Cosio & Cosio (No 6) [2025] FedCFamC1A 149 (25 August 2025)

Cosio & Cosio (No 3) [2024] FedCFamC2F 260

Cosio and Cosio (No 4) [2024] Fed CFamC1A 149

Cosio and Cosio (No 5) [2024] FedCFamC1A 205

Diamond & Diamond [2024] FedCFamC1A 201; (2024) FLC 94-223; [2024] FedCFam1A 201

Edwards and Noble (1971) 125 CLR 296

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225

In the marriage of Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Menno & Lourens (No 2) (2025) FLC 94-256; [2025] FedCFam1A 100

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550

Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108

Vertzayias v King & Ors [2011] NSWCA 215

Warbick and Warbick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101

1. The appellant is granted leave to rely on the documents in his additional appeal bundle at pages 79, 80, 82, 83, 136, 145, 157 - 165, 224 - 227 and Annexure A to his affidavit filed 1 July 2025.
2. The Application in an Appeal filed 1 July 2025 is otherwise dismissed.
3. The appeal is dismissed.
4. The appellant pay the respondent's costs of the appeal fixed at $11,484 within 60 days of this order.

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

1. By an Amended Notice of Appeal filed 11 June 2025, the appellant appeals from order 1 of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 February 2025 ("the appealed order"). The appealed order provides for the appellant to pay the respondent $42,672.57, which are her costs arising from the second trial of the parties' respective applications under Part VIII of the Family Law Act 1975 (Cth) ("the Act").
2. At Part D, paragraph 8 of the Amended Notice of Appeal, in addition to the challenge to the appealed order, the appellant purportedly appeals against the failure to make an order on the husband's application for costs of the first trial thrown away.
3. The appellant asserts the primary judge fell into discretionary, legal and /or factual error in the manner His Honour applied s 117(2) of the Act and various subsections of s 117(2A) of the Act, which are now substantially found in s 114UB(2) and s 114UB(2A) of the Act.
4. The respondent opposed the appeal.
5. For the reasons that follow the appeal will be dismissed.

1. In December 1990 the parties met on an online text forum. The appellant was living in Australia, and the respondent was living in the United States of America (USA). They met in person in August 1991 when the respondent moved to Australia and thereafter commenced cohabitation. They married in 1992, separated in November 2017 and obtained a divorce in 2019.
2. The parties have two children, the elder born in 1997 and the younger in 2002.
3. At the time of cohabitation, the appellant was employed in the computer industry. He subsequently practised as a professional until he became self-employed in 2017. He continues to be self-employed. The respondent was employed until February 1997 prior to the birth of their first child and did not return to employment until December 2008, sometime after the birth of their second child.
4. During their relationship the parties lived in rented accommodation until October 2007, when the appellant purchased in his name a property situated in Suburb B. The Suburb B property was funded by the proceeds of sale of shares and options from the appellant's employment and the balance by way of a mortgage.
5. After the breakdown of the relationship the respondent commenced property settlement proceedings. The parties were unable to resolve the property dispute, and the matter proceeded to a final hearing ("the first trial").
6. On 2 August 2022 a judge of the FCFCOA (Division 2) made final orders. The appellant successfully appealed the orders ("the first appeal") and the matter was remitted for hearing by another judge of Division 2 (Cosio & Cosio [2022] FedCFamC1A 187).
7. The remitter was heard by the primary judge ("the second trial") who made final orders on 29 February 2024 disposing of the parties' property applications ("the substantive property orders") (Cosio & Cosio (No 3) [2024] FedCFamC2F 260).
8. On 27 March 2024 the respondent filed an Application in a Proceeding ("the costs application") seeking the appellant pay her costs of the second trial on an indemnity basis, or in the alternative, her costs in accordance with the relevant scale.
9. On 5 April 2024, the appellant filed a Response seeking dismissal of the cost application and that the respondent pay his costs of the first trial on an indemnity basis, or alternatively for the costs to be assessed
10. On 28 March 2024 the appellant filed a Notice of Appeal, appealing the substantive property orders arising from the second trial ("the second appeal").
11. On 29 April 2024 the primary judge made a consent order which adjourned the parties' costs applications pending the outcome of the second appeal. Procedural orders were also made by consent, including an order that the costs applications be heard and determined in chambers.
12. The second appeal was dismissed (Cosio and Cosio (No 4) [2024] FedCFamC1A 149). Thereafter, the appellant subsequently unsuccessfully applied to the High Court of Australia for special leave to appeal.
13. On 5 November 2024, Schonell J, sitting in the appellate jurisdiction, ordered the appellant to pay the respondent's costs of the second appeal (Cosio and Cosio (No 5) [2024] FedCFamC1A 205).
14. On 28 February 2025 the primary judge made the appealed order and delivered reasons ("the costs judgement").

