FAMILY LAW - MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST - COSTS - whether the costs of proceedings transferred from the Supreme Court can be dealt with by this court - held, they can and should be dealt with by this court.

FAMILY LAW - MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST - COSTS - applicant's application for an indemnity costs order - held, costs orders to be made on a party/party basis for the Supreme Court proceedings from inception and on an indemnity basis since the transfer of the proceedings to the Federal Circuit and Family Court of Australia (Division 1).

FAMILY LAW - MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST - COSTS - application of Jurisdiction of Courts (Cross Vesting) Act to costs issues.

Family Law Act 1975 ss 79A, 95(2), 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 12.13(4), 12.14

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s 12

Supreme Court (General Civil Procedure) Rules 2015 r 26.08

AJG Australia Pty Ltd v Jacques [2015] VSCA 3

Amcor Ltd v Barnes [2021] VSCA 87

Bilson v Vatsonic Communications Pty Ltd [2024] QCA 171

Casio & Casio (No 5) FedCFamC1A 205

Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225

DPP v Batich (2013) 38 VR 544

Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123.

Fowles & Fowles (No 5) [2024] FedCFamC1A 188

Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425

Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24

Kaba & Zenin (No 2) [2024] FedCFamC1A 169

Kohan v Kohan [1992] FamCA 116; (1992) 16 Fam LR 245

Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560

MC Wholesaling Pty Ltd v Zheng [2024] VSCA 248

Medlon v Medlon (No 6) [2015] FamCAFC 157; (2015) 54 Fam LR 1

Moy & Pao [2022] FedCFamC1A 17

Munday v Bowman (1997) 22 Fam LR 521

MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) [2010] VSCA 245; (2010) 31 VR 575

Pacek & Saltzer (No 2) [2024] FedCFamC1F 666

Pacek & Saltzer (No 3) [2024] FedCFamC1F 680

Pacek & Saltzer (No 4) [2025] FedCFamC1F 252

Pacek & Saltzer [2024] FedCFamC1F 650

Powers v Maher [1959] HCA 52; (1959) 103 CLR 478

Re Yunghanns [2000] FamCA 681; (2000) 26 Fam LR 331

Ressel & Morath [2023] FedCFamC1A 145

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107

Trustees Executors & Agency Co Ltd v Reilly [1941] VicLawRp 3; (1941) VLR 110

United Petroleum Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501

Wei & Xia (No 2) [2024] FedCFamC1A 136

Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland

Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland

Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland

Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The plaintiffs in Supreme Court proceedings #...78 and #...07 pay the costs of Ms Pacek on a party/party basis from inception of the proceedings until those proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) and on an indemnity basis from the transfer of the proceedings to the Federal Circuit and Family Court of Australia (Division 1) such costs to be assessed by a registrar of this court.
2. The husband and companies he controls must pay the wife's costs of and incidental to proceeding MLC 2954 of 2020 and of proceeding MLC 7293 of 2024 on an indemnity basis, such costs to be assessed by a registrar of this court.

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

1. Since my decisions in Pacek & Saltzer (No 3)[1] and Pacek & Saltzer (No 4)[2] Ms Pacek has applied for costs in respect of a variety of aspects of this litigation and on a variety of bases.
2. As these reasons reveal I take the view that Mr Saltzer and his entities must pay Ms Pacek's costs for the phases of this litigation set out below. A registrar must assess those costs.

1. Unless an order is made under s 117(2) of the Family Law Act in respect of costs, ordinarily each party bears his, hers or its own costs, as prescribed by s 117(1) of the Family Law Act.
2. In order to properly enliven an order for costs under s 117(2) that deviates from the more usual costs order under s 117(1), one of the several discrete grounds in s 117(2A) must be engaged. Only one needs to be engaged, however.[3]
3. Where an order for indemnity costs is to be made, additional considerations apply. First, in this jurisdiction an order for indemnity costs is only maintainable if exceptional circumstances exist to warrant the making of such an order.[4] Precisely what will amount to exceptional circumstances is idiosyncratic to the facts of a given case.
4. Second, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the court rules") make specific provision in respect of indemnity costs.
5. Third, observations about indemnity costs as espoused in the Federal Court of Australia and even in the High Court of Australia have not been uniformly embraced by this court. Having regard to the fact that the statutory regime in respect of costs in this court is governed by the provisions of the Family Law Act and the court rules, in accordance with decisions concerning the metes and bounds of the doctrine of precedent in Hill v Zuda Pty Ltd[5] and Trident General Insurance Co Ltd v McNiece Bros Pty Ltd,[6] I am bound to apply the learning of intermediate appellate decisions of this court in relation to indemnity costs.
6. All parties made extensive submissions on all aspects of costs. Each was given the opportunity to make verbal submissions on 9 April 2025, which opportunity each party exercised.

