Fing & Ma (No 2) [2025] FedCFamC1A 230 (12 December 2025)

Conrad & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 255

Cottrell v Miglic [2025] VSCA 145

Earthline Constructions Pty Ltd v State Rail Authority of New South Wales [1992] NSWCA 62

E Pty Ltd & Zunino (No 2) [2020] FamCAFC 272

Fing & Ma [2025] FedCFamC1A 168

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

In re Beddoe [1893] 1 Ch 547 at 558

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Wei & Xia (No 2) [2024] FedCFamC1A 138

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

MR FING (DECEASED) BY HIS LEGAL PERSONAL REPRESENTATIVE MS FING

1. The former solicitor for the appellant, Mr AQ, pay the costs of the first and second respondents on an indemnity basis fixed in the sum of $72,249.10.
2. The former solicitor for the appellant, Mr AQ, pay the costs of the third respondent fixed in the sum of $20,266.90.
3. The former solicitor for the appellant, Mr AQ, pay the costs of the appellant incurred in the costs applications fixed in the sum of $4,727.53.
4. The Applications in an Appeal filed on 6 and 13 October 2025 are dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fing & Ma has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 15 September 2025 we dismissed the appeal in this matter and made provisions for the filing of any costs applications. Two applications have been made. The first is by the first and second respondents who seek that their costs be paid by the appellant, or alternatively by the solicitor who acted for her on the appeal ("the solicitor"), on an indemnity basis in the sum of $72,249.10 or, alternatively, in accordance with Sch 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") in the sum of $43,401.67. The other application is by the third respondent who seeks that her costs be paid by the appellant or, alternatively, by the solicitor, in the sum of $20,266.90 according to Sch 3.
2. The appellant has filed a response to these two Applications in an Appeal opposing any order for costs and proposing that any costs ordered to be paid to the respondents be paid by the solicitor. She also seeks an order that the solicitor pay her costs of responding to the costs applications.

