ON & ON

In the Family Court of Australia, Justice Guest considered an application for costs following a lengthy property dispute between the wife (Applicant) and the husband (Respondent). The wife had been successful in a retrial of her property application, and she sought an order for her costs to be assessed on an indemnity basis. The husband had been entirely unsuccessful in the proceedings, and significant findings had been made against him regarding his wilful failure to disclose assets, his unilateral dealings with joint property after separation, and his extravagant and reckless financial behaviour.

The legal issues before the court were whether the wife was entitled to an order for costs against the husband, and if so, on what basis those costs should be assessed. Specifically, the court was required to determine if the circumstances of the case justified departing from the usual rule that each party bears their own costs, and whether those circumstances warranted an assessment on an indemnity (lawyer and client) basis rather than a party and party basis. The court also considered the husband's prior settlement offers in light of section 117(2A)(f) of the *Family Law Act 1975* (Cth).

Justice Guest reasoned that the husband's conduct throughout the proceedings, including his wilful failure to make full and frank financial disclosure, his unilateral and often concealed dealings with joint assets, and his breaches of court orders, constituted exceptional circumstances justifying a departure from the ordinary rule regarding costs. The court noted that the husband had repeatedly failed to comply with court orders for the filing of submissions, despite numerous opportunities. Applying the principles from relevant case law, particularly *Kohan v Kohan* and *Colgate-Palmolive Company & Anor v. Cussons Pty Ltd*, the court found that the husband's conduct, including misleading the court and causing significant loss of time and expense to the wife, warranted an order for costs on a lawyer and client basis. The court also considered the husband's prior settlement offers but found them to be made at a time when full disclosure had not occurred and therefore did not warrant a reduction in the wife's entitlement to costs.

The court ordered that the husband pay the wife's costs of the trial, to be assessed on a lawyer and client basis. This decision reflected the court's finding that the husband's conduct was of a nature that justified awarding costs on a more generous basis than the usual party and party assessment, due to the exceptional circumstances and the significant impact of his actions on the litigation.