Idoport Pty Ltd v National Australia Bank Ltd

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

1. Ms Ottosen ("the wife") is the applicant seeking an order for costs against the respondent, Mr Goffe ("the husband") following substantive proceedings initiated by the husband seeking the discharge of a Binding Financial Agreement ("BFA") where the husband was ultimately unsuccessful.
2. The wife here seeks costs as follows:
   1. The Applicant Husband will pay the Respondent Wife's costs of and incidental to the Initiating Application filed by the Applicant Husband on 2 May 2023 and of and incidental to this Application in a Proceeding.
   2. The costs will be paid:

2.1 In the amount of $175,000 or such other specific amount as the Court considers appropriate, within 21 days of the date of this Order.

2.2 In the event the Court is not prepared to make an order in accordance with 2.1 then on a party and party basis as agreed between the parties (with such agreement to be reached within 7 days of the date of this Order) and failing agreement as assessed, within 21 days from the date of agreement or assessment.

3. Such further or other Orders as the Court considers appropriate.

1. The husband, being the respondent, to the costs application filed a Response seeking orders as follows:
   1. The wife's application in a proceeding filed 7 October 2025 be dismissed.
   2. In the alternative, the husband by the wife's costs of the proceeding on a party/party basis in accordance with Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) Rules 2021 up to and including 10 May 2024 and thereafter in accordance with Schedule 2 and Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, such costs to be assessed failing agreement between the parties.
   3. The wife pay the husband's costs of and incidental to the hearing of 5 March 2025, such costs on a party/party basis to be calculated in accordance with Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 such costs to be assessed failing agreement between the parties.
   4. There be no order as to costs of and incidental to the wife's application in a proceeding filed 8 May 2024 heard on 10 May 2024.
   5. There be no order as to the costs of and incidental to the wife's "statement" of 161 paragraphs sent under cover of letter dated 18 November 2024.
   6. Such further or other orders as the Court to deems appropriate.
2. In summary, the husband argues firstly that the general provision of the Act at s 114UB prevail in that each party bear his and her own costs. If, however, the Court is against him in this regard then he argues that "there is insufficient material before the Court to permit the Court to make an order for costs in the sum sought by the wife".
3. The trial of this matter continued over four days with written submissions provided by 14 May 2025. Reasons for Judgment was delivered on 12 September 2025. Both parties were represented by solicitors and by counsel at the trial.

1. Matters of costs are dealt with pursuant to Part XIVC s 114UA of the Family Law Act 1975 (Cth) ("the Act") where at s 114UB there is a general order that, subject to ss (2), each party to proceedings under this Act is to bear his or her own costs.
2. Subsection (2) of s 114UB provides a discretion 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.
3. Section 114UB(3) mandates the considerations to be addressed by the Court in considering what, if any, costs orders should be made. They are:

(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. It is well established that the general rule must "yield" where there are justifying circumstances for an order. The discretion, however, is a broad one.[1]
2. Whilst it is necessary for the Court to make a finding of justifying circumstances as a preliminary to the making of an order for costs, the Court is not required to specify the circumstances which justify the making of such an order.[2]
3. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 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. Neither party is in employment. The husband receives a DVA pension of $1,847 per fortnight supplemented by a disability support pension $1,079 per fortnight. His affidavit filed 21 October 2025 deposes to a residue of income over expenses of near $700 per week. He deposes to assets of $1,253,000 with his only outstanding liability being legal fees in the sum of $81,488. The DVA pension is for life and CPI indexed.
2. The wife receives ongoing income protection and WorkCover payments such being reviewable and not available after the age of 65 years. She has accrued superannuation of $540,000, not available (subject to hardship considerations) until early 2028 when she attains 60 years of age.
3. The wife is the registered owner of two properties at Suburb C in Tasmania with a combined valuation of approximately $2M but subject to mortgages totalling $570,000.
4. The wife has the sole financial responsibility for the remaining dependent child of the parties given that the parties entered into a Binding Child Support Agreement contemporaneously with the BFA. There are two adult children of the parties who remain living with the wife and are full time students and hence require a degree of financial support.
5. The consideration here is certainly not one of comparative wealth of the parties in respect of any anticipated costs order. Further, impecuniosity is not a bar to the making of a costs order.[3]
6. Neither party here is in receipt of legal aid.
7. Each of the parties in their affidavits filed in respect of this application make various assertions of improper conduct by the other in relation to the proceedings. The wife argues variously as to issues of disclosure albeit the issue of non-disclosure did not weigh heavily in my consideration of the substantive application in that the Court was sufficiently informed of the material background and facts so as to properly consider and determine the issues between the parties.
8. The husband argues that the wife's "conduct" of the proceedings was excessive and, in many ways, superfluous and in particular where the parties were, at their request, invited to make written submissions. Indeed, counsel for the husband brought the matter back before the Court after his receipt of the first edition of the wife's written submissions which were prepared by her (being a former legal practitioner) rather than the usual practice of such submissions being prepared by, and with the skills, of counsel. This resulted in a hearing requiring attendance by counsel. Counsel was required to at least peruse the wife's submissions. An order was obtained for revised submissions to be provided by the wife and hence it follows that the husband's request to relist the matter was meritorious. I find merit in this specific submission on behalf of the husband as to conduct.
9. This is not a matter where subsection (d) of s 114UB(3) is relevant.
10. The nature of the substantive application brought by the husband was discrete in respect of there being no "grey" options available to the Court. In short, the application would either succeed or fail where the parties each previously had the benefit of the BFA. Ultimately, the husband was unsuccessful in his application. It follows that the wife was, arguably, unnecessarily, put to cost and expense in defending the application where she had and held the benefit of the BFA.
11. Although some correspondence was tendered by the wife's counsel in respect of "offers of settlement", the very discreet nature of this application did not lend to any formal offers and I do not consider this to be a relevant consideration.
12. In exercising my discretion, I am persuaded that there should be an order for costs in favour of the wife. I place some considerable weight on the nature of the substantive application in circumstances where the parties had previously finalised their financial circumstances by a BFA. The onus sat fairly on the husband to prove to the Court that the BFA should be set aside. He did not discharge that onus. He was completely unsuccessful. The rhetorical question is why should the wife be put to cost and expense in defending what was ultimately an unsuccessful application and where this is not a matter such as a parenting application or indeed some property applications where there are "grey" areas and options available for the Court to arrive at and construct orders within the ambit of the parties' applications.
13. I am satisfied that the husband is in a financial position to satisfy any costs order.
14. I am persuaded therefore that there are circumstances justifying an order for costs in favour of the wife.
15. Issues of the conduct of the proceedings remain relevant and will be dealt with below in respect of the quantum.

