Findlay and Daniels (No 2)

In *Findlay and Daniels (No 2)*, Dessau J of the Family Court of Australia considered an application for indemnity costs. The wife had filed a "Stay application" on 23 March 2011, which she subsequently discontinued. The husband sought indemnity costs in relation to this discontinued application.

The central legal issue before the court was whether the circumstances warranted an award of indemnity costs against the wife for the discontinued Stay application. This required the court to consider the principles governing the award of indemnity costs in family law proceedings, particularly in the context of a discontinued application.

Dessau J reasoned that indemnity costs are an exception to the general rule that costs follow the event, and are typically awarded where there has been unreasonable conduct. In this instance, the wife's discontinuance of the Stay application, coupled with the circumstances surrounding its filing and withdrawal, led the court to conclude that an award of indemnity costs was justified. The court applied the principle that indemnity costs may be awarded to penalise vexatious, frivolous, or abusive litigation, or where a party has acted unreasonably in the conduct of proceedings.

The court ordered that the wife pay the husband’s indemnity costs in relation to her Stay application filed on 23 March 2011, fixed at $2,792, following her discontinuance of that application.