Bryer and Bryer and Anor

The Family Court of Australia considered an application for costs by the estate of the late Ms C Bryer against the applicant wife and first respondent husband. The original proceedings involved an application under s 79 of the *Family Law Act 1975* (Cth) by the wife against the husband, in which the estate of the late Ms Bryer (the husband's mother) was joined as the second respondent. The s 79 proceedings were subsequently compromised by the husband and wife through a settlement agreement. The estate was not a party to this settlement.

The primary legal issue before the court was whether the estate of the late Ms Bryer was entitled to an order for costs against the husband and wife, and if so, on what basis. The court was required to determine if the circumstances justified an order for costs under s 117(2) of the Act, considering that neither the wife nor the husband had obtained relief against the estate, and that the estate's own proceedings were to be transferred to the Supreme Court of New South Wales. The court also considered the financial circumstances of the parties and an agreement between the husband and wife regarding the costs of upholding a covenant related to the late Ms Bryer's will.

Justice Ryan found that the failure of the husband and wife to obtain orders against the estate constituted justifying circumstances for an award of costs in favour of the estate. The court reasoned that the compromise of the s 79 proceedings meant the costs incurred by the estate were effectively thrown away, necessitating an order for costs rather than an adjournment. Furthermore, the court noted that the parties were of considerable wealth, and an agreement between the husband and wife to share equally the costs of upholding a covenant concerning the late Ms Bryer's will supported an equal apportionment of any costs order.

The court ordered that the husband and wife pay the costs incurred by the estate of the late Ms Bryer on a party/party basis, in equal portions. These costs were to be agreed within twenty-eight days or assessed and paid within twenty-eight days of agreement or assessment. The proceedings initiated by the late Ms Bryer were transferred to the Supreme Court of New South Wales.