a general proposition, a right to reside or live at a property confers a personal right only since it must be exercised in person whereas a right to use and occupy a property confers a life interest since it may be exercised in person or through another, such as a tenant.8 A lease for life differs from a life estate in that it does not create an estate in the property but only a lease of the property which is governed by the terms of the lease.9 Gobbo J in 2 Ibid, [2]-[5]. 3 Ibid, [1]. 4 Ibid. 5 Ibid, [118]. 6 P Butt, Land Law (Lawbook Co, 6th ed., 2010), [10.06]. 7 Ibid. 8 Ibid; Greco v Swinburne Ltd [1991] 1 VR 304, 313. 9 P Butt, Land Law” (Lawbook Co, 6th ed., 2010), [10.06.01]. -- 4 of 11 -- [2026] SADC 71 3 Greco v Swinburne Ltd 10 cited the following passage from Jones v Jones 11 where Brett J held: The distinction would appear to be that where the property is let at a rent for life the letting is properly described as a lease for life. Where no commercial rent is stated then it is more usual to refer to the interest for life as a life tenancy. 10 The personal right to live in the property, if it is irrevocable, creates an equitable interest in the property, measured by what a court of equity would decree in an action for specific performance.12 The general proposition is that where equity will grant a decree of specific performance, the licencee will acquire some form of proprietary interest beyond the mere personal interest.13 Background facts 11 The facts relevant to this application are not in dispute. 12 Maria is now about 78 years of age. The Property was purchased in December 2002. Julie is the registered proprietor of the Property. Maria contributed a significant portion of the purchase price. Julie contributed about $42,000 by way of mortgage over the Property. The Court, in the previous proceedings, found that the at the time of the purchase of the Property, there was an agreement between Maria and Julie which had the following terms: 14 (1) The Property would be purchased in Julie’s name so that she would have the security of having a property and further so that Maria’s son would not later make any claim on the Property; (2) Maria would live at the Property until she died; (3) Julie might live at the property as well but had decided not to do so at that time although she could later do so, if she changed her mind.; (4) Maria would pay the household bills; (5) Julie would pay the mortgage. 13 The Court found that there had been part performance of the agreement and therefore the agreement was enforceable. 14 Maria has resided at the Property since 2002. Julie has not had access to the Property since 2004. At about that time the relationship between Julie and Maria broke down. The breakdown of the relationship appears irretrievable. 10 [1991] 1 VR 304, 315 11 (1868) LR 4 CP 422, 435. 12 Re Hoppe, deceased [1961] VR 381, 389 citing Commissioner of Taxes v Campkin (1937) 56 CLR 605. 13 Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679. 14 Kozlowski v Kozlowski [2011] SADC 89, [114]-[115]. -- 5 of 11 -- [2026] SADC 71 4 15 Julie has raised a number of concerns in relation to the condition of the Property. These concerns are as follows: (1) She is aware of a previous water leak at the Property and has not, despite requests, been provided with any documentation or evidence that the leak has been fixed. Julie gave evidence that the water leak was reported to SA Water in 2018; (2) Julie is aware that some roof tiles are missing; and (3) Julie said there had been some hoarding and squalor at the Property. 16 Julie has written a number of letters to Maria (or her lawyer) in which she has expressed concern in relation to the condition of the Property. In a letter dated 14 July 2025, she requested details and documentation in relation to the water leak. She said that she became aware of that water leak in 2020. By letter dated 27 August 2025, Maria’s solicitors responded to that letter and said that the water leak had occurred some time ago and repairs had been undertaken. The 27 August 2025 letter also referred to requests that Julie had made for Maria to relinquish her right of residence at the Property and reiterated that Maria declined those requests and intended to continue to reside at the Property pursuant to the orders made by the Court in the previous proceedings. 17 By letter dated 9 September 2025, Julie made a formal request for inspection of the Property, pointing out that she had concerns regarding the water leak, tiles and hoarding and squalor. The letter also requested documentation and photographs. The letter referred to past concerns of the City of Charles Sturt regarding hoarding and squalor. The letter requested a response by 9 September 2025. When she did not receive a response, Julie sent further letters on 16 September 2025 and 21 October 2025 requesting a response. 