Colgate-Palmolive v Cussons Pty Ltd

Section 117(2A)(a) - the financial circumstances of the parties

1. Neither the wife nor the second respondent made any submissions with respect to the parties' financial circumstances.
2. The husband contended that his alleged parlous financial circumstances are relevant to the determination of the wife's costs application. The husband submitted that he is a pensioner in receipt of a part-pension from Centrelink in the sum of $304 per week. Further, he submitted that he has been unemployed since 2010 and that he suffers from poor health as detailed in his trial affidavit filed 2 August 2024 at paragraph 4. Having regard to those factors, the husband contended that there ought be no order for costs made against him.
3. Whilst the husband may have limited income, I am satisfied that he has property and financial resources at his disposal, as is reflected in the Final Orders made with his consent which provide that he (and the second to seventh respondents) be jointly and severally liable for payment to the wife of the sum of $4 million. The Final Orders also make provision for the transfer of property to the husband (Order 2) and for the wife to disavow all claims in law or equity against or in connection with the entities and property identified at Order 8. Hence, having regard to those Orders, I am satisfied that the husband has interests in property.
4. In any event, it is well settled that impecuniosity is not a bar to the making of an order for costs (Lenova & Lenova (Costs) [2011] FamCaFC 141).

Section 117 (2A)(b) - whether any party to the proceeding is receiving assistance by way of legal aid in respect of the proceedings

1. None of the parties in this dispute are in receipt of assistance by way of legal aid.

Section 117(2A)(c) - the conduct of the parties to the proceedings in relation to the proceedings

1. The wife's Enforcement Application was brought as a result of the failure of the husband and the second respondent to comply with the Final Orders. To date they have not complied with Order 1 which provides as follows:-
   1. That on or before 30 April 2025, the Respondents be jointly and severally liable (both in their personal capacities and as trustees of their respective trusts) to pay or cause to be paid to the Wife the sum of $4,000,000 (Payment), conditional upon the Wife's performance of her obligations pursuant to order 2 hereof.
2. As a result of that non-compliance, the wife has been required to implement the default provisions pursuant to the Final Orders, in particular Orders 9 and 10 of those Orders.
3. The second respondent has not complied with the default provisions under the Final Orders, requiring the wife to commence this proceeding to facilitate the appointment of selling agents and a conveyancer.
4. The wife also contends that both the husband and the second respondent have engaged in obstructive conduct throughout the proceedings. In support of that position, she relies upon the second respondent's conduct in filing a Notice of Appeal in relation to the orders made on 26 April 2023 that he be joined as a party to the proceedings, that application brought notwithstanding that there was no right of appeal with respect to that order.[2] The wife submits that as result of those applications, the proceedings were unnecessarily delayed and her costs increased. I accept that submission.
5. The wife contends, and I accept, that the husband and the second respondent have frustrated the implementation of Court orders, necessitating additional applications to the Court which have further increased her costs and unnecessarily burdened the Court's resources. In support of that submission, she relies upon the fact that she has had to invoke the provisions of s 106A of the Act to seek the assistance of the Court to execute documents on behalf of the husband in the face of his non-compliance with orders requiring him to do so. For example, the wife sought and obtained that relief to enable letters of appointment to be provided to appoint single expert valuers.
6. The wife maintains that the obstructive conduct of the husband and the second respondent occurred throughout the proceedings and has continued in the aftermath of the Final Orders, which were made by consent after nine days of hearing and in circumstances where both the husband and the second respondent were represented by senior counsel.
7. Notwithstanding the circumstances in which the Final Orders were made, the second respondent contended that they were "entered irregularly by the Court" and contrary to the intentions of the parties. In the submissions filed on behalf of the second respondent on 14 July 2025, he has sought to perpetuate those arguments as a bar to the making of costs orders. The wife contends that that conduct is but a further example of the obstructive conduct of the second respondent and is a matter that ought be taken into account in the consideration of her application for costs. I accept that submission.
8. Having regard to the long history of the litigation, and the numerous applications made by the husband and/or the second respondent during the course of the litigation, which have largely been unsuccessful, there is much force in the wife's contention that by those actions, the husband and the second respondent have sought to delay or disrupt the conduct of the proceedings and the finalisation of the matter.
9. Given the history of the proceedings, I am satisfied that the conduct of the parties is a significant factor in the determination of the wife's application for costs.
10. That view is bolstered having regard to the recent decision of the High Court of Australia (Gageler CJ, Steward and Jagot JJ) in Genesalio v Justice Johns and other Judges of the Federal Circuit and Family Court of Australia (Division 1) [2025] HCA 45 with respect to the application of the husband and the second respondent for a constitutional or other writ and the related application for a stay of the Final Orders. In dismissing those applications, the High Court observed at [16]:-

