Warrick & Mia (No. 3)

In the matter of *Warrick & Mia (No. 3)*, Foster J of the Family Court of Australia considered an application for costs made by both parties following proceedings that continued after the death of the applicant husband. The dispute centred on the costs incurred after a written offer of settlement made by the wife on 4 October 2019, which was ultimately rejected by the husband's estate. The final outcome of the proceedings was substantially less favourable than the sum offered by the wife.

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.