Cook and Cook

In *Cook & Cook*, the Family Court of Australia considered an application by the wife for costs and disbursements related to enforcement and injunctive proceedings. The wife sought partial costs on an indemnity basis and other costs on a party-and-party scale, while the husband sought dismissal of the wife's application and indemnity costs for himself. The court had to determine the appropriate basis for awarding costs, considering the parties' conduct and financial circumstances.

The central legal issues before the court were whether to award costs to the wife, and if so, on what basis – specifically, whether indemnity costs were warranted for certain aspects of the proceedings, or if party-and-party costs would suffice. The court also had to consider the husband's financial capacity and his conduct throughout the litigation, particularly his failure to comply with previous court orders, in determining the justice of any costs order.

The court reasoned that the wife had been substantially successful and the husband wholly unsuccessful in the proceedings. It found that the husband's failure to comply with previous costs orders was not due to an inability to pay but rather a wilful refusal, which justified a departure from the usual party-and-party costs assessment. The court noted the significant disparity in the parties' financial circumstances, with the wife facing substantial outstanding legal expenses and the husband, a company director, enjoying a reasonable lifestyle despite his liabilities. Consequently, the court ordered the husband to pay the wife's costs and disbursements on an indemnity basis for the enforcement issues and on a party-and-party basis for other injunctive and hearing matters. A Registrar was appointed to assess the quantum of these costs.