Cornish & Cornish (No. 3)

In the matter of MLC 12589 of 2019, Mr Cornish (the husband) was the applicant and Ms Cornish (the wife) was the respondent. Mr Waley intervened in the proceedings. The dispute concerned an application made by the husband against the wife's brother, Mr Waley, and the subsequent claim for costs by Mr Waley. The decision was made by Williams J.

The primary legal issue before the court was whether there were justifying circumstances, pursuant to section 117 of the *Family Law Act 1975* (Cth), to make an order for costs against the husband in favour of Mr Waley, and if so, whether those costs should be on an indemnity or party/party basis. The court was required to consider the husband's conduct in the proceedings as it related to Mr Waley's involvement and the claim for costs.

Williams J found that the husband's conduct was unacceptable and warranted an order for costs. This conduct included the husband being warned of a lack of prospect of success, potentially having an ulterior and malicious motive, making irrelevant claims against Mr Waley, unduly prolonging proceedings with groundless contentions, and imprudently refusing to resolve the joinder of Mr Waley until late in the proceedings. The husband had also been on notice of the intended claim for indemnity costs since February 2021. Despite these findings, the court was not persuaded that the circumstances were exceptional enough to warrant an order for indemnity costs.

Consequently, the court ordered that the husband pay the party/party costs and disbursements of Mr Waley, in relation to the husband's application dated 17 January 2021 and the preparation of costs submissions. These costs were to be agreed between the parties or, in default of agreement, taxed. Payment was to be made within 30 days of agreement as to quantum or within 30 days of the determination of taxed costs.