Winning the Property Outcome Does Not Automatically Win Costs: Husband’s Appeal Fails Because His $23,290 Costs Claim Was Too Narrow, Too Late, and Not Causally Linked

In Metzger & Dimov (No 3) [2026] FedCFamC1A 85, Austin J dismissed the husband’s appeal from costs orders made after the parties’ financial proceedings ended with a “walk away” outcome: each party retained their own property and liabilities, and no property adjustment orders were made. The husband argued this was effectively the result he had been seeking for about 12 months, so the wife should pay his costs. But the appeal failed because his costs application ultimately related only to $23,290 for his privately retained lawyers preparing for and appearing on the final day of trial, and most of his appeal grounds complained about earlier procedural grievances that had nothing to do with that narrow costs claim.

🧩 Facts and Issues

Facts:

The parties cohabited shortly before marriage in late 2019 and separated in mid-2021. The husband commenced financial proceedings in June 2022, originally seeking that the wife pay him $220,000, in return for which he would indemnify her against liabilities connected with a corporation he controlled. By October 2024, he abandoned the cash adjustment claim and instead sought indemnity costs against the wife.

The trial began in June 2025, continued part-heard in August 2025, and concluded in December 2025. On the final hearing day, the parties’ remaining disputes collapsed and they accepted that no property adjustment orders should be made. The orders ultimately provided that each party retain their own assets, liabilities, financial resources and superannuation, and indemnify the other for their own debts. The only live dispute left was costs.

Father’s position and the costs he sought:

The husband’s position was that the wife should pay his costs because she had ultimately agreed to a “walk away” result — each party keeping their own property and debts — which he said was the position he had pressed since amending his application in October 2024. Although his costs claim had earlier been framed broadly as an indemnity costs claim extending across the litigation, his counsel clarified before the primary judge that the actual figure being sought was $23,290, being the cost of his lawyers preparing for and appearing on the final day of hearing on 5 December 2025. Those lawyers had only been retained several days earlier, on 1 December 2025.

Issues:

1. Did the primary judge err in dismissing the husband’s costs application?
2. Was the wife’s failure to accept an earlier offer relevant to the final costs outcome?
3. Were the husband’s many complaints about disclosure, delay, affidavits, valuation and procedural fairness relevant to the costs judgment?
4. Was the refusal to order costs plainly unjust or affected by legal, factual or discretionary error?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VIII — financial proceedings between spouses.

Appeal principle:

The appeal was confined to the actual costs judgment and the two orders challenged: the dismissal of the husband’s costs application and the order that each party bear their own costs. Appeals lie from judgments/orders, not from reasons, and not from general dissatisfaction with how earlier trial events unfolded.

📌 Precedents Relied On

• Commonwealth v Bank of NSW (1949) 79 CLR 497 — appeals lie from judgments, not reasons.
• Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 — same principle: an appeal must attach to the operative judgment/order, not collateral reasoning or grievances.

🧠 Analysis

Issue

Did the primary judge make appealable error by refusing to order the wife to pay the husband’s legal costs of $23,290 for the final day of trial, where the husband said the wife had ultimately accepted the “walk away” result he had proposed earlier?

Rule

A costs appeal must identify error in the costs discretion itself. It is not enough to complain about earlier procedural events unless those events are causally connected to the costs actually claimed. Where the costs application is narrowed to a specific cost item — here, the husband’s lawyers’ preparation and appearance on the last day of trial — complaints about earlier affidavits, disclosure disputes, valuation issues, or alleged unfairness during earlier hearing days will usually be irrelevant unless they materially affected that specific costs decision.

Application — Father’s Grounds of Appeal and Why Each Failed

Ground 1 — Settlement offer

The husband argued the primary judge failed to give proper weight to an offer he made in October 2021 for each party to retain their own assets and debts. This failed because the offer was irrelevant. At that time, the husband alleged the parties’ debts exceeded their assets by about $234,706, whereas by December 2025 the agreed net pool was about $2.5 million. The 2021 offer was made on a completely different factual basis and could not sensibly be compared with the final result.

Ground 2 — Wife’s alleged non-disclosure

The husband said the primary judge failed to weigh the wife’s failure to provide full and frank disclosure. This failed because the primary judge expressly considered that both parties had failed to give proper and timely disclosure. The alleged wife-only misconduct was not accepted as a basis for costs.

Ground 3 — Wife’s breach of orders / late evidence

The husband complained about the wife’s procedural defaults, including late evidence. This failed because the primary judge referred to failures by both parties, and because the costs claim was limited to the husband’s legal costs for the final hearing day. Earlier procedural inefficiencies did not explain or justify shifting that final-day cost to the wife.

