Hodak & Hodak (No. 3)

Case [2021] FamCA 341

FAMILY COURT OF AUSTRALIA

Hodak & Hodak (No. 3) [2021] FamCA 341   

File number(s): MLC14738/2018
Judgment of: JOHNS J
Date of judgment: 26 May 2021
Catchwords: FAMILY LAW – COSTS.
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18

Cases cited:

I and I (1995) FLC 92-625

Kohan & Kohan (1993) FLC 92-340

Prantage & Prantage [2013] FamCAFC 105

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Munday v Bowman (1997) FLC 92-784

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Number of paragraphs: 76
Date of last submission/s: 8 December 2020
Date of hearing: Written Submissions in Chambers
Place: Melbourne

ORDERS

MLC 14738 of 2018
BETWEEN:

MS HODAK

Applicant
AND:

MR HODAK

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

26 MAY 2021

THE COURT ORDERS THAT:

1.That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, fixed in the sum of $8,000.00.

2.That all extant applications be otherwise dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 12 October 2020 this matter came before me in the Judicial Duty List. The reserved judgment was subsequently delivered and orders made on 24 November 2020 (“the Judgment”). Those orders made provision for the parties’ to make application for costs upon the  filing of written submissions.

  2. The wife filed written submissions on 8 December 2020 seeking that the husband pay her costs of and incidental to the hearing before me on 12 October 2020. At paragraph 4 of the wife’s submissions she seeks that the husband pay her costs as follows:-

    (a)In the sum of $12,705.80 (incl GST), calculated on an indemnity basis in accordance with the Costs Agreement executed between the Wife and Lander & Rogers Lawyers.

    (b)In the alternative to (a), fixed in an amount of $8,000.00.

    (c)In the alternative to (a) and (b), such other costs order this Court deems just and equitable.

  3. The husband has not filed any reply to the wife’s submissions in support of her application for costs.  These are my Reasons for Judgment with respect to the wife’s application for costs.

    BACKGROUND

  4. The applicant wife, Ms Hodak, is aged 37 years. The wife is engaged in home duties caring for the parties’ daughter, aged almost four years at the date of hearing.

  5. The respondent husband, Mr Hodak, is aged 39 years. He is a professional and operates his own…

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AGLC
Hodak & Hodak (No. 3) [2021] FamCA 341
Case
[2021] FamCA 341
Decision Date

CaseChat Overview and Summary

This matter concerned an application for costs brought by the wife, Ms Hodak, against the husband, Mr Hodak, in the Federal Circuit and Family Court of Australia. The dispute arose from the wife's application to enforce final property orders and financial and child support agreements. The husband had filed a response that introduced new issues, and subsequent court proceedings resulted in orders largely in the wife's favour, with a prior costs order also made against the husband. The current proceedings specifically addressed the wife's application for costs related to the hearing on 12 October 2020.

The primary legal issue before Johns J was to determine the quantum of costs payable by the husband to the wife for the proceedings before the court on 12 October 2020, following the wife's application for costs. The court was required to consider the husband's failure to file a reply to the wife's submissions in support of her costs application.

Johns J reasoned that the husband had not filed any reply to the wife's submissions regarding costs. The court's previous orders on 24 November 2020 had directed that any party seeking costs must file written submissions within 14 days, and any response within 28 days. In accordance with these orders, the wife had filed her submissions on 8 December 2020. Given the husband's lack of response to these submissions, the court proceeded to make orders based on the wife's application. The court ordered that within 30 days, the husband pay the wife's costs of and incidental to the proceedings, fixed in the sum of $8,000.00, and that all extant applications be otherwise dismissed.

Orders

Orders of the court

MLC 14738 of 2018

BETWEEN:

MS HODAK

Applicant

AND:

MR HODAK

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

26 MAY 2021

THE COURT ORDERS THAT:

1. That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, fixed in the sum of $8,000.00.

2. That all extant applications be otherwise dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The husband has not filed any reply to the wife’s submissions in support of her application for costs. These are my Reasons for Judgment with respect to the wife’s application for costs.BACKGROUND The applicant wife, Ms Hodak, is aged 37 years. The wife is engaged in home duties caring for the parties’ daughter, aged almost four years at the date of hearing. The respondent husband, Mr Hodak, is aged 39 years. He is a professional and operates his own business known as F Pty Ltd. The parties married in 2007, with final separation occurring on 10 February 2018 when the husband vacated the former matrimonial home. The parties have one child of the relationship, X, aged four years. The procedural history of this matter is set out in greater detail in the Judgment. As a result, I do not propose to repeat myself and will only refer to the history which is relevant to the issue of costs. On 11 June 2020 the wife filed an Application in a Case seeking the enforcement of final property orders made by consent on 15 January 2020 (“ the Final Orders”) and the parties’ Financial Agreement and Binding Child Support Agreement, both dated 13 January 2020. The husband filed a Response to an Application in a Case on 1 September 2020 in which he conceded some parts of the wife’s application but otherwise raised a raft of new issues separate to those agitated by the wife. On 1 September 2020 the matter came before Hartnett J in the Judicial Duty List. Her Honour made orders largely in the terms sought by the wife in her amended Application in a Case filed 27 August 2020. Further orders were made listing the husband’s Response to Application in a Case to the Judicial Duty List before me on 12 October 2020. On 30 September 2020 Hartnett J made an order that the husband pay the wife’s costs of her Amended Application in a Case filed 27 August 2020 fixed in the sum of $9,500. On 12 October 2020 the husband’s amended Response to an Application in a Case filed 9 September 2020 came before me in the Judicial Duty List. That day I reserved my judgment. On 24 November 2020 I delivered reasons for judgment and made the following orders:-BY CONSENT (1)The husband have leave to withdraw his Response to an Application in a Case filed 1 September 2020.(2)That the wife sign all such documents as may be required to effect her removal as a signatory to the bank accounts in the name of the Husband’s Entities (as defined at recital M to the orders dated 15 January 2020) within 7 days of production of such documents by the husband. BY THE COURT (3)That the husband’s Response to an Application in a Case filed 9 September 2020 be otherwise dismissed.(4)That any party seeking costs must file written submissions within 14 days of these Orders being pronounced.(5)That in the event an application for costs is made pursuant to order 4 herein, any written submissions in response be filed within 28 days from the date of these Orders. In accordance with my orders on 8 December 2020 the wife filed written submissions seeking orders that the husband pay her costs of and incidental to the hearing before me on 12 October 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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