Henty and Henty (No. 2)

The husband applied for an order that the wife pay his costs following substantive property proceedings. The application was based on two grounds: firstly, that the husband's settlement offer made in March 2006 was substantially similar to the final orders made by the Court on 24 January 2007, and secondly, that the wife and her mother had presented evidence regarding a significant contribution to the property in a misleading manner. The proceedings were heard in the Family Court of Australia at Sydney.

The legal issues before the Court were whether the husband was entitled to an order for costs against the wife, and if so, the appropriate amount of those costs. Specifically, the Court had to determine if the husband's settlement offer met the requirements of a "genuine offer to settle" under the Family Law Rules, and whether the conduct of the wife and her mother in presenting evidence warranted a costs order. The Court also considered the wife's arguments that she was unable to make a genuine offer due to uncertainty about asset values and that any costs order would negatively impact her financial circumstances.

The Court reasoned that the husband's offer, which resulted in the wife enjoying property valued at $493,388, was very close to the final court determination of $500,822. While there were minor differences, such as the superannuation splitting percentage, the Court found the husband's offer to be "fairly close to the mark" and significantly more favourable to the wife than her own offer, which was considered to be "a long way away from the mark." The Court also found merit in the husband's submission regarding the presentation of evidence concerning the wife's mother's contribution, noting a "slant" or "particular presentation" of that evidence. Applying the principles from *Pennisi v Pennisi*, the Court held that where an offer is close to the award, greater weight should be given to this factor in considering costs. The Court acknowledged that a costs order would worsen the wife's financial circumstances but concluded that, in all the circumstances, an order for costs was appropriate.

The Court ordered that the wife pay the husband's solicitors the sum of $7,500 within 42 days, representing the Court's assessment of his appropriate costs.