1. Ms Pacek sought orders for costs in respect of four discrete issues. She sought -

(a) her costs of the entirety of the Supreme Court proceeding in #...78;

(b) her costs of the entirety of the Supreme Court proceeding in #...07;

(c) her costs of the entirety of proceeding MLC 2954 of 2020 in this court; and

(d) her costs of the entirety of proceeding MLC 7298 of 2024 in this court.

1. Proceeding #...78. It is convenient to address first the claim made by Ms Pacek for indemnification in respect of her costs of both Supreme Court proceedings. Proceeding #...78 involved assertions that Ms Pacek had not returned all books and records to the corporate plaintiffs in that case. I found that Ms Pacek had in fact returned all books and records to the corporate plaintiffs.
2. The relevant issue posed for determination was whether the legal costs incurred by Ms Pacek in resisting the plaintiffs' claims in this proceeding were within the ordinary meaning[7] of the phrase appearing in paragraph 21 of Bennett J's orders. That order required Mr Saltzer and various corporate plaintiffs to indemnify Ms Pacek in respect of any claims they may make against Ms Pacek. Paragraph 4 of my orders made on 17 October 2024 was in similar terms. Counsel for Ms Pacek focused on the words "in respect of" in both orders. They argued that the words "in respect of" have the widest possible meaning concerning a connection between two subject matters.[8]
3. Counsel for Ms Pacek submitted that the actual costs incurred by Ms Pacek in resisting the two Supreme Court cases fell squarely within the terms of the indemnification, thereby rendering Ms Pacek's costs recoverable as between her and those giving the indemnity to her.
4. That seemed to amount to a recognition that any order for indemnification in respect of Ms Pacek's costs of defending the Supreme Court proceeding about books and records stood outside of a costs order made under s 117(2) of the Family Law Act because the indemnification arose from order 21 of Bennett J's order of 14 April 2022 and from paragraph 4 of my 17 October 2024 orders.
5. Counsel for Ms Pacek pointed out that the indemnity given by Mr Saltzer and his companies was unlimited as to amount and as to the nature of the loss for which the indemnity was given. They said Mr Saltzer freely gave the indemnity and that the time had come for Mr Saltzer and his companies, as indemnifiers, to make good the indemnities each freely gave. They argued (correctly, it seemed to me) that at all times since 14 April 2022 Mr Saltzer was incontrovertibly bound to indemnify Ms Pacek for any claims he or the plaintiffs made against Ms Pacek. There being no other express statutory provision in s 117(2A) against which costs under an indemnity might be ordered, it seemed to me that s 117(2A)(g) was relevant and that it provided a jurisdictional foundation for ordering costs to be paid, such costs arising out of the indemnity given by Mr Saltzer and the companies he controlled.
6. However, an assessment of those costs must be undertaken by a registrar of this court.
7. Pursuant to s 117(2A)(g) of the Family Law Act I order that the plaintiffs in Supreme Court proceeding #...78 indemnify Ms Pacek in respect of her reasonable costs of the whole of that proceeding, such costs to be assessed by a registrar of this court.
8. The basis on which those costs are to be assessed was the subject of heated disputation. Counsel for Ms Pacek submitted that costs should be ordered on an indemnity basis for several reasons, namely -

(a) the records proceeding[9] and the fiduciary duty proceeding[10] should never have been commenced and were prosecuted with wilful disregard of known facts; and

(b) the plaintiffs unreasonably refused reasonable offers of compromise.