...The unavoidable inference from the evidence was that the plaintiffs had commenced the proceeding in this Court only after they had failed to stymie compliance with the final orders, made by consent on the basis of legal advice, in the Division 1 Court. Moreover, the plaintiffs had done so in circumstances where they had not sought to appeal the final orders in the Division 1 Court. The further unavoidable inference from the evidence was that the plaintiffs were using the application to this Court to avoid the consequences of the decision they had made based on legal advice to settle the proceedings in the Division 1 Court. In these circumstances is could never have been concluded that it was necessary in the interests of justice that the extensions of time required to challenge the impugned orders be granted.

Section 117(2A)(d) - whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. These proceedings have been necessitated due to the failure of the husband and the second respondent to comply with Order 1 of the Final Orders, which required that they pay to the wife the sum of $4 million. That payment was due on 30 April 2025 and remains outstanding.
2. In addition to the non-compliance with Order 1, there has been further non-compliance with the default provisions, particularly the requirements that the second respondent nominate three selling agents for the sale of the property at 3 G Street, Suburb C (Order 10(a)(i)).
3. There is no controversy that those orders were not complied with. However, the husband seeks to distance himself from that non-compliance, maintaining that he had no power or responsibility to nominate selling agents pursuant to Order 10(a)(i). Whilst the husband was not required to action those provisions, in my view that does not absolve him from his obligations pursuant to Order 1 of the Final Orders. The reality is that had there been compliance with those provisions, the default sales would not have been required.

Section 117(2A)(e) - whether any party to the proceedings has been wholly unsuccessful in the proceedings.

1. The wife submits that both the husband and the second respondent have been wholly unsuccessful in opposing the orders sought by her in the Enforcement Application. In circumstances where I have made orders on 16 June 2025 and 3 July 2025 acceding to the wife's applications for orders relating to the appointment of a selling agent and conveyancer for the default sales and further restraining the husband and the second respondent from interfering with those default sales, I accept that submission.
2. Neither the husband nor the second respondent made any submissions in relation to that consideration.

Section 117(2A)(f) - whether either party to the proceedings has made an offer in writing to settle the proceedings.

1. No submissions were made as to offers made to settle the proceedings.

1. It was submitted on behalf of the wife that, in circumstances where her application has been necessitated as a result of the non-compliance by the husband and the second respondent with the Final Orders, it is appropriate that an order for costs be made against them. I accept that submission. I am well satisfied that due to the conduct of the husband and the second respondent in failing to meet their obligations pursuant to the Final Orders that the wife has been left with no alternative than to bring the Enforcement Application.
2. I am satisfied that the husband and the second respondent have been wholly unsuccessful in opposing the orders sought by the wife.
3. Accordingly, I am satisfied all of the above circumstances justify an order that the husband and the second respondent be jointly and severally liable for the payment of the wife's costs of and incidental to the application.

