Cabasso and Cabasso

In the Family Court of Australia at Brisbane, Barry J considered applications for costs following property settlement consent orders made on 31 January 2006. The dispute arose after the wife initiated proceedings under s 79A of the *Family Law Act 1975* (Cth) to discharge the consent orders, alleging issues with the husband's sale of a family business for $324,000, which was valued at $200,000 for the original proceedings. The wife discontinued these s 79A proceedings on 15 January 2007. Subsequently, the husband sought indemnity costs for both the s 79A application and the current costs proceedings, while the wife sought indemnity costs for the s 79A application and the current proceedings, and dismissal of the husband's application.

The court was required to determine whether to award costs on an indemnity basis to either party for the wife's discontinued s 79A application and for the current costs proceedings. Specifically, the court had to assess the conduct of the parties and their legal representatives in relation to the s 79A proceedings and the subsequent applications for costs, considering the wife's discontinuation of her application and the husband's conduct in relation to disclosure and explanation of the business sale.

Barry J reasoned that the wife's s 79A application was trivial and spurious, and that she had "lost resoundingly." He noted that costs on an indemnity basis are a rare event and that the wife's case did not fall within that category, particularly given her discontinuation of the proceedings. While acknowledging the husband's tardiness in providing instructions and disclosure, and his initial incorrect explanation for the business sale, the court found that the husband's conduct did not warrant indemnity costs. The court applied the principle that changes in property value after settlement do not, by themselves, provide a basis to set aside final orders, citing *Bowman*. Ultimately, the court found the situation akin to "two bald men fighting over a comb" due to the relatively small sums involved in the costs applications compared to the overall net worth of the parties.

The court ordered that the wife pay the husband 50% of his costs of and incidental to the application filed by the wife on 21 September 2006, assessed at $4,800, to be paid within 28 days. The applications for costs of the current hearing were dismissed, meaning neither party was awarded costs for those proceedings.