Colgate-Palmolive Co v Cussons Pty Ltd

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

1. Ms Leticia ("the wife") is the applicant seeking costs following a nine day trial in respect of both parenting and property matters commenced on 16 December 2024 and concluded by my judgment delivered 12 September 2025.
2. The wife's application filed 21 October 2025 seeks costs alternatively on an indemnity basis in the sum of $227,979 or otherwise pursuant to the scale set in the Federal Circuit Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") in a sum of $153,717.95, or further and alternatively, that such costs be fixed by the Court pursuant to rule 12.17(1)(a) of the Rules.
3. The application is opposed by the respondent, Mr Anjan ("the husband"), who argues that each of the parties be responsible for his and her own legal costs save that he himself seeks costs of a discrete court event being his successful application to re-open or adduce further evidence such orders made against opposition from the wife.

1. The Family Law Act 1975 (Cth) ("the Act") provides for costs at Part XIVC where at s 114UB there sits a general provision:

subject to subsection (2) of this section, subsection 102QAB(6) and sections 114UB and 114UE, each party to proceedings under this Act is to bear the party's own costs.

1. That general provision is, however, subject at s 114UB(2) to a discretion being enabled in the Court to make an award for costs to a party if there are justifying circumstances in doing so. It is well-established that the term "justifying" circumstances is not to be read as synonymous with "exceptional" circumstances.
2. Section 114UB(3) makes mandatory the Court's consideration of the following in respect of what, if any, order the Court should make and in respect, therefore, to the finding of justifying circumstances:

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

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. Where it is necessary for the Court to make a finding of justifying circumstances pursuant to s 114UB(2), the Court is not required to specify the circumstances which justify the making of such an order.[1]
2. The Rules provide at 12.08(1):

(1) The legal costs incurred in a proceeding must be:

(a) fairly, reasonably and proportionately incurred; and

(b) fair, reasonable and proportionate in amount;

1. Rule 12.17 provides in respect of the method of calculation of costs as follows:

(1) The court may order that a party is entitled to costs:

(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.

(2) If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.

(3) In making an order under subrule (1), the court may consider the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable proceedings;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceeding, or in complying with pre‑action procedures;

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. The wife, consistent with the Court Child Expert's recommendations, sought no detailed orders for time-with between the child X born in 2012 (aged 12 years) and the husband and where there had been no effective relationship between the child and her father for some considerable time. The husband, however, persisted with an argument for direct and particularised parenting orders in respect of X including for weekly communication and fortnightly direct contact.
2. Ultimately orders were made the in the terms of the recommendations of the Court Child Expert and as argued by the wife for such time to be in accordance with X's wishes.
3. The wife at trial argued for property orders including a cash adjustment to her from the husband of $625,000 plus the benefit of an outstanding intra-family loan of $90,000 giving her a cash entitlement of $715,000 together with essentially each party to retain those assets such as motor vehicles and chattels currently in his or her possession or control.
4. The husband sought no orders for the alteration of the property pool and specifically for no cash adjustment in favour of the wife leaving the assets of the parties in situ.
5. My orders provided inter alia for a cash adjustment from the husband to the wife of $649,235.
6. Relevant to my consideration there appears the following at [157] of my reasons in the substantive matter:
   1. Whilst the Court was provided with numerous documents, the probity of the documents is questionable given my general acceptance of the submission of counsel for the wife that the husband's disclosure has been incomplete and perhaps selective but in any event of little or minimal assistance in the forensic process. I generally found the husband's evidence to be less than candid in its completeness and honesty. My findings are perhaps best understood by the evidence of the fourth respondent in respect of the husband's statement to her that he was providing her with a bank cheque of $100,000 effectively to avoid the scrutiny of the wife and the Court. Within the incomplete forensic exercise, I am comfortably satisfied that many of the husband's numerous transactions between his various entities are of similar ilk.
7. And further at [167]:
   1. The initial task of crystallising and attributing value to the property pool is a complex and difficult one given my acceptance of the submissions of counsel for the wife that the husband's disclosure has been incomplete. ...
8. Further, and in respect of the separate issues of contributions, my comments and findings at [177] - [178] of the substantive proceedings are relevant to the matter now before me and, in particular, where again the husband argued for no orders altering the parties' property:
   1. Consequently, post-separation the husband's unilateral purchases have incurred a loss of $782,264.
   2. The parties' financial circumstances are impacted accordingly and essentially by the additional second mortgage on [Suburb F] of $1,225,165 thereby reducing the equity in that property. The wife has not contributed to this situation. The loss post-separation is wholly a result of the husband's transactions. In this sense he has made a "negative contribution" or caused wastage to the wealth of the parties as it stood at separation and notably then being the equity in the former matrimonial home at [Suburb F]. ...

1. The wife provided and affidavit in support of this costs application and affirmed 10 October 2025. She deposes at [5]:

The total legal fees and disbursements incurred by me in preparation for and participating in the Final Hearing for the period 15 March 2024 to 12 September 2025 was $227,979.

