Elgin and Elgin (No 2)

In *Elgin & Elgin (No 2)*, the Family Court of Australia considered an application by Mr Elgin for a stay of a property settlement order made on 17 January 2014, pending the determination of his appeal against that order. The original order required Mr Elgin to pay Ms Elgin $15,432,457 within 45 days. Mr Elgin had already paid $5,000,000 and transferred three properties to Ms Elgin, leaving a balance of $10,432,457 outstanding. The appeal was anticipated to be heard in August 2014.

The primary legal issues before the court were whether to grant a stay of the outstanding payment order and, if so, on what terms. The court was required to consider the principles governing applications for a stay pending appeal, including the onus on the applicant, the entitlement of a judgment creditor to the benefit of a judgment, the sufficiency of an appeal alone to justify a stay, the applicant's good faith, the balance of convenience, the risk of the appeal being rendered nugatory, and a preliminary assessment of the appeal's strength. The court also had to consider the specific grounds of appeal raised by Mr Elgin, which included alleged errors in refusing an adjournment, procedural fairness, and the consideration of tax consequences.

Justice Forrest applied the principles from *Aldridge & Keaton (Stay Appeal)*, noting that while the applicant bears the onus, special circumstances are not required. The court found that Mr Elgin had an arguable case, particularly concerning the refusal of an adjournment and the failure to consider tax implications, and that his appeal appeared to be brought in good faith. The court also considered that Ms Elgin's financial position was secure, having received a substantial cash payment and properties, and that the outstanding balance would continue to accrue interest. To balance the parties' competing interests and protect Ms Elgin pending the appeal, the court decided to grant the stay, but conditioned upon Mr Elgin's compliance with ongoing disclosure obligations regarding financial accounts, management accounts, property sales, overseas transfers, and borrowings.

The court ordered that the operation of paragraph 1 of the 17 January 2014 orders, to the extent that the husband had not yet complied with it, be stayed until the determination of the husband's appeal. This stay was conditional upon Mr Elgin complying with specific disclosure obligations within 14 days and forthwith providing further documents as they came into existence. The terms of these disclosure obligations were based on a draft provided by Ms Elgin's counsel.