Martin and Martin and Ors; (Costs)

This matter concerned an application for costs before the Family Court of Australia, presided over by Justice Coleman. The proceedings involved Ms. Martin (Applicant) and Mr. Martin (Respondent), with X Firm and QF Pty Ltd appearing as first and second intervenors respectively. The dispute arose from an interlocutory determination made on 17 October 2012, where the Court declined to make orders in accordance with Minutes of Consent Order presented by the husband and wife, but did not dismiss their application.

The primary legal issue before the Court was whether to make orders for costs in favour of the intervenors, X Firm and QF Pty Ltd, concerning the interlocutory proceedings of 17 October 2012. X Firm sought an order for its costs, while QF Pty Ltd agreed that its costs should be reserved until the final determination of the proceedings. The husband and wife opposed any costs orders being made against them at this stage.

Justice Coleman reasoned that at this juncture, neither party could be considered wholly unsuccessful. Furthermore, any determination regarding the conduct of the parties, which would influence the exercise of the Court's discretion on costs, depended on findings of fact that had not yet been made. Citing *Walton v Gardiner* and *Lindon v Commonwealth (No 2)*, the Court noted that the application was not dismissed as "foredoomed to failure." Consequently, the Court concluded that the outcome of the proceedings and the resolution of competing cost claims necessitated findings of fact that were not yet available.

Accordingly, the Court ordered that the costs of X Firm and QF Pty Ltd, of and incidental to the proceedings determined on an interlocutory basis on 17 October 2012, be reserved pending the final determination of the husband and wife's application "on the merits."