Idoport Pty Ltd v National Australia Bank L

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

1. On 5 November 2025 the primary judge ordered that the appellant husband pay the respondent wife's costs of proceedings relating to litigation concerning a financial agreement. The Notice of Appeal filed by the appellant challenges the making of that costs order. For the reasons which follow the appeal will be dismissed.

1. The parties had entered into a Financial Agreement. On 2 May 2023 the appellant filed an Initiating Application seeking to set aside the Financial Agreement. On 12 September 2025 the primary judge dismissed the appellant's application. On 5 November 2025, on application by the respondent, the primary judge ordered that the appellant pay the respondent's costs in the sum of $165,000.
2. Before the primary judge the respondent's evidence was that she had incurred costs of $193,645.96 and sought an order for costs in the sum of $175,000. The appellant contended the application should be dismissed but, in the alternative, should costs be ordered, those costs be as agreed or assessed. The appellant himself sought costs of a discrete hearing, which occurred on 5 March 2025, on a party/party basis at scale. The primary judge effectively awarded the appellant costs of the discrete hearing as a $10,000 set off against the respondent's claim.

1. Each of the appeal grounds has the same focus, namely the quantum of costs, as opposed to the correctness of the decision to award costs.
2. The starting point is reflected in the recent restatement of the law in Gin & Hing (No 4) [2024] FedCFamC1A 247 at [8]:

Costs orders by a trial judge are peculiarly an exercise of their discretion with which an appellate court will interfere only in rare cases, unless the result is plainly unjust or wrong (Paysen & Laukien [2020] FamCAFC 101; (2020) FLC 93-960 at [32]; Harris and Harris [1991] FamCA 124; (1991) FLC 92-254 at 78,711).

Ground one: The primary judge did not provide sufficient reasons for fixing the costs ordered to be paid by the [appellant] to the [respondent] in the quantum of $165,000.

1. The appellant accepts the reasons for ordering costs were adequate but submits the reasons for the particular fixed sum were inadequate.
2. As the appellant correctly submits, the law concerning adequacy of reasons is that adopted by the Full Court in Bennett & Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266 (citing Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at [18]):

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

1. In Penfold v Penfold (1980) 144 CLR 311 the majority of the High Court said at 315-316:

Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised. Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

(Footnote omitted)

1. It is necessary to begin by confirming, as is acknowledged by the appellant, that the discretion to award costs is broad and the ability to discharge the discretion by the making of an order for a lump sum is explicitly provided for by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").
2. The primary judge explicitly addressed the quantum of the order under the heading "[q]uantum of costs order" in the reasons.
3. In paragraph [29] of the reasons, the primary judge identified the advantages of the approach whereby costs are fixed as opposed to assessed, by reference to the jurisprudence. The primary judge then turned to whether or not the evidence was capable of supporting the making of an order in the sum sought.
4. The wife's affidavit provided evidence of her payment of $193,645.65 withdrawn from her superannuation entitlements and paid to her lawyers in accordance with costs agreements which were also in evidence. The figure was broken down in her evidence as referrable to counsel's fees, solicitor's fees, mediator's fees, transcript and report writer's fees. The primary judge referred to the length of trial (at [5]), the counsel's fee note (at [31-32]), the costs notice (at [32]) and the evidence of the total amounts sought (at [33]).
5. At [35] the primary judge reflected on the correlation between the issues and complexity and quantum. The primary judge concluded that the lump sum approach (by reference to the fees actually incurred) was reasonable. The decision making process is clearly set out in the reasons for judgment. The ground is not established.

Ground two: The primary judge erred in the exercise of his discretion when making the costs order in favour of the [respondent] fixed in the quantum of $165,000 by failing to have adequate regard to the relevant considerations set out in rule 12.17(3) of [the Rules].

