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Wife Seeks Order for Husband to Pay Costs

Min & Orton (No 2) [2022] FedCFamC1F 302 (10 May 2022)

The primary judge made orders to rectify an agreement between the parties.  The wife seeks an order that the husband pay her costs of the application.  The Court, in making its orders, assessed each of the parties' earning capacities. 


On 11 March 2022, the Court delivered reasons and made orders dismissing an application by Mr Orton (“the husband”) to rectify an agreement between himself and Ms Min (“the wife”) executed on 1 August 2013.  

The wife now seeks an order that the husband pay her costs of the application on an indemnity basis or, in the alternate, on a party and party basis.  Each party has been given the opportunity to file evidence in relation to the issue of costs and to make written submissions.  

The wife has modest means.  She has an income of $323 per week from investments and, in addition, she receives a job seeker allowance.  She owns an investment property which she estimates to be worth $550,000 and has about $198,000 in the bank.


Whether or not the husband should pay the wife's costs. 

Applicable law:

Family Law Act 1975 (Cth) s 117(2A) - provides that in considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, 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;

(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 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; and

(g) such other matters as the court considers relevant.

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536(1993) 46 FCR 225 - relied upon when considering whether an order for indemnity or solicitor/client costs would be appropriate.
Preston v Preston ([1982] 1 All ER at 58) - provides that there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. 


The husband’s financial position is significantly superior to that of the wife.  The husband has an income of $6,644 per week and expenses of $2,322.  He has net property in excess of $4,000,000.  The only other part of s 117(2A) of the Act upon which the wife relied was that the husband was wholly unsuccessful in his application to rectify, and thus uphold, the agreement.


The husband is to pay the wife’s costs of the application heard on 10 March 2022 as assessed or agreed, such costs to be paid within 28 days of assessment or agreement.


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