Harrell and Nesland (No.2)

In *Harrell and Nesland (No.2)*, Judge Egan of the Federal Circuit Court of Australia was required to make orders concerning costs and the enforcement of those costs following earlier proceedings between the Applicant and the Respondent. The dispute centred on the payment of legal costs incurred by the Respondent, and the potential impact of such costs on the Applicant's financial position, particularly in relation to a property known as Property A.

The court was tasked with determining the quantum and incidence of costs payable by the Applicant to the Respondent, and whether any security should be placed over Property A to satisfy these costs. Additionally, the court considered the Applicant's financial circumstances and her submissions regarding the potential sale of Property A to meet her own legal fees, in contrast to her opposition to a costs order that might lead to a similar outcome.

Judge Egan reasoned that the Applicant's conduct in exposing Property A to sale for her own legal fees, while simultaneously arguing against a costs order that might necessitate its sale, was an illegitimate and contradictory stance. Applying the principle that a party cannot approbate and reprobate, the court found it inequitable to allow the Applicant to adopt such a position as a matter of public policy. The court therefore made orders for the Applicant to pay the Respondent's costs on a party-party basis for specific periods and applications, and stayed a prior order concerning Property A pending further submissions on whether it should be subject to a charge to secure the costs payable to the Respondent. The court also varied its earlier reasons for judgment to include these considerations.