Ground 4 — Wife’s litigation conduct and allegations

The husband argued the wife’s conduct caused unnecessary interlocutory hearings and investigations. This failed for irrelevance. The husband was not, by the end, pursuing costs of the whole litigation. He was seeking only the final-day legal costs, so older complaints about the way the litigation had unfolded were outside the costs application as actually pressed.

Ground 5 — Unsubstantiated allegations and cross-examination

The husband claimed the primary judge gave weight to unsubstantiated allegations and denied him procedural fairness by not allowing cross-examination about documents the wife disclosed late. This failed because the financial case resolved without findings on those issues. Since neither party needed to cross-examine on the final day, earlier evidentiary grievances had no bearing on the costs judgment.

Ground 6 — Alleged loan liabilities

The husband argued the primary judge wrongly excluded genuine loan liabilities from the financial cause. This failed because the substantive financial case had resolved by agreement and the parties had agreed the relevant pool. The primary judge was not required to make findings about disputed liabilities, and the alleged error did not affect the costs decision.

Ground 7 — Causal connection

The husband said the primary judge failed to consider the causal connection between the wife’s conduct and his costs. This failed because it merely repackaged earlier complaints about disclosure, allegations and procedure, all of which had already been rejected as irrelevant to the final-day costs claim.

Ground 8 — Procedural fairness regarding late evidence

The husband alleged he was denied the chance to respond to late evidence filed by the wife in June and August 2025. This failed because that complaint had nothing to do with the December 2025 costs judgment. Austin J described the submission that it affected costs as spurious.

Ground 9 — Inconsistencies in wife’s evidence

The husband argued the primary judge failed to consider inconsistencies in the wife’s evidence. This failed because the primary judge did not need to resolve factual disputes after the parties accepted the “walk away” financial outcome. Unresolved evidentiary inconsistencies did not create a basis for a costs order.

Ground 10 — Prejudicial effect of untested allegations

The husband complained of prejudice caused by allegations in the wife’s final affidavit. This failed for the same reason: once the financial case resolved, historical evidentiary disputes were futile for the substantive case and equally futile for the costs dispute.

Ground 11 — Delay and adjournments

The husband challenged findings attributing fault to him for delay. This failed because the relevant costs claim concerned only the December 2025 final day. The primary judge had found the August-to-December delay was at least partly the husband’s fault, and both parties had contributed to delay. The appeal court did not need to revisit every earlier delay complaint.

Ground 12 — Treatment as a self-represented litigant

The husband alleged error in how he was handled while self-represented. This failed because those events occurred before December 2025. On the final day — the very day for which he sought costs — he was legally represented.

Grounds 13 and 14 — Overseas property valuation

The husband complained about procedural unfairness and disadvantage concerning valuation of overseas property. These grounds failed because they related to the financial cause, not the costs judgment. The appeal was not from the substantive property outcome.

Ground 15 — Withdrawal of instructions and settlement offer

The husband said he was denied procedural fairness because he could not explain why he withdrew instructions from earlier lawyers. This failed because it had nothing to do with the December costs application by his new lawyers. To the extent the ground repeated the 2021 settlement offer point, it failed for the same reason as Ground 1.

Ground 16 — Earlier costs notices

The husband argued the primary judge wrongly found there was no evidence of his legal costs apart from the Costs Notice filed on 5 December 2025. Austin J accepted that even if earlier costs notices existed, any mistake was immaterial because the costs application ultimately related only to his new lawyers’ work from 1–5 December 2025.

Ground 17 — Evidence issue from August 2025

The husband complained about how evidence was dealt with in August 2025. This failed because it had nothing to do with the December 2025 costs judgment.

Ground 18 — Plain injustice

The husband’s final ground asserted the result was plainly unjust and caused a miscarriage of justice. This failed because no legal, factual or discretionary error was shown, and the refusal of costs was not manifestly unreasonable.

Conclusion

The appeal was dismissed. Austin J held that the husband failed to demonstrate any legal, factual or discretionary error in the refusal of his costs application. The primary judge was entitled to conclude that the wife should not pay the husband’s $23,290 final-day legal costs, particularly where the relevant asset pool had changed dramatically, both parties had contributed to delay and disclosure problems, and many of the husband’s complaints were unrelated to the actual costs judgment. No appeal costs order was made because the wife was self-represented.

🧠 Take-Home Lesson

This case is a practical costs warning: a party cannot convert every grievance from a long property dispute into a costs appeal. If a costs application is narrowed to one specific period — here, the husband’s lawyers’ preparation and appearance on the final day — the party must show why the other party’s conduct caused those particular costs. Earlier complaints about disclosure, affidavits, valuation, procedural fairness, or untested allegations will not help unless they are directly connected to the costs being claimed.

The decision also shows that a “walk away” final result does not automatically mean one party “won”. The Court will look at the history, the changing asset pool, the conduct of both parties, and the actual costs application made.