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 Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Following the making of interlocutory financial orders on 4 April 2025, on 9 April 2025 the husband filed a Notice of Appeal. By Application in a Proceeding filed 14 April 2025, the husband sought a stay of the interlocutory financial orders ("the stay application"). The stay application was heard on 16 April 2025 and by reasons delivered 29 April 2025, the application for stay was dismissed. The husband subsequently abandoned the appeal.
2. The wife seeks to be compensated for the unnecessary costs incurred by her in defending the stay application. The wife seeks her costs on an indemnity basis which, in accordance with written submissions filed on her behalf on 21 July 2025, are said to total $15,757.50 whereas on a party/party basis in accordance with scale, they are said to total $13,592.36.
3. On 5 September 2025, the husband was directed to file and serve within ten days any written submissions limited to ten pages replying to the wife's written submissions. The husband has failed to comply with that order.
4. The context to the wife's application for costs and in particular the husband's application for a stay is provided in the reasons for judgment recorded as Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267.

1. An application for costs is governed by the provisions of s 114UB of the Family Law Act 1975 (Cth) ("the Act") which provides a general rule that each party to the proceedings should bear their own costs. Pursuant to s 114UB(2) of the Act, the Court may, in its discretion, make such order as to costs as the circumstances justify having regard to the matters set out in s 114UB(3) of the Act.
2. No one factor in the list of factors pursuant to s 114UB(3) of the Act is determinative and the Court may give such weight as it considers relevant to any factor. In Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130, the Full Court observed in relation to the predecessor to the section (which is in almost identical terms) the following:
   1. ... Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
3. Addressing the matters under s 114UB(3) of the Act as are relevant, I find as follows.

(a) The financial circumstances of each party to the proceedings

1. Each of the parties has filed Financial Statements and each make contentions against the other of non-disclosure.
2. The reasons for judgment in Eccheli & Eccheli (No 7) [2025] FedCFamC1F 333 and Eccheli & Eccheli (No 11) [2025] FedCFamC1F 671 lend force to the submission that the husband's financial circumstances are less than opaque. I do not accept as a consequence of his failure to comply with orders and his failure to comply with his disclosure obligations that his financial circumstances are as dire as he would profess them to be.

1. I am satisfied that the wife was put to unnecessary cost in having to deal with the husband's stay application which was shortly thereafter rendered pointless when he abandoned his appeal.

(g) Any other matter the court considers relevant

1. I am satisfied that the husband's conduct in bringing an unnecessary application has put the wife to unnecessary costs. I am satisfied that the wife is entitled to be compensated for successfully opposing an application and to then have the husband abandon the appeal. It gives rise to an arguable inference that the appeal was merely a device to delay compliance with the Court's order.
2. The authorities make plain that an order for indemnity costs is not one that is lightly made, and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340). Justice Sheppard in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 identified various guidelines as to the circumstances in which a court might entertain an order for indemnity costs. The category of cases in which a court may make an indemnity costs order are not closed and are not limited to those identified by Sheppard J (Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at 87,471).
3. I am not satisfied that the circumstances here are exceptional. The wife should be compensated for the cost she has incurred, but not on an indemnity basis.
4. I have reviewed the wife's costs schedules and fees agreements. I am satisfied that it is proper that an order be made that the costs be paid in a fixed sum. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and authorities make plain that I can fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126; Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892). I propose to adopt the approach taken by the Full Court in Warbrick and Warbrick (No. 2) (2021) FLC 94-030 ("Warbrick") where the Full Court observed that it did "not intend to permit the costs question to become, in effect, satellite litigation" and would fix the costs amount.
5. I am satisfied that the observations of the Full Court in Warbrick are apposite here. I am more than comfortably satisfied that to leave the determination of the costs issue to one that was to be agreed or assessed would be to embroil these parties in further conflict and litigation. That, to an extent, is unavoidable in circumstances where there is ongoing litigation. I do not, however, propose to permit it to extend any further than is necessary.
6. I fix the wife's costs payable by the husband in the sum of $13,000 and am satisfied that such sum should be paid within 60 days of the making of this order.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.