1. She deposes to having entered into a Costs Agreement with her lawyers such an amount grounds her application for costs on an indemnity basis.
2. The wife references at [8] and following her financial circumstances where she deposes to having "...incurred approximately $150,000 in personal loans to pay for my legal expenses, living expenses and children's expenses". The wife deposes at [12] that she does not receive child support and despite my findings that the husband is "...a self-employed businessman with many interests mostly in Tasmania".
3. The wife argues that the husband's conduct of the proceedings is compromised in particular by his failure to make full and frank disclosure and, secondly, that there was evidence and perhaps concessions, as to him endeavouring to move or encumber assets so as to avoid the proper scrutiny of both the wife and this Court.
4. The wife deposes at [16] of a Calderbank offer being made on 6 August 2024 and before the commencement of the trial effectively being for a cash payment by the husband to the wife of $300,000 and each party otherwise retaining the assets in their possession or control.

1. The husband relies on an affidavit filed 29 October 2025.
2. The husband disputes the validity or probity of the wife's asserted Costs Agreement as to its form and content.
3. The husband says that he was "at all times in the final hearing (I) was represented by legal aid".
4. At [6] the husband disputes the wife's assertion that she has been required to obtain loans to meet to her legal costs or, alternatively, that she is required to repay any asserted loans.
5. The husband says that the wife has training as a legal professional but implies that she does not to pursue remunerative employment.
6. The husband says that he is currently the business director of companies referred to in the Substantive Reasons. He says that he is "unable to pay child support".
7. At [7] and in respect of the assertion that he did not make full and final disclosure the husband says:

I refer to paragraphs 13 to 15 of [the wife's] Affidavit. I dispute paragraph 13. At all times, I have produced to the Court, during the hearing through my counsel, all documents requested by Mr Glezakos including full and frank disclosure of cryptocurrency. ...

1. At [10] the husband deposes to disputing the Calderbank offer made by the wife "...was not a genuine offer".
2. At [14] the husband denies the aspects of his conduct referenced above by the wife.
3. Also at [14], the husband argues that he should have his costs (or reimburse Legal Aid) for costs incurred in his application to re-open his case to adduce further evidence during the course of the trial.
4. The husband notes in his affidavit that he is already the subject of adverse costs orders made against him during the preliminary proceedings in the sum of $5,856.25 and noted in my final substantive orders.

1. The applicant wife on the evidence remains unemployed. She does, however, have qualifications as a legal professional. She received a substantial cash adjustment pursuant to the substantive orders. The husband argues that she remains in a relationship with or has some financial benefits from a relationship with a new or former partner.
2. The husband's financial position remains vague and uncertain and as it was to a degree at the trial. The evidence is that he is a prominent business person but where he says his financial successes are thus far limited. He does, of course, have the obligation to meet the substantial cash payment to the wife by reason of the final orders.
3. The husband continues to not make contributions to the dependent child by way of child support.
4. Relevantly, however, the evidence from the trial is that the husband previously deposed to a significant income of more than $200,000 per annum when obtaining a loan which resulted in the second mortgage over the former matrimonial home.
5. I am unable to determine any significant disparity in the financial circumstances of the parties but, in any event, it is well-established that impecuniosity is not a bar to a costs order.[2]
6. The wife is not in receipt of legal aid for this matter. The husband says he was "represented by legal aid" at the final hearing. My understanding, however, is that this was pursuant to an order made under s 102NA of the Act and, in my view, might therefore carry a different status than a qualification for legal aid per se. Relevantly, however, the husband is the 'applicant' for costs only in respect of the discrete application made by him to reopen his case where that application was opposed and the husband, quite properly, seeks any award that might flow to be paid to the Legal Aid Office.
7. I find merit in the wife's argument that the husband's conduct of the proceedings was compromised by his failure to make full and frank disclosure. Indeed, his counsel's submissions in respect of this application are to the effect that the husband complied with any request for disclosure, "during the course of the proceedings" which must necessarily and logically lead me to infer that he had not made full and frank disclosure prior to the commencement of the trial. It follows, therefore, that I find some merit in the submission of counsel for the applicant wife that this piecemeal form of disclosure undoubtedly added to the length of the trial.
8. Specifically, there were issues as to the husband's lack of disclosure which needed to be agitated in the trial and such as my finding that he had disposed of assets and notably a sum of $100,000 to his then partner so as to avoid the scrutiny of both the wife and of this Court. Further transactions of the husband post separation might also fit into this category.
9. Looking at the Application and Response in the substantive proceedings holistically it is clear that the husband was wholly unsuccessful in his Response where he sought no orders for alteration of the parties' property. To the contrary, the wife was substantially successful in her application albeit not achieving a specific order for payment to her of $90,000 outstanding from the husband's brother.
10. I accept that a Calderbank offer was made by the wife prior to the commencement of the trial and that my orders substantially beat that offer.

