Williams and Williams (No 2)

[2007] FamCA 881

FAMILY COURT OF AUSTRALIA

WILLIAMS & WILLIAMS (NO 2) [2007] FamCA 881

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117(1); (2); (2A); (2A)(f); (2A)(g)

APPLICANT: Ms Williams

RESPONDENT: Mr Williams

FILE NUMBER: NCF 680 of 2004

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Watts J

HEARING DATE: 17 May 2007 & 21 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Carl Boyd

Orders

1. The husband pay to the wife, on a party/party basis, one half of the wife’s costs incurred in these proceedings from 3 August 2004 as agreed or assessed.

2. Either party have liberty to relist this matter on seven (7) days notice in respect of the costs of this application. 

NOTATION:

1. It is certified that it was reasonable to have engaged a lawyer as Counsel to attend the hearing. 

2. The judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Williams & Williams.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF. 680 of 2004

Ms Williams

Applicant

And

Mr Williams

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The wife filed an application in a case on 24 March 2006.

2. The order that she sought was:-

   The husband pay the wife’s costs of the proceedings relating to property settlement and of this costs application.

3. Proceedings for alteration of property between the wife and the husband were heard by me on 8, 9, 10 and 15 February 2007.  Judgement was delivered on 24 February. 

4. The husband appealed the orders made.  That appeal was heard by the Full Court in March 2007 and dismissed by an order dated 11 April 2007.

5. This costs application originally came before me on 26 July 2006.  There was no appearance on that day by either party.  I noted on that day that the appeal had come before Coleman J for procedural hearing on 23 June 2006.  Order number 6 made that day was that the costs of and incidental to these proceedings be reserved for the Full Court.  I commented on 26 July 2006 that I was unsure exactly what that order meant but noted that it seemed that the solicitors for either side interpreted that order to mean that the costs application that is before me now would not be dealt with until the Full Court dealt with the appeal. 

6. Accordingly on 26 July 2006 I stood the application filed 24 March 2006 out of the list with liberty to either party to restore the application on 14 days notice.  The wife has now done that. 

7. At paragraph 166 of my reasons for judgment of 24 February 2006 I set out the effect of the orders that were made as follows:-

Asset		Wife	Husband
1.	M Pty Ltd	$72,972.00
2.	P Pty Ltd	297,503.00
3.	Wife’s loan account in P Pty Ltd	148,456.00
4.	Wife’s loan account with W Pty Ltd	15,000.00
5.	Wife’s funds at bank	11,706.00
6.	Balance of CBA joint accounts after Order of JR Johnston	471,000.00
7.	Husband’s bank accounts	173,328.00
8.	Wife’s share portfolio	64,727.00
9.	Husband’s share portfolio	24,716.00
10.	1997 Mitsubishi	6,000.00
11.	Household contents	10,000.00
12	12 year old power boat	18,000.00
13.	Wife’s jewellery	2,000.00
14.	Husband’s daughters loan	16,000.00
15.	Interest in Macquarie Investment	79,542.00
Add backs
16.	Proceeds of sale of stock, plant & equipment at C and A	Nil
17.	Add back payment to wife	1,000,000.00
18.	Add back payment to husband	1,000,000.00
19.	Wife’s paid legal fees	18,531.00
20.	Husband’s paid legal fees	20,043.00
21.	TOTAL PROPERTY
Superannuation
22.	Wife’s ABN Amro Morgan	58,059.00
23.	Husband’s superannuation	221,918.00
24.	TOTAL ASSETS	1,727,524.00	2,001,977.00
Less liabilities
25.	Wife’s Visa card debt	Nil
26.	Wife’s legal fees	Nil
27.	Wife’s loan from P Pty Ltd	50,000.00
28.	M Pty Ltd taxation	Nil
29.	M Pty Ltd accountant fees	Nil
30.	TOTAL LIABILITIES	50,000.00	Nil
31.	NET ASSETS	1,677,524.00	2,001,977.00
32.	Amount paid/received	(113,736.00)	113,736.00
33.	TOTAL RECEIVED BY PARTIES	1,563,788.00	2,115,713.00
42.5%	57.5%

1. The orders that I made were as follows:-

   1.That an order be made pursuant to Section 79 of the Family Law Act in the terms of paragraphs 2 – 7.

