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Wife granted costs where she had made an early offer to settle for substantially less than her ultimate entitlement

In Firmer & Britton [2012] FamCA 576 (23 July 2012) Justice Monteith made a finding at the end of a five day final hearing that the parties’ net pool of assets was worth $4m and included the notional add back of a $2.1m property which the husband had transferred into a superannuation fund in the name of his parents. The property order in the wife’s favour was for payment of an amount that was greater than she had been prepared to accept in an offer of settlement before she issued proceedings. Upon the wife’s application that the husband pay her costs of the proceedings, Justice Kent said at paragraph’s 3-4 of the report:

“ … The husband acknowledged at the outset of the trial … that there was no longer any issue that a property was to be added back, and sometime shortly before the trial, that position had been reached to the knowledge of the wife.

However, it is to be noted that for the period up until that point [about 3 years], thus for a substantial period of the proceedings, the husband had maintained a case, it seems, that that property did not form part of the relevant pool of assets.”

After reviewing s 117(1) and (2) FLA and relevant case law Justice Kent said at paras 17-18:

“In terms of the considerations under s 117(2) of the Act, offers of settlement assume particular resonance in many cases as a consideration the Court takes into account.

In Robinson & Higginbotham (1991) FLC 92-209 at p 78,417, Justice Nygh observed in relation to the relevant consideration:

‘It is quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this Court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.”

Justice Kent went on to observe that the husband was “in a vastly superior financial position to that of the wife” and proceeded to refer to other authority, saying at para 20:

“Similar emphasis upon offers to settle are made in other decisions of this Court, including the Full Court, such as Browne & Green (2002) FLC 93-115, Murray & Murray (1990) FLC 92-173, Steel & Steel (1992) FLC 92-306 and Pennisi & Pennisi (1997) FLC 92-774.”

The husband was ordered to pay the wife’s costs of and incidental to the proceedings on a party and party basis, such costs to be agreed, assessed or taxed.

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