MCMILLAN & MCMILLAN

In *McMillan & McMillan*, the Family Court of Australia considered an application by a debtor for a stay of enforcement proceedings pending an appeal, and a separate application by the creditor to either dismiss or stay an enforcement warrant that had been issued for an incorrect amount. The debtor sought to halt the enforcement of property orders, while the creditor wished to resolve issues surrounding an incorrectly issued warrant.

The primary legal issues before the Court were whether the debtor's appeal had sufficient prospects of success to warrant a stay of proceedings, and whether the enforcement warrant, having been issued for an incorrect amount, should be dismissed or stayed on the grounds that it was frivolous or vexatious. The Court also had to consider the prejudice, if any, to the debtor if the warrant were to be stayed.

Her Honour Tree J determined that the debtor's appeal lacked any real prospects of success, and therefore refused the application for a stay of proceedings. However, regarding the enforcement warrant, the Court found that it had been issued for an incorrect amount. Despite the creditor's submission that the warrant was frivolous or vexatious, the Court concluded that no prejudice would be suffered by the debtor if the warrant were stayed. Consequently, the Court ordered that the execution warrant issued on 16 June 2016 be permanently stayed.