1. In his Amended Notice of Appeal at Part C, the appellant sought leave to appeal.
2. Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that leave is required to appeal a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge. A prescribed judgment is an interlocutory decree (other than a decree in relation to a child welfare matter) (reg 4.02 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)).
3. Whether an order is final or interlocutory is determined by applying the test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at [225]). In applying that test, regard must be had to the "legal rather than the practical effect of the judgment" (Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 at [248]).
4. The subject order in this instance, being an order, which determined the liability for costs following substantive property orders, finally disposes of the rights of the parties in that regard and leave to appeal is therefore not required.

1. On 1 July 2025 the appellant filed an Application in an Appeal seeking to adduce further evidence in the appeal. In his affidavit in support of the Application in an Appeal, which was filed on 1 July 2025 at paragraphs 6 and 7, the appellant identified the evidence he sought to adduce. Paragraph 6 referred to a bank record evidencing the appellant had paid the costs ordered by the appealed order, which was Annexure A to the affidavit. Paragraph 7 referred to a list of documents which had been electronically compiled by the appellant, which were described as further records of this Court and the Court below ("additional appeal bundle"). The documents contained in the additional appeal bundle were voluminous and amounted to some hundreds of pages.
2. The appellant contended the documents were relevant to grounds 1 and 2 of the appeal and, if the appeal were successful, the restitution orders which would be required.
3. The respondent neither consented nor opposed the appellants Application in an Appeal.
4. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") confers on an appeal court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (No 1) (1998) 197 CLR 172 ("CDJ v VAJ") at [111]-[115], the High Court of Australia ("the High Court") considered the principles relevant to the exercise of the discretion.
5. As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. Recently in Diamond & Diamond [2024] FedCFamC1A 201; (2024) FLC 94-223 ("Diamond & Diamond") the Full Court per Aldridge, Austin and Carter JJ said at [20]

...The primary purpose of further evidence being admitted in an appeal is to demonstrate error by the primary judge and to show how its availability at the hearing would have produced a different result. If the proposed evidence does not acquit that purpose there is no utility in its admission (CDJ v VAJ at [109], [111], [140]-[151], [169] and [186.9]).

1. During the appeal hearing the appellant did not refer or direct the court to many of the documents in his additional appeal bundle. I therefore propose to grant leave to the appellant to adduce further evidence, to the extent of the documents in that bundle referred to by him during the appeal and Annexure A to his affidavit, otherwise the Application in an Appeal will be dismissed. The documents specifically relied upon include those appearing at pages 79, 80, 82, 83, 136, 145, 157 - 165 and 224 - 227 of 325 of his additional appeal bundle, as extended and prepared by the appellant.

1. Before turning to the grounds of appeal, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled error of the type identified in House v The King (1936) 55 CLR 499 at [504]-[505] ("House v The King") must be established. There, the majority of the High Court said:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. The appellant was self-represented in these appellate proceedings and drew his Notices of Appeal and Summary of Argument. At the commencement of the appeal hearing, because the appellant is a professional in the legal industry, I enquired whether he required any procedural assistance, as contemplated in Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072. The appellant confirmed he did not and was entirely capable of conducting the appeal hearing.
2. I now turn to the grounds of appeal referred to in the Amended Notice of Appeal filed 11 June 2025.