   2.That the husband and the wife do all acts and things necessary, including causing the director of M Pty Ltd to do all acts and things and sign all documents as may be necessary, to distribute the proceeds of Commonwealth Bank Joint Account in the name of the husband, the wife and M Pty Ltd to the husband and/or to M Pty Ltd as the husband directs.

   3.That the wife pay to the husband within a period of six weeks the sum of $113,736. 

   4.That save and except as these Orders provide to the contrary, the husband and wife be otherwise solely, legally and beneficially entitled to all other real and personal property of whatsoever nature and kind in their respective ownership, possession or control as at that date of these Orders, including but not limited to, money on deposit, shareholdings in their name or possession (including for the wife P Pty Ltd), insurance policies, motor vehicles (including for the wife the Mitsubishi Verada registered number […] in the wife’s possession), boats (including the boat in the husband’s possession), any money in any loan accounts, furniture, furnishings and effects, superannuation  or other assets or resources.

   5.That save and except as these Orders provide to the contrary, the husband and wife mutually release the other from all debts or claims owing from one to the other.

   6.That the husband indemnify the wife and keep her indemnified in relation to any liability of the wife arising from:-

   61.Any loan or credit facility provided to M Pty Ltd by any third party;

   62.Any guarantee the wife may have given on behalf of M Pty Ltd ;

   63.Any personal tax liability (including but not limited to any liability pursuant to Division 7A of the Income Tax Assessment Act 1987 or any other like provision) now or in the future arising from the parties compliance with these orders or any dividend or wage received by the wife from M Pty Ltd, or any money received by the wife from the sale of A or any asset of M Pty Ltd. 

   7.That the wife indemnify the husband and keep him indemnified in relation to any liability to the husband arising from:-

   7.1Any loan or credit facility provided to P Pty Ltd by any third party;

   7.2Any guarantee the husband may have given on behalf of P Pty Ltd;

   7.3Any personal tax liability (including but not limited to any liability pursuant to Division 7A of the Income Tax Assessment Act (1987) or any other like provision) now or in the future arising from the party’s compliance with these orders or any dividend or wage received by the husband from P Pty Ltd or any money received by the husband from the sale of any asset of P Pty Ltd.

   8.That if either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

   9.That the husband have liberty to relist this matter on seven days notice in relation to the enforcement of paragraphs 2 and 3 as set out above. 

EFFECT OF THE ORDERS

1. As a result of the final orders the wife received an amount of $886,907 calculated as follows:-

Payment on 1 December 2004 pursuant to Johnston JR’s Orders	$1,000,643
Amount payable by wife pursuant to my order 24 December 2006	113,736
$886,907

WIFE’S EVIDENCE

1. In support of her application for costs the wife swore an affidavit on 24 March 2006.  Paragraph 7 of that affidavit annexes a letter written by the wife’s lawyers to the husband’s lawyers on 24 February 2004 (the first written offer). 

2. Paragraph 14 of that affidavit annexes a letter written by the wife’s lawyers to the husband’s lawyers dated 29 April 2004 (the second written offer). 

3. Paragraph 17 of the affidavit annexes a letter from the wife’s lawyers to the husband’s lawyers dated 16 July 2004.  That letter contains the following opening sentence:-

   We refer to previous correspondence and note that our client’s offer contained in our letter dated 29 April 2004 has not been accepted by your client.

4. Paragraph 18 of the affidavit annexes a letter from the wife’s lawyers to the husband’s lawyers dated 16 August 2004. That letter contains the following:

   There is some confusion as to whether your client may have received a copy of ‘without prejudice’ letter dated 29 April 2004 proposing settlement.  As it will be our intention to rely upon that letter on any issue of costs in these proceedings we take the precaution of again forwarding:-

   1.Copy of our letter to you dated 29 April 2004 and marked ‘without prejudice’.