18 Julie has annexed to her affidavit, photographs of the condition of the garden. These photographs show the garden to be somewhat overgrown in certain areas. Further photographs taken in December 2025 and on 16 January 2026 showed an overgrown garden. A subsequent photograph taken on 17 January 2026 showed that the front garden had been cleaned and the grass cut and was no longer overgrown. Some of the photographs taken on 17 January 2026 showed a few tiles (about 5 in total) broken or being in a state of disrepair. 19 Maria gave evidence by way of her affidavit that she had been very unwell during 2025 and had spent over three months in hospital. She annexed to her affidavit a series of photographs taken in March 2026 that showed both the interior and exterior of the Property had been cleaned up and was in good condition. -- 6 of 11 -- [2026] SADC 71 5 Basis of an order for inspection and provision of documentation 20 There are three possible basis for an order for inspection of the Property, the provision of documentation and the carrying out of repairs to the Property. They are: (1) section 42 of the DCA, as contended for by Julie; (2) an implied term of the agreement (there being no express term providing a right of inspection or repair) by which Maria was granted a personal right to live at the Property was that Julie would be permitted to inspect and carry out repairs to the Property; (3) it was an incident to the right of Maria to live at the Property, that Julie, as the registered proprietor of the Property, be permitted to inspect and carry out repairs to the Property. Section 27 of the DCA 21 Section 27(1) of the DCA provides that a Court may enter any land or building and carry out any inspection that the Court considers relevant to a proceeding before the Court. 22 It is evident by the terms of this provision that s 27 is limited to authorising the Court to conduct an inspection and does not provide a basis for ordering an inspection on behalf of a party. Further, s 27 is limited to authorising an inspection for the purposes of the proceedings which are before the Court. That might occur, for example, when the Court wishes to conduct a view. It is a procedural power. In such circumstances, the inspection is not part of the cause of action. Section 27 does not authorise the Court to provide substantive relief, that is create a cause of action. That is what Julie is seeking to do in the present proceedings. She is contending that pursuant to s 27, she has the right to carry out the inspection for the purposes of assessing the condition of the Property. 23 It follows that s 27 does not provide a basis for ordering that Julie may inspect the Property, carry out repairs to the Property or be provided with documentation relating to the repairs or carry out such repairs. Implied term of the agreement pursuant to which Maria has a right to reside in the Property for life 24 Julie did not plead that there was an implied term of the agreement that she be permitted to enter, inspect and carry out repairs to the Property. However, the implication of the term would arise from the nature of the agreement and Julie’s position as registered proprietor of the Property and Maria’s right being limited to residing at the Property for life. Therefore, there was no prejudice to Maria if the Court proceeded to consider the possible implication of such a term. -- 7 of 11 -- [2026] SADC 71 6 25 The basis for the implication of a term in a contract is well settled. In order to justify the implication of a term, the term must: (1) be reasonable and equitable; (2) be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) be so obvious that it goes without saying; (4) be capable of clear expression; (5) not contradict any express term of the contract.15 26 Addressing the first of these criteria, I do not consider that it is reasonable and equitable to imply such a term. The implication of such a term would cause significant disruption to Maria and her quiet enjoyment of the Property. It operates solely to benefit Julie. In the case of a lease of property, there is no common law right of entry or repair in the absence of an express situation in the lease.16 That is, the registered proprietor, who is not in possession of, has no right of entry and repair. There is no reason why it could be said that it is reasonable and equitable that Julie, as an owner not in possession, should have the right of entry and repair. 