Broad-Brush Costs Upheld, But Forced Sale Set Aside After Possible Mortgage Forgery

In Poirier & Poirier (No 3) [2026] FedCFamC1A 95, Aldridge J dismissed the husband’s appeal against a $150,000 costs order, rejected the wife’s cross-appeal seeking indemnity costs, but allowed the wife’s cross-appeal in part against enforcement orders requiring her to refinance or sell property. The key split in the case is this: the costs order survived because the primary judge’s broad-brush assessment was logical, fair and reasonable; however, the enforcement order was set aside because fresh evidence showed the husband had been charged with allegedly forging the wife’s signature on Westpac home loan documents, creating a real possibility that the mortgage liability itself may be challenged.

🧩 Facts and Issues

Facts:

After completed property proceedings, the primary judge ordered the husband to pay the wife’s costs fixed at $150,000. The reason was the husband’s litigation conduct: the primary judge found he failed to give timely and complete disclosure, was not honest about his financial interests, made valuation difficult, was dishonest in cross-examination, and pressured his father to give dishonest evidence. This conduct substantially increased the wife’s legal costs.

The wife’s actual legal costs were over $500,000. The primary judge assumed a party/party assessment would likely reduce that to around 50–60%, then fixed the husband’s contribution at $150,000. The husband appealed, arguing this was too broad, inadequately reasoned, unsupported by evidence, and not properly tied to the scale of costs.

The wife cross-appealed. She argued the costs order should have been indemnity costs, and also challenged enforcement orders requiring her to refinance a Westpac loan or sell property to discharge the husband’s liability. After the enforcement orders, the husband was charged with allegedly forging the wife’s signature on Westpac loan documents. The wife sought to rely on that fresh evidence on appeal.

Issues:

1. Was the $150,000 fixed costs order a permissible broad-brush assessment?
2. Did the primary judge give adequate reasons for fixing costs?
3. Was the wife entitled to indemnity costs?
4. Should further evidence of alleged forgery be admitted?
5. If the mortgage may have been procured by forgery, was it reasonable to enforce orders requiring sale/refinance for the husband’s benefit?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 114UB — costs discretion, including the conduct of parties and any other relevant matter.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 12.13 — requirements relevant to indemnity costs applications.
• Sch 3 — scale of costs, relevant but not binding when the Court fixes a gross sum.

📌 Precedents Relied On

• Sresbodan & Sresbodan [2016] FamCA 954 — broad-brush gross-sum costs principles.
• Beach Petroleum NL v Johnson, discussed through Sresbodan — gross-sum costs must be logical, fair and reasonable.
• Stoian & Fiening (Costs) — fixed costs can avoid expense, delay and aggravation of taxation.
• Sfakianakis v Sfakianakis — indemnity costs and procedural requirements.
• Bennett and Bennett — adequacy of reasons.
• Pollard v RRR Corporation Pty Ltd — reasons must allow the appeal court to understand the reasoning path.

🧠 Analysis

Issue

Did the primary judge err by fixing the wife’s costs at $150,000, and did the later evidence of possible mortgage forgery make the enforcement orders requiring sale/refinance unreasonable?

Rule

A court may fix costs as a gross sum rather than sending the parties to taxation. That process is inherently broad-brush. It does not require a line-by-line assessment. The question is whether the approach is logical, fair and reasonable, and whether the judge had enough material to make a confident estimate.

Costs remain discretionary under s 114UB. Even serious misconduct does not automatically require indemnity costs. A party seeking indemnity costs must comply with procedural requirements, including producing necessary costs material under the Rules.

On appeal, further evidence may be admitted where the interests of justice require it, especially where the evidence could materially affect whether an enforcement order remains reasonable or fair.

Application

1. Husband’s costs appeal failed — broad-brush does not mean arbitrary

The husband argued the $150,000 costs order was not properly supported and that the primary judge simply assumed too much. Aldridge J rejected that.

The wife’s costs were evidenced at over $500,000. The primary judge took a lower figure of $501,889, assumed a party/party assessment would reduce that by about 40–50%, and then ordered the husband to pay $150,000.