5. It was originally agreed that I should infer from the correspondence that the husband’s lawyers were unaware of the second offer until 16 August 2004.  It transpires however that this is incorrect.  The husband tendered further documents on the second day the matter was before me.  By 26 May 2004 the husband was aware of the second written offer (see exhibit C – a letter from the husband’s solicitor dated 26 May 2004 which refers to the letter of 29 April 2004). 

6. A reasonable interpretation of this correspondence would be that the first offer was received by the husband’s lawyers shortly after 24 February 2004 and the second offer was received by the husband’s lawyers shortly after 29 April 2004. 

7. In the proceedings before me on 21 June 2007, Mr Sullivan on behalf of the wife in effect conceded that the wife’s second offer of 29 April 2004 expired on the date the husband filed his application; that is on 3 August 2004. 

ANALYSIS OF THE FIRST WRITTEN OFFER

1. The wife’s first written offer was made in the following terms:

   Our client will settle on this following basis:-

   (a)That she retain her share portfolio, her interest in superannuation and the Verada.

   (b)That after the sale of A and payment of M Pty Ltd’s debts secured over A, your client’s debts secured over A and legal and agent’s commission on the sale, she be paid the sum of $603,950.

   (c)That she retain absolutely her investments in P Pty Ltd.

   (d)That both parties sell C and after payment of agent’s commissions and legals on the sale, the discharge of the debt to the Commonwealth Bank, the balance be split equally between the parties.

   (e)That our client receive one half of the net proceeds of M Pty Ltd and in particular being an equal division of the net proceeds of the working account, sale of plant and equipment, cattle etc.

   (f)That your client retain property to the value of $1,343,355 consisting of his share portfolio ($22,000), his superannuation ($196,000), his boat, and cash of about $1,125,355.  In addition he will receive half of C ($381,200) and the net proceeds of M Pty Ltd including the Toyota 4 WD. 

2. The wife asserts in her affidavit that the first offer was to essentially settle the matter on an overall basis if she was paid $603,950 from the proceeds of the sale of the following assets:-

   18.1.A;

   18.2.A cattle stud disbursal sale;

   18.3.The proceeds from the farm clearance sale and sale of other equipment;

   18.4.The wife also wanted one half of the proceeds of the sale of C.

3. The wife also sought 50 per cent adjustment for unrealised net assets held by M Pty Ltd.

4. It was agreed at the hearing that the value of M Pty Ltd was $72,972 (see paragraph 18 of the judgment). 

5. The wife in her affidavit filed 21 September 2005 (paragraph 6) deposed to the fact that on 2 April 2004 the farm C was sold and the net proceeds amounting to $526,863.52 were deposited into the Commonwealth Bank joint account.  Consequently the request for the balance of the sale of C to be split equally between the parties was a request that the wife receive the sum of $263,432. 

6. In summary therefore according to the wife’s case, the first offer would have seen the wife receive the following amounts:-

   Share of A proceeds   $603,950

   Half of C   $263,432

   Half of M Pty Ltd (72,972 ÷ 2)   $36,486

   $903,868

7. During submissions, the solicitor for the wife said that offer one would have given the wife $903,882 (the difference of $14.00 is of no relevance).

8. On that basis, the difference between offer 1 and what the wife ultimately received was $16,975 ($903,882 – $886,907). 

9. However, as is set out in paragraph 30, the solicitor for the wife adopted a higher figure of $294,497 for the presumed value of one half of C.  If that figure is adopted then the difference between offer 1 and what the wife ultimately received was $48,040 ($16,975 - $263,432 + $294,497). 

ANALYSIS OF THE SECOND WRITTEN OFFER

1. The second written offer contained in the letter dated 29 April 2004 is in the following terms:-

   (a)That the husband retain 65 per cent of the money contained in the cash management accounts and the wife the balance.

   (b)That the net sale proceeds from C be distributed equally between the parties.

   (c)That each party retain absolutely their superannuation entitlements and shares.