27 Addressing the second of these criteria, it is not necessary to imply such a term to give business efficacy to the agreement. The agreement is effective without the implication of the term. The implication of the term would not give business efficacy to the agreement but would rewrite the agreement so as to give an additional right to Julie and impose a further obligation on Maria (to be subject to an inspection and the carrying out of repairs). 28 The third criteria requires that the Court be satisfied that the implication of the term is so obvious that it goes without saying. This requirement was first stated by MacKinnon LJ in Shirlaw v Southern Foundries (1926) Ltd17 where his Honour held that: Prima face that which is any contract is left open to be implied and not be expressed is something so obvious that it goes without saying: so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement they would testily suppress him with a common “oh, of course”. 29 A proposed implied term may not satisfy this requirement if it is averse to the interests of one of the parties18 or is one of a number of alternative 15 BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266. 16 Yelloly v Morley (1910) 27 TLR 20. 77; Woodfall’s Law of Landlord and Tenant, (Sweet & Maxwell Limited, The Law Book Company Limited, 28th ed., 1978), [1-1486], [1-1580]. 17 [1939] 2 KB 206,227, 18 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226, 241. -- 8 of 11 -- [2026] SADC 71 7 implications.19 In the present case, it is clearly only in the interests of Julie that the term be implied. It is not the case that Maria would have said “oh, of course” if such a term had been proposed. The proposed implied term is only in the interests of Julie. 30 Although the proposed implied term is capable of clear expression and does not contradict any express term of the agreement, the first three criteria for the implication of a term have not been satisfied. It follows that there is no basis for the implication of a term that Julie has the right to inspect the Property and carry out repairs. For the same reasons, there is no basis to imply a term that Maria provide documentation about the repairs that she has carried out. Rights of Julie as registered proprietor of the Property where Maria has a personal right to occupy the Property for life. 31 There is not a great deal of case law that sets out the rights and obligations of a person who has a personal right to occupy a property for life. It is clear that such a right extends only to the right of the person to occupy the property and does not extend to leasing the property,20 abandoning the property or profiting from the exploitation of the property (e.g. cutting down timber, to use a common example). Those restrictions arise because the right to occupy the property is limited to being a personal right of occupation and is not transferable.21 32 There are three reasons why the Court considers that Maria’s right to occupy the Property for life is not subject to a right of inspection by Julie or the right to enter the Property to carry out repairs. First, by analogy, a landlord (or, as in the present case, the registered proprietor) has no common law right of entry for the purposes of carrying out an inspection of, or repairs to the Property. Secondly, by analogy, a tenant (or, as in the present case, a person who has a personal right to occupy a property for life) is not liable for permissive waste. Thirdly, a right of inspection would arise because of an express or implied term of the agreement by which Maria held her right to occupy the Property. As previously set out in these reasons, there is not express or implied term to that effect in the agreement between Maria and Julie. 33 A landlord has no common law right to enter demised premises for any purpose whatsoever, including for the purpose of carrying out repairs.22 It can do so only if it has a statutory or contractual right of entry or repair. In Neale v Wyllie,23 it was held that during the term of the lease, the landlord could not enter and repair 19 Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, 481. See also Parker J in Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132, 138; Elliott v Reading [1999] WASCA 11, [37]-[41]. 20 Re Hillier; Primrose v Kewley and Others (1939) 39 SR (NSW) 71, 75. 21 Laws of Australia, [28.10.390]. 22 Woodfall’s Law of Landlord and Tenant, (Sweet & Maxwell Limited, The Law Book Company Limited, 28th ed, 1978), [1-1486]. 23 (1824) 3 B & C 533. See also Doe on the demise of the Trustee of the schools and Almshouses of the City of Worcester v Rowlands (1841) 9 C & P 734. Barker v Barker (1829) 3 C & P 556. -- 9 of 11 -- [2026] SADC 71 8 the premises without rendering himself liable for trespass. In Yelloly v Morely,24 it was held that the landlord had no right to enter the premises except in the event of non-payment of rent or breach of covenant and if it do so, it committed a trespass. 