1. On both grounds Ms Pacek invoked the well-known test espoused by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd.[11] Of that decision counsel for Ms Pacek advanced the following contention -

"In the well-known decision of Colgate-Palmolive Company v Cussons Pty Ltd,[12] Sheppard J referred to the "practice for centuries" of awarding costs to the successful party on what was then called the "party-party" basis, on the understanding that "[i]n many cases the result will be that the amount recovered by the successful party . . . will fall short of . . . a complete indemnity".[13] However, where the "circumstances of the case . . . warrant" doing so, the Court may depart from the usual course and award costs on the indemnity basis.[14] Circumstances that Sheppard J recognised as having attracted an award for indemnity costs relevantly included the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud, evidence of some particular misconduct that causes loss of time to the Court and to other parties, the fact that proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions and the imprudent refusal of an offer to compromise, but those categories are not closed.[15]"

1. So far as the application of the Colgate-Palmolive principle was concerned, Ms Pacek's counsel cited Court of Appeal and single judge decisions in the Supreme Court of Victoria[16] to the effect that the principle for which Colgate-Palmolive stands has been frequently applied in the Supreme Court of Victoria. Counsel for Ms Pacek also cited illustrations of the Colgate-Palmolive decision having been applied in the Family Court of Australia.[17] They drew heavily on the observations of Holden CJ of the Family Court of Western Australia in Munday v Bowman[18] where it was held as follows -

"where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive because of some wilful disregard of the known facts."

1. That observation was very recently applied in Kaba & Zenin (No 2).[19]
2. Other illustrations of indemnity costs being ordered in the Federal Circuit and Family Court of Australia (Division 1) in its appellate jurisdiction appear in a collection of decisions over the last few years.[20]
3. It was put by counsel for Ms Pacek that the records proceeding in the Supreme Court of Victoria was commenced contrary to known facts. The following integers constituted Ms Pacek's contentions that the records proceeding was commenced contrary to known facts -

(a) Mr Saltzer agreed to final consent orders on the basis that he would assume control of the relevant entities;

(b) he agreed to release Ms Pacek from any claims that any of him or his companies could make against her;

(c) he agreed to the joinder of certain entities;

(d) having agreed by consent orders to release Ms Pacek, Mr Saltzer caused the corporate plaintiffs in the records case to then sue her for the return of records he and his companies had released her from providing (as it happened, she retained none);

(e) the plaintiffs in the records case prosecuted that proceeding notwithstanding the giving of the release from any such prosecution and notwithstanding a substantial body of evidence[21] to the effect that Ms Pacek did not have any further books and records; and

(f) at a temporal level, Ms Pacek had returned all relevant books and records prior to the commencement of the records proceeding.

1. Ms Pacek's counsel placed heavy reliance upon my observations in my 17 October 2024 reasons to the effect that in view of the relevant books and records having been returned prior to the commencement of the Supreme Court proceeding for the return of books and records, it may fairly be inferred that there is validity in the comment that the Supreme Court proceeding may be nugatory forthwith. Moreover, that Supreme Court proceeding was nugatory when it was commenced.
2. Counsel for Ms Pacek tied those facts to her contentions concerning the appropriateness of an order being made for her costs of resisting the records proceeding being paid on an indemnity basis in accordance with the statement of principle in Munday v Bowman. In other words, they submitted that the integers set out in the alphabetical subparagraphs of paragraph 22 above demonstrated that -

(a) the Supreme Court records proceeding had been commenced or continued in circumstances where the corporate plaintiffs, properly advised, should have known that they had no prospects of success; and

(b) the Supreme Court proceeding requiring Ms Pacek to produce documents is to be presumed as having been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.

1. Counsel for Ms Pacek submitted that Ms Pacek should never have been put to the trouble and expense of incurring the costs of resisting the Supreme Court litigation for the return of company books and records. They submitted that counsel then appearing for Mr Saltzer and his companies on 20 September 2024[22] and on 30 September 2024[23] conceded that the proceeding for the recovery of books and records was over save for a costs debate.
2. Counsel for Ms Pacek submitted that in all the circumstances an order should be made in her favour requiring the plaintiffs in the Supreme Court proceeding transferred to this court for the return of books and records, such costs to be paid on an indemnity basis, as assessed by a registrar of this court. I agree. I make that order. The proceeding for the return of the corporate plaintiffs' books and records should never have been commenced. The books and records to which that proceeding was directed had been returned either prior to the commencement of the proceeding or those books and records had been returned after the proceeding had been commenced with the consequence that the proceeding should not have been continued.

