Whether the court has the power to make an interim order for costs
Payment to be made out of partnership fund
Quick Take
1Section 37(1) of the Supreme Court Act 1935 (WA) confers a general discretion on the Supreme Court to make interim costs orders in all civil litigation, not limited to family or de facto relationship property disputes, following the majority reasoning in M v W [2006] SASC 347.
2The Giller v Procopets criteria — including the applicant's inability to fund litigation, the respondent's financial strength, reasonable prospects of success, and the requirements of justice to all parties — apply when assessing whether to exercise the discretion to make an interim costs order, but the discretion must be exercised with extreme caution to avoid injustice to the paying party.
3An applicant for an interim costs order must adduce specific evidence that their legal representatives will not continue without the order; where counsel has agreed to act on a no-win/no-fee basis and there is no evidence that solicitors will withdraw, the court may decline to find the order necessary.
