Eccheli & Eccheli (No 10) [2025] FedCFamC1F 645 (12 September 2025)

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

1. Notwithstanding the terms of the orders sought by the wife in her Application in a Proceeding filed on 6 June 2025 and sealed on 11 June 2025 as to costs, by operation of Orders 1 and 2 made on 11 July 2025, these reasons determine the wife's application that the husband pay her costs of the determinations made by me from orders made on:

(a) 8 May 2025 and 16 May 2025 that determined interlocutory applications of both the husband and wife as to joinder, distribution of sale proceeds of real properties, restraints on real property dealings, the facilitation of obtaining and progressing ch 7 single experts as to valuation, variations of prior periodic spouse maintenance orders for the facilitation of the sale of real properties, and other issues; and

(b) The orders made on 1 July 2025 which dismissed the husband's application for a stay of Orders 1 to 5 inclusive, and Order 10 as made by me on 16 May 2025 pending determination of his Notice of Appeal from those orders filed on 13 June 2025.

1. These reasons assume familiarity with the reasons for judgment delivered on 8 May 2025 (Eccheli & Eccheli (No 5) [2025] FedCFamC1F 333), 16 May 2025 (Eccheli & Eccheli (No 7) [2025] FedCFamC1F 333) and 1 July 2025 (Eccheli & Eccheli (No 8) [2025] FedCFamC1F 443).
2. The orders as to costs as sought by the wife were refined at the commencement of the hearing today as follows:

(a) That the husband pay her costs of and incidental to the determinations made on 8 May 2025 and 16 May 2025 on an indemnity basis fixed in the sum of $17,608.80 or in the alternative, on a scale basis fixed in the sum of $10,210.35; and

(b) That the husband pay her costs of and incidental to the determination made on 1 July 2025 on an indemnity basis fixed in the sum of $6,700 or in the alternative on a scale basis fixed in the sum of $5,140.12; and

(c) That the husband pay her costs of and incidental to this costs application on an indemnity basis fixed in the sum of $9,762.50, or in the alternative on a scale basis fixed in the sum of $5,940.00.

1. The husband opposes any order for costs. It is his position that each party should bear their own costs such that there are no circumstances to justify an order for costs.
2. The material identified to be relied upon by each party is recorded in the transcript and will not be repeated for the purposes of these ex tempore reasons.

1. The relevant principles as to costs are well settled. While the starting position established by s 114UB(1) of the Family Law Act 1975 (Cth) ("the Act") is that each party pays their own costs, s 114UB(2) of the Act allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 114UB(3) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
2. The wife bears the onus to establish circumstances which justify departing from the position that each party pay their own costs, with the making of a costs order in her favour. If the wife establishes there are circumstances justifying the costs order, the next consideration is on what basis should costs be paid.
3. The Full Court has made it clear that it is unnecessary to spell out detailed reasons for the decisions in costs matters. I shall refer to such matters as are relevant and engaged here.