1. Ms Pacek sought indemnity costs against the plaintiffs in the second piece of litigation transferred from the Supreme Court. She relied on largely similar but not identical grounds to those in the other Supreme Court proceeding transferred to this court, namely -

(a) Mr Saltzer could have but failed to bring a s 79A application in respect of the so-called breaches of duties;

(b) none of the assertions of breaches of duty were proved;

(c) that proceeding was in fact and in form "satellite litigation";

(d) Delany J observed that proceeding #...07 was initiated in the Supreme Court rather than in this court;

(e) in order to have successfully prosecuted that proceeding, the plaintiffs needed to set aside the releases for fraud, something that was never done; and

(f) in the absence of the setting aside of the releases, those releases provided a complete answer to the breach of duty allegations made in the second Supreme Court proceeding, as Delany J observed.

1. Those factors, so submitted counsel for Ms Pacek, enlivened the liability of the corporate plaintiffs in the second proceeding to pay Ms Pacek's indemnity costs.

1. Mr North SC faintly advanced an unpersuasive argument to the effect that Mr Saltzer and his corporate entities were not wholly unsuccessful in this court.
2. I disagree. Mr Saltzer and his corporate entities comprehensively failed in their opposition to the enforcement application.
3. While it is true that a costs order does not axiomatically follow even if one of the elements of s 117(2A) is enlivened, in my view it is just in all the circumstances of this case for indemnity costs to be ordered in respect of the two Supreme Court proceedings.
4. So far as the power of this court is concerned to make costs orders in respect of activities conducted when the two proceedings were in the Supreme Court, several things must be said. First, where a costs order has been made in respect of a discrete activity before, say, a judicial registrar of the Supreme Court, then that costs order stands. However, to the extent that costs are now sought in respect of activities that were not the subject of a discrete costs order, then once the Supreme Court proceedings were transferred to this court, power to make a costs order in respect of the whole of the two Supreme Court cases was vested in this court in consequence upon the conferral of jurisdiction on this court by the order cross-vesting the two proceedings to this court.
5. Mr North SC made much ado (described in paragraph 48 of his written undated amended submissions as Ms Pacek's primary application for indemnity costs made in the absence of compliance with the mandatory stipulations of r 12.13(4) of the court rules) of the need for Ms Pacek to inform the court of relevant costs agreements. In fact, relevant costs agreements were exhibited to Ms Pacek's affidavit made 20 March 2025. In addition, she deposed in that affidavit to incurring and paying very considerable sums by way of legal fees. Those included the following -

(a) she deposed to having paid $99,844.11 of her legal fees in this court, her overall indebtedness amounting to more than $420,000 of which about $343,000 remains unpaid;

(b) she deposed to incurring the sum of $555,964.12 in respect of the two Supreme Court proceedings of which she said a little over $163,000 has been paid leaving almost $400,000 unpaid and owing to her solicitors Isakow Lawyers; and

(c) a little over $712,000 is owing to her solicitors.

1. In my view, Ms Pacek has complied with the terms of r 12.13(4) of the court rules and a submission to the contrary must be rejected.

1. As a separate basis for her claim for indemnity costs, Ms Pacek contended that in the Supreme Court litigation she made offers of compromise in accordance with the Supreme Court (General Civil Procedure) Rules 2015 offering to settle (in two offers) the books and records litigation, (in one offer) the breach of duty litigation and in a fourth offer a different proposal, in respect of each of which she said she received no response.
2. Counsel for Ms Pacek argued that the decision of the Court of Appeal of the Supreme Court of Victoria in Amcor Ltd v Barnes[24] was the key authority applicable to offers of compromise. They invoked r 26.08(4).
3. The point was not argued about whether the Supreme Court (General Civil Procedure) Rules 2015 applied or whether the court rules of this court applied consequent upon the cases formerly in the Supreme Court having been transferred by cross-vesting to this court. In the absence of submissions on point it would have been most unwise of me to proceed to determine the point on procedural fairness grounds, irrespective of my personal views that the point was readily apparent and should reasonably have been anticipated. In those circumstances it seemed that several issues arose, namely -

(a) what were the relevant principles of law to be applied in relation to offers of compromise that lapsed with the effluxion of time;

(b) whether the provisions of the Supreme Court of Victoria (General Civil Procedure) Rules 2015 applied or whether, upon the two proceedings formerly in the Supreme Court yet later transferred to this court, the court rules of this court applied or whether again the Supreme Court Rules applied until the transfer of the two proceedings to this court and thereafter the court rules of this court applied;

(c) whether the decision in the Amcor Ltd v Barnes was the appropriate authority to be applied; and

(d) whether a standard costs order as provided for under the Supreme Court of Victoria (General Civil Procedure) Rules was applicable.

