Colgate Palmolive Co v Cussons Pty Ltd

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 of Danielsen & Ticha (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Mr Danielsen ("the applicant"), makes an application for the costs of and incidental to his Application filed 16 September 2024 on an indemnity basis and fixed in the sum of $34,996.
2. Orders were subsequently made for the parties to file written submissions in respect of the costs application. The applicant has filed submissions. Ms Ticha ("the respondent"), as was the case in the substantive hearing, has not participated and has not filed submissions.

1. The applicant and respondent were in a de facto relationship between 2004 and 2022.
2. The parties settled property matters by an Application for Consent Orders signed by each respectively on 10 October and 11 October 2023. Both parties were represented by solicitors who duly completed the Statements of Independent Legal Advice on the Application.
3. The Application for Consent Orders mistakenly disclosed a number of CBA accounts purportedly to be held solely by the husband including relevantly an account ending in #...33 where the evidence now shows that this account was held in the joint names of the parties.
4. The application proceeded to the Consent Orders being made by Deputy Registrar on 6 November 2023 without either party rectifying the error in respect of the bank accounts.
5. The applicant deposed that the relevant bank account at the date of the Orders held a balance of $0.55 cents and therefore de minimis in respect of the property settlement generally.
6. The Consent Orders of 6 November 2023 provided inter alia for the sale of a jointly owned property at Suburb B in Victoria. The Orders also provided for the disbursement of the proceeds of sale.
7. The applicant deposed that he incorrectly understood the joint CBA #...33 to be an account in his sole name. Consequently, from 10 January 2024 he transferred monies into that account including his entitlement from the proceeds of sale. He personally utilised that account. As of 13 December 2024 the applicant had accumulated a balance in that account of $258,780.33. It was clear on the evidence that the respondent had made no contributions to that account since the making of the final orders in November 2023.
8. From December 2024 the applicant became aware that there had been a significant withdrawal of $129,390 from the relevant account ending #...33. The Bank confirmed that the withdrawal been made by the respondent on the basis that the account remained held in joint names. The Bank could not therefore reverse the transaction. The Bank did, however, identify a contemporaneous deposit being made to the respondent's personal bank account.
9. Subsequently, a review of his statements showed the applicant that the respondent had made further withdrawals on 1 January 2024 and 22 April 2024 with the total withdrawals by the respondent being $132,530.
10. The applicant sought repayment from the respondent. He received no response.
11. The applicant understands the respondent to now reside in the United Kingdom and have no assets in Australia.
12. The applicant's application before this Court effectively sought enforcement of the property Consent Orders pursuant to s 105 of the Family Law Act 1975 (Cth) ("the Act") and rule 11.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
13. The Application proceeded undefended the respondent and orders were ultimately made. Hence, the applicant now seeks his costs on an indemnity basis.

1. Matters of costs are dealt with pursuant to s 117 of the Act where at subsection (1) there is a general rule that each party to proceedings in this Court will bear their own costs.
2. However, s 117(2) enlivens a discretion in the Court to make an award for costs to a party if there are "justifying" circumstances. It is well established that the term justifying circumstances is not to be read as synonymous with extraordinary circumstances. In determining whether there should be a justifying circumstance and whether there should be an order for costs the Court is mandated to consider the factors at s 117(2A) of the Act.
3. Rule 12.17(1) provides that the Court may make an order that a party is entitled to costs on any of the following bases:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.

1. In considering the factors set out at s 117(2A) it may be sufficient for one factor to be present.[1]
2. The Court is to consider the financial circumstances of the parties. Importantly, impecuniosity is not a bar to making a costs order.[2]
3. The applicant deposes to modest financial circumstances. Relevantly, where the respondent is alleged to have transferred $330,000 cash to the United Kingdom as recently as 20 December 2024, there is a strong inference that she has the capacity to meet any costs order.
4. The conduct of the parties to the proceedings is relevant. In this matter the applicant deposes to having sought to negotiate a settlement of the matter by way of a return of his monies from the respondent. She ignored his requests and thereby necessitated the applicant bringing proceedings in this Court which were, of course, ultimately successful. The respondent filed no Response. The respondent did not appear at the substantive hearing.
5. Effectively, the respondent did not comply with the Consent Orders entered into by the parties on 6 November 2023 and again necessitating the Application to this Court. Opportunistically the respondent essentially retained 100 per cent of the net proceeds of the sale to the Suburb B property being far over and above her entitlement.
6. The applicant has been wholly successful in his Application.
7. By reason of the Orders I now make, the applicant has been wholly successful in this Application.
8. The background facts are relevant to this consideration as to whether or not there are justifying circumstances for an award costs. The evidence is clear that the respondent was opportunistic in taking financial advantage of the applicant's mistaken belief as to the account being held solely in his name. The respondent's behaviour in removing the money from the account and then offshore has been deliberate and calculated. The respondent has not attended the applicant's reasonable requests for the transactions to be rectified. The respondent's intent is manifested in her failure to participate in the substantive proceedings.
9. Taking all these matters into account I am persuaded that there are justifying circumstances and that the applicant should have his costs of the Application.

1. The applicant seeks that his costs be paid on an indemnity basis. It is well established that the Court will not lightly make an order for costs on an indemnity basis but that there should be circumstances of some exceptional kind to justify such an order.[3] An examination of the relevant authority suggest that there should be some "special or unusual feature" to justify a court departing from the ordinary practice of party/party costs. In Munday v Bowman[4] Holden CJ assisted by providing some, albeit not exhaustive, examples of circumstances warranting an order for indemnity costs.
2. It is clear, however, that the consideration should be on a case-by-case basis.
3. It is also clear that particular conduct by a party may be relevant to an award for indemnity costs.[5]
4. In this matter, I find that the respondent has acted opportunistically. She has refused reasonable requests to rectify the circumstances. She has failed to file a Response or participate in the proceedings. She has been completely unsuccessful. These are all circumstances, singularly or cumulatively, that, in my view, give the "special or unusual" features to this matter which justifies the Court departing from the ordinary practice in respect of costs. The applicant will therefore have his costs on an indemnity basis set in the quantum of $34,996.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.

[1] PBF as Child representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.

[2] Nada & Nettle (Costs) (2014) FamCAFC 207; (2014) FLC 93-612.

[3] Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536.

[5] Tuck v Tuck (1981) FLC 91-021; Johnson v Johnson (No. 2) (Costs) [1999] FamCA 959; (2000) FLC 93-040.