1. The background to this extensive application is quite complicated and a number of different strands need to be brought together. It is best to do so in chronological order.
2. The applicant in the primary proceedings, who we shall refer to as the deceased, sought a declaration that properties owned by the first and second respondent were held on trust for him. He contended that business activities conducted by him in Country H between 2004 and 2011 resulted in him accumulating foreign country currency 23,335,000. He transferred these funds to the maternal aunt and the third respondent (his wife) who then wrongfully transferred the funds to the first respondent (the wife's child from a previous relationship) and second respondent (a company owned and controlled by the first respondent). The funds were used to acquire properties in Australia.
3. The respondents' case was quite different. They contended that the funds were actually raised by the first respondent's father (the first husband of the third respondent) from the sale of apartment blocks owned by him in Country H. The proceeds of sale passed through the deceased's bank accounts on the way to Australia, going then to the account of the maternal aunt and wife and then to the first and second respondents. The first respondent's father died before the proceedings were commenced.
4. The respondents called a number of witnesses in their case. Their evidence was preferred to that of the deceased and his claim failed.
5. The deceased appealed. Shortly after doing so, he committed suicide. He left a will naming the current appellant, his daughter, as his executor.
6. On 3 July 2025 an appeal judicial registrar substituted the appellant for the deceased as a party. On 27 August 2025 we made an order appointing the appellant as the legal representative of the estate as no grant of probate had yet been made (Fing & Ma [2025] FedCFamC1A 168 at [12]-[14]).
7. The solicitor appeared for the appellant at the hearing of the appeal as the advocate. He had prepared the Summary of Argument himself.
8. The Full Court described the thrust of the appeal as follows:
   1. ... The appellant's central contention was that as the funds were, at some stage, undoubtedly in his bank account, he did not have to prove that the funds were his. The collateral submission was that as the respondents did not produce relevant records, including bank records, they could not prove the funds originated from Mr G.
9. The primary judge's decision was informed by his impressions of the reliability of the various witnesses. Thus, the principles set out in Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 applied. In order to challenge such a factual finding, the appellant had to establish that it was contrary to incontrovertible evidence and compelling inferences or was glaringly improbable.
10. We concluded:
    1. The appellant submitted that his bank accounts were such incontrovertible evidence. We do not agree. Whilst such statements may well be prima facie evidence of ownership, they are no more than that. The evidence that was accepted was that the funds were placed there for the purpose of transmission to the first respondent. It follows from that finding that the appellant had no beneficial interest in them.
    2. The appellant referred to a number of authorities on the nature of the relationship between a customer and his or her bank and that of debtor and creditor. Russell v Scott (1936) 55 CLR 440 at 450-451; Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326 at 331; Citigroup Pty Ltd v National Australia Bank Ltd [2012] NSWCA 381; (2012) 82 NSWLR 391 at [41]. We do not need to refer to them in detail: they have nothing to say as to the ownership of the funds as between a creditor and a third party. They are not authorities for the proposition that because funds were deposited into an account, the owner of the account has 'an unrebuttable proprietary interest' in those funds.
11. Whilst the default position is that parties to family law proceedings bear their own costs, where the circumstances justify it the court may make such orders as it considers just (s 114UB(2) of the Family Law Act 1975 (Cth) ("the Act")). In considering a costs order, the court must take into account the matters set out in s 114UB(3). The court is more likely to make costs orders where third parties to the marriage are involved (Burt & C Pty Ltd (In Liquidation) [2024] FedCFamC1A 203 at [7]; Wei & Xia (No 2) [2024] FedCFamC1A 138 at [35]; Conrad & Conrad (2020) 61 Fam LR 301 at [43]; E Pty Ltd & Zunino (No 2) [2020] FamCAFC 272 at [17]).
12. Here the respondents rely on the fact that the appeal was wholly unsuccessful and the appellant's asserted conduct in pursuing a hopeless appeal (s 114UB(3)(e) and (c) of the Act respectively). In addition, the first and second respondents contend that the appellant rejected two offers in writing to resolve the appeal (s 114UB(3)(f) of the Act). They also submitted that the manner in which the Notice of Appeal and the Summary of Argument were drafted supported a costs order. None of the parties nor the solicitor adduced evidence of their financial position.
13. The position is complicated by the fact that the appellant was acting in a representative capacity. It is convenient to start here.
14. In the context of an executor of an estate, the test is whether the executor was acting reasonably in bringing the appeal (Forsyth v Sinclair (No 2) [2010] VSCA 195; (2010) 28 VR 635 at [21]-[25]. See also Cottrell v Miglic [2025] VSCA 145 at [155] referring to a probate context). There is no reason to apply a different test to a representative of a deceased estate continuing an appeal commenced by the deceased.
15. It is now necessary to return to the chronology.
16. The appellant said that she received a time-delayed suicide note via email from the deceased on 17 June 2025, the day before the deceased's body was discovered. The note urged the appellant to contact the solicitor and, as his dying wish, the deceased wrote that he wanted her to pursue the appeal.
17. The appellant met the solicitor on 19 June 2025, the day after she found the deceased's body. She was told an appeal had been lodged by the deceased.
18. After the order had been made substituting the appellant for the deceased, the solicitor wrote to her on 1 August 2025 to advise her of that outcome. In the letter he said "In any event, you are just fulfilling your late father's last wish as stated in his suicide note to you" (Annexure "MF-1" to the appellant's affidavit filed 27 October 2025).
19. On the same day, 1 August 2025, the solicitor for the first and second respondents, with the concurrence of the solicitors for the third respondent, wrote to the solicitor offering that the appeal be dismissed with no order as to costs. An intention to seek indemnity costs in due course was flagged (Annexure "MAR-5" to the affidavit of Mr AR filed 6 October 2025).
20. On 8 August 2025 the solicitor wrote rejecting the offer adding that the appellant "is merely fulfilling her late father's final wish as set out in his suicide note" (Annexure "MAR-6" to the affidavit of Mr AR filed 6 October 2025).
21. That appears to be in accordance with the appellant's instructions (appellant's affidavit filed 27 October 2025, paragraph 30).
22. A detailed discussion took place between the solicitor and the appellant on 11 August 2025. The appellant kept detailed notes which she then emailed to her husband. The solicitor did not contest the accuracy of them.
23. The notes, relevantly and in summary form, record that (Annexure "MF-2" to the appellant's affidavit filed 27 October 2025):
    • The solicitor had written rejecting the offer of 1 August 2025;
    • The solicitor was confident about winning the appeal, expressing the view there was an 85 per cent chance of success;
    • The appellant was worried that the outcome was based on a decision as to witness credibility which is difficult to overturn. The solicitor responded by saying he was relying on an error of law;
    • The solicitor advised that the error was the primary judge requiring the deceased to prove he earnt the funds, saying it was common sense that the funds were the deceased's as they were in his bank account;
    • The appellant was being "silly" and "ridiculous" worrying about a personal liability for costs and that it was "very, very, very, very" rare an executor would be personally liable. There was a chance the appellant could receive millions and the chance of liability was very low;
    • Whilst a King's Counsel had originally advised that the chances of success were only 10 per cent, the King's Counsel had changed his mind after reading the Summary of Argument and praised the solicitor, saying many valid points and errors had been raised; and
    • Three appeal judges had been assigned to the appeal. The solicitor had never seen an appeal fixed for hearing so quickly. This indicated that "the court noted the error in the law, set the judges and wishes to correct their mistake".
24. We make these comments.
25. An 85 per cent chance of success is extraordinarily high and one most experienced counsel would rarely adopt, if at all.
26. The third and fourth points are precisely the points upon which the appeal failed. They were obvious to the appellant, but not to the solicitor.
27. The fifth point is not a correct understanding of the law. The question is whether the executor is acting reasonably in prosecuting the appeal.
28. The identity of the "King's Counsel" remains unknown. The solicitor has not adduced evidence from him or her.
29. The last point is extraordinarily mistaken. Three judges were allocated because s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires a Full Court to sit on appeals from the Federal Circuit and Family Court of Australia (Division 1). The appeal was fixed for hearing in the usual way. The assumption made by the solicitor was mistaken and unwarranted.
30. On 12 August 2025 the respondents repeated their offer to resolve the appeal by dismissing it with no order as to costs. The email was sent at 12.04 pm. The Summary of Argument of the respondents had been provided to the appellant by this stage.
31. At 12.07 pm on 12 August 2025, the solicitor wrote to the appellant. Much of the letter was a criticism of the respondents' contentions. The letter opened and concluded with the following:

