Jeter and Jeter

This matter concerned an application by the husband for costs against the wife. The husband sought costs on an indemnity basis, totalling $97,572.82, or alternatively, that the wife pay the husband’s costs from the date of her Response to the husband’s Initiating Application, on an indemnity basis from 5 October 2018. The court was presided over by Foster J.

The primary legal issue before the court was whether to grant the husband's application for costs on an indemnity basis, and if so, from what date. This involved considering the court's discretion to award costs on an indemnity basis, which aims to fully or substantially reimburse a party for their legal expenses, and the circumstances that would justify such a departure from the usual party-and-party costs order.

Foster J dismissed the husband's application for costs. The court referred to the Full Court's observations in *Brown and Green* [2002] FamCA 791, which emphasised the importance of giving proper consideration to written offers of settlement. The insertion of s 117C into the legislation was noted as a clear indication of Parliament's intent to encourage parties to avoid unnecessary litigation by proposing settlement terms. The failure to heed a reasonable offer, where there was adequate knowledge to properly consider it, was identified as a circumstance that would normally justify an order for costs in favour of the party making the offer. However, the court ultimately found that the circumstances did not warrant departing from the usual course of making party-and-party costs orders, and therefore, the husband's application for indemnity costs was dismissed.