Morse v Morse (No 2)

In the case of Morse v Morse, the appellant sought to appeal the decision of the Family Court of Australia, which had ordered the parties to pay their own costs. The parties were husband and wife, and the case concerned a property settlement following their divorce. The trial judge had found that neither party had acted unreasonably or wastefully in the conduct of the proceedings, but the husband's conduct had been vexatious and oppressive. The husband appealed on the basis that the trial judge had not properly considered the general rule that costs should follow the event.

The court was required to determine whether the trial judge had properly exercised his discretion in ordering the parties to pay their own costs, and whether the husband's conduct had been such that it warranted a departure from the general rule. The court noted that the trial judge had considered the relevant principles and had made findings of fact that supported his conclusion that neither party had acted unreasonably or wastefully. However, the court found that the trial judge had not adequately considered the husband's conduct, which had been vexatious and oppressive. The court held that the trial judge's failure to adequately consider the husband's conduct was a significant error of law, which required the appeal to be allowed.

The court found that the husband's conduct had been vexatious and oppressive, and that this warranted a departure from the general rule that costs should follow the event. The court held that the husband should be ordered to pay the wife's costs of the appeal, and that the wife should be awarded costs of the proceeding in the trial court on an indemnity basis. The court noted that the husband's conduct had caused significant delay and expense, and that this warranted an award of indemnity costs. The court held that the wife was entitled to an order for costs on an indemnity basis, and that this should be in addition to any costs that she had already incurred. The court dismissed the appeal and ordered the husband to pay the wife's costs of the appeal and of the proceeding in the trial court on an indemnity basis.