Johansen & Babel (No. 2)

This case concerned an appeal against interim property orders and costs orders made by a trial judge. The appellant husband sought leave to appeal against orders made in his absence, including the sale of two properties, and against indemnity costs awarded to the respondent wife. The appeal also addressed the husband's liability for the wife's costs of the appeal.

The primary legal issues before the Full Court were whether the trial judge had committed a miscarriage of justice or denied procedural fairness by making interim property orders on an undefended basis, and whether these orders, made in the husband's absence, could be set aside. Additionally, the court considered whether the trial judge erred in exercising discretion by making costs orders against the husband, including an indemnity costs order, in light of his conduct, which included breaching exclusive occupation orders and failing to attend hearings.

The Full Court applied principles from cases such as *Wilkes & Wilkes* and *Allesch v Maunz*, considering whether the husband had received proper notice of the application and hearing dates. The trial judge had found that the husband was served but deliberately chose to ignore the proceedings, a decision the Full Court did not disturb. The court noted that the husband had delayed in seeking to set aside the orders after becoming aware of them. Given that the properties had been sold and the proceeds preserved pending a final hearing, and that the husband's conduct led to the orders being made in his absence, the court found no miscarriage of justice or error of principle in the making of the interim property orders. Similarly, the court found no error in the exercise of discretion regarding the costs orders, including the indemnity costs, due to the husband's conduct.

Consequently, the husband's application for leave to appeal was dismissed. The husband was ordered to pay the wife's costs of and incidental to the application for leave to appeal.