1. The husband is a property developer operating a substantial corporate group that owns and operates commercial properties, including some trading as shopping centres. Recently, one part of that group that operates a commercial or developmental enterprise in City XX has been placed into receivership. It is the husband's assertion that he does not have resources available to meet any costs order made and by comparison the wife's property and resources are superior to his own. The reasons identified earlier herein record findings as to the husband's compliance with his disclosure obligations highlighting an absence of transparency to his financial circumstances at that time and his capacity to marshal his property and resources. He identifies in his Financial Statement filed on 9 September 2025, the disposal of commercial property in August 2025 for $44 million and that he has personally received $900,000 as a consequence of that disposal. It is his contention that those funds will be required to be applied to stave off receivers of the broader trading group. It does not appear that the husband has been unable to meet his costs incurred to date in these proceedings. This conclusion is reinforced in part by way of his Costs Notice filed today, recording that his anticipated future costs in the proceedings will be well in excess of $250,000 and by his Financial Statement which records that he proposes to apply part of the $900,000 he received, being in the range of $600,000 for future litigation funding least of these proceedings in part. He adduced into evidence a quantity of documents purporting to establish that he has rectified the absence of transparency to his financial circumstances as recorded in the reasons for judgment identified earlier.
2. On the evidence before me, the exploration of his financial circumstances by way of the disclosure of all documents and information with explanatory context as now required by s 71B of the Act is far from closed. I am unable to make any finding at this time as to his compliance or otherwise with the mandate now the subject of legislation. On balance, I do not accept the submission that he is impecunious, notwithstanding his Financial Statement filed on 9 September 2025 recording that the value of his property as $87,428,600, his superannuation as $63,000, and his liabilities as $89,764,256. The contended liquidity challenges asserted by the husband do not militate against the making of a costs order.
3. The wife's Financial Statement as filed on 1 August 2025, records the total value of her property as $13,479,281 and her total liabilities as $6,173,632. It appears uncontroversial that the wife has available to her, subject to order, monies in the range of $1,330,000 in a controlled monies account being the proceeds of sale of a real property. The quantum of costs sought by the wife are insubstantial in comparison to the value of property controlled by each of she and the husband.
4. The extensive submissions made by each of the husband and the wife as to conduct in the substantive proceedings, whether by way of disregarding obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), or compliance with prior orders of the court, outside of those material to the determination of these discrete costs applications, attract little weight. By way of example, considerations as to conduct at the commencement of the proceedings could not be identified in submissions as to having any apparent relevance to considerations within the confines of s 114UB(3) of the Act directed to these discrete costs applications. I weigh and consider the determinations and findings made in the reasons identified earlier herein. I accept the submission of the wife that the term, "wholly unsuccessful" in s 114UB(3)(e) refers to the circumstance where the proceeding as a whole has been unsuccessful, rather than necessarily an application or a form of relief (Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31). That said, the success of an application or claim for relief is a relevant consideration pursuant to s 114UB(3)(g) of the Act.
5. The husband's relief in his (Amended) Application in a Proceeding filed on 24 April 2025 to join the parties' adult daughter to the proceedings was unsuccessful and misconceived, as was both his withdrawn relief as to the sale of a property at D Street, Suburb E NSW ("the D Street Property"), and his application to discharge the interim spouse maintenance orders made on 12 April 2024. An enforcement order was made in the wife's favour as to periodic spouse maintenance. A significant number of orders were made on the interlocutory determinations in terms as substantially sought by the wife. Albeit, that some of the relief sought by the wife by way of the determinations made on 8 and 16 May 2025 were unsuccessful in whole or in part. At the hearing on 8 May 2025, she withdrew her application to discharge Order 3 made 12 April 2024 as to the husband's exclusive use and occupation of a property in Queensland, her application for urgent s 77 spouse maintenance, and her application for maintenance payable by the husband for the benefit of an adult male child of the parties.
6. As recorded in the reasons delivered on 1 July 2025, the husband's application for a stay of the orders made by me on 16 May 2025 pending appeal, at all times presented with little reasonable prospects of success. The husband had not considered, for the purpose of the Notice of Appeal as filed, the requirement to achieve leave to appeal from the orders under challenge until the day of the hearing of the stay.
7. A broad consideration of all these circumstances justifies an order that the husband pay the wife's costs of and incidental to:

(a) The orders made on 8 May 2025 and 16 May 2025; and

(b) The order made on 1 July 2025 dismissing the husband's stay pending appeal.

1. The wife seeks indemnity costs, or costs at scale for each tranche of costs sought.
2. It is well-settled that the court should not lightly depart from the ordinary rule that costs are payable on a party and party basis or at scale and that an order for indemnity costs requires the establishment of exceptional circumstances (Mansfield and Ors & Mansfield and Anor [2019] FamCAFC 186; (2019) FLC 93-920).
3. The grounds prosecuted in the husband's Notice of Appeal were devoid of merit, contaminating the success of his application for a stay pending determination of the appeal. The prospects of success of the stay further deteriorated due to his delay in seeking the stay in circumstances where, the order to be the subject of stay had been executed. The circumstances of the stay application comfortably fit within those of an exceptional nature having regard to that absence of merit. The husband knew, or to have known with the benefit of advice, that the application for a stay, at the time it was prosecuted, had such little prospects of success so as to imply an ulterior motive in its filing and prosecution. These circumstances bring the costs determination within the wheelhouse of warranting an order for indemnity costs in favour of the wife responding to the stay application.
4. The wife has complied with r 12.13(4) of the Rules adducing into evidence the terms of the costs agreement she has entered with both her solicitors and counsel. The husband submitted that the costs incurred by the wife were both unreasonable and excessive. He further made a submission that the wife's costs had contravened sections of the Legal Profession Uniform Law 2014 (NSW) such that either she or her solicitors were prevented from recovering costs relating to the conduct of a specified paralegal. It was difficult to distil the relevance of this submission to the discrete costs applications prosecuted and determined by way of these reasons. The husband's legal representative conceded in submissions that this matter was the drawing of "a long bow". Absent further particularisation, I give it little weight. It is difficult to give weight as to an absence of reasonableness or as to amounts being "excessive" absent some particularities grounding or supporting the submission. An order will be made that the husband pay the wife's costs of and incidental to the application for stay determined on 1 July 2025 on an indemnity basis.
5. The interlocutory relief of the wife that was either withdrawn or was unsuccessful on 8 May 2025 and 16 May 2025 detracts from establishing the exceptional circumstances necessary to ground an order for indemnity costs. That said, a consideration of the success of the wife in those determinations together with the other matters identified in these reasons, warrants an order for costs being made in the wife's favour of and incidental to those determinations. An order will be made that the husband will pay the wife's costs of and incidental to the determinations made on 8 May 2025 and 16 May 2025 at scale.

