Spinner & Bader (No. 2)

In *Spinner & Bader (No. 2)*, the husband sought an order that the wife pay his costs on an indemnity basis, while the wife opposed this application, arguing that each party should bear their own costs. The dispute arose from the wife's unsuccessful application pursuant to s 79A of the *Family Law Act 1975* (Cth) to vary final property orders concerning the former matrimonial home. The court was required to determine whether circumstances justified an order for costs against the wife, and if so, the appropriate basis and quantum of those costs.

Macmillan J considered the wife's conduct of the litigation, noting that she had been wholly unsuccessful and that her approach lent weight to the husband's case regarding her lack of bona fides. The court found that the wife had continued to live in the property and deny the husband his entitlements for over four years, and that an order for party and party costs would not adequately compensate the husband. While the circumstances did not warrant indemnity costs, the court determined that costs more generous than party and party costs were justified.

The court reasoned that it was not appropriate for the husband to incur further costs through a formal assessment process, given the wife's unlikelihood of accepting the husband's calculations and the potential for further expense. Consequently, the court fixed the costs payable by the wife. The wife was ordered to pay the husband's costs of and incidental to her s 79A application in the sum of $107,200, and the costs of his application for costs in the sum of $2,900, totalling $110,100. These costs were to be paid to the husband out of the wife's share of the net proceeds of sale of the former matrimonial home.