The Court below erred in making costs orders in favour of the wife in reliance on an offer made by the wife, when she had not at that time complied with her disclosure obligations and that noncompliance continued until after the substantive hearing**

1. Under this ground, the appellant complains the asserted failure of the respondent to comply with her disclosure obligations and to make full and frank financial disclosure, undermined and compromised his ability to properly assess the various offers made by the respondent throughout the proceedings.
2. The appellant contends the primary judge was correctly aware of the relevant principles, at [41] and [42] of the reasons, but in exercising his discretion, the primary judge was wrong to take into consideration the respondent's various offers to resolve the proceedings and further, shortcomings in her disclosure, precluded a costs order in the respondent's favour.
3. The appellant submitted the respondent had failed to make relevant enquiries and provide disclosure of two trusts. The first trust was a Californian trust dating from September 2000, of which the appellant contended, the respondent was well aware. The second trust was the respondent's entitlement to the estate of her late adoptive father, who died when judgement in the second trial was reserved. I observe that logically, the respondent would need to be aware of the possibility of potential entitlements, before she could be expected to make enquiries about any such entitlements or indeed disclose any relevant documents.
4. As to the respondent's knowledge of the first trust, the appellant relied upon page 224 of 325 (marked in the bundle as page 706) of the additional appeal bundle which is an extract from the transcript of the second trial (Transcript, 8 August 2023, p. 37 line 26 - 38). During cross examination by the appellant's counsel, the respondent was shown a document dated 18 September 2000, which the appellant contended was relevant to the first trust. The respondent agreed she had signed the document, which was tendered as Exhibit 1 and described as Notice of Withdrawal right addressed to applicant. However, examination of the transcript immediately thereafter, at pages 225 - 227 of 325 of the additional appeal bundle (Transcript, 8 August 2023, p.38 to p.40), demonstrates the respondent's evidence was, although she had signed the document in 2000, she did not believe it gave her any entitlement to income or benefit until after the death of her father, which she and her family were reluctant to discuss and she did not know some 23 years later, that the document still existed.
5. As to the respondent's knowledge of the second trust, the appellant relied upon a letter dated 12 September 2023, which he forwarded to the respondent's lawyers (pages 79, 80 of the of the additional appeal bundle). In the letter the appellant requested the respondent to provide a copy of the will and any probate documents of her late stepfather and mother.
6. In support of his contention the respondent had failed to comply with her disclose obligations, the appellant relied upon the respondent's Financial Statements located at pages 136 and 145 of 325 of the additional appeal bundle, which did not refer to her interest in either of the two trusts. The appellant also relied upon statements at Part D of his Outline of Case dated 31 January 2022 filed in the first trial, which is located at pages 157 - 165 of 325 of the additional appeal bundle.
7. When asked during the appeal hearing, the appellant was unable to demonstrate that prior to the death of her father, the respondent was aware of the terms of her late father's will or any entitlement she may receive.
8. Despite the appellant's complaints, the grounds of appeal did not challenge the findings of the primary judge that as at the date of the respondent's offers in April 2020 and July 2020, both parties had a reasonable understanding of the quantum of property and superannuation pools then available for division between them at [49(a)] and there was sufficient financial disclosure to understand and, appropriately consider the offers made [49(c)]. Neither does the appellant challenge the finding at, [47(a)], that it was reasonable for the appellant not to accept the respondent's proposal with respect to property or to raise the matters relevant to superannuation at that time. The failure to do so also answers the appellant's complaints under this ground.
9. The primary judge was acutely aware of the appellant's continued emphasis on the respondent's failure to disclose, as recorded in the substantive reasons ([165] - [173],) and in the costs reasons, ([28a], [29a], [32], [41], [47a]) both of which are replete with references to the discovery dispute.
10. The respondent's offers of settlement are but one of multiple considerations in the exercise of a wide discretion and are not singly determinative of the discretion to make a costs order.
11. There is no merit in this ground.

