The underlying proceeding related to the proceeds entitlement from the sale of four condominium properties between the Applicants, Mr. and Mrs. Habib, and the Respondents, their son and his wife. The Applicants sold two properties in 2023. In April 2024, the Respondents sought an Order for partition and sale of the remaining properties. Justice Marion adjourned the Application to allow for Affidavits and Questioning. The Applicants provided documents showing that the proceeds from the sale of two properties had been deposited into a bank account, but later filed a Cross-Application seeking documents related to the remaining properties, alleging rental income had not been properly shared.

In May 2024, Justice Price granted the partition and sale of the remaining properties, directing that the proceeds be paid into Court, which the Respondents complied with. The Applicants continued seeking further documents and relief, including for allegations of misrepresentations by the Respondents’ counsel. This resulted in multiple hearings, including one before Justice Ashcroft in August 2024, who adjourned the Applicants’ Application to a Special Chambers date. Justice Ashcroft also set a deadline for the Respondents to bring an Application regarding the outstanding Affidavits of Records, which was scheduled for morning Chambers in September. In September, Justice Devlin imposed penalties on the Applicants for their delay in providing Affidavits of Records pursuant to Rule 5.12 and ordered them to pay a portion of the proceeds from previously sold properties into Court for failing to comply with earlier Orders.

The Applicants appealed and sought a Stay of Justice Devlin’s Order, as well as an extension of time to seek permission to appeal Justice Ashcroft’s Order.

On the Application for permission to appeal Justice Ashcroft’s order, Antonio J.A. noted that permission was required to appeal any pre-trial Decision on adjournments or time limits pursuant to Rule 14.5(1)(b). As the Applicants did not file their Application on time, an extension of time under Rule 14.37(2)(c) was also required. This Rule requires the applicant to show a bona fide intention to appeal, provide an explanation for the delay, and demonstrate no serious prejudice. The Court found that the Applicants lacked a genuine intention to appeal, as their Notice of Appeal was filed weeks after the one for Justice Devlin’s Order, seemingly to undermine it. The Court also found the Appeal lacked merit, as the scheduling of the Respondents’ Application was proper. The Respondents’ Application on Affidavits was straightforward, while the Applicants’ Application was more complex and required a Special Application.

In considering the Stay Application, Appeal Justice Antonio referred to the need to demonstrate a serious question to be determined, irreparable harm if the Stay was denied, and that the balance of convenience favored granting the Stay. The Court found some aspects of the Appeal had arguable merit, but the Applicants failed to show irreparable harm. The proceeds from previously sold properties were only partially required to be paid into Court, while the full proceeds from the remaining properties were already there. As such, the Stay was denied.