Beroni & Corelli [2025] FedCFamC1A 236 (18 December 2025)

1. This ground is repetitive of earlier grounds going to the complaint that the primary judge failed to give adequate reasons for ordering the husband to pay costs.
2. The ground also complains of a separate issue being that the primary judge failed to engage with the case put by the husband as to costs. That complaint is not supported on a proper reading of the whole of the costs judgment.
3. There is no error.

To the extent that paragraph [1] of the Orders made by the learned [primary] judge on 9 July 2025 is to be read, or interpreted, as subject to paragraph [39] of her [H]onour's reasons, her [H]onour erred in law and principle in failing to order that the husband pay costs incurred by her between 16 May 2016 to 2 December 2019 relating to the section 90SM application, distinct from the costs incurred and awarded in respect of the application to set aside the binding financial agreement pursuant to section 90UM (filed by her on 16 May 2016 and order on the application for costs of that application having been made by the Honourable Justice Tree on 13 May 2020)._**

1. In considering the costs orders as made by Tree J, the primary judge said as follows:[11]
   1. I find that the question of the applicant's costs of and incidental to her application to set aside the binding financial agreement between the parties dated 7 April 2011 was determined by Justice Tree by orders of 13 May 2020 and 22 June 2020 which order provided for costs to be assessed on a party party basis. Subsequent to those orders the parties agreed the quantum of the costs and to a consent order providing for payment of $488,034.77 in full satisfaction, which payment was made by the respondent.
   2. It may be that costs other than those related to that part of the proceedings with respect to the binding financial agreement were incurred by the applicant during the period of 16 May 2016 to 2 December 2019. I am not satisfied on the material before me that there are circumstances that justify the making of an order for costs relating to legal fees incurred by the applicant during that period.
   3. The matter was complex, the parties financial circumstances and the history of their personal and financial relationship was complex, and it was unsurprising that notwithstanding ongoing negotiation the parties were unable to reach agreement. During this period of time offers and counteroffers were made by both parties to settle the matter and interim agreement was reached with respect to financial arrangements to be put in place upon the applicant's vacation of the respondent's home on 13 December 2016. I find that the offers and counteroffers were what would normally be expected in a matter where a wide range of outcomes may reasonably have been expected at that time with respect to final orders.
   4. The obstructive approach of the respondent to the question of the validity or otherwise of the binding financial agreement was dealt with by a significant costs order against him as made by Justice Tree on 13 May 2020.
   5. I find further that there are no circumstances that justify the court revisiting His Honour's determination and the consent orders between the parties following upon that determination.
2. The wife submitted that, if Order 1(a) of the appealed orders is to be read down by reference to [39] of the costs judgment, that Order is challenged by her. We are of the view that Order 1(a) is to be qualified by [39] of the costs judgment.
3. In the orders made 6 October 2017 by Tree J was an order for bifurcation of the application to set aside the BFA from the substantive property proceedings application. A significant costs order was ultimately made, as described above, in respect of the setting aside of the BFA.
4. On 16 May 2016, the proceedings commenced. The setting aside of the BFA was the first matter to be considered. There would be no further application and associated work necessary were that application unsuccessful.
5. In the interim judgment delivered 13 October 2021, the primary judge, relevantly, said the following:[12]
   1. As at 21 February 2020 the [wife] was indebted to her solicitors, according to her financial statement, in the sum of $476,734.

...

1. If the applicant was indebted to her solicitors as at 21 February 2020 in the sum of $476,734, the Court can only assume that such indebtedness arose with respect to work undertaken on behalf of the applicant with respect to the application to set aside the BFA, in respect of which judgment was delivered on 2 December 2019. The applicant adduced no evidence as to any anticipated fees with respect to her substantive application.

1. Prior to the costs orders made by Tree J, the general principle applied that each of the parties bore his or her own costs, unless there were justifying circumstances to make an order for costs that the Court considered just. The primary judge was satisfied of no such circumstances on the material before her, as clearly stated by her in [39] of the costs judgment above. To find as she did, the primary judge was exercising her broad discretion as to costs.
2. There is no mistake of fact, or failure to take into account a material consideration, or a result which is unreasonable or unjust as submitted by the husband.[13]
3. There is no error.

