Man ordered to pay ex-wife's legal costs after rejecting reasonable settlement offer
Bidwell & Bidwell (No 2) [2022] FedCFamC1F 953 (6 December 2022)
The case involves an order for costs in family law proceedings, where the court found that the respondent's refusal to accept a reasonable offer made by the applicant was unreasonable. The court ordered the respondent to pay the applicant's party/party costs fixed in the sum of $30,000.
Ms. Bidwell, the wife in a matrimonial dispute, has applied for her costs to be paid by her former husband. The application is for the costs she incurred from 16 March 2021 to the end of the matter on an indemnity basis. The final hearing was on 18 October 2021, and the judgment was handed down on 11 May 2022, with the wife receiving 55% of the matrimonial asset pool.
The husband was ordered to pay the applicant wife’s costs thrown away by the orders made on 18 October 2021, with the quantum of those costs reserved for the trial. The wife is now seeking an order that the husband pay her costs of $45,705, which excludes the costs of the application. The matter was dealt with on the papers, and both parties filed submissions and an affidavit in support.
The court dismissed the wife’s application for costs on an indemnity basis but ordered the husband to pay a lump sum of $30,000 as costs to the wife. The court did not provide any reasons for the decision to award costs to the wife, but the order was made within 28 days of the court’s decision.
The wife submitted that the court ought to consider awarding costs on an indemnity basis due to her husband's conduct, which included refusing to re-engage a valuer and contesting unreasonable issues, without proper merit, such as the wife's travelling to New Zealand with their son. The husband opposed the application, stating that his refusal to consent to an updated valuation was not unreasonable and that he had made additional settlement offers through emails.
Issue:
The issue in this case appears to be whether the respondent's refusal to accept a settlement offer made by the applicant was unreasonable, and whether the applicant should be awarded costs as a result.
Analysis:
The court has decided not to order indemnity costs, as the conduct of the husband did not justify it and the Calderbank offer did not put him on notice that indemnity costs would be sought. The court found that the offer made by the wife was reasonable and that it was unreasonable for the husband not to have accepted it. The court has ordered the respondent to pay the applicant's costs, fixed at $30,000, from the date of the offer. The court has adopted the approach taken by the full court in Warbrick & Warbrick (No. 2) [2021] FamCAFC 101 at [13] to assess the costs.
Conclusion:
The court has ordered the respondent to pay the applicant a lump sum of $30,000 in costs within 28 days, and the wife's application for the husband to pay costs on an indemnity basis has been dismissed.
Case: Bidwell & Bidwell (No 2) [2022] FedCFamC1F 953
Judgment of: MCNAB J
Counsels:
Solicitor for the Applicant: Buckley Lawyers Pty Ltd
Solicitor for the Respondent: David H Cohen & Co