1. Rule 12.17(1)(a) permits the Court to adopt a course to fix costs without formal assessment or taxation, although it is accepted that it is entirely a matter of discretion. The fixing of a sum must occur judicially but is not required to be conducted in any "scientific or formulaic manner" (Idoport Pty Ltd v the National Australia Bank Ltd [2007] NSWSC 23 at [10]).
2. The husband and wife have been engaged in intensive and on occasion circular litigation assuming an inordinate amount of judicial resources. I am mindful of the requirement of r 1.04 of the Rules, being to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. I propose to adopt the approach taken by the Full Court in Warbrick and Warbrick (No. 2) (2021) FLC 94-030 ("Warbrick") where it observed at [13]:
   1. ...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.
3. I am satisfied that the observations of the Full Court in Warbrick are apposite here. These parties have already been engaged protracted litigation where the costs incurred to date are significant for both parties; to order costs in a specified amount avoids the expense, delay, and aggravation arising out of an assessment of costs (Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892 at [92]).
4. The touchstone as to the fixing of costs is to ensure that the process is logical, fair, and reasonable. The wife has provided schedules of her costs of and incidental to the determinations made on 8 May 2025 and 16 May 2025 and of and incidental to the costs incurred on 1 July 2025 by reference to her costs agreements particularised as to indemnity and at scale. These permit the fixing of costs on a specified basis. To the credit of the husband's submission, while contending that the quantum of costs were unreasonable as to some items or excessive, he made no further submission against the fixing of costs. Such costs will be fixed as sought by the wife on an indemnity basis as to the determination made on 1 July 2025 in the sum of $6,700 and on a scale basis as to the determinations made on 8 May 2025 and 16 May 025 in the sum of $10,210.35.

1. No evidence was adduced by the husband as to any offer to compromise the costs applications. The husband knew or ought to have known that an order for costs in favour of the wife was "on the cards". This circumstance together with the wife's success in achieving orders for costs and on a consideration of the matters identified earlier in these reasons justify the wife obtaining the benefit of an order for costs of and incidental to the cost applications. Her costs incurred are particularised on an indemnity basis in her Case Outline document at $9,726.50 including some work undertaken by senior counsel. I do not accept the submission of the husband that the engagement of senior counsel for the purposes of preparation of the costs application, having regard to the complexities it confronts, was unreasonable and costs for senior counsel are certified in that circumstance. By reference to the schedule as to indemnity costs, the wife estimates scale costs of the costs application being the sum of $5,940. I do not accept that the wife has established exceptional circumstances to ground indemnity costs in relation to the costs application. I find that the circumstances justify the making of an order for costs on a scale basis as sought by the wife and fixed for the reasons identified earlier herein of the costs application in the sum of $5,940 is justified and that the making of such order is just. No submissions were made as to any time sought for the husband to pay any costs as ordered. Absent such submission, having regard to the financial circumstances of each party as identified herein and the fact of continuing litigation, it is appropriate and reasonable for such costs to be paid within 21 days. Such order will be made.
2. The aggregate value of the costs are as follows:

(a) $10,210.35 of and incidental to 8 May 2025 and 16 May 2025;

(b) $6,700 of an incidental to the determination of the stay on 1 July 2025; and

(c) $5,940 for the costs of this costs application; therefore

Totalling $22,850.35.

1. For all of the foregoing reasons. I make the following orders.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.