Duarte and Morse

This matter came before Le Poer Trench J concerning an application for a stay of orders made on 1 December 2017, pending the determination of an appeal filed by the applicant wife. The respondent husband sought to resist the stay.

The primary legal issue before the court was whether to grant a stay of the existing orders, and if so, on what conditions. This involved considering the applicant's prospects of success on appeal and the balance of convenience between the parties.

His Honour granted the stay of Order 31 made on 1 December 2017, subject to several conditions. These conditions included that the stay would lapse if the applicant failed to comply with the Family Law Rules or directions of the Appeal Division, or if the appeal was dismissed. The applicant was also required to ensure her appeal remained ready for hearing. The respondent was granted leave to apply to discharge the stay if he contended circumstances warranted it. The applicant was ordered to pay the respondent's costs of the stay application, fixed at $5,750, to be paid from her entitlement to proceeds from the sale of the Suburb C property or another source if the original orders were varied or set aside on appeal.