Skelly and Huxford & Anor

The Family Court of Australia considered an application by Mr Skelly (the husband) for a stay of property orders made on 24 October 2013, pending his appeal against those orders. The court also addressed an application by Mr Preston, the second respondent and an intervener in the substantive proceedings, for costs against both the husband and the wife. Mr Preston was a creditor of the wife, and his intervention concerned his claim against the wife for funds advanced for repairs and renovations to a property.

The legal issues before the court were whether to grant a stay of the property orders and on what terms, and whether to award costs to Mr Preston on an indemnity basis against either or both of the parties. In determining the stay application, the court applied the principles established in *Trahn & Long (No. 2)*, which require the applicant to establish a proper basis for the stay, though not necessarily "special" or "exceptional" circumstances. Key considerations included the bona fides of the applicant, the risk of the appeal being rendered nugatory, a preliminary assessment of the strength of the appeal, and the balance of convenience between the parties. Regarding costs, the court considered the usual position under section 117 of the *Family Law Act 1975* (Cth) and whether the circumstances warranted a departure, particularly in relation to the request for indemnity costs.

The court reasoned that the husband had raised arguable issues concerning Mr Preston's debt, particularly in light of documents not referred to in the original judgment and the wife's conflicting statements regarding her liability. The court found that if the appeal succeeded on this issue, the property pool and its distribution might require reconsideration, and that the appeal appeared bona fide. Consequently, the court ordered that the property orders be stayed, conditional upon the husband filing an undertaking to diligently prosecute his appeal within 48 hours. The court also found it appropriate that the wife pay one half of Mr Preston's costs on a party/party basis, but not on an indemnity basis, and that there be no order for costs as between the husband and Mr Preston.