Gus Kak v Allison Sarah Kak (née Boman) [No 2]

The case of Gus Kak v Allison Sarah Kak (née Boman) [No 2] was heard by the Family Court of Australia. The parties were Gus Kak, the first defendant and cross-claimant, and Allison Sarah Kak (née Boman), the original plaintiff. The central issue in the case was the determination of costs associated with the proceedings, specifically whether the costs should follow the event. The court was required to decide whether the costs incurred in the litigation should be borne by the party that ultimately prevailed in the case or if there were circumstances that warranted a deviation from this principle.

In considering the matter, the court examined the principle of costs following the event, which generally means that the losing party is responsible for the costs incurred by the winning party. However, the court recognised that there are exceptions to this principle, particularly in cases where the conduct of the parties, or other circumstances, justify a different outcome. The court had to determine if any such exceptional circumstances existed in this case that would warrant a departure from the usual rule of costs following the event.

The court concluded that, despite the general principle, the exceptional circumstances of this case warranted a deviation from the usual rule. The court found that the conduct of the first defendant and cross-claimant, Gus Kak, was such that it was just and equitable for the costs to follow the event in a manner that did not fully burden him with the costs of the litigation. Consequently, the court ordered that the costs should be apportioned in a way that reflected the particular circumstances of the case. The court's decision was based on a careful consideration of the conduct of the parties and the overall fairness of the outcome in relation to the costs.

The final orders of the court were that the costs of the proceedings were to be apportioned in a manner that recognised the exceptional circumstances of the case, ensuring that the burden of costs was not entirely disproportionate to the party that did not prevail in the litigation.