Murdoch & Brown (No 3)

In *Murdoch & Brown (No. 3)*, the Family Court of Australia considered an application for costs made by Ms Murdoch (the applicant) against Mr Savva and Mr Gould, the Executors of the Estate of her late husband (the respondents). The applicant sought costs on either a solicitor-client or party-and-party basis arising from an enforcement application and related proceedings. The respondents contended for a limited costs order.

The court was required to determine whether the circumstances justified an order for costs under section 117 of the *Family Law Act 1975* (Cth), which provides that costs are at the court's discretion, with a general rule that parties bear their own costs. This general rule can be displaced by considering the factors outlined in section 117(2A), including the financial circumstances of the parties, their conduct, and the overall justice of the case. The specific legal issues involved the applicant's need to issue proceedings to enforce orders, the respondents' alleged delay and failure to comply with various obligations, the applicant's application for an injunction against the respondents' solicitor due to a perceived conflict of interest, and a jurisdictional challenge raised by the respondents.

Justice Cronin found that while the respondents had not been as diligent as they could have been in fulfilling their obligations, and this delay had justifiably led the applicant to commence proceedings, the case was complex with contentious issues litigated by both parties. The court noted the significant disparity in financial strengths, with the applicant having limited resources and the Estate possessing ample funds. While acknowledging the applicant's right to seek an injunction against the solicitor, the court also recognised that the respondents had raised a legitimate jurisdictional point. Ultimately, the court determined that neither party was wholly unsuccessful, and indemnity costs were not appropriate.

The court ordered that the respondents pay the applicant's costs of issuing the proceedings, associated correspondence, and the briefing and attendance of counsel and an instructing solicitor. If the parties could not agree on the quantum of these costs, they were to be assessed.