That was not plucked from the air. It was a broad-brush estimate based on the wife’s actual costs, expected reductions on assessment, and the husband’s conduct that had significantly increased those costs.

2. A fixed costs order avoids taxation — it does not replicate it

The husband’s complaints effectively demanded a line-by-line taxation exercise. Aldridge J emphasised that this misunderstands the purpose of a fixed gross-sum costs order.

The very point of fixing costs is to avoid the expense, delay and aggravation of another costs dispute. A judge does not have to assess every item individually. The Court can use a broad brush, provided the result remains logical, fair and reasonable.

The husband pointed to a specific $4,000 item and asked why it was allowed. The answer was that it was not “allowed” as a discrete item. It was absorbed into the overall assessment and discounted in the broad process.

3. Scale costs were relevant, but not controlling

The husband argued the primary judge failed to properly consider the scale of costs, especially counsel’s fees. That ground failed.

A fixed-sum costs assessment is not bound by the scale, although the scale may inform the result. Counsel’s fees were only about $26,000, a small fraction of the total costs. Any alleged error about counsel’s fees was therefore unlikely to be material.

4. Wife’s indemnity costs cross-appeal failed

The wife argued that, given the husband’s dishonesty, non-disclosure and litigation misconduct, indemnity costs were required. Aldridge J rejected that as an incorrect statement of law.

Indemnity costs are discretionary, not automatic. Even where misconduct is serious, the Court still exercises discretion under s 114UB. The wife’s own conduct in the proceedings had also been criticised, which made it impossible to say the refusal of indemnity costs was plainly wrong.

Her indemnity costs application also failed because she did not comply with r 12.13(4). Aldridge J described the indemnity costs application as “doomed to fail” for that reason.

5. Fresh evidence of alleged forgery changed the enforcement issue

The decisive point in the cross-appeal was not costs. It was enforcement.

The wife was required to refinance and discharge the husband’s liability under a Westpac loan, and if necessary sell one of her properties. But after the enforcement orders, police charged the husband with allegedly forging the wife’s signature on two Westpac home loans, along with other forgery-related charges.

Aldridge J admitted the further evidence. Even though the evidence was general and the police case was at an early stage, it raised a serious practical problem: if the husband forged the wife’s signature on the loan or mortgage documents, then there may be an arguable basis for setting aside the loan/mortgage, subject to the bank’s position.

If that occurred, the wife’s property might be unencumbered, and the bank’s claim might lie against the husband instead. In that scenario, forcing the wife to sell property to discharge a liability allegedly created by the husband’s forgery could be unfair and unreasonable.

6. Enforcement order set aside and remitted

The primary judge at the enforcement hearing had to deal with the final orders as they stood and could not vary the original property orders on that application. But on appeal, with the new evidence of charges, Aldridge J held there was a real possibility that the evidence, had it been available, would have at least led to an adjournment to obtain more detailed police material.

For that reason, the enforcement order requiring sale/refinance was set aside and the husband’s enforcement application was remitted for rehearing.

Conclusion

The husband’s appeal against the $150,000 costs order was dismissed. The wife’s cross-appeal against the costs order also failed, including her attempt to obtain indemnity costs.

However, the wife’s cross-appeal against the enforcement order succeeded in part. The further evidence was admitted, the enforcement order requiring refinance/sale was set aside, and the husband’s enforcement application was remitted for rehearing. The husband was ordered to pay the wife’s filing costs of the cross-appeal, fixed at $1,705.

🧠 Take-Home Lesson

This case has two practical lessons.

First, fixed costs orders are allowed to be broad-brush. A party cannot defeat a gross-sum costs order simply by demanding a line-by-line taxation exercise. If the judge starts with actual costs, applies a rational discount, considers the parties’ conduct, and explains the outcome, the order will likely stand.

Second, enforcement orders must remain fair in light of new material. If a property is being forced to sale to discharge a mortgage, and credible new evidence suggests the mortgage may have been created by forgery, the Court should be cautious before allowing enforcement to proceed. The wife did not prove the forgery on appeal, but she showed enough to make immediate forced sale unsafe.