Karbines & Karbines and Anor (Intervenora**s Costs)

This matter concerned an application for costs by an intervener, C Pty Ltd (In Liquidation), in proceedings before Dawe J. The husband had wholly failed in his opposition to the intervener’s claims, and had not responded to a reasonable settlement offer made by the intervener. The wife, by contrast, had conceded to the intervener’s claim and agreed to the sale of a property by the date of the hearing.

The primary legal issue was the appropriate basis and allocation of costs payable to the intervener. Specifically, the court had to determine whether the ordinary rule of party/party costs should be departed from, and how the costs should be apportioned between the husband and wife, given their differing conduct and positions in relation to the intervener's application.

Dawe J reasoned that a departure from the ordinary rule that costs be awarded on a party/party basis was not justified in these circumstances. The court found it just and equitable that the husband bear the consequences of his unsuccessful opposition and failure to engage with the intervener's settlement offer. Consequently, the husband and wife were ordered to jointly and severally pay the intervener's costs of and incidental to the application prior to the hearing date on a party/party basis. The husband alone was ordered to pay the intervener's costs from the hearing date onwards, including the costs of the subsequent costs application, also on a party/party basis. Further consideration of any claim by the wife for indemnity or reimbursement from the husband for these costs was adjourned to be determined with the final property settlement orders.