The fear of costs does, and should, also loom large for legal representatives.  Failure to provide advice or the provision of incorrect advice can have serious financial ramifications for the legal representatives.  One such situation arose on 12 December 2025 in the judgment of Fing & Ma (No 2) [2025] FedCFamC1A 230.  This was a full court decision of their honours, Aldridge, Campton & Christie JJ, in respect of an appeal.

The matter involved an Appellant (the legal representative of the deceased) and three Respondents.  Whilst the Appellant was initially represented by a solicitor, that solicitor no longer represented the Appellant on the issue of costs.

There had been quite complicated property settlement proceedings resulting in final orders from which the Appellant sought to appeal.  However, shortly after filing the appeal he committed suicide and the Appeal was thereafter prosecuted by his daughter, who was also his executor.  It is noteworthy that a major reason for the deceased’s lack of success at trial was based on witness credit.  The Appeal was wholly unsuccessful and applications for costs were made by the first respondent (daughter, from a previous relationship, of the former wife of the deceased) and the second respondent, a company controlled by the first respondent.

The evidence was that the Appellant had rejected two offers of settlement to resolve the Appeal.

After her father’s death the Appellant executor met with the solicitor who had been acting for the deceased and kept detailed notes of that meeting.  She was particularly concerned about the findings of credit at trial.  The solicitor advised that there was an 85% chance of succeeding on the appeal and this advice appears to have been supported by King’s Counsel, although that KC was not named and no evidence adduced from him/her.  The solicitor consistently and repeatedly advised that it was unlikely that an Order for costs would be made against her, this was plainly wrong.  Advice was also given along the lines of passages from the Bible as a reason to ‘bat on’.  The notes taken by the Appellant, along with letters of advice from the solicitor, were tendered as evidence on the issue of costs.  Somewhat extraordinarily, after the unsuccessful appeal the solicitor encouraged, indeed, urged the Appellant to seek special leave to apply to the High Court.

Their Honours were of the view that the Appellant had acted in accordance with the legal advice provided to her.  Further, it was entirely likely that the Estate would have no funds from which the Appellant could be reimbursed for any costs orders made against her.

Their Honours found that the advice given by the solicitor ‘significantly departed from providing objective, dispassionate legal advice’[1].  Further, 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[2].

The solicitor was ordered to pay the costs of first and second respondents on an indemnity basis, being $72,249.10, the third respondent’s costs fixed in the sum of $20,266.90, and the Appellant’s costs of responding to the applications for costs in the sum of $4,727.53.

[1] At 53

[2] At 60