...

It is unlikely that the Court of Appeal will order you to personally liable for the cost of the Appeal if the appeal is unsuccessful because:

1. it was commenced by your late father,

2. you are just fulfilling your late father's final wish,

3. your conduct in continuing the appeal is not unreasonable, and

4. it is my view that the appeal is not frivolous or vexatious.

...

I am still of the view that you should continue with the Appeal started by your late father and let the 3 Judges appointed to hear the appeal decide whose arguments they will accept.

I suspect the reason why they sent yet another offer of compromise or threat is because they are uncertain whether they will succeed in defending the Judgment, and they hope that you will be scared into a surrender and withdraw the appeal.

Again, unless you accept the Judge's view (not supported by any judicial decisions) that money in your bank account is not yours unless you prove that you earned it, you should continue with the appeal.

...

(Annexure "MF-3" to the appellant's affidavit filed 27 October 2025)

1. Later that day, at 3.23 pm the solicitor again wrote to the appellant. Included was the following:

As you may be aware, I am a practising Christian. Last Sunday, during my daily Bible reading, I came across this passage from the Bible, in Amos 5:24 where it says:

"Let justice flow like a river and let goodness flow like a never-ending stream," and I am reminded of this verse in the Bible, that my God's power works best in my weakness. (2 Corinthians 12:9)

If you believe that the money in your late father's bank accounts belonged to him, you should let justice flow like a river.....", let the 3 appeal judges make their decision on the Appeal.

As for me, since your late father committed suicide because of this judgment of [the primary judge], I now believe 100% that the money really belonged to him. Before his death, I only believed him 85%. I just can't imagine or believe that someone would commit suicide after losing a claim on a huge sum of money which did not belong to him.

(Annexure "MF-4" to the appellant's affidavit filed 27 October 2025)

1. The outcome of the appeal did not dissuade the solicitor of his view of the merits of the matter. He described the Full Court judgment as "weak" and full of "fundamental legal errors" (Annexure "MF-5" and "MF-6" to the appellant's affidavit filed 27 October 2025). He advised the appellant that an application for special leave to appeal to the High Court of Australia "has strong prospects of success" (Annexure "MF-6" to the appellant's affidavit filed 27 October 2025). Given that well under 10 per cent of such applications succeed, this is bold advice, at the least.
2. On 25 September 2025, the solicitor pressed the application for special leave saying:

Please let me know if you wish to apply for special leave to apply to the High Court. It will be very unfortunate if you stop now because your late father lost his life for his claim.