Having determined the proceedings by reference to a percentage of the assets, the court below erred in assessing the wife's offer by: comparing the dollar value of the offer in 2020 to dollar value of the order made in 2024, rather comparing based on the percentage of the relevant assets; dividing the offer into a superannuation component and an "other assets" component when it was a unitary offer not capable of piece meal acceptance; failing to recognise that.**

1. Under this ground the appellant complains the primary judge did not properly compare and evaluate the respondent's historical offers of compromise, with the current value of those offers and neither did His Honour compare the offers on a percentage basis.
2. The appellant contends when undertaking a comparative exercise of the two offers which were made four years apart, the primary judge should have taken into account changes in circumstances between 2020, the date of the respondent's offers and 2024, the date of the final orders. Relevant changes of circumstances include the change in value of the property, inflation and additional interest the appellant would have had to pay between 2020 and 2024, to fund the payment to the respondent.
3. The submissions do not reflect the obligation under s 117(2A) of the Act which requires a primary judge, in considering what costs order (if any) should be made, to have regard to whether either 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. There is no requirement to conduct a mathematical comparative exercise. The appellant was unable to cite any authority in support of his contention as to the obligations of a primary judge in exercising the costs discretion under the Act.
4. Importantly, in his final written submissions filed 13 June 2025 at pages 3 - 14 the appellant did not submit the primary judge should undertake a comparative exercise, as he now contends. In Menno & Lourens (No 2) (2025) FLC 94-256 Campton J sitting in the appellate jurisdiction said at [70(b)]:

It was incumbent on the father to demonstrate that the primary judge's attention was drawn to the subject matter now the subject of complaint on appeal. When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 ("Macedonian Orthodox Community Church") at [120]).

1. Those comments are apposite to this appeal.
2. The exercise undertaken by the primary judge at [42] - [48] of the costs judgement, where he considers and weighs the various offers of both parties, was orthodox and appropriate, and more than adequately encompasses what is required under s 117(2A) (f) of the Act.
3. There is no merit in this ground.

The court below erred in calculating fixed costs by:

a. having stated in the cost decision that interlocutory matters had been previously dealt with, and on which there had been ordered that there be no order as to costs, failing to exclude the wifes costs of those same interlocutory matters;

b. including counsel's costs for a three-day hearing when the hearing occupied only one and a half days;

c. determining party/party costs on a basis departing from the rules and more favourable to the wife than was sought.**

1. Under this ground the appellant complains the primary judge erred in three respects in the calculation of costs referred to at [54] of the costs reasons.
2. Firstly, the appellant contended the Schedule of Costs relied upon by the respondent and adopted by the primary judge at [56] - [58], erroneously included items amounting to $9,723.25 referable to costs of interlocutory hearings on 25 May 2023 and 11 December 2024. On both of those dates, orders were made providing there be no order as to costs.
3. In support of his contention the appellant relied upon two authorities. First, Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [32] where McColl JA said:

The effect of a "no order as to costs" order is that each party must pay his own costs: Re Hodgkinson [1895] 2 Ch 190 (at 194) per Lindley LJ; see also (at 194) per Lopes LJ to like effect. That meaning of a "no order as to costs" order has remained unchanged for over a century: Donnelly v Maxwell-Smith [2010] FCAFC 154 (at [23]) per Bennett, Rares and McKerracher JJ); see also Vertzayias v King [2011] NSWCA 215 (at [111] - [114]) per Giles JA (with Macfarlan and Whealy JJA's agreement).

1. Secondly, Vertzayias v King & Ors [2011] NSWCA 215 at [113] where Gilles JA said:

In Trikas v Rheem (Aust) Pty Ltd (1964) 81 WN (Pt 1) 504 it was submitted that "no order as to costs" was as if the court had said nothing, so that the plaintiff could recover the costs under a later general order for costs. The submission was rejected, and it was said that the order meant that the plaintiff was not entitled to recover the costs.

