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Hanas and Jolaha (No 5)

Hanas and Jolaha (No 5)

Case [2019] FamCA 1001 18 December 2019

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FAMILY COURT OF AUSTRALIA

HANAS & JOLAHA (NO. 5)

[2019] FamCA 1001

FAMILY LAW – COSTS – Where the husband appealed interim property orders and brought an Application in a case seeking a stay of those orders – Where the Application for a stay of those orders was wholly unsuccessful – Where the wife subsequently brought an Application for costs in respect to the Application for a stay – Orders made for the husband to pay the wife’s costs in respect to his Application for a stay and in respect to this Application for costs in the sum of $4,305.61 and $1,372 respectively.

Family Law Act 1975 (Cth) s. 117.
Civil Procedure Act 2005 (NSW) ss. 98(4)(c).
Family Law Rules 2004 r. 19.18.

Colgate-Palmolive Company and AnorvCussons Pty Limited (1993) 46 FCR 225
Fennessy & Gregorian (2009) FLC 93-399
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Idoport Pty Ltd v National Australia Bank Ltd Idoport Pty Ltd & Ors [2007] NSWSC 23
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000)104 FCR 564
Kohan&Kohan (1993) FLC 92-340
Melville&Dent (No.2) [2009] FamCA 81
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Stoian & Fiening (Costs) [2014] FamCA 944
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Hanas

RESPONDENT:

Mr Jolaha

FILE NUMBER:

SYC

113

2019

DATE DELIVERED:

18 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

10 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Wahab of York Law Family Law Specialists

SOLICITOR FOR THE RESPONDENT:

Mr Dowdle of Mills Oakley Lawyers

Orders

That the husband pay the wife’s costs associated with the dismissal of his Application for a stay of interim property Orders filed 12 August 2019 in the amount of $4,305.61 together with costs associated with the wife’s costs Application filed 24 September 2019 in the amount of $1,372.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanas & Jolaha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC113 of 2019

Ms Hanas

Applicant

And

Mr Jolaha

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an Application by Ms Hanas (“the wife”) for costs in respect to an unsuccessful Application by Mr Jolaha(“the husband”) for a stay of interim property Orders pending the hearing of an Application for…

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 Hanas and Jolaha (No 5)

Details

AGLC: Hanas and Jolaha (No 5) [2019] FamCA 1001
Case: [2019] FamCA 1001
Decision Date: 18 December 2019

CaseChat Overview and Summary

In the matter of Hanas and Jolaha (No 5), the dispute concerned costs following an application for a stay of interim property orders. The decision was made by McClelland DCJ.

The court was required to determine the quantum of costs to be awarded to the wife in relation to two specific applications: the husband's unsuccessful application for a stay of interim property orders filed on 12 August 2019, and the wife's subsequent application for costs filed on 24 September 2019.

McClelland DCJ ordered that the husband pay the wife's costs associated with the dismissal of his application for a stay of interim property orders in the amount of $4,305.61. Additionally, the husband was ordered to pay the wife's costs associated with her costs application, amounting to $1,372. These orders were subject to formal entry in the Court's records.

Orders

Orders of the court

That the husband pay the wife’s costs associated with the dismissal of his Application for a stay of interim property Orders filed 12 August 2019 in the amount of $4,305.61 together with costs associated with the wife’s costs Application filed 24 September 2019 in the amount of $1,372.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hanas and Jolaha (No 5) [2019] FamCA 1001

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

Jolaha and Hanas
[2019] FamCA 597 Para 7

…egically oppressive litigation, as contended by the wife, including by the filing of two separate appeals against interim orders of this Court. [3] [2019] FamCA 597.…
Laskari & Laskari and Ors
[2015] FamCA 398 Para 2

…lty, levels of responsibility and time involved, has not overcome the practical problem which exists. [1] See Laskari & Laskari and Ors [2015] FamCA 398 at [106] where reference is made to Prantage & Prantage (2013) FLC 93-544.…
Ryan v Primesafe
[2015] FCA 8 Para 6

…Family Court in Limousin v Limousin (Costs) (2008) 38 Fam LR 478; Watts J in Lambert and Jackson [2011] FamCA 275 and Mortimer J in Ryan v Primesafe [2015] FCA 8 at [110].…
Stoian & Fiening (Costs)
[2014] FamCA 944 Para 1

…pecific amount for costs or, in r 19.18(1)(b) of the Rules, an order for the costs to be assessed on a particular basis: Stoian & Fiening (Costs) [2014] FamCA 944 (“ Stoian (Costs)” ) at [82]. In Stoian (Costs) (supra)at [91], Kent J endorsed the principles relevant to the application of s 98(4)(c) of the Civil Pro…
Lambert v Jackson
[2011] FamCA 275 Para 6

…nstance the useful analysis by the Full Court of the Family Court in Limousin v Limousin (Costs) (2008) 38 Fam LR 478; Watts J in Lambert and Jackson [2011] FamCA 275 and Mortimer J in Ryan v Primesafe [2015] FCA 8 at [110].…
Melville & Dent (No.2)
[2009] FamCA 81 Para 2

…reference to the non-exhaustive list of statutory considerations set out in s 117 the Act before any such order is made.[1] In Melville & Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate-Palmol…
Limousin v Limousin (Costs)
[2007] FamCA 1178 Para 6

…34]. Those principles have generally been applied in this Court.[2] [2] See for instance the useful analysis by the Full Court of the Family Court in Limousin v Limousin (Costs) (2008) 38 Fam LR 478; Watts J in Lambert and Jackson [2011] FamCA 275 and Mortimer J in Ryan v Primesafe [2015] FCA 8 at [110].…
Idoport Pty Ltd v National Australia Bank Ltd
[2007] NSWSC 23 Para 1

…(c) of the Civil Procedure Act 2005 (NSW), as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd Idoport Pty Ltd & Ors [2007] NSWSC 23, stating it was “similar” to r 19.18 of the Rules. Those principles are, as follows: i. the purpose of the rule is to avoid the expense, delay and aggravatio…
Ugly Tribe Co Pty Ltd v Sikola
[2001] VSC 189 Para 5

…ded are not closed, examples of situations which may justify that course of action are usefully set out by Harper J in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] as including: (i). The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales)…
Johnson Tiles Pty Ltd v Esso Australia Ltd
[2001] FCA 458 Para 4

…The point was well made in the decision of of French J, as he then was, in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000)104 FCR 564 where his Honour said at [42]: The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the righ…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2000] FCA 1572 Para 4

…The point was well made in the decision of of French J, as he then was, in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000)104 FCR 564 where his Honour said at [42]: The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings w…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 2

…he question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225 (“ Colgate-Palmolive Co” ) as providing a ‘pertinent observation’ of the ‘court-endorsed costs structure of litigation,’ where his Honour said: For p…
Thors v Weekes
[1989] FCA 795 Para 5

…n Selected Meats (Sales) Pty Ltd. v International Produce Merchants Pty Ltd (1988) 81 ALR 397. (ii). The making of an irrelevant allegation of fraud: Thors v Weekes (1989) 92 ALR 131. (iii). Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unrepor…
[1990] VSC 395
[1990] VSC 395 Para 5

…scovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
98(4)(c) 2 mentions (from Para 1)
Family Law Act 1975 (Cth)
117 2 mentions (from Para 1)
Family Law Rules 2004 (Cth)
19.18 2 mentions
Family Court Rules 2004 (Cth)
1 mention (from Para 1)