1. I find, within the exercise of my discretion, that there are circumstances which justify an award of costs for the wife. I place some weight on my findings in the substantive Reasons to the lack of disclosure by the husband and his attempt to hide asset(s) from the scrutiny of the Court. The relevance is, of course, as to the additional time in the conduct of the trial.
2. I also place considerable weight on the fact of the wife's Calderbank offer in respect of the orders she ultimately obtained.
3. Finally, I place weight on the fact of the argument mounted by the husband at the trial of being wholly unsuccessful as against the wife of being substantially successful in the orders that she sought at trial.

1. The wife's application seeks an award on the basis of indemnity costs and in the quantum of $227,979.
2. An award for indemnity costs would compensate the wife for all of the costs incurred "other than costs that are unreasonable in an amount or that have been incurred unreasonably".[3]
3. It is well-established that an order for costs on an indemnity basis requires "exceptional circumstances"[4] and the Court should not lightly depart from the usual practice of costs on a scale or party/party basis. Notably, the starting point for a consideration of indemnity costs should, in my view, be the general rule at s 114UB(1) that each party bear his or her own costs.
4. The leading authority on indemnity costs might remain Colgate-Palmolive Co v Cussons Pty Ltd[5] where the Court assisted by providing a not exhaustive list of circumstances which may justify an order for indemnity costs including:

(a) where it appears that an action has been commenced or continued in circumstances where a party, properly advised, should have known that he or she had no chance of success and perhaps allowing inferences as to ulterior motive or wilful disregard;

(b) making allegations of fraud, knowing them to be false or irrelevant;

(c) there being evidence of the particular misconduct of a party causing a loss of time to the Court and/or the other party;

(d) the making of allegations which ought not to have been made for the prolongation of the case by reason of groundless contentions; and

(e) an imprudent refusal of an offer to compromise.

1. Despite some references above in these reasons to a number of the above circumstances that might activate an order for indemnity costs, I determine that the circumstances here are not exceptional so that my discretion should be exercised accordingly. I note in this regard that whilst the husband was wholly unsuccessful in arguing his Response, the wife was not wholly successful in achieving all of the orders that she sought in her Application. Matters of the husband's conduct are properly dealt with pursuant to the ordinary provisions of s 114UD(2) and a consideration of justifying circumstances.
2. Secondly and alternatively, the wife asked that I make an order for a fixed sum permissible pursuant to Rule 12.17(1)(a). There is some merit to such an application and potentially for the benefit of both parties where such would avoid the expense and delay of a taxation or assessment.
3. This process available to the Court should not be one taken on the basis of speculation but rather considerations of reasonableness based on judicial experience and relativity and on the objective material available.
4. Counsel for the husband urges the alternative of a taxation or assessment of costs.
5. On consideration, I am satisfied that I have sufficient objective information in order to make an order quantifying the costs rather than encumber these parties with further costs and aggravation of a taxation. I have the following objective material:

(a) that the trial occupied either 9 or 10 days of court time;

(b) that the complexity of the issues was such that the engagement of the experienced senior junior counsel by the wife was appropriate;

(c) that there were forensic complexities and in particular as to financial matters compounded by the lack of full and frank disclosure by the husband;

(d) that the Costs Notice provided by the wife as of 22 April 2025 showed counsel's fees of $83,680 and total costs $402,177.90; and

(e) that the husband's Costs Certificate provided as of 17 April 2025 and prior to the engagement of his solicitors and counsel pursuant to the s 102NA order, disclosed his costs (including disbursements) at $171,484.04 at that stage with an estimated further three days of the hearing.

1. Consequently, taking into account the objective material, notions of reasonableness and relativity, together with judicial experience, I am of the view that the costs sought by the wife on a party/party basis in a quantum of $153,717.95 is reasonable.
2. I find, however, some merit in the argument mounted on behalf of the husband that he was required to bring an application to re-open to adduce further evidence during the course of the trial and where that application was unsuccessfully opposed by the wife. I am of the view, therefore, that the husband should have his costs of and incidental to that application in a set sum of $5,000 properly, however, those costs should not be set off against the award to the wife but rather paid directly to Victoria Legal Aid who funded the husband pursuant to s 102NA of the Act. I will order therefore that the husband pay to the wife the sum of $153,717.95 but that within 48 hours of receipt of the costs order payment the wife pay the sum of $5,000 to Victora Legal Aid.
3. I will order accordingly. I will allow the husband 90 days in which to make payments.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.

[1] Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 at [13].

[2] Nada & Nettle (Costs) [2014] FLC 93-612; [2014] FamCAFC 207 at [11].

[3] Prantage & Prantage [2013] FamCAFC 105; (2013) FLC 93-544; [2013] FamCAFC105.

[4] Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116.

[5] [1993] FCA 536.