FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moretto & Cosola (No 3) [2023] FedCFamC1F 360
File number(s): PAC 3192 of 2019 Judgment of: SCHONELL J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant sought a costs order against the respondent following a final hearing in which the respondent was wholly unsuccessful – Where the respondent opposed the costs order – Where the circumstances are not exceptional to warrant an indemnity costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the applicant made offers that were rejected – Costs ordered on a party/party basis as agreed or assessed. Legislation: Family Law Act 1975 (Cth) ss 90SM, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Colgate Palmolive Company and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Moretto & Cosola (No 2) [2022] FedCFamC1F 924
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submissions: 28 April 2023 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Mr Wahhab, York Law Solicitor for the Respondent: Ms Punjabi, Michael Vassili Barristers & Solicitors ORDERS
PAC 3192 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORETTO
Applicant
AND: MS COSOLA
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs as agreed or assessed of the hearing held on 12 and 13 October 2022 including the cost of any preparation for such hearing from 1 October 2022 on a party/party basis.
2.The respondent pay the applicant’s costs as agreed or assessed of the Application in a Proceeding filed 22 December 2022 on a party/party basis.
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…
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- Moretto & Cosola (No 3) [2023] FedCFamC1F 360
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- [2023] FedCFamC1F 360
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CaseChat Overview and Summary
The court needed to determine whether the respondent’s conduct during the proceedings warranted an adjustive costs order. Specifically, the court had to consider whether Cosola’s actions were consistent with the overarching purpose of the Family Law Act, which requires parties to conduct themselves in a manner that is conducive to the just, expeditious, and economical resolution of the real issues. The court also had to assess the reasonableness of the offers made by Moretto and whether Cosola's refusal to accept these offers was justified.
In reaching its decision, the court found that Moretto had made prudent and reasonable settlement offers aimed at avoiding the costs and risks of prolonged litigation. The court was satisfied that these offers should not have been rejected, especially given that the pool was reasonably certain by the time Cosola had the updated valuation. Cosola’s decision to proceed with the litigation despite being aware of the risks was deemed unreasonable. Consequently, the court determined that an adjustive costs order was warranted. However, the court was not convinced that the circumstances justified an order for the entirety of the proceedings. Instead, the court decided that it was appropriate to order that Cosola pay Moretto's costs from 1 October 2022, the date from which Cosola had the updated valuation and should have been aware of the litigation risks.
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