Allan & Allan & Ors (No 2)

In the Family Court of Australia, the matter of *Allan & Allan & Ors (No. 2)* concerned an application by the Receivers and Managers of W Nominees No. 2 Pty Ltd (in liquidation), Mr D and Mr CP, for their costs. The dispute arose from several applications made by the husband (Mr Allan) and the Receivers concerning the AM Trust and the husband's role as protector of that trust. The primary issue was whether the husband should be ordered to pay the Receivers' costs for specific applications, and how a sum of $15,000 paid into court as security for costs should be applied.

The court was required to determine the legal issues surrounding the award of costs under section 117 of the *Family Law Act 1975* (Cth). Specifically, the court had to consider whether the circumstances justified making a costs order against the husband in favour of the Receivers, and whether the Receivers had been wholly successful in the proceedings to which the costs application related. The court also needed to decide how the $15,000 paid into court as security for costs should be released to satisfy any costs order made.

Justice Watts reasoned that the husband's application to be relieved from an injunction preventing him from exercising his powers as protector of the AM Trust was interwoven with the Receivers' application for consent orders. The husband's unsuccessful attempt to appoint a new trustee before the consent orders were finalised meant that the Receivers were wholly successful in their applications, as they achieved the outcome they sought by finalising their involvement in the case. Applying section 117(2) of the *Family Law Act*, the court found it just to award party/party costs against the husband in favour of the Receivers for the four specified applications.

Consequently, the court ordered that the husband pay the Receivers' costs on a party/party basis, to be agreed or assessed. The $15,000 paid into court as security for costs was ordered to be released, wholly or partially, to the Receivers to satisfy this costs order once the amount was agreed or assessed.