Irving and Irving

The Family Court of Australia considered an application by the wife for costs following the husband's unsuccessful attempt to set aside consent orders regarding property. The husband's application under section 79A of the *Family Law Act 1975* (Cth) was summarily dismissed by the court. The wife sought an order for her costs on an indemnity basis, or otherwise as the court deemed just.

The court was required to determine whether there were justifying circumstances, as contemplated by section 117(2) of the *Family Law Act 1975* (Cth), to depart from the usual rule that each party bears their own costs. In making this determination, the court considered various factors outlined in section 117(2A), including the financial circumstances of the parties, the conduct of the proceedings, whether a party had been wholly unsuccessful, and any offers of settlement made. The court also had regard to the principles governing indemnity costs, which aim to fully reimburse a party for their legal expenses.

The court reasoned that the husband's application was wholly unsuccessful, having failed at a preliminary stage. Furthermore, the wife had made a reasonable offer to settle a key issue in the husband's application, which he had not accepted, thereby placing him in a worse position. These factors, particularly the complete lack of success of the husband's application and his rejection of a settlement offer, were considered sufficient to justify a departure from the ordinary rule regarding costs. The court noted that while indemnity costs are awarded in exceptional circumstances, a party's complete lack of success can be a sole determinant for a costs order.

The court ordered that the husband pay the wife's costs of and incidental to the section 79A proceedings and the summary dismissal application, including the costs of the present application for costs, on a party/party basis. These costs were to be paid within a specified timeframe, either by agreement or assessment.