Bell and Bell (No.2)

In *Bell and Bell (No.2)*, the court was asked to determine the appropriate basis for awarding costs between the parties. The proceedings involved a dispute between a Father and a Mother, and the specific issue before the court concerned the costs incurred by the Mother from a particular date.

The central legal question before Judge Small was whether the costs should be awarded on a party and party basis or on an indemnity basis. This required the court to consider the established principles governing cost orders in adversarial litigation and the circumstances under which a departure from the ordinary rule of party and party costs might be warranted.

The court applied the principles outlined in *Colgate-Palmolive Co and Another v Cussons Pty Ltd*, which confirm the ordinary rule that costs are awarded on a party and party basis, meaning the successful party may not recover all their expenses. Departures from this rule, such as awarding costs on an indemnity basis, require special or unusual features in the case. While the categories for such departures are not closed, they typically involve misconduct such as making false allegations, commencing proceedings for an ulterior motive, or unduly prolonging litigation. The court's discretion to award costs is broad but must be exercised having regard to applicable principles and the specific circumstances of the case.

The court ordered that the Father pay the Mother's costs on a party and party basis from 15 June 2016 to 17 February 2017, with payment due by 7 March 2019. All other outstanding applications were dismissed.