The learned [primary] judge erred as a matter of law, principle and or discretion, in not awarding the wife indemnity costs for the entirety of the proceedings (including that part of the proceedings covered by the Order of the Honourable Justice Tree on 2 December 2019) having regard to the following:

a. the Order of the Honourable Justice Tree made on 13 May 2020 was necessarily provisional or interim only as a final determination of costs covered by the order depended upon the outcome of the section 90SM application;

b. the failure to adequately take into account the husband's imprudent refusal to accept the offers of settlement made by the wife between 13 December 2016 and 28 February 2018;

c. the failure to take into account that, in refusing the wife's offers of settlement, the husband was simply relying on his superior wealth in circumstances where legal costs were of no particular concern to him;

d. the failure to adequately take into account that the history of offers made by the husband demonstrated that, at no time, did the husband make any offer which approached the quantum of property settlement ordered in the primary judgment and including the failure to take into account the derisory nature an offer made by the husband that he pay her $1 made on 12 September 2017;

e. the failure to take into account the evidence of the husband that the case was not about the money, but about a matter of principle, and failing to find that the husband did not thereby comply with the duty imposed upon him by Core Principle 2 of the Central Practice Direction, and apply Core Principle 6 (a) to indemnify the wife for the husband's non-compliance;

f. the failure to give adequate weight to the disparity in the parties' financial circumstances.

g. the failure to take into account the course of conduct of the husband since the commencement of the proceedings demonstrating a clear determination on his part to deny the wife her lawful entitlement;

h. the failure to address the husband's conduct of the action both during the proceedings to set aside the Binding Financial Agreement purportedly made pursuant to Section 90C and the substantive proceedings in continuing to oppose any orders being made in the wife's favour;

i. the failure to take into account the fact that the wife was wholly successful in securing a property adjustment in her favour and that the husband was wholly unsuccessful._**

1. Ground 3(e) was not pressed.
2. The sub-grounds of Ground 3 all depend upon a complaint that the wife should have been awarded costs on an indemnity, and not on a party/party, basis.
3. The Full Court has repeatedly emphasised that an indemnity costs order should only be made in "exceptional" cases.[14] The existence of particular facts and circumstances capable of warranting the making of an order for payment of costs on an indemnity basis does not mean that judges are necessarily obliged to exercise their discretion to make such an order. Costs are always in the discretion of the primary judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the case, its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.[15]

1. The costs judgment of Tree J considered the wife's claim on its merits, including the wife's application for indemnity costs as against the husband on the grounds of his alleged imprudent and/or unreasonable conduct, and his otherwise general conduct in his approach to the litigation, and refused to make an indemnity costs order. Rather, Tree J made an order for party/party costs which have been paid. The orders made, and the judgment in support of those orders, were not challenged on appeal by the wife. The orders were final and complied with.
2. The primary judge, in the exercise of her discretion, found "no circumstances that justif[ied] the Court revisiting" the determination of Tree J and the consent orders between the parties following that determination. The primary judge's adequate reasons at [37] to [42] of the costs judgment set out the basis for her consideration of, and conclusions in respect of, the matter. While it may have been open for the primary judge to reconsider the costs as ordered by Tree J, the primary judge, in the exercise of her discretion, determined not to.

1. These grounds contain a complaint that the primary judge gave insufficient weight to the alleged 'reasonableness' of offers of settlement made by the wife, and the husband's alleged 'unreasonableness' or 'imprudence' in refusing to accept same. There is also complaint that the primary judge failed to give adequate weight to the disparate financial circumstances of the parties in the indemnity costs discretion exercise. These grounds contain challenges to the weight afforded to particular matters by the primary judge and are phrased as failing to afford "adequate weight" and challenges of "failing to take into account" and failing to "adequately take into account". These grounds are also said (when combining Grounds 3(c) and 3(f)) to be a complaint about the husband's conduct in the context of the parties' vastly different financial circumstances.
2. Complaints as to weight in the context of a discretionary decision, where the primary judge did consider the relevant issues but afforded differing weight to those issues, does not signal appellable error.[16]
3. The primary judge did consider the conduct of the parties and the impact of that conduct. In particular, she did so in the context of their "disparate financial positions" in [82] to [88] of the costs judgment. The primary judge specifically did not criticise the conduct of the parties where "the facts were unusual and complex" (at [88]). The primary judge determined that the wife achieved an outcome of "significantly less magnitude than [she] sought in her application", as described by her at [74] of the costs judgment.
4. The primary judge determined that the husband was wholly unsuccessful in his pursuit of the dismissal of the wife's claim.
5. The primary judge was also "not satisfied that at the commencement of trial there was no reasonable likelihood on the part of either part[y] successfully prosecuting the proceedings initiated by the [wife] and responded to by the [husband]" (at [91]).
6. These matters played into the exercise of the primary judge's discretion as to the making of any order for costs, and on what basis. The primary judge determined to make an order for costs against the husband. No appellable error attended that exercise.

