Cosio & Cosio (No 2)

[2022] FedCFamC1A 212

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Cosio & Cosio (No 2) [2022] FedCFamC1A 212

Appeal from:	Cosio & Cosio [2022] FedCFamC2F 987
Appeal number(s):	NAA 179 of 2022
File number(s):	SYC 6131 of 2019
Judgment of:	TREE J
Date of judgment:	14 December 2022
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the husband’s appeal from final property settlement orders was allowed – Where the matter was remitted for rehearing – Where the parties were given an opportunity to file further material on the question of costs – Where each party seeks an order for costs in their favour following the success of the appeal – Offers of settlement – Where the wife’s refusal to concede the materiality of the conceded factual error precluded a costs order in her favour – Wife’s application for costs dismissed – Costs ordered in favour of husband in sum claimed.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Cosio & Cosio [2022] FedCFamC1A 187
Number of paragraphs:	11
Date of last submissions:	13 December 2022
Date of hearing:	Determined on the papers
Place:	In Chambers
The Appellant:	Self-represented litigant
Solicitor for the Respondent:	Marsdens Law Group

ORDERS

NAA 179 of 2022
SYC 6131 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR COSIO

Appellant

AND:

MS COSIO

Respondent

order made by:	TREE J
DATE OF ORDER:	14 DECEMBER 2022

THE COURT ORDERS THAT:

1.The respondent is to pay the appellant’s costs in the sum of $3,322.11 within 28 days.

2.The wife’s application for costs is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cosio & Cosio (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

1. On 16 November 2022, for reasons then delivered, I allowed the appellant husband’s appeal from final property settlement orders made by the primary judge on 2 August 2022, and remitted the matter for rehearing (Cosio & Cosio [2022] FedCFamC1A 187). Earlier, at the conclusion of the appeal hearing, in the event the appeal succeeded, the husband had sought an order for his costs against the respondent wife. On that scenario, the wife opposed any order for costs against her, and sought to put on some further evidence. My 16 November 2022 orders therefore gave the parties an opportunity to file further material, after which my decision in relation to the question of costs would be reserved.

2. From the written submissions filed, it transpires that in fact each party seeks an order for costs in their favour following the success of the appeal. The husband seeks that the wife pay his costs (comprising disbursements only) in the sum of $3,322.11; the wife seeks that the husband pay her costs on an indemnity basis in the sum of $35,095.50.

3. For the reasons that follow, the wife will be ordered to pay the husband’s costs as claimed within 28 days.

   the appeal

4. The husband’s Notice of Appeal ran to 22 grounds, almost all of which contained numerous sub-grounds, and only some of which were abandoned during argument. Ultimately the appeal succeeded on one ground which alleged an error of fact. Although the wife conceded the error before me, she maintained that it was not material. In my 16 November 2022 reasons I accepted that the primary judge had indeed so erred, and explained why that error was material. However since the matter had to be remitted for rehearing, the vast majority of the other grounds did not need to be determined.

   the costs applications

5. Whilst the default position established by s 117(1) of the Family Law Act 1975 (Cth) is that each party should bear their own costs, s 117(2) permits a court to make such costs order as it considers just if there are circumstances which justify doing so. Section 117(2A) then lists considerations which the court must have regard to in determining whether to make a costs order.

6. For his part, the husband now says that not only did he succeed in the appeal, but the wife unreasonably rejected his earlier attempts to relist the matter before the primary judge in order that the error on which the appeal succeeded could be rectified, and hence obviate the need to appeal.

7. For her part, the wife points to the breadth of the husband’s many grounds of appeal, that during the hearing 8 grounds were abandoned by the husband and says that, together with her lower income, her reasonable conduct of the appeal, and an offer to dismiss the appeal in exchange for a reduction in the amount which the husband had to pay her, militates in favour of the costs order she seeks.

8. In my view a critical matter is that the wife, as it transpired unsuccessfully, contended that the conceded error was not material. Had she not done so, the appeal could have been conceded at an early stage, and the costs she thereafter incurred thereby avoided, including the costs occasioned by virtue of the sheer number of the grounds which the husband advanced. In my view, that precludes a costs order in her favour at all, much less an indemnity costs order.

9. Turning then to the husband’s application, I do not need to consider whether the wife’s refusal to relist the matter before the primary judge was “a relevant delinquency…warranting an order for costs” (husband’s submissions filed 22 November 2022, paragraph 9) because in my view, the wife’s refusal to concede the materiality of the conceded factual error of itself is a consideration which, in this case, balancing all the relevant matters, tips the scales in favour of an order for costs. Whilst, had the husband sought his costs referrable to the abandoned grounds, or those grounds which did not need to be determined, there may have been a need to reduce them, as it transpires his claim only extends to the cost of transcript and service.

10. In so concluding I do not overlook the wife’s offer, but it seems to me that the modest reduction of the amount the husband had to pay her, does not enable me to conclude that the husband could have settled for the same, or a better outcome, than he achieved in the appeal.

    outcome

11. The wife should pay the husband’s costs as claimed within 28 days.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       14 December 2022