Cardus and Lavrick (No 2)

In *Cardus and Lavrick (No 2)*, McEvoy J of the Family Court of Australia considered an application by the mother for indemnity costs against the father. The father had been wholly unsuccessful in the substantive proceedings, and the Court had previously found that his institution and maintenance of those proceedings constituted an abuse of process. The father contended that his impecuniosity and denial of malicious or vexatious motives should preclude an indemnity costs order, and he failed to prove his claims of impecuniosity.

The central legal issue before the Court was whether the father's alleged impecuniosity or incapacity to meet a costs order could, in itself, be determinative in preventing an order for indemnity costs. The Court was also required to determine whether the father's conduct throughout the proceedings and his complete lack of success justified making a costs order against him on an indemnity basis, and if so, whether those costs should be fixed at a specific amount.

McEvoy J reasoned that impecuniosity or an inability to pay costs does not, per se, preclude an order for indemnity costs. The Court found that the father's conduct throughout the proceedings, coupled with the fact that he was wholly unsuccessful and had abused the process of the Court, justified making an order for indemnity costs in favour of the mother. The Court further determined that it was appropriate to fix these costs in a specific amount.

Consequently, the Court ordered that the mother file an affidavit itemising her costs. Subject to compliance with this order, the mother's costs were fixed at $111,675.77 pursuant to rule 19.18(1)(a) of the *Family Law Rules 2004*. The father was ordered to pay this sum to the mother within ninety days of the filing of the affidavit.