1. The Notice of Appeal contends that this Court would find error in the primary judge's failure to have adequate regard to matters in a subsection of the Rules. Rule 12.17(3) provides:

(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. In Stoian v Fiening (Costs) [2014] FamCA 944 at [91] and [92], Kent J cited with approval principles relevant to r 19.18 (the predecessor of r 12.17) as set out by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9] (discussing similar NSW costs provisions). Those principles (truncated) include:

i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation ...;

1. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable ...;

2. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available ...;

iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place ...;

1. the gross sum "can only be fixed broadly having regard to the information before the Court" ...;

1. As is plain, r 12.17(3) permits but does not require consideration of the matters listed. To establish error would, at a minimum, require the appellant to point to the evidence and submissions which were made about one of the listed matters. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 it was said that:
   1. ... 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.
2. The primary judge set out the Rule at [12] and gave consideration to the complexity of the matter at [35]. The appellant submitted that the primary judge needed to justify his conclusion about complexity - effectively seeking to revisit the finding absent any proper appellate challenge. In this regard, the appellant's approach was misguided.
3. The primary judge did have regard to the reasonableness of the respondent's behaviour (and explicitly the manner in which the appellant's behaviour impact on "quantum" at [27]). The appellant's complaint is that this ought to have sounded in a reduction in the quantum greater than the amount allowed in specific recognition of the matters in [37] and [38] of the primary judge's reasons. The complaint is not established.
4. The appellant did not make any submissions before the primary judge directed to the rates ordinarily payable to lawyers in comparable proceedings and cannot now be heard to complain that the primary judge failed to have regard to that as a relevant factor. The appellant is bound by the conduct of the case in the court below.
5. The primary judge was entitled to consider improper, unfair, unreasonable or disproportionate conduct by a lawyer. This submission was never made. It is not open to the appellant to raise it on appeal.
6. The submissions of the appellant on this point seek to conflate two issues - the discrete costs of an application relating to the respondent's written submissions - for which the primary judge explicitly awarded costs to the appellant - and the conduct of her lawyers. It was not submitted that the respondent's lawyers engaged in conduct which was "improper, unfair, unreasonable or disproportionate".
7. The Rules permit consideration of whether paid or unpaid expenses the subject of the costs application are "fair reasonable and proportionate". It must first be observed that this is not because the primary judge was obliged to engage in an assessment or taxation. Nor was the primary judge obliged to have regard to the respondent's costs, scale costs or an itemised list of costs. The primary judge undertook the task he was obliged to undertake and explicitly concluded that the information was sufficient to inform the decision about quantum. The fact that another judge may have more or less information available is of no consequence. Caution must always be exercised when seeking to draw comparisons between the exercise of a broad discretion in disparate factual circumstances.
8. The appellant relied upon the decisions in Tekla & Tekla [2025] FedCFamC1A 245 ("Tekla") and Roydon & Roydon [2024] FedCFamC1A 105; (2024) FLC 94-194 to contend that the primary judge's discretion miscarried because his determination as to quantum was not grounded in either a scale of costs or an itemised account. Those decisions should not be taken as imposing a requirement that a judge exercising the power to fix costs is obliged to have evidence of either scale costs or an itemised bill. It is important not to import the determination of what was regarded as sufficient in one case as a basis for quantification as though it is a necessary requirement of each case.
9. In Tekla his Honour Justice Riethmuller said at [66]:

Where the court chooses to make a special costs order by fixing a lump sum amount for costs, that costs order is not necessarily anchored to a particular basis of assessment, although regard to the estimated costs on a party and party or another basis would generally be relevant. Such an order must have some foundation.

1. The appellant has not demonstrated that the order under appeal lacked foundation.
2. The primary judge was well placed at the conclusion of the matter to find that the costs were fair, reasonable and proportionate to the nature and complexity of the matter he had heard and determined. He did so. No error is demonstrated.

Ground 3: The primary judge erred in the exercise of his discretion as the Court could not have sufficient confidence in arriving at the sum of $165,000 as appropriate on the materials available and the quantum of the costs order made against the appellant was therefore not fair and reasonable.

1. Before the primary judge the appellant contended that the respondent had not provided sufficient evidence to support the quantum of costs claimed. The primary judge rejected that submission at [30]-[36].
2. The most significant issue agitated by the appellant before the primary judge concerned the absence of specificity in the figure claimed.
3. Given the uncontroversial entitlement of the primary judge to order costs in a fixed sum and given the evidence of the solicitors' fee agreements, the actual costs incurred, coupled with the primary's judge's conclusions as to complexity and reasonableness, the appellant has not demonstrated that the discretion miscarried.

1. Judgment was reserved without hearing submissions as to costs. The parties accepted that it was appropriate that the Court make directions for the filing of material relevant to the question of costs simultaneously with the determination of the appeal. We have done so.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Howard and Christie.