FAMILY COURT OF AUSTRALIA
Warrick & Mia (No. 3) [2021] FamCA 348
File number(s): PAC 845 of 2017 Judgment of: FOSTER J Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – COSTS – where application for costs made by both parties – where proceedings continued after the death of the applicant husband – where written offer of settlement made by the wife on 4 October 2019 – where that offer rejected – where ultimate result substantially less than the sum provided for in the offer of settlement – where consideration of applicable principles as to costs and indemnity costs – where order made for the estate of the late husband to pay the wife’s costs on a party/party basis as agreed or assessed as and from the date of offer – where payment of capital sum to the estate be restrained pending agreement or assessment of costs – costs as agreed or assessed to be a charge as against the capital sum. Legislation: Family Law Act 1975 (Cth) ss 79(1A), 79(8), 117, 117(2), 117(2A), 117(2A)(f)
Family Law Rules 2004 (Cth) r 19.18(1)
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Browne & Green (2002) FLC 93–115
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Dorsey & Mallon [2018] FamCAFC 244
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell and Anor (No.2) [2018] FamCAFC 180
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Munday v Bowman (1997) FLC 92-784
Parke & the Estate of the Late A Parke (2016) FLC 93‑748
Penfold v Penfold (1980) 144 CLR 311
Pennisi & Pennisi (1997) FLC 92-774
Robinson and Higginbotham (1991) FLC 92-209
Warrick & Mia (No. 2) [2021] FamCA 249
Number of paragraphs: 49 Date of last submission/s: 19 May 2021 Date of hearing: 27 April 2021 Place: Parramatta Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Du & Associates Solicitor for the Respondent: No appearance by Just In Case Legal ORDERS
PAC 845 of 2017 BETWEEN: MS MIA
ApplicantAND: MR Y WARRICK AS EXECUTOR OF THE ESTATE OF THE LATE MR WARRICK
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS:
1.That the estate of the late husband Mr Warrick pay the respondent wife’s costs on a party/party basis of and incidental to the section 79 proceedings concluded by orders made 29 April 2021 as and from 4 October 2019 together with the costs of this costs application as agreed within one month from this date or otherwise as assessed.
2.That the sum determined as to costs pursuant to the previous order by way of agreement or assessment be a charge as against payment to the estate of the late husband as provided for in orders made 29 April 2021 and such payment to the estate of the late husband be restrained…
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- AGLC
- Warrick & Mia (No. 3) [2021] FamCA 348
- Case
- [2021] FamCA 348
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders for costs, including whether indemnity costs should be awarded, and how those costs should be secured against a capital sum ordered to be paid to the estate. The central legal issue was the application of cost principles in circumstances where an offer of settlement was rejected, and the subsequent litigation resulted in a less advantageous outcome for the party who rejected the offer.
Foster J applied the applicable principles regarding costs in family law proceedings, particularly in light of the rejected settlement offer. The court reasoned that the estate's rejection of the wife's offer, which resulted in a less favourable outcome, warranted an order for the estate to bear the wife's costs from the date of that offer. The court ordered that the estate of the late husband pay the wife's costs on a party/party basis from 4 October 2019, as well as the costs of the current application, to be agreed or assessed. Furthermore, payment of the capital sum to the estate was restrained pending the agreement or assessment of these costs, which were to be a charge against that capital sum.
Orders
Orders of the court
PAC 845 of 2017
BETWEEN:
MS MIA
Applicant
AND:
MR Y WARRICK AS EXECUTOR OF THE ESTATE OF THE LATE MR WARRICK
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS:
1. That the estate of the late husband Mr Warrick pay the respondent wife’s costs on a party/party basis of and incidental to the section 79 proceedings concluded by orders made 29 April 2021 as and from 4 October 2019 together with the costs of this costs application as agreed within one month from this date or otherwise as assessed.
2. That the sum determined as to costs pursuant to the previous order by way of agreement or assessment be a charge as against payment to the estate of the late husband as provided for in orders made 29 April 2021 and such payment to the estate of the late husband be restrained until satisfaction of costs as agreed or assessed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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