L. Konkol

This is a costs endorsement following a come-back motion concerning ex parte injunctions.

The applicant successfully continued a Family Law Act preservation order against her former spouse but failed to continue a Mareva order against his family members and corporate affiliates.

The court determined costs based on divided success, reasonableness of conduct, and settlement offers, ultimately awarding the applicant costs against the former spouse and the other respondents costs against the applicant, with deferred payment terms for the applicant.

The applicant brought a motion to continue an ex parte FLA Preservation Order against her former spouse and a Mareva Order against his family members and corporate affiliates.

The applicant alleged that the respondent spouse had dissipated tens of millions of dollars from the sale of a business to defeat her equalization claim.

The court found a serious issue to be tried and continued the FLA Preservation Order against the respondent spouse to prevent further depletion of his remaining assets.

However, the court dissolved the Mareva Order against the family members and affiliates, finding no demonstrated risk that they would remove or dissipate the assets from the jurisdiction.

The co-respondents, Louis Montello and Las Princesas Corp., brought a motion under Rule 25(19)(d) of the Family Law Rules to set aside specific paragraphs of a final order obtained by Monique Abitbol without notice.

The impugned paragraphs disentitled Montello and Las Princesas from further participation and declared them to be holding the "Golden Beach" property in trust for Alberto Benarroch.

Applying the factors from Mountain View Farms Ltd. v. McQueen, the court found that while there was no compelling excuse for the co-respondents' default in filing an Answer, they had an arguable defense on the merits.

The court determined that allowing the ex-parte declaratory relief to stand would cause disproportionate prejudice to the co-respondents and undermine the integrity of justice.

The motