Nevett and Nevett (No. 2)

In the Family Court of Australia at Melbourne, Justice Cronin considered an application for costs by the husband and a third party, M Pty Ltd, following the dismissal of interim proceedings initiated by the wife. The wife had sought various orders, including the production of documents, but her applications were ultimately dismissed.

The court was required to determine whether there were circumstances justifying an order for costs against the wife, pursuant to section 117 of the *Family Law Act 1975* (Cth), and if so, the appropriate amount of those costs, considering factors such as the parties' conduct, financial circumstances, and the wife's complete lack of success.

Justice Cronin reasoned that the wife had persisted with proceedings despite indications from the husband and M Pty Ltd that necessary documents had been provided or would be provided, and that litigation should cease. He noted that significant time and resources were expended on issues that had already been determined in prior hearings, and that the wife's arguments regarding lack of disclosure and non-compliance with prior orders lacked merit in light of the evidence. Applying the principles from *Penfold v Penfold*, the court found that there were justifying circumstances to depart from the general rule that parties bear their own costs. The court considered the wife's complete lack of success, the conduct of the parties, and the fact that neither party was in receipt of legal aid.

Consequently, Justice Cronin ordered that the wife pay the costs of the husband fixed at $1500 and the costs of M Pty Ltd fixed at $1500, with payment due by 1 November 2007. The court rejected the third party's claim for costs on an indemnity basis, noting the hourly rate claimed by their solicitor exceeded the Family Law Rule Schedule 3 scale.