   (d)That the balance of the net assets of M Pty Ltd (comprising money in the cheque accounts and later sale of any cattle and equipment) be distributed equally between the parties after all items have been accounted for.

   (e)That the husband indemnify the wife against any other liabilities with respect of M Pty Limited.

   (f)Otherwise each party retain absolutely any other personal property, share holdings or other interests in their sole name or control.

2. In paragraph 16 of her affidavit sworn 24 March 2006 the wife asserts that the offer meant that she was seeking to receive $978,228. 

3. The solicitor for the wife however during submissions wished to resile from the figures set out in paragraph 16 of the wife’s affidavit and to recalculate them.

4. The recalculation was done with reference to updated figures in the letter of 16 July 2004 (annexure C) to the wife’s affidavit sworn 24 March 2006.  In that letter the proceeds of the sale of the A property is said to be $1,817,659 (paragraph 3).  The wife’s second written offer provided that she receive 35 per cent of that amount.  That equates to $636,181 ($1,817,659 x 35 per cent). 

5. In the letter of 16 July 2004 the proceeds of the C property were said to be $588,993.  The wife’s second written offer sought one half of that amount.  That is the sum of $294,497.  This is a higher figure than the $263,432 referred to in paragraph 21 above. 

6. The wife also wanted one half of the balance of M Pty Ltd in the sum of $36,486 ($72,972 ÷ 2). 

7. The recalculation of the second written offer was therefore in the sum of $967,164 ($636,181 + $294,497 + $36,486).

8. The result the wife received at trial was $80,257 worse than the second written offer ($967,164 – $886,907). 

OFFERS AT THE CONCILIATION CONFERENCE

1. The husband in his conciliation document wanted 65 per cent in his favour (exhibit A).

2. The wife in her conciliation conference document wanted about 55 per cent in her favour (exhibit B).

WIFE’S POSITION AT THE HEARING

1. In percentage terms, the wife at trial indicated that she would settle for an adjustment of 45 per cent.  She said that would be achieved by a payment to her of $72,750.  If that had happened she would have received 47.5 per cent of the assets.  The adjustment made in her favour was 42.5 per cent.  The wife received five per cent less than what she submitted the dollar adjustment should have been.  Five per cent is $186,486. 

2. The wife’s position at trial, in her submissions to the court, are of limited relevance.  Of more relevance are the first written offer and the second written offer of the wife. 

OTHER SUBMISSIONS BY THE SOLICITOR FOR THE WIFE

1. The solicitor for the wife submitted that the first and second offers should be seen in the overall context of the negotiations between the parties.  He said it took two to tango and the husband really had not entered into the negotiations in a bona fide way. 

2. He referred to paragraphs 19, 20, 21 and 22 which contain the following information:-

   39.1.The husband in his application filed 3 August 2004 proposed that the wife receive $300,000.

   39.2.In an offer of settlement made by the husband on 18 February 2005 he proposed the wife be paid $400,000.

   39.3.In an amended application filed 20 January 2006 the husband proposed the wife be paid $450,000 (after adjustment for superannuation).

   39.4.On 15 February 2006 in submissions the husband proposed a payment of $255,815. 

3. As set out in the reasons for judgment (paragraph 10 and 11) the husband’s position in final submissions at the hearing was that he should receive 75 per cent of the overall pool of assets and the wife should receive 25 per cent of the overall pool.  That would require a payment of $744,148 by the wife to the husband. 

4. Therefore the best offer the wife received from the husband was between 20 January 2006 to 15 February 2006 and was for $450,000.  Mr Boyd did not cavil during submissions with the proposition that the husband’s best offer was $450,000.

5. What the husband ultimately received at trial was 57.5 per cent of the overall assets.  That is, at trial the husband did 17.5 per cent worse than his final submissions.  The overall pool of assets was $3,679,501, 17.5 per cent of that is $643,913.  That is the wife did $643,913 better than the husband’s submissions at trial. 

