Bence and Bence (No 2)

In *Bence and Bence (No 2)*, Johns J of the Federal Circuit and Family Court of Australia was required to determine an application for costs following earlier proceedings between the parties. The wife sought an order for her costs to be paid by the husband on an indemnity basis.

The central legal issue before the court was whether the husband should be ordered to pay the wife’s costs on an indemnity basis, and if so, in what amount. This required the court to consider the circumstances of the litigation and whether they warranted departing from the usual order for costs to be assessed on a party and party basis.

Johns J reasoned that the husband's conduct during the proceedings justified an order for indemnity costs. His Honour found that the husband had engaged in a pattern of obstructive and unreasonable conduct, which had unnecessarily prolonged the litigation and increased the wife's legal expenses. Applying the principles governing indemnity costs, which are awarded in exceptional circumstances where a party's conduct has been vexatious, unreasonable, or caused significant prejudice to the other party, the court concluded that such an order was appropriate.

Consequently, the court ordered that the husband pay the wife’s costs of and incidental to the proceedings on an indemnity basis, fixed in the sum of $157,688, to be paid within 30 days. All other extant applications were dismissed.