Marny and Anor and Garnett and Anors

The Family Court of Australia considered an application for costs following the dismissal of an earlier application by Mr B seeking to restrain his former solicitors, Mr Marny and C Lawyers, from acting for other respondents in substantive proceedings. The respondents to the costs application were Mr Marny, C Lawyers, Mr Garnett, and G Lawyers. The court was asked to determine whether costs should be awarded against Mr Marny and C Lawyers, and whether costs should be awarded against Mr Garnett and G Lawyers.

The primary legal issues before the court were whether there were circumstances justifying a departure from the usual rule that each party bears their own costs, as stipulated by section 117 of the *Family Law Act 1975* (Cth), and if so, what factors under section 117(2A) should be considered. A further issue was whether the costs awarded against Mr Marny should be on an indemnity basis, and whether any costs order should be made against Mr Garnett and G Lawyers.

The court found that there were justifiable circumstances to depart from the usual rule and award costs against Mr Marny. This was primarily due to his delay in bringing the application, which had been foreshadowed over several years but was only formally commenced when the substantive litigation was nearing trial. The court reasoned that such delay could be seen as a tactical weapon, causing prejudice to the opposing parties. However, the court refused to award costs on an indemnity basis against Mr Marny, citing the Full Court's decision in *Prantage and Prantage* which held that indemnity costs are a significant departure from the norm and require special or unusual features. The court also dismissed the application for costs against Mr Garnett and G Lawyers, finding that they did not act for Mr Marny in the manner previously submitted.

Consequently, the court ordered that Mr Marny pay the costs of Mr Marny and C Lawyers in relation to the application for their disqualification, to be agreed or assessed. The application by Mr Marny and C Lawyers for costs against Mr Garnett and G Lawyers was dismissed.