1. Whilst I accept the proposition that the amounts referable to the interlocutory hearings could not be properly claimed by the respondent, the comments in Leach and Vertzayias were in the context of the Uniform Civil Procedures Rules 2005 (NSW). That is however, not the end of the matter as discussed below.
2. First, the appellant also challenges the inclusion of additional amounts in the schedule of costs, including what he contended were costs not reasonably incurred by the respondent, some amounts were not recoverable, some related to the first appeal and some scale claims exceeded the actual amounts incurred. The total of these categories of complaint is $2,057.12 as claimed in the document titled Errors in the Applicant's Schedule of Costs located at page 30 of the appellant's written submissions filed on 25 November 2024 in support of the costs application.
3. Secondly, the appellant complains about counsel's fees incorrectly included in the respondent's schedule of costs. The invoice from the respondent's counsel, which is Annexure I to the respondent's affidavit filed 27 March 2024 in support of the costs application, claims a fee for 3 days, when the trial concluded in two days. The appellant contends the scale brief fee for the third day, $3,300, should have been excluded from the respondent's schedule of costs.
4. Thirdly, the calculation of costs undertaken by the primary judge [54] and [57] - [58] of the costs reasons should have properly been calculated according to the relevant party/party scale, and not according to the costs actually incurred, as occurred at [63], albeit the costs actually incurred were reduced by the primary judge.
5. The solicitor advocate for the respondent accepted the proposition gleaned from Leach and properly conceded the amounts claimed for the relevant interlocutory applications should have been excised form the respondent's schedule of costs.
6. However, he submitted, and I accept, costs orders in this jurisdiction are discretionary and encompass a wide and uncircumscribed range of considerations.
7. The primary judge was well aware of the asserted deficiencies in the respondent's schedule of costs, because the complaints of the appellant are referred to in his written costs submissions at paragraphs 2, 3 and 4 and are referred to in detail at [60 (b) - (e)] and at [63] of the reasons. Further deficiencies are identified at [54], [57] and [58].
8. It is apparent from the reasons, after having identified deficiencies in the respondent's schedule of costs, the primary judge elected to make a lump sum assessment of the costs incurred, which he was entitled to do: see Braithwaite & Braithwaite [2007] Fam CA 468 at [109]. ("Braithwaite"). In Braithwaite the Full Court of the Family Court accepted that in an appropriate case, a judicial officer should make an order in a sum certain, rather than put the parties to the expense and stress of further proceedings to assess costs.
9. The respondent's schedule of costs was merely the starting point of the lump sum assessment. At [63] the primary judge reduced the costs claimed by the respondent by 30% and at [64] applied a further reduction of 30% to arrive at the final lump sum. A costs order in a fixed sum is the conclusion reached by the primary judge in exercising a broad discretion after taking into account all relevant considerations and is within the generous ambit of discretion.
10. By fixing the costs payable by the appellant, the primary judge adopted the approach of the Full Court in Warbick and Warbick (No 2) [2021] FamCAFC 101; (2021) FLC 94-030 where the Full Court dealt with circumstances where party/ party costs were not properly quantified, as was the case before the primary judge. At [13] the Full Court said:

... We do not intend to permit the costs question to become, in effect satellite litigation. It is appropriate that the wife's costs are fixed and this issue is brought to a close.

1. Regrettably, despite the best efforts of the primary judge, the parties have once again become embroiled in further costs and litigation.
2. There is no merit in this ground.

The court below erred and sought to use costs punitively, by making orders for costs based on an unsuccessful legal argument that was not a severable part of the proceedings.**