6. The more important comparison is with the $400,000 offer that was made on 18 February 2005 and the $450,000 offer made on 20 January 2006.  On the figures that I have the wife did $486,907 and $436,907 better than those offers respectively. 

HUSBAND’S EVIDENCE

1. The husband relied upon three documents which were:-

   44.1.Conciliation conference sheet utilised by the husband at the conciliation conference signed and dated 25 October 2004.

   44.2.Conciliation conference document relied upon by the wife (unsigned and undated) prepared by Mr Sullivan.

   44.3.A letter by Boyd Wooi Olsen dated 26 May 2004.

THE HUSBAND’S SUBMISSIONS

1. Mr Boyd for the husband, submitted that at the date of the first offer the wife thought that half C was worth $381,500 (see annexure “B”) and therefore at the date of the first offer the wife thought she would be getting more out of C than she did.  It follows that the difference between what the wife thought she was getting and what she ultimately received was greater than $16,975 (see paragraphs 24 and 25 above).  The difference could be calculated as $103,979 ($16,975 + $381,500 – $294,496).

2. It was agreed that the value of C was known by 16 July 2004.  Its value is set out in annexure C to the wife’s affidavit – a letter dated July 2004, the value being $294,496 ($588,993 ¸ 2).  As set out above, at trial the wife did $80,257 worse than that (see paragraph 33). 

3. Mr Boyd made the submission that exhibit C, which is a letter dated 26 May 2004 responding to the wife’s second offer, requested that the wife provide further information about the value of assets in her possession.  Mr Boyd says that information was not forthcoming between the period 26 May 2004 and 3 August 2004.

4. That is not an entirely accurate submission.  The clarification of the assets requested in the letter of 26 May 2004 seems to relate to two items only.  The first is the value of the unit at H. The second relates to some gold coins or bullion (thought to be questionably worth $20,000). 

1. In relation to the value of the unit at H, it is clear that by 16 July 2004 it was known that the settlement of the sale of that property had taken place at a sale price of $325,000 (see annexure C of the wife’s affidavit sworn 24 March 2006).

2. I am satisfied that from at least 16 July 2004 until 3 August 2004 the husband had sufficient information to make a decision in respect of the wife’s second written offer.  He instead chose to commence litigation. 

THE RELEVANT STATUTORY PROVISIONS ON COSTS

1. Section 117(1) requires each party to the proceedings under the Family Law Act to bear their own costs, subject to s.117(2), s.117AA, s.117AB and s.118.

2. Section 117AA, s.117AB and s.118 are not relevant to this application.

3. Subsection 117(2) provides that if the Court is of the opinion that there are circumstances that justify doing so the Court may make such order as to costs as the Court considers just.

4. In order to make an order under Section 117(2) I am required to have regard to the matters set out in Section 117(2A).

5. Section 117(2A) sets out considerations to which the Court shall have regard.

(a)  The financial circumstances of each of the parties to the proceedings

1. I have referred above to the distribution of assets between the parties.  As a result of orders made the husband received assets to the value of $2,115,713 and the wife received assets to a value of $1,563,788. 

2. In the affidavit filed by the wife in March 2006, paragraphs 32 – 35, she sets out how her financial circumstances have changed.

3. Mr Boyd conceded that both parties had re-established themselves in the rural industry.  Mr Boyd indicated during submissions that the husband had agreed to pay the wife the amount of $10,000 in respect of the costs of the appeal to the Full Court.

4. Given the extent of the assets of both parties, I am satisfied that the financial circumstances of each of the parties to these proceedings are not matters to which I need to give any significant weight in determining this application. 

(b)  Whether any party to the proceedings is in receipt of assistance by way of Legal Aid and, if so, the terms of the grant of that assistance to the party

1. Both parties agree that neither party is in receipt of assistance by way of Legal Aid. 

(c)  The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleading, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

1. The solicitor for the wife referred to the husband’s conduct but only in terms of his conduct in negotiating in a bona fide way in the matter.  This matter is more properly dealt with under consideration (f) below.

