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Cosio & Cosio (No 5)

Cosio & Cosio (No 5)

Case [2024] FedCFamC1A 205 5 November 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cosio & Cosio (No 5) [2024] FedCFamC1A 205

Appeal from: Cosio & Cosio (No 3) [2024] FedCFamC2F 260

Appeal number: NAA 71 of 2024

File number: SYC 6131 of 2019

Judgment of: SCHONELL J

Date of judgment: 5 November 2024

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant was wholly unsuccessful – Where the respondent sought costs against the appellant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $17,000.

Legislation:
Evidence Act 1995 (Cth) s 131(2)(h)

Family Law Act 1975 (Cth) s 117

Cases cited:
Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248

Kohan and Kohan (1993) FLC 92-340

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Number of paragraphs: 28

Date of last submissions: 22 October 2024

Date of hearing: In chambers

Place: Sydney, in chambers

The Appellant: Litigant in person

Counsel for the Respondent: Ms McMahon

Solicitor for the Respondent: Marsdens Law Group

ORDERS

NAA 71 of 2024
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:

SCHONELL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The appellant to pay the respondent’s costs fixed in the sum of $17,000 such sum to be paid within 42 days.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

On 6 September 2024, the Full Court dismissed the appellant’s Further Amended Notice of Appeal filed 31 May 2024. As a consequence of the…

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 Cosio & Cosio (No 5)

Details

AGLC: Cosio & Cosio (No 5) [2024] FedCFamC1A 205
Case: [2024] FedCFamC1A 205
Decision Date: 5 November 2024

CaseChat Overview and Summary

The matter before the court involved an appeal by Mr Cosio against a costs order made in his favour. The respondent, Ms Cosio, had sought a costs order against Mr Cosio after he was wholly unsuccessful in his appeal. Ms Cosio sought costs on an indemnity basis or, in the alternative, costs in accordance with the scale. The Federal Circuit and Family Court of Australia, exercising its appellate jurisdiction, was tasked with determining the appropriate costs order.

The legal issues for the court's consideration included whether there were exceptional circumstances that warranted an indemnity costs order under section 117(2A) of the Family Law Act 1975 (Cth). The court examined relevant factors, including the nature of the proceedings, the conduct of the parties, and any other relevant circumstances. Given the outcome of the appeal, the court was required to decide on the appropriate costs order to be made against Mr Cosio.

Schonell J, in delivering the judgment, found that while there were no exceptional circumstances warranting indemnity costs, the conduct of Mr Cosio warranted a costs order against him. The court considered the nature of the proceedings and Mr Cosio's conduct, ultimately determining that fixed costs of $17,000 were appropriate. This sum was fixed taking into account the scale of costs applicable to the proceedings. The court did not order indemnity costs but recognised that a significant fixed sum was warranted due to the wholly unsuccessful nature of the appeal.

The court made an order that Mr Cosio pay Ms Cosio’s costs in the fixed sum of $17,000, to be paid within 42 days. This order was subject to review and potential variation in accordance with the rules of the Federal Circuit and Family Court of Australia.

Orders

Orders of the court

NAA 71 of 2024

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:

SCHONELL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The appellant to pay the respondent’s costs fixed in the sum of $17,000 such sum to be paid within 42 days.

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).

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

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

Full text does not contain this section.

Citations

AGLC Citation

Cosio & Cosio (No 5) [2024] FedCFamC1A 205

Most Recent Citation

Cosio & Cosio (No 6) [2025] FedCFamC1A 149

Cases citing this decision · 1 of 1 shown

Cosio & Cosio (No 6)
[2025] FedCFamC1A 149 Para 18

…Schonell J, sitting in the appellate jurisdiction, ordered the appellant to pay the respondent’s costs of the second appeal (Cosio and Cosio (No 5) [2024] FedCFamC1A 205).…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Cosio & Cosio (No 4)
[2024] FedCFamC1A 149 Para 3

…application for costs needs to be seen in the context of the reasons for judgment delivered 6 September 2024 and published as Cosio & Cosio (No 4) [2024] FedCFamC1A 149.…
Warbrick & Warbrick (No. 2)
[2021] FamCAFC 101

…) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681 Number of paragraphs: 28 Date of last submissions: 22 October 2024 Date of hearin…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 19

…and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534 ; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370. Indemnity costs orders are still an exception in this and other jurisdictions.…
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another
[2005] FamCA 158

…n and Kohan (1993) FLC 92-340 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101 Yunghanns & Ors v Yunghanns & Ors and Yunghann…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 20

…Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in…
Yunghanns v Yunghanns
[2000] FamCA 681

…arbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681 Number of paragraphs: 28 Date of last submissions: 22 October 2024 Date of hearing: In chambers Place: Sydney, in chambers The Appellant: Litigant in person Counsel…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 20

…Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed at 256–257: It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, ie litigation as between parties at…
Penfold v Penfold
[1980] HCA 4

…ve for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681 Number of par…
Thors v Weekes
[1989] FCA 795 Para 20

…alse and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were com…
Maitland Hospital v Fisher
268 ALR 1 Para 20

…Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed at 256–257: It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, ie litigation as b…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 20

…ation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
131(2)(h) 2 mentions (from Para 13)
Family Law Act 1975 (Cth)
117 2 mentions (from Para 5)

NAA 71 of 2024 SYC 6131 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR COSIO Appellant
AND:	MS COSIO Respondent

Appeal from:		Cosio & Cosio (No 3) [2024] FedCFamC2F 260
Appeal number:		NAA 71 of 2024
File number:	SYC 6131 of 2019
Judgment of:	SCHONELL J
Date of judgment:	5 November 2024
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant was wholly unsuccessful – Where the respondent sought costs against the appellant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $17,000.
Legislation:	Evidence Act 1995 (Cth) s 131(2)(h) Family Law Act 1975 (Cth) s 117
Cases cited:	Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 Kohan and Kohan (1993) FLC 92-340 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FamCAFC 101 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Number of paragraphs:	28
Date of last submissions:	22 October 2024
Date of hearing:	In chambers
Place:	Sydney, in chambers
The Appellant:		Litigant in person
Counsel for the Respondent:		Ms McMahon
Solicitor for the Respondent:		Marsdens Law Group

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	5 NOVEMBER 2024