Tibbins and Tibbins

In the Family Court of Australia at Melbourne, Guest J heard an application by the husband, Mr Tibbins, seeking the delivery of various documents, including certificates of title and discharge of mortgages relating to properties held by A Pty Ltd, and his superannuation fund. The dispute arose from differing interpretations of final property orders made by consent on 8 June 2006, specifically concerning the husband's responsibility to refinance and the wife's security over certain assets. The husband contended that he required possession of these documents to secure a further $800,000 loan, which would rank ahead of the wife's security for her $1.4 million advance.

The primary legal issue before the court was whether the wife had acted in wilful failure to cooperate with the husband in the orderly effectuation of the consent orders, thereby necessitating the husband's application for the recovery of the documents. The court was required to consider the conduct of the parties, whether the proceedings were necessitated by a failure to comply with previous orders, and whether any party had been wholly unsuccessful. The court also had to determine the appropriate costs order, considering the discretionary powers granted by section 117 of the Family Law Act 1975.

Guest J found that there had been a patent failure on the part of the wife to cooperate, evidenced by a "code of silence" and a wilful failure to respond to reasonable requests from the husband's solicitors. The court noted that the documents were ultimately provided to the husband's solicitor, rendering the application for their recovery technically unnecessary at that point, but concluded that the proceedings had been necessitated by the wife's conduct. Applying section 117(2) of the Family Law Act, the court exercised its discretion to award costs against the wife, finding her to be wholly unsuccessful and her conduct to have caused the husband to institute proceedings.

The court ordered that the husband's application be dismissed, that the wife pay the husband's costs fixed at $7,500, with payment stayed for 60 days, and certified that the matter reasonably required the attendance of both Senior Counsel and a solicitor acting as Counsel.