You should persevere and press on and not let those who may have cheated your late father get away with it.

I am not sure what you[r] late father told you in his suicide note, you should finish the race for your late father and let's see how the 7 judges of the High Court will decide his claim. If all the majority of the High Court judges rule against your late father, at least you know there is nothing else you could have done for him. You never know, they may rule in his favour. I really believe that the money sent here to purchase the properties belonged to him and not the late [Mr G].

(Annexure "MF-7" to the appellant's affidavit filed 27 October 2025)

1. In determining what costs order, if any, may be made, the Court must consider all relevant circumstances, including the particular positions of the appellant and the solicitor.
2. The appeal was wholly unsuccessful. The respondents made two offers in writing to resolve the appeal in terms that were more favourable than the outcome. These strongly support a costs order.
3. In the substantive reasons, we referred to the grounds of appeal saying:
   1. At the outset it is necessary to say that the grounds of appeal are overly expansive, overlapping and repetitive. The appellant's Summary of Argument reduced the appeal to just four points but the submissions under them ranged widely.
4. The Summary of Argument did not comply with r 13.23 of the Rules. It contained a number of errors which required correction by the respondents.
5. This again supports a costs order.
6. The appellant is a party, but one in a representative capacity. The general rule is that a trustee is entitled to reimbursement from the trust estate for expenses that are reasonably incurred (In re Beddoe [1893] 1 Ch 547 at 558 and 562. See also s 36(2) of the Trustee Act 1958 (Vic)).
7. The difficulty is that there is no suggestion that the estate has any funds against which the appellant could be indemnified. Any costs order to be paid by the appellant will be paid by her personally.
8. The appellant received very favourable advice about the prospects of success of the appeal and the unlikelihood of a costs order. We shall say more about that shortly. Based on that advice it could well be said that she acted reasonably having regard to that advice. Whilst that may be persuasive it is but a consideration and not a substitute for the statutory test.
9. It must be recognised that whilst the application of the respondents does involve a binary choice between the solicitor and the appellant paying the costs, the court is not so constrained. It could well be that the appropriate order could be either of those possibilities or that neither or both be liable in some way. The order is entirely at large and involves an evaluation of what is just in all the circumstances.

1. It is convenient at this stage to turn to the solicitor. Costs orders against legal practitioners involve special circumstances. Rule 12.15(1) of the Rules empowers the court to make a costs order against a lawyer where the lawyer has caused costs to be incurred by a failure to comply with the Rules or by "improper or unreasonable conduct".
2. It is the task of a lawyer to give dispassionate and objective advice. A mere error of judgment does not normally fall into improper or unreasonable conduct.
3. The recent authorities were helpfully collated by Strickland J in Cansdall & Cansdall [2021] FamCAFC 162; (2021) FLC 94-052 at [83]-[87] as follows:
   1. Subsequent authorities confirm that a solicitor commencing and maintaining proceedings on behalf of a client in the absence of consideration as to the legal merits may lead to an award of costs against that solicitor.
   2. Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) [1998] FCA 806; (1998) 156 ALR 169 said this at 236:

The authorities do not support the proposition that simply instituting or maintaining a proceeding on behalf of a client which has no or substantially no prospect of success will invoke the jurisdiction. There must be something more namely, carrying on that conduct unreasonably. It is not clear what is encompassed by 'unreasonably' initiating or continuing proceedings if they have no or substantially no chance of success. It seems to me that it involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.

(Emphasis added)

This analysis of the cases makes it clear that the jurisdiction to order costs against an unsuccessful party's solicitors is enlivened when they have unreasonably initiated or continued an action when it had no or substantially no prospects of success but such unreasonableness must relate to reasons unconnected with success in the litigation or to an otherwise ulterior purpose or to a serious dereliction of duty or serious misconduct in promoting the cause of and the proper administration of justice. Further, the cases establish the proposition that it is a relevant serious dereliction of duty or misconduct not to give reasonable or proper attention to the relevant law and facts in circumstances where if such attention had been given it would have been apparent that there were no worthwhile prospects of success.

