This guide discusses the connection between enforcement and appeals, the legal means to suspend enforcement, and the possible consequences of appealing a court order.
Enforcement of Court Orders
What Does Enforcement Mean?As soon as a court order is made, it can be enforced in law. Enforcement measures can be taken if the party does not comply, including:
Seizure of property – The sale and seizure of the assets of the non-compliant party may be ordered by the court.
Garnishment of wages – Withholding of money from wages to enforce money orders.
Contempt of court – Failure to comply can result in fines, penalties, or imprisonment.
Will an Appeal Stop Enforcement Automatically?Filing an appeal does not necessarily stop enforcement of the initial court order. The order is still effective unless the appellate court issues a stay of enforcement.
Stay of Enforcement: How It Works
What is a Stay of Enforcement?A stay of enforcement is a judicial order that delays the enforcement of a judgment pending consideration of an appeal. This safeguards the appellant from suffering irreparable damage if the appeal is successful in the end.
How to Apply for a Stay of EnforcementTo get a stay, the appellant submits an application to the court. The court takes into consideration a number of factors such as:
Chance of success – Whether the appeal is likely to be successful.
Irreparable harm – Whether enforcement would lead to irreparable harm that cannot be reversed.
Balance of convenience – Whether it would be more equitable to suspend enforcement or allow it to continue.
When is a Stay of Enforcement Granted?A stay of enforcement is not given automatically and is determined on a case-by-case basis. Courts will normally grant a stay in the following situations:
The appeal presents grave issues of law.
Enforcement would cause disproportionate damage to the appellant.
The appellant is showing financial distress which enforcement will worsen.
Effect of Appeals on Various Forms of Orders
Orders FinancialAppealing a financial order does not stop enforcement unless a stay is issued. If enforcement continues and the appeal is successful, reversing financial transactions may be complicated. Courts prefer to avoid financial harm and are likely to be more willing to grant a stay in such situations.
Parenting OrdersIn family law cases, parenting orders for child custody and visitation continue in force during an appeal. Yet if the enforcement of the order could endanger the child, the court may have a duty to consider issuing a stay or altering the order temporarily.
Injunctions and Restraining OrdersOrders that include injunctions (e.g., freezing assets) or restraining orders (e.g., domestic violence orders) usually continue even if appealed. Courts prefer safety and the public interest to possible inconvenience to the appellant.
Criminal Sentences and FinesIn criminal law, appealing a conviction does not necessarily postpone sentencing or fines. Nevertheless, an appellant can seek bail or suspension of penalties pending the appeal result.
Consequences of Appealing Without a Stay
Risk of Enforcement Despite AppealWhere there is no stay, enforcement can go ahead while the appeal is being heard. This can lead to economic loss, loss of assets, or compliance with an order that may eventually be reversed.
Potential for Cost OrdersWhere appeals are lost and there has been unreasonable delay in enforcement, the court can order the appellant to pay the costs of the other party.
Extended Litigation TimelineAppeals may extend litigation, increasing stress and cost. It is important to consider whether an appeal is the most appropriate strategy or whether other methods of alternative dispute resolution, such as mediation, may be more suitable.
Key Takeaways
Filing an appeal does not necessarily suspend enforcement – A stay of enforcement is necessary.
Stays of enforcement are only awarded in justified circumstances, taking into account such factors as irreparable harm and prospects of success.
Various kinds of orders of the court are handled differently in appeals – Some are less likely to be stayed than others.
Enforcement can go on without a stay – This may have serious effects on the appellant.
Litigation and appeals involve a lot of strategic thinking. In case you're thinking of an appeal or experiencing enforcement of a court order, seeking professional advice is essential.
At New South Lawyers, we specialise in litigation and appeals, ensuring that your rights and interests are protected. Our experienced legal team can guide you through the process, helping you explore the best legal options available.
