Roy & Yalden (No. 2)

In *Roy & Yalden (No. 2)*, the wife sought orders that the husband pay her costs of and incidental to the substantive property proceedings on a party/party basis. The wife contended that she had made a written offer of settlement that was closely approximate to the final judgment, and that aspects of the husband's conduct were inconsistent with the Family Law Rules 2004. The court was the Federal Circuit and Family Court of Australia, with McClelland DCJ presiding.

The primary legal issue before the court was whether there were circumstances justifying an order for costs against the husband, pursuant to section 117(2) of the *Family Law Act 1975* (Cth). This involved considering various factors outlined in section 117(2A), including the conduct of the parties in relation to the proceedings, the making of written offers to settle, and whether any party was wholly unsuccessful. The wife sought costs on two bases: an offer she made late in the proceedings, and costs thrown away due to the husband's pursuit of claims relating to alleged loans that were ultimately rejected by the court.

McClelland DCJ reasoned that while the general rule in family law proceedings is that each party bears their own costs, an order for costs may be made if there are justifying circumstances. The court considered the written offers of settlement made by both parties. The wife's offer, made shortly before trial, was found to be significantly worse than the judgment she ultimately received. Conversely, the husband's offer, made at the commencement of proceedings four years and eight months prior to trial, was considered highly relevant. The court found that the wife's pursuit of the proceedings for such a lengthy period, when the outcome was no better than the husband's initial offer (after accounting for legal fees), rendered the litigation largely pointless and costly for both parties. While the husband did not succeed on all alleged loan claims, he was not wholly unsuccessful, having defended a more aggressive claim than the final judgment justified. The court concluded that no circumstances were found to justify an order for costs against the husband.

Consequently, the court dismissed the wife's application for costs.