1. The Full Court of the Federal Court in Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155, while noting that the jurisdiction to award costs against solicitors is to be exercised cautiously, approved Goldberg J's statements at [44] as follows:

Having said that, it is equally important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor's unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible. In the context of instituting or maintaining a proceeding or defence, we agree with Goldberg J that unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.

(Emphasis added)

1. In the circumstances of that case, the Full Court was satisfied that the primary judge had made no appealable error and said this at [45]:

In the present case, Hill J inferred that the subject arguments "clearly originated with the lawyers"; that is, Mr Levick and Mr Fitzgibbon. No challenge can be made to that inference. So this is not a case, like Orchard, where a difficult case was taken to a lawyer by a client who wished it to be pursued in the court. Neither is it a case, like that contemplated in Ridehalgh v Horsefield, where the lawyer had "to present, on instructions, a case which he regards as bound to fail". This is a case where the lawyers themselves thought up the "legal" points and advanced them on behalf of the client. It is unreasonable, in the sense of a dereliction of duty (to both the client and the court), for any lawyer to take that course without first being satisfied that the points are, at least, seriously arguable. We agree it was not necessary in the present case that the lawyers be satisfied that the points would succeed; but it was necessary they be satisfied there was a rational basis upon which they might succeed.

(Emphasis added)

1. French J (as he was then) took up those statements of the Full Court in Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) [2006] FCA 671; (2006) 233 ALR 97. His Honour said at [2] the "preparation and presentation of the application...was done at such a poor level of competence as to amount to a significant breach of duty" by the applicant's solicitor. And further, his Honour said this at [21]-[22]:

   1. In the present case the way in which the application was formulated and the argument presented indicated not merely the presentation of an unarguable case, it indicated a failure to discharge the practitioner's basic duty to consider the legal issues which should have been considered before the application was prepared and filed and before argument on it was presented to the court.

   2. Having regard to the passages to which I have referred from the decision of the Full Court in Levick and the subsequent cases, I do not consider that the generality of the approach enunciated in De Sousa has been relevantly limited. A costs order may be made under s 43 of the Federal Court Act or O 62 r 9 when the solicitor or counsel has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of an application as to be seriously derelict in his or her duty to the client and/or the court...

(Emphasis added)

1. Here, the advice given to the appellant was, initially, that the appeal had an 85 per cent chance of success. That is extraordinarily high and, in the circumstances of this case where the evidence of the deceased had been entirely rejected, suggests that something other than impartial, objective consideration was involved. This was not a clear case of a factual finding being untenable in the face of incontrovertible evidence (for example, a dead horse on the wrong side of the road such as in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118) or a document (for example, Earthline Constructions Pty Ltd v State Rail Authority of New South Wales [1992] NSWCA 62).
2. The solicitor made the point that the prospects of success were also described in much less emphatic terms. That is so, but that is to cherry pick particular entries. They, of course, are coloured by the more precise prognostications.
3. The solicitor changed his advice after considering two passages in the Bible and opined that he was now 100 per cent certain that the funds belonged to the deceased. This was coupled with his view that the deceased would only have committed suicide if he genuinely believed the money was his.
4. That may have been the deceased's belief, but the primary judge did not agree. He preferred the evidence of witnesses who said they were responsible for the payment into the deceased's bank account as to the source of the funds. Neither the subjective belief of the deceased nor the solicitor that the deceased was telling the truth can play any role in an objective consideration as to whether the findings of the primary judge to the contrary were beset by error.
5. The particular advice set out at [34] above was extraordinary and demonstrates that the solicitor had significantly departed from providing objective, dispassionate legal advice.
6. This is confirmed by the following:
   • The solicitor's often repeated comment to the appellant that the decision to appeal had been made by the deceased and all she was doing was continuing it.
   • The solicitor's repeated and emotive calls to the appellant to give effect to her father's dying wishes as expressed in the suicide note.
   • The too ready dismissal of the appellant's concerns as misguided and of the respondents' offers of settlement as a "threat" by "Caucasian lawyers" (Annexure "MF-2" to the appellant's affidavit filed 27 October 2025).
   • A misguided belief that because he had previously won many cases which had been regarded as hopeless, he would do so in this matter.
7. The continuation of proceedings raises the same need to be satisfied of the merits of the claim as the institution of the same proceedings. That is particularly so for someone taking over proceedings in a representative capacity.
8. Taking into account the nature of the advice given to the appellant and the manner in which the appeal was taken, it seems to us that the solicitor had lost all objectivity and was effectively on a crusade to prove the deceased's case at all costs.
9. It follows that the advice given to the appellant to continue the appeal was unreasonable in the sense used in the Rules and the above authorities.
10. Whilst the deficiencies in the Notice of Appeal and Summary of Argument are regrettable, as are the misattribution of comments to the primary judge, these fall short, on their own, of justifying a costs order against the solicitor. They are, however, matters to be taken into account.
11. The first and second respondents submitted that the solicitor had an ulterior motive in pursuing the appeal. They submitted that motive can be discerned from a letter sent by the solicitor on 3 October 2025 which included the following:

