NIMITAN & NIMITAN

In the Family Court of Australia, Mr Nimitan (the husband) sought an order that Ms Nimitan (the wife) pay his costs of the property proceedings on an indemnity basis. The wife’s position was that there should be no order as to costs. The proceedings concerned the division of property and had a lengthy and complex history, including consent orders made in 2007 which provided for the winding up of a company and the equal distribution of net assets, along with specific property transfers and adjustments.

The court was required to determine whether the conduct of the parties warranted a costs order in favour of one party, and if so, on what basis. The husband contended that a 50/50 property split was obvious and agreed upon, and as the wife did not achieve significantly more than this, she should bear his costs on an indemnity basis. Conversely, the wife argued for no order as to costs. The court considered the history of the orders sought by each party at various stages and the correspondence exchanged between them to assess their conduct.

The court reasoned that neither party could be considered wholly successful in the proceedings. The husband's assertion of a clear and obvious error in the original consent orders regarding property adjustments, which he claimed was necessary to achieve a 50/50 division, was not fully substantiated to the extent that it justified an indemnity costs order against the wife. Similarly, the wife's extensive applications and claims, including those seeking variation of the consent orders and declarations regarding specific financial matters, did not result in a complete victory that would warrant costs against the husband. The court applied the principles that costs orders are discretionary and should reflect the overall conduct and outcome of the litigation, noting that the extensive material relied upon for the costs application was comparable to that used in the final property proceedings.

Ultimately, the court made an order that each party bear their own costs of both sets of proceedings. The husband's application for costs on an indemnity basis was dismissed.