Cainer and Gerller

The Family Court of Australia considered competing applications for costs arising from proceedings concerning property settlement and related interlocutory matters between Mr Cainer (the applicant husband) and Ms Gerller (the respondent wife). The wife sought leave to apply for costs out of time, which was granted without objection.

The court was required to determine whether to make any order as to costs, and if so, what order would be just, having regard to the financial circumstances and conduct of the parties, the necessity of proceedings due to non-compliance with previous orders, whether any party was wholly unsuccessful, and any written offers of settlement. The husband sought costs assessed at $100,000, while the wife sought costs assessed at $75,000 for the property settlement proceedings, indemnity costs for a contravention application, and costs assessed at $15,000 for a stay application.

Loughnan J noted that the husband was in substantially more robust financial circumstances than the wife. Regarding the conduct of the parties, the court found no failure by the wife to produce documents and observed that the husband's pursuit of an adversarial expert was not necessarily unreasonable once he had obtained one. The court also found that the husband was unsuccessful on the issue of the wife's mother's testamentary capacity and that the wife's allegation regarding money received from Mr H was struck out without an order for costs. The court did not find a failure of disclosure by the husband. The parties had engaged in extensive written offers of settlement between August and September 2007.

Ultimately, the court made no order as to costs in respect of the property settlement, contravention, and stay proceedings. However, it provided a mechanism for either party to seek costs for the costs proceedings themselves, requiring written submissions within 28 days.