a) Our client acted solely in her capacity as the legal personal representative of the estate, compelled by a direct, posthumous instruction from the [deceased]to continue the appeal lodged by him, delivered to her via time-delayed email following his suicide.

...

1. In these unique circumstances, her conduct was the reasonable fulfillment of a fiduciary and moral duty and your clients' aforesaid conduct will be subject to the Court's scrutiny under s 117(2A) of the Act.

(Annexure "MAR-8" to the affidavit of Mr AR filed 6 October 2025)

1. We have already found that the matters raised by the solicitor were not relevant, objective legal considerations and were ones which led him to take on an entirely subjective and misguided approach. However, a wholly misguided approach is, to us, different to an ulterior motive.
2. Nonetheless, it is just in all of the circumstances that the solicitor pay the costs of the first, second and third respondents.

1. The question is whether the appellant should also be liable for these costs. The appellant acted on the advice of the solicitor which was coloured by irrelevant circumstances. The advice was couched in emotive terms, using phrases such as "dying wishes", "suicide note", "finish[ing] the race" and "if you believe your father" at a time when the appellant had just learnt of her father's awful death. The advice sounded legally feasible, at least to a layperson.
2. The appellant did raise two points of concern upon which the appeal subsequently foundered but which were answered by the solicitor by, in our view, giving erroneous advice.
3. In all, it was reasonable for her to act on the advice of the solicitor.
4. Further, one would have expected there to have been advice given to the appellant as to her exposure to costs, firstly as an executor where there were no funds in the estate against which she could seek an indemnity for costs and secondly, in light of the offers made and the exposure to costs as a result of their rejections.
5. The advice was nearly non-existent and to the extent it was given, was quite wrong.
6. Costs are, of course, compensatory not punitive.
7. These factors point to an order in favour of the respondents, but against the solicitor only.

Indemnity costs of the first and second respondents

1. The question of indemnity costs now arises.
2. Such costs are awarded only in exceptional circumstances (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340; Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029).
3. A non-exhaustive list of examples of circumstances in which it would be appropriate to make such an order were listed by Sheppard J in the often-quoted case of Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 ("Colgate-Palmolive"). There must be "some special or unusual feature in the case to justify the Court in departing from the ordinary practice" (Colgate-Palmolive at 233). Included in the list was continuing proceedings in wilful disregard of known facts or clearly established law and imprudently rejecting an offer of compromise.
4. Here the solicitor's judgment was clouded by the irrelevant and emotive considerations discussed. He persuaded the appellant, by similar language, to go along with him.
5. As already noted, costs, including indemnity costs, are compensatory not punitive. However, the solicitor's misguided conduct, which included the brushing aside of two reasonable offers of compromise, meant that the respondents were put to unnecessary costs and expenses.
6. We are satisfied, in all of the circumstances, that it is just that the solicitor pay the costs of the first and second respondents on an indemnity basis.

Costs of the appellant in responding to the costs applications

1. The appellant sought an order that the solicitor pay her costs of responding to the applications for costs made against her. We have found that, in all of the circumstances, it was just that the solicitor, and not her, pay the costs of the respondents. She has however, by virtue of the conduct of the solicitor, reasonably incurred costs to put her position forward. The appropriate order is that the solicitor pay them fixed in the sum of $4,727.53.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Campton & Christie.