Masih & El Saeid (No. 3)

In *Masih & El Saeid (No. 3)*, Harper J of the Family Court of Australia considered applications for costs brought by the Applicant Husband against the Respondent Wife. The dispute concerned the costs of a final hearing on threshold financial issues, which had resulted in a judgment delivered by Loughnan J, and the costs of a prior review hearing determined by Justice Rees. The Husband sought indemnity costs for the review hearing and either a quantified sum or party-party costs for the threshold financial hearing.

The primary legal issues before the court were whether the Respondent Wife should be ordered to pay the Applicant Husband's costs of the threshold financial hearing and the review hearing, and on what basis those costs should be quantified. The court was required to determine the appropriate quantum and nature of the costs order, considering the Wife's lack of participation in the costs proceedings and her conduct during the litigation.

Harper J reasoned that the Wife had wholly failed at the threshold financial hearing and had made no submissions regarding costs, despite ample opportunity. The court noted that the Wife had also made numerous amendments to her points of claim, occasioning wasted costs. Furthermore, the Wife had breached court orders compelling the Husband to seek recovery orders for the children, leading to further costs for the Husband. Given the Wife's lack of evidence and submissions on costs, and her unsuccessful conduct, the court ordered the Wife to pay the Husband's costs of the threshold financial hearing on a party-party basis, quantified at $160,000. The court also ordered the Wife to pay the Husband's costs of and incidental to the Application for Review determined by Justice Rees, on a party-party basis, to be agreed or assessed.