Askey and Askey

In the matter of *Askey and Askey*, the wife sought an order that the husband pay her costs incurred from 24 May 2006 until the conclusion of the final hearing for property division. The husband had made a written offer to settle on 5 May 2006, proposing a 50/50 split of non-superannuation assets and a 57/43 split of superannuation assets in his favour. The wife subsequently made an oral offer in late May 2006, proposing a 55% share of the asset pool and a 45% split of the husband's superannuation. This oral offer was rejected by the husband. The court was presided over by Watts J.

The primary legal issue before the court was whether circumstances justified an order for costs against the husband, and if so, on what basis and to what extent. This involved considering the significance of the parties' settlement offers, particularly the wife's oral offer, in light of the provisions of section 117 of the *Family Law Act 1975* (Cth). Specifically, the court had to determine if the oral offer could be considered under section 117(2A)(g) as a relevant matter, despite section 117(2A)(f) only referring to written offers. The court also had to assess whether the wife's offer was sufficiently clear and whether it adequately accounted for factors such as capital gains tax and "add backs" of certain assets.

Watts J reasoned that while section 117(2A)(f) specifically refers to written offers, an oral offer could be considered under section 117(2A)(g) as a "relevant matter." The court found that there was no dispute regarding the terms of the wife's oral offer, and it was made in the context of the husband's comprehensive written offer. The court rejected the husband's submission that the oral offer lacked clarity, finding that it implicitly accounted for capital gains tax and should be viewed in light of the preceding written offer. Furthermore, the court noted that the wife's offer, when adjusted for "add backs," resulted in her receiving a slightly lower percentage of the total assets than she ultimately obtained at trial. However, the court emphasised that the husband had rejected the wife's offer outright, without serious consideration, and that the costs of the trial could have been avoided if the offer had been accepted or responded to constructively. The court concluded that these circumstances justified an order for costs in favour of the wife.

Consequently, the court ordered that the husband pay 80% of the wife's costs incurred from 1 June 2006 until the conclusion of the final hearing, on a party/party basis, to be agreed upon or assessed. The court declined to order indemnity costs, as it lacked sufficient information regarding the wife's party/party costs.