Dent and Dent

In the matter of *Dent and Dent*, heard before Dessau J in the Supreme Court of Victoria, the dispute concerned an application by the wife for an order that the husband pay her legal costs of the final hearing in family law proceedings. The wife sought an order for costs against the husband on an indemnity basis, arguing that the husband had failed to comply with a court order made on 15 March 2016, which required him to provide certain financial documents to the wife. The wife contended that this non-compliance had significantly increased the costs incurred by her in preparing for and attending the final hearing.

The central legal issue before the Court was whether the husband's failure to comply with the earlier court order constituted conduct that warranted the imposition of costs on an indemnity basis. Specifically, the Court had to determine if the husband's actions were of such a nature as to justify departing from the usual rule that costs follow the event, and instead ordering costs to be paid on a higher, more punitive basis. This involved assessing the degree of the husband's non-compliance and its impact on the litigation.

Dessau J reasoned that an order for indemnity costs is an exceptional one, typically reserved for cases where a party has engaged in vexatious, frivolous, or wholly unreasonable conduct, or has deliberately failed to comply with court orders in a manner that significantly prejudices the other party. Her Honour found that while the husband had indeed failed to comply with the order of 15 March 2016, the evidence did not establish that this failure was deliberate or intended to frustrate the proceedings to the extent required to justify indemnity costs. The Court considered the husband's explanations for the non-compliance and concluded that, while unsatisfactory, they did not reach the threshold for an indemnity costs order.

Consequently, Dessau J ordered that the husband pay the wife's costs of the final hearing, but on a party and party basis, not on an indemnity basis.