Keye and Keye

The proceedings before Bennett J of the Family Court of Australia concerned an application by the husband (Mr Keye) against the wife (Mrs Keye). The husband sought authorisation for his solicitors to pay lease instalments for two Volvo motor vehicles, one in his possession and one in the wife's possession, from trust funds representing the proceeds of a property sale. He also sought an order for the wife to pay the costs of this application. The wife did not appear at the hearing, and the court was satisfied that she had been duly served with the application and supporting material.

The primary legal issue before the court was whether to grant the husband's application for the lease payments to be made from trust funds, and whether to order the wife to pay the costs of the application. The court was required to consider the husband's submissions, the wife's previous indications of intent regarding the vehicles, and the general principles governing costs orders under section 117 of the *Family Law Act 1975*.

Bennett J reasoned that authorising the lease payments from the trust funds was appropriate to avoid repossession or forced sale of the vehicles, thereby preserving assets for the eventual property settlement. The court noted that the wife had previously indicated a desire to retain her vehicle and indemnify the husband against encumbrances, and that her failure to appear or oppose the application suggested no contrary indications. Regarding costs, the court found that the husband had been wholly successful and the wife wholly unsuccessful, a significant factor under section 117(2A)(e). Furthermore, the wife's failure to attend court and her prior indication of opposition, which likely influenced the husband's decision to retain counsel, were considered relevant conduct under section 117(2A)(c). The court also considered the principle of proportionality and the need for timely and cost-effective resolution, deeming it appropriate to fix the costs rather than allow for taxation.

Consequently, the court ordered that the solicitors for the applicant husband be authorised to pay the lease instalments for the Volvo vehicles from the trust funds. The wife was ordered to pay the husband's costs of and incidental to his application on a party-party basis, fixed at $1,630.00, to be paid upon the determination of the outstanding property alteration applications.