1. The wife seeks that her costs be paid on an indemnity basis. She seeks an order that those costs be fixed in the sum of $46,823.17. In support of that application the wife relies upon the affidavit of her lawyer, Mr CC, filed 30 June 2025.
2. Annexed to the affidavit of Mr CC is the costs agreement between Mazzeo Lawyers and the wife dated 4 June 2018. In addition to that costs agreement, Mr CC also deposes as to the Update to Disclosure Statement dated 4 June 2025 provided to the wife,[3] and to the costs agreement between Mazzeo Lawyers and senior counsel and junior counsel briefed to appear on behalf of the wife.[4] Having regard to that evidence, I am satisfied that the wife has complied her obligations pursuant to Rule 12.13(4) of the Rules.
3. Mr CC deposes that the wife's costs incurred up to and including the hearing on 16 June 2025 were $41,358.08.[5] In addition, he deposes that additional costs have been incurred as a result of the written submissions prepared in response to those filed on behalf of the husband and the second respondent with respect to paragraph 5 of the Enforcement Application. Those additional costs total $5,465.09.[6] It is on that basis that the wife seeks an order that costs be fixed and paid in the sum of $46,823.17.
4. There was no challenge with respect to the calculation of those costs pursuant to the costs agreements, save that the husband alleges that the schedule of costs[7] do not enable him to discern what work relates to the default sales. In circumstances where the default sales have been necessitated as a result of the non-compliance of both the husband and the second respondent with Order 1 of the Final orders, that matter is of little consequence; I am satisfied the work detailed in that schedule was properly undertaken by the wife's lawyers in order to enforce her entitlements under the Final Order.
5. The wife seeks payment of her costs on an indemnity basis as she contends that the behaviour of both the husband and the second respondent has been so exceptional as to justify such an order for indemnity costs. In support of that position the wife relies on the delinquent conduct of both the husband and the second respondent with respect to their obligations pursuant to the Final Orders, which necessitated this application.
6. She contends that that behaviour is more egregious in circumstances where the Final Orders were made by consent at a time when both the husband and the second respondent were represented by senior counsel. The wife also relies upon the obstructive nature of the conduct of both in relation to the Final Orders, pointing to the failure to co-operate with the appointment of the selling agent and conveyancer. I accept those submissions.
7. The wife is also critical of what are described as the "unfounded challenges" to the validity of the Final Orders. It was submitted on her behalf that those challenges lacked bona fides and demonstrated a disregard for the authority of the Court and of the wife's entitlements pursuant to the Final Orders. She maintains that that attitude and approach resulted in ongoing and unnecessary inconvenience and costs both to her and to the Court. I accept that submission.
8. The submissions of the second respondent filed 14 July 2025 focus almost solely on the alleged jurisdictional errors which he submits ought result in the setting aside or variation of the Final Orders. In circumstances where no appeal was filed with respect to the Final Orders, I am satisfied those complaints were baseless and misguided and do not excuse or justify the husband and second respondent's ongoing non-compliance.
9. The challenges raised in those submissions echo earlier applications made by the second respondent in support of his objection to the orders for joinder, which he subsequently unsuccessfully appealed in the Full Court.
10. On 28 November 2025, the High Court of Australia dismissed the application of the husband and the second respondent for a constitutional or other writ with respect to the Final Orders. Having regard to that decision, there can be no doubt that the matters agitated by the second respondent with respect to the wife's costs application and the earlier proceedings in relation to joinder were without foundation.
11. I am satisfied that the manner in which the husband and the second respondent have conducted the proceedings has had the effect of causing the wife to incur unnecessary and substantial additional legal costs. I am satisfied that their conduct has prolonged the proceedings, that conduct including but not limited to:-
    • Their ongoing non-compliance with the Final Orders;
    • Their failure to co-operate and comply with orders regarding the default sales;
    • The repetitive and baseless submissions made by the second respondent challenging the validity of the Final Orders made by consent at a time when both he and the husband were represented by senior counsel, such complaints raised notwithstanding that there had been no appeal against those orders. In my view, having regard to those matters, those contentions were doomed to fail.
12. Having regard to those matters, I am satisfied that both the husband and the second respondent have engaged in conduct designed to frustrate the progress and finalisation of the proceedings and thwart the wife's actions to obtain the fruits of the Final Orders. In my view the conduct of both the husband and the second respondent has been of such an exceptional nature as to justify an order for indemnity costs.
13. Accordingly, I am satisfied that the husband and the second respondent ought pay the wife's costs calculated on an indemnity basis and fixed in the sum of $46,823.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

[1] Written Submissions of the Applicant filed 30 June 2025, paragraph 3

[2] Genesalio & Genesalio [2023] FedCFamC1A 109

[3] Affidavit of Mr CC filed 30 June 2025, paragraph 6

[7] Affidavit of Mr CC filed 12 June 2025, annexure PH-10