34 If a landlord does not have such a right of entry and repair during the term of the lease, it is difficult to see why Maria, possessing a right of occupation of the Property for life, would be subject to a right of entry by Julie, as the register proprietor. Both the person holding a right of occupation for life and the tenant have the right of quiet enjoyment of the premises which is inconsistent with the landlord or registered proprietor entering into the premises whether for inspection or to carry out repairs. Both the rights enjoyed by a landlord and Julie are deferred while the tenant, or in this case, Maria, has the enjoyment of the property. 35 Counsel for Maria placed reliance on the case of Re Cartwright v Newman (Cartwright),25 to submit that Maria would not be liable to Julie under the doctrine of waste. Maria submitted that it followed that no right of inspection existed. That is, the right of inspection would serve no useful purpose and would not be permitted as an incident of ownership. In Cartwright, it was held that in equity no interference (of the tenant’s possession of a property) whatsoever would be made on the ground of permissive waste by a tenant for life. Kay J held it was a startling proposition to consider that a tenant for life is liable for permissive waste to a person who has an interest in the property as a remainder person. 36 The position of a life tenant in relation to liability for waste is clear.26 A life tenant: (1) is not liable for permissive waste (unless the instrument creating the interest provides otherwise). Permissive waste involves passively allowing a property to fall into disrepair. (2) is liable for voluntary waste which involves a deliberate and active change to the property (unless the instrument creating the interests exempts liability); (3) is liable for equitable waste which involves acts of gross damage such as cutting down trees or demolishing a house; (4) is generally not liable for ameliorating waste which involves acts that improve the property. In such a case, the usual remedies for waste, an injunction or damages, are not applicable. Butt suggests that an injunction may be granted where the character of the property is altered. 37 The position of tenants for life (as opposed to a life tenant) was the same at common law. They are not liable at common law for permissive waste but are 24 (1910) 27 TLR 20. 25 (1889) 41 Ch D 532, 536. 26 P Butt, Land Law (Lawbook Co, 6th ed., 2010), [10.30]- [10.33]. -- 10 of 11 -- [2026] SADC 71 9 liable for voluntary waste (unless the relevant instrument or agreement provides otherwise).27 38 Maria is not a life tenant or a tenant for life but has a personal right to occupy the Property for life. Julie’s interest is not as a remainder person but as the registered proprietor, although she is not able to exercise that interest until Maria’s death. 39 There does not appear to me to be a proper basis to distinguish between the position of a life tenant and a tenant who has a lease for life on the one hand and a person, such as Maria, who has the right to occupy a property for life. In each case, the interest of the registered proprietor or remainder person is deferred. In each case, the person occupying the property has a right of quiet enjoyment. It would impose a significant burden on a person who has the right to occupy the property for life to have a duty of repair for permissive waste. It is difficult to see how the terms of contract made between Maria and Julie for the purchase of the Property and the creation of Maria’s right to occupy the Property for life, could be construed to impose on Maria a duty of repair for permissive waste. 40 In the present case, there is no evidence of even a suspicion of any waste committed by Maria other than permissive waste. The three types of damage that Julie is concerned about involve permissive waste: the water leak, damage to the roof tiles and hoarding and squalor. The evidence suggested that the water leak had been fixed some years ago. The photographs annexed to Maria’s affidavit showed there could no longer be any concern about hoarding or squalor. As Maria is not liable for permissive waste, there is no basis to find that Julie should be permitted to carry out an inspection of the Property or undertake repairs to the Property. Conclusion 41 For the reasons that have been expressed, the claims of Julie made in the originating application are dismissed. 27 Woodfall’s Law of Landlord and Tenant, (Sweet & Maxwell Limited, The Law Book Company Limited, 28th ed., 1978), [1-1523]. R. Megarry and H.W.R Wade, The Law of Real Property, (Stevens & Sons Limited, 3rd ed., 1966), p106. -- 11 of 11 --