1. Having regard to my decision that indemnity costs are payable under s 117(2A) it is unnecessary to consider whether a separate basis exists for the imposition of indemnity costs by reason of offers of compromise having lapsed. That said the overlay between costs issues in cases transferred to this court from a State Supreme Court was relevant.
2. The question of offers of compromise made when the proceedings in the Supreme Court were then before Delany J caused me to enquire of the parties about the applicability of Supreme Court rules. I arranged for a memorandum to be sent to the parties. It was in the following terms -

Re MLC2954/2020 and MLC7293/2024

From The Honourable Justice Wilson

Date 15 April 2025

Subject Further submissions on costs

1. Ms Pacek has sought costs on the basis that offers of compromised were put which lapsed.
2. Those offers were made when the two Supreme Court proceedings were before the Supreme Court.
3. The two Supreme Court proceedings were subsequently transferred to this court.
4. Submissions filed by the parties have not addressed -

(a) whether the provisions of the Supreme Court rules continue to apply notwithstanding the transfer of the two proceedings formerly in the Supreme Court to this court; or

(b) whether the provisions of the Supreme Court rules applied up to but not beyond the date of the transfer of the two Supreme Court proceedings in this court.

1. If upon the transfer of the two proceedings to this court the Supreme Court Rules ceased to apply, how Ms Pacek can now invoke rule 26.08 of the Supreme Court Rules must be submitted.
2. Any submissions on behalf of Ms Pacek must be filed and served by 4.00pm on 22 April 2025.

Any submissions on behalf of Ms Pacek and his interests must be filed and served by 4.00pm on 29 April 2025.

The Hon. Justice Joshua Wilson

15 April 2025

1. The husband replied by undated submissions filed 29 April 2025. Relevantly synthesised, those submissions (prepared by Mr North SC) provided as follows -

(a) s 117 of the Family Law Act applied to the costs of each of the cross-vested proceedings;

(b) s 12 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) provides in effect that where a proceeding is transferred to a court, that court may make an order as to costs that relate to the conduct of the proceeding before the transfer if those costs have not already been dealt with by another court;

(c) rule 12.14 of the court rules confer power on this court to make orders for costs in respect of a proceeding transferred from another court;

(d) that rule allows an amount to be specified as the amount allowed in whole or in part for costs; and

(e) this court may address the costs of the two proceedings transferred from the Supreme Court. Mr North submitted that s 12 and r. 12.14 are discretionary.

1. He submitted that any consideration of indemnity costs should be addressed under the rubric of s 117(2) of the Family Law Act and not otherwise.
2. On behalf of Ms Pacek, Mr Newland of counsel submitted that no mandatory requirement exists to apply the Supreme Court Rules having regard to r. 12.14 of the court rules.
3. To my way of thinking, having regard to the provisions of s 12 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) and r. 12.14, costs associated with the conduct of all aspects of the two transferred Supreme Court proceedings not otherwise dealt with by orders of the Supreme Court can, should be and must be dealt with by this court.
4. Accordingly, subsequent to the transfer of the two Supreme Court proceedings in this court costs should be assessed on an indemnity basis. There was no proper basis for continuing with either. To the extent that costs were ordered by a judicial officer of the Supreme Court of Victoria when both or one or other of those proceedings were in the Supreme Court, then those orders or that order stands. Otherwise, costs should be paid by the husband and his companies on a party/party basis from inception of each of the two Supreme Court proceedings on the basis that neither were arguable and Ms Pacek was wholly successful in respect of each. Upon the transfer of those proceedings to this court, costs are payable on an indemnity basis, as has already been stated.
5. I order a registrar of this court to assess those costs.