1. The substance of these grounds are expressed to be a failure of the primary judge to address a material consideration, being the conduct of the husband in the proceedings, particularly in his attempt to obtain an order resulting in no payment whatsoever to the wife.
2. In those circumstances, the wife argued, the primary judge fell into error in not finding that the husband's course of conduct throughout the proceedings was designedly intransigent and oppressive to the wife in a manner calculated and intended to deny the wife the relief to which she was entitled under the Act; and further, in not having regard to that aspect of the husband's conduct as supporting an award of indemnity costs.
3. This again, however, was a complaint as to the primary judge's weighing of factors the wife asserted of high priority in the costs determination, being allegations about the husband's motivation in defending the property proceedings, but which the primary judge did not weigh in the same degree. The primary judge was not satisfied at the commencement of the trial that "there was no reasonable likelihood on the part of either part[y] successfully prosecuting the proceedings initiated by the [wife] and responded to by the [husband]" (at [91]) insofar as that statement applied to the husband, and further found that the husband was not unreasonable in defending the property settlement proceedings at trial as he did. Moreover, the primary judge considered the dispute between the parties could only be determined at trial after a testing of the evidence.
4. The primary judge otherwise did expressly consider the husband's unsuccessful outcome in the trial judgment and afforded it such weight as she determined appropriate. The primary judge exercised her discretion and made an award of costs.
5. The wife's complaint is essentially that the primary judge either failed to consider, or did not attribute sufficient weight to, the mandatory factors under s 117(2A) of the Act and, as a result, the primary judge erred in awarding the wife party/party costs as opposed to indemnity costs. That complaint is not made out. The weighing of the factors under s 117(2A) of the Act, and the costs order which resulted from the weighing and consideration of those factors, is one that fell within the primary judge's wide scope of discretion.

1. This is a repetitive ground. The primary judge did consider such matters, as is referred to above, and did take them into account, although she did not consider the wife to have been wholly successful given the magnitude of the wife's claim in respect of which the wife fell short.
2. There is no merit in Ground 3 of the cross-appeal.

1. There is no merit in Grounds 1 to 5 of the appeal, nor is there any merit in Grounds 2 and 3 of the cross-appeal. It follows that both the husband's Notice of Appeal filed 6 August 2025, as amended 9 September 2025, and the wife's Notice of Cross-Appeal filed 19 August 2025 should be dismissed with no orders as to costs.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren and Justices Hartnett & Curran.

[1] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [128].

[2] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [3].

[3] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [150].

[4] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [174].

[5] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [211].

[6] Corelli & Beroni (No 3) [2024] FedCFamC1F 327 at [351].

[7] Penfold v Penfold (1980) 28 ALR 213 at 216, quoted in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605.

[8] Husband's Summary of Argument on Appeal filed 10 October 2025 at [11].

[9] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18.

[10] House v The King (1936) 55 CLR 499.

[11] Corelli & Beroni (Costs) (No 4) [2025] FedCFamC1F 347 at [38]- [42].

[12] Corelli & Beroni [2021] FedCFamC1F 125.

[13] House v The King (1936) 55 CLR 499.

[14] Withers & Russell (No 2) [2022] FedCFamC1A 197; Kohan & Kohan [(993) FLC 92-340; Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664; Galbadon & Galbadon [2015] FamCAFC 59.

[15] Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225.

[16] House v The King (1936) 55 CLR 499.