Denning and Denning (No 4)

In *Denning & Denning (No 4)*, the Family Court of Australia considered an application for costs made by the Respondent wife against the Applicant husband, following final orders pronounced on 8 March 2011. An intervenor, B Pty Ltd, also sought costs. The proceedings concerned property and financial matters, and the wife sought costs on an indemnity basis, supported by an affidavit detailing her legal costs and disbursements totalling $93,526.10. The husband did not appear at the costs hearing, having filed no response to the wife's application.

The primary legal issues before the Court were whether the circumstances justified an award of costs against the husband, and if so, on what basis – specifically, whether indemnity costs were appropriate or if costs should be assessed on a solicitor and client basis. The Court also considered the intervenor's application for costs. The wife's claim for costs was founded on sections 117AB and 117 of the *Family Law Act 1975* (Cth), with particular emphasis on the husband's conduct, including alleged false and misleading statements and the creation of false documents.

The Court reasoned that while the husband's conduct throughout the proceedings, particularly his truthfulness and willingness to provide accurate information and documents, justified an award of costs in favour of the wife, the circumstances did not meet the threshold for indemnity costs. The Court referred to established principles regarding indemnity costs, noting that such an award requires exceptional or very clear and significant circumstances, which were not present here. However, the Court found that costs calculated on a solicitor and client basis were appropriate, as permitted by Rule 19.18 of the *Family Law Rules 2004* (Cth), to more fully reimburse the wife for her legal expenses. The Court also dismissed the intervenor's application for costs.

The Court ordered that the husband pay to the wife's solicitors, within sixty days, costs assessed on a solicitor and client basis in the sum of $75,000. Interest was to be paid on any outstanding amount at the prescribed rate. The Court also ordered that there be no costs order in relation to the hearing on 18 April 2011, and that all other extant applications, including the intervenor's oral application for costs of that hearing, be dismissed. The Court noted that the attendance of counsel for both the wife and the intervenor was reasonably required.