1. Two separate pieces of litigation are the subject of Ms Pacek's costs applications, namely proceeding MLC 2954 of 2020 and MLC 7293 of 2024. Each was explained in Pacek & Saltzer (No 3).[25]
2. Counsel for Ms Pacek sought costs of the two proceedings in this court contending that those costs were payable on one of two possible bases. The first was under the indemnity. The second was in pursuance of s 117(2A) on the basis that facts and circumstances relevant to s 117(2A)(c), (d) and (e) were enlivened.
3. As to the first, in my view it is not correct to suggest that a costs order in a presently unquantified amount in respect of which no demand for payment has been made is a costs order done under the indemnity ordered by Bennett J.
4. That meant that Ms Pacek needed to base her application for costs of the two proceedings in this court on s 117(2A)(c), (d) or (e).
5. It seemed to me that the subsection of s 117(2A) most apposite related to Ms Pacek being wholly successful in the proceeding (s 117(2A)(e)). The husband and his companies were wholly unsuccessful in the two proceedings in this court. That much does not admit of contrary submission. However, it is also relevant to consider whether a costs order is just in all the circumstances. In my view one is. I say that for two reasons, namely -

(a) the husband and the companies under his control adopted an obdurate and obstructionist approach towards the consent orders in that he failed to give effect to the purpose and intendment of the consent orders, preferring instead to fight the wife at every turn in an endeavour to deny her the benefit of the resolution; and

(b) the husband did not act consistently with the overarching obligations set out in s 95(2) of the Family Law Act by advancing the objectives of efficiently disposing of the proceedings in a timely manner and in a manner that was proportionate.

On either basis, it seemed to me that a costs order was just.

1. Whether an order for indemnity costs was appropriate depended on whether exceptional circumstances existed to warrant such an order being made. In Hatcher v Cohn[26] Kiefel J held that exceptional circumstances are circumstances that are out of the ordinary. The issue here is whether the resistance put up by the husband and his companies to the two proceedings in this court was out of the ordinary. In my view it was. The husband adopted an obdurate and aggressive attitude of intransigence towards the two cases in this court that were not transferred. He was anything but conciliatory. He had been before me (four times) in reported decisions, debating his liability subsequent to the orders of Bennett J. The cases should have stopped with the consent orders. They did not. That was out of the ordinary. Indemnity costs must follow and I so order.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson.

[1] [2024] FedCFamC1F 680.

[2] [2025] FedCFamC1F 252.

[3] Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123.

[4] Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225, Medlon v Medlon (No 6) [2015] FamCAFC 157; (2015) 54 Fam LR 1 and Moy & Pao [2022] FedCFamC1A 17.

[5] [2022] HCA 21; (2022) 275 CLR 24.

[6] [1988] HCA 44; (1988) 165 CLR 107.

[7] As that phrase was described in Bilson v Vatsonic Communications Pty Ltd [2024] QCA 171 (at [106]).

[8] Trustees Executors & Agency Co Ltd v Reilly [1941] VicLawRp 3; (1941) VLR 110, 111 (Mann CJ), Powers v Maher [1959] HCA 52; (1959) 103 CLR 478, 484, Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560, 623 (at [159]) and MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) [2010] VSCA 245; (2010) 31 VR 575, 597 (at [88]).

[16] MC Wholesaling Pty Ltd v Zheng [2024] VSCA 248 (at [47]), Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 (at [542]-[544]), DPP v Batich (2013) 38 VR 544, AJG Australia Pty Ltd v Jacques [2015] VSCA 3 and United Petroleum Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501.

[17] Re Yunghanns [2000] FamCA 681; (2000) 26 Fam LR 331, Kohan v Kohan [1992] FamCA 116; (1992) 16 Fam LR 245 and Medlon v Medlon (No 6) [2015] FamCAFC 157; (2015) 54 Fam LR 1.

[18] (1997) 22 Fam LR 521.

[19] [2024] FedCFamC1A 169 (at [82]).

[20] Ressel & Morath [2023] FedCFamC1A 145, Wei & Xia (No 2) [2024] FedCFamC1A 136, Fowles & Fowles (No 5) [2024] FedCFamC1A 188 and Casio & Casio (No 5) FedCFamC1A 205.

[21] The affidavit of Ms Pacek sworn 6 December 2022, the affidavit of Mr G filed 7 December 2022, the affidavit of Ms Pacek sworn 9 October 2023, her affidavit filed 29 April 2024, her affidavit sworn 13 June 2024 and the affidavit of Mr G sworn on 29 August 2024.

[22] [2024] FedCFamC1F 650 (at [46]).

[23] [2024] FedCFamC1F 666 (at [2(d)]).

[24] [2021] VSCA 87.

[25] [2024] FedCFamC1F 680.

[26] [2004] FCA 1548; (2004) 139 FCR 425.