Reece and Omrhan (Executrix of the Estate of Mr Mairead) (No. 2)

In *Reece and Omrhan (Executrix of the Estate of Mr Mairead) (No. 2)* [2013] FamCA 223, the Family Court of Australia considered an application for costs by Ms Reece (the applicant) against Ms Omrhan, the executrix of the estate of the applicant's deceased former de facto partner. The dispute arose from the applicant seeking to enforce a property order made by consent on 17 October 2010, which stipulated that the applicant was to receive 38 per cent of the deceased's estate after the payment of all Australian and US taxes and estate liabilities. The applicant contended that the respondent's conduct had unnecessarily increased the costs of enforcing the order.

The primary legal issue before the court was whether there were justifiable circumstances to depart from the general rule under section 117 of the *Family Law Act 1975* (Cth) that each party bears their own costs, and if so, what order for costs should be made. The court was required to consider the broad discretion afforded by section 117(2A) of the Act, which mandates regard to specific factors, including the conduct of the parties and their relative success in the proceedings.

Justice Cronin found that the respondent's interpretation of the property order as an estate liability was not sustainable and that her actions were inconsistent with the order to wind up the estate as soon as practicable. The court was critical of the respondent's stance, finding that she had "chanced her arm" by adopting a position that frustrated the applicant and necessitated enforcement proceedings. While acknowledging the applicant had not been wholly successful, the court found her to be virtually entirely successful, with the respondent being largely unsuccessful. The court determined that the respondent's conduct contributed to increased costs and that there were justifiable circumstances to make an order for costs on a scale basis, rather than an indemnity basis, due to the absence of extraordinary circumstances.

Consequently, the court ordered that the respondent pay the applicant's costs fixed in the sum of $27,272 forthwith, certifying that this amount was not challenged by the respondent and avoiding the need for a further assessment hearing.