Lindsay and Lindsay & Ors

In the matter of *Lindsay and Lindsay & Ors*, heard before Tree J, the wife had brought certain claims that were determined as separate and preliminary matters. These claims were ultimately dismissed by the Court. The first respondent, the husband, sought costs against the wife. The second and third respondents also sought costs against the wife, or in the alternative, against her solicitor.

The legal issues before the Court concerned the appropriate orders for costs arising from the preliminary proceedings. Specifically, the Court had to determine whether the wife should be ordered to pay the husband's costs, and whether the second and third respondents should be awarded costs against the wife or her solicitor. The Court also considered the circumstances under which costs might be ordered against a solicitor personally.

Regarding the husband's application for costs, Tree J was satisfied that the question of costs for the preliminary proceedings between the husband and wife should be reserved to the ultimate trial judge, noting that while the wife had been wholly unsuccessful in these preliminary questions, the balance of the proceedings as against the husband remained to be determined. In relation to the second and third respondents' applications, the Court noted that while section 117 of the *Family Law Act 1975* (Cth) permits costs orders against solicitors or non-parties, something more than the mere prosecution of a weak, though not entirely hopeless, case is required. The Court was not persuaded that the circumstances justified a departure from the usual order in relation to costs, and therefore declined to make an order for costs against the wife's solicitors or to order that the wife pay the second and third respondents' costs.

Consequently, the Court ordered that the first respondent's application for costs be reserved to the Trial Judge, and the second and third respondents' applications for costs be dismissed.