1. The Court pursuant to the Rules is given a wide discretion to determine the quantum of any costs order. In this matter the wife seeks an order for a specific amount pursuant to rule 12.17 which she quantifies at $175,000.
2. The advantages, potentially for both parties, of the course sought by the wife are obvious and as noted by Kent J in Stoian & Fiening (Costs)[4] and adopted from the decision of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd[5] as follows:
   1. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation:...;
   2. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable:...;
   3. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available:...;
   4. 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:...;
   5. the gross sum "can only be fixed broadly having regard to the information before the Court":...;

1. The question for the Court, therefore, it is whether the parties have provided sufficient information for the Court to make an order quantifying costs and, if not, then the appropriate mechanism is one of taxation or assessment. The husband here argues firstly that there is insufficient detail provided by the wife to justify the sum sought of $175,000. Secondly, and as set out above, counsel argues that listing the matter at the request of the husband in respect of the excessive first edition of the wife's written final submissions was unnecessary and certainly should not be included in the wife's holistic application for a costs order. Indeed, the husband's Response to the costs application seeks a discrete order that the wife pay his costs of that mention on 5 March 2025 which resulted in an order in favour of the husband that the wife provide an amended and more concise set of written final submissions. Counsel for the husband elaborated on this fundamental argument in his oral submissions in respect of this application.
2. The material provided by the wife in her affidavit discloses her counsel's costs at $90,033.70 inclusive of GST and for the appearances on the four days of hearing, together with the preparation and attendance or any interlocutory appearance. A note of the counsel's fees has been provided to the solicitors for the husband.
3. Secondly, I have the benefit of the costs notice required to be submitted by each party prior to the commencement of the trial. It is noted that the wife had entered into a Costs Agreement with her solicitors. The advice was that costs incurred prior to the commencement of the trial sat at $77,847 with an anticipated further costs of hearing for both solicitor and counsel then for an anticipated two days being $45,000. The trial continued over four separate days.
4. Thirdly, the wife's affidavit at [5] also notes the inclusion of disbursements in the total amount and including payment for former solicitors. That affidavit notes the wife's total costs inclusive of disbursements being $193,645.96 where she seeks only a sum of $175,000.
5. I am aware that the husband commenced the substantive proceedings to set aside the BFA as long ago as 2 May 2023 with the wife filing a Response on 8 June 2023 where the matter did not commence its trial until 23 December 2024.
6. Where I conducted the trial, I am able to say that the issues were complex and relatively so in respect of similar applications. Expert evidence was adduced by each party.
7. I reject the submission of counsel for the husband that the Court should not make an order for costs, because of a lack of particularity and especially in respect of the solicitors' costs as opposed to those of counsel. To require such particularity and attend item by item would indeed be the stuff of taxation and sit contrary to the rationale of the Court being unable to make an order for costs as provided in the Rules. Precision and exactness are not anticipated by the Rules but rather a requirement of "reasonableness" in all the circumstances. Certainly, the Court needs sufficient information and should not engage in the making of an order simply on speculation. In this matter, however, I am of the view that the Court is properly furnished with sufficient information so as to make an order for costs given the circumstances of the substantive trial. I am satisfied that the costs sought in a quantum of $175,000 inclusive of disbursements is reasonable in all of those circumstances, and note that the wife does not seek costs of counsel's attendance at the hearing on 5 March 2025 initiated by the husband in respect of final submissions.
8. Finally, however, and where the husband himself makes an application for costs in respect of that hearing of 5 March in which he was ultimately successful in what was a discrete application and taking into account all of the s 114UB factors set out above, I am of the view that there should be an adjustment to the husband for the costs of and incidental to that day on the basis of his application to the Court being both reasonable and successful. That application required an appearance by counsel and obviously an attention by counsel and solicitor to the first voluminous edition of the wife's written submissions.
9. In all the circumstances, there will be an adjustment of $10,000 accordingly to the husband for his costs, and hence there will be an order that the husband pay to the wife the sum of $165,000 for costs in respect of the husband's unsuccessful application for the setting aside of a BFA filed 2 May 2023. Noting the husband's financial circumstances and assuming he may need to borrow to accommodate this order, I will allow a period of 60 days from the date of these orders that the husband pay the wife's costs of and incidental to the Initiating Application filed by the husband on 2 May 2023 in the sum of $165,000.

I certify that the preceding thirty-eight (38) 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.

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

[3] Cross & Beaumont (2008) 39 FLR 389; [ 2008] FamCAFC 68 at [60].

[4] [2014] FamCA 944 at [91].

[5] [2007] NSWSC 23 at [9].