MAIDA & MAIDA

This matter concerned an application by the Respondent Father for a stay and review of previous orders made on 20th August 2019, which related to the sale of the former marital residence. The Applicant Mother was pressing for the sale of the home. The Respondent Father had a history of continued and protracted non-compliance with orders requiring him to file material, and had made unsubstantiated claims regarding his available finances.

The Court was required to determine whether to grant a stay of the existing orders. In doing so, the Court considered the principles applicable to applications for a stay of orders, including the discretionary nature of such applications, the onus on the applicant to establish a proper basis for the stay, and the entitlement of a party to the benefit of a judgment. The Court also considered factors such as the bona fides of the applicant, the balance of convenience, the competing rights of the parties, the risk of an appeal being rendered nugatory, and a preliminary assessment of the strength of the proposed appeal.

The Court reasoned that while the onus was on the Respondent Father to establish a proper basis for the stay, it was not necessary to demonstrate "special" or "exceptional" circumstances. The Court noted that a stay could be granted on terms that were fair to all parties, which might involve weighing the balance of convenience and the competing rights. The Court also acknowledged the importance of considering the risk that an appeal could be rendered nugatory if a stay was not granted, and the desirability of limiting changes to living arrangements.

The Court ordered that the orders dated 20th August 2019 be conditionally stayed. This stay was conditional upon the Respondent Father completing several matters within 14 days, including filing independent evidence of available finance to pay out the Applicant Mother's interest in the former matrimonial home, filing a Response, Financial Statement, Notice of Risk, and Affidavit material, and paying the Applicant Mother's costs of specific court events. The Court also noted that absent compliance, further orders might be made to ensure compliance, and that the original orders would remain in force until full compliance.