1. Under this ground the appellant complains the primary judge punitively made the appealed order, contrary to usual principles where costs orders are compensatory for costs actually incurred (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [44].)
2. The appellant submits the reference to the his wholly unsuccessful maintenance of the Stanford (Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108) argument ([35]) and his failure to accept the respondent's April 2020 offer ([40]) permeates the reasons and is demonstrative of a punitive approach by the primary judge.
3. The appellant further submits the consideration by the primary judge of the Stanford argument under s 117(2A)(e) is misguided, because that subsection mandates a consideration of whether a party has been wholly unsuccessful, as opposed to consideration of success on individual points of law. In this case, the appellant's Stanford argument did not protract the length of the trial or cause additional legal costs to be incurred and therefore the failure of that legal argument could not properly underpin a costs order. According to the appellant, because further costs were not incurred, the basis for the primary judge making the costs order could only be regarded as punitive and offending public policy, because the proper development of law and justice often requires apparently orthodox principles to be put the test by litigants.
4. Contrary to the position of the appellant, the reasons of the primary judge disclose a careful review and application of the statutory considerations, recitation of the relevant evidence, articulation of authorities and application of accepted principles, prior to reaching the decision to make a costs order in favour of the respondent, which he considered did justice to both parties.
5. As submitted by the respondent's solicitor advocate, and I accept, there is no whiff of rancour or condemnation of the appellant, but rather an even-handed approach to the advantages and disadvantages of each of the parties' claims, within the relevant statutory matrix. Just because the primary judge commented about the unsuccessful pursuit of the appellant's Stanford argument at ([35]) and the failure of the appellant to accept the respondent's offer to settle at ([40]), does not mean the decision to make a costs order was punitive. There were no comments to that effect, as was the case in Braithwaite at [106] where the primary judge clearly stated the costs order was made to discourage the wife from repeating her so far unremitting and wilful conduct.
6. In this mater the comments of the primary judge, both advantageous and disadvantageous to the parties were measured and appropriate and took into consideration a raft of considerations under s 117(2A) as required. The considerations underpinning the appealed order were not limited to the two factors complained about by the appellant.
7. There is no merit in this ground.

The court below erred in finding, in relation to the husbands application for costs of the first trial thrown away, that there were no justifying circumstances to ground an order departing from s117, when the wife's improper conduct post-trial resulted in a successful appeal that Tree J found could only be dealt with by way of remittal and was on any view a matter within s117(2A)(c).**

1. Under this ground the appellant complains, in considering the appellant's application for costs arising from the first trial, the primary judge's finding at [61], that there were no justifiable circumstances to depart from the general principle in s 117 (1) of the Act, was wrong. It is also asserted the primary judge failed to consider the appellant's application.
2. S 117 of the Act sets out the general principle, that subject to otherwise justifying circumstances, each party bears their own costs of proceedings. In the marriage of Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340 the Full Court observed:

The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the Court considers just.

1. Specifically, it is submitted that following delivery of reasons after the first trial, the respondent was well aware of the factual error in those reasons, which gave rise to a successful appeal (Cosio & Cosio [2022] FedCFamC1A 187) and notwithstanding that knowledge, she sought to take advantage of a known error of fact and refused to take steps to rectify the error. The appellant relied upon Jandson Pty Ltd v Edmonds [2022] NSWCA 61 ("Jandson") as authority for his submission that it was incumbent upon the respondent to take steps to rectify the error. He contends the conduct of the respondent by falling to do so, satisfies the precondition to make an order for costs. I observe Jandson may be distinguished from the facts of this matter, as the decision concerns parties' obligations under r 36.1 of the Uniform Civil Procedure Rules 2005 (NSW).
2. The primary judge was clearly aware of the appellant's contention about the wife's conduct, which is recited at [61] but rejected by His Honour.
3. The appellant must establish on appeal that a finding of fact subject to challenge was material and not open on the evidence (see: Edwards and Noble (1971) 125 CLR 296). Just because another finding of fact was open on the evidence does not establish a finding of fact complained about was not open or available. To establish error of fact, the appellant must establish the challenged fact is either demonstrably wrong by incontrovertible facts or uncontested testimony or it is glaringly improbable or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550).
4. In this matter the conclusion of the primary judge was not demonstrably wrong by incontrovertible facts or uncontested testimony, glaringly improbable or contrary to compelling inferences, but rather a conclusion contrary to that advocated by the appellant.
5. As to the asserted failure to consider, the primary judge clearly did consider the reasons an application of the appellant seeking costs arising from the first trial, which occurred some years earlier before a different judge ([61]).
6. There is no merit in this ground.

1. Because the appeal is wholly lacking in merit, it will be dismissed.

1. In the event the appeal was dismissed the respondent sought an order for costs against the appellant fixed at $11,484. The appellant did not oppose costs, or the quantum sought, if the appeal were unsuccessful. I will therefore order the appellant to pay the respondents costs of the appeal within 60 days, which I consider an appropriate timeframe.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.