2. Mr Boyd made the submission that there were some matters pressed by the wife at the hearing in respect of which she was unsuccessful and these should go to mitigating any costs order the husband may face.  He referred to a  number of findings in the judgment:-

   62.1.Paragraph 17 – no adverse finding as to the credibility of either party.

   62.2.Paragraphs 52 & 53 – no finding against the husband of non disclosure in relation to assets as alleged by the wife.

   62.3.Paragraph 35 findings in relation to CGT which didn’t support the wife’s case.

   62.4.Paragraph 38 & 39 – a finding that depreciation didn’t apply (I commented during the husband’s costs submissions that that only took up a small amount of time at the hearing). 

   62.5.Paragraph 109 – where I commented a disproportionate amount of time was taken up at the hearing exploring what happened on the stormy night of 23 December 2003.  That evidence was resolved in the husband’s favour. 

3. I accept that those matters do weigh in the husband’s favour.

(d)  Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. This is not a relevant consideration. 

(e)  Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The solicitor for the wife conceded during submissions that the wife was not wholly successful in achieving the result that is contained in her first or second written offer.  The gravamen of his submission was that the wife’s position during negotiations was close to the final result whereas the husband’s was nowhere near it.  Again, that submission is more properly dealt with under sub paragraph (f) below.  The husband could not technically be said to have been wholly unsuccessful in the proceedings in as much as the result that he achieved at trial was better than any offer the wife put on the table (this of course ignores the legal costs the husband paid to run the hearing).

(f)  Whether either party to the proceedings has, in accordance with s.117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. The law in relation to the consideration of offers is well known.  It was originally explained by Nygh J in Robinson & Higginbotham (1991) FLC 92-209. Nygh J there said that it is quite clear that the purpose of paragraph (f) 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 the party with the greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition”.

2. That sentiment was emphasised by the Full Court in Brown v Green (2002) 29 Fam LR 428 where the Full Court said “[t]he failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to (sic) give it a proper consideration, is something to which very significant weight indeed ought normally be given”.

3. The Full Court in Pennisi & Pennisi (1997) FLC 92-774 confirmed at page 84,547 that:

   …it is not the law that an offer of greater or equivalent value to that which results from the Court will lead to an order for costs in favour of the offeror…We would also add that just because an offer is marginally less than the amount ordered by a Court does not mean that it is not a factor to be taken into account in determining whether costs should be awarded…

   The plain words [of Section 117(2A)(f)] do not limit a Court’s attention to offers which are greater than the amount awarded.  Nor does the paragraph state what consequences flow from whether the offer is greater or less than the amount awarded, or how much that is the case.  Words of limitation should not be imported into the provision and nor should it be read as though offers in proceedings under the Act carry the same consequences as payments into Court in common law matters. 

   We do however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs.  The principle must not, however, be rigidly applied.  Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live.  In the family law jurisdiction it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer.  There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it is reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.

4. When the letters that are annexures A, B, C and D to the wife’s affidavit sworn 24 March 2006 are read together, their meaning is not obscure.

5. The amounts involved changed as property was realised, but by the time the husband filed his application for property the relevant values were known to both parties and their legal representatives and the offer that the wife put on the table was clear.

6. It seems reasonable to infer that the husband’s lack of interest in entering into meaningful negotiations stemmed from his conviction that he was entitled to substantially more by way of a percentage of the overall assets than was ultimately found to be so.

7. When viewed with legal costs in mind, the second offer would have been an advantageous offer for the husband to have considered at least for the purposes of making a meaningful counter offer.

8. As indicated in Pennisi & Pennisi (supra) it is important for the court to take into account offers that are marginally less than the amount ordered by the court.  It is important for parties to be encouraged to seriously consider offers.  I find that the husband did not do so in this case. 

9. Having taken into account the matters referred to above, I consider that it is just that the husband pay to the wife, on a party party basis, one half of the wife’s costs incurred in these proceedings from 3 August 2004 as agreed or taxed. 

10. I find that it was reasonable to have engaged a lawyer as Counsel to attend the hearing. 

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  13.8.07