4.22: Considerations for security for costs order
14.48: Stay pending appeal
14.67: Security for costs

Case Summary

The Master and Chambers Justice had both found that the Defendant, Andrew Lindner, had fraudulently transferred and conveyed his cause of action in an unrelated real estate litigation to his wife, Magdalena Lindner (“Magdelena”), with the intent to defeat his creditors. Magdalena then made an Application to stay the enforcement of the lower Court’s Order pending the Appeal, pursuant to Rule 14.48.

Veldhuis J.A. noted that the test for whether the Court of Appeal will grant a stay pending Appeal pursuant to Rule 14.48 is whether: (i) there is a serious question arguable on Appeal; (ii) the Applicant would suffer irreparable harm absent the stay; and (iii) the balance of convenience favours granting the stay. The Court noted that whether there is a serious question arguable on Appeal is a low threshold, used to simply determine whether the Appeal is frivolous or vexatious. Justice Veldhuis found that the Courts below had specifically considered and rejected the same arguments that were raised on the Appeal, and therefore there was no serious question arguable on Appeal. Justice Veldhuis also found against Magdelena as to whether she would suffer irreparable harm or whether the balance of convenience favoured granting the stay. The Application to stay the enforcement of the lower Court’s Order pursuant to Rule 14.48 was dismissed.

Fish Creek Finish Carpentry Ltd. (“Fish Creek”) made a cross-Application for Magdalena to post Security for Costs for the Appeal pursuant to Rule 14.67(1). Justice Veldhuis considered the factors listed in Rule 4.22 in order to determine if Security for Costs should be granted, and found that Fish Creek had failed to provide any evidence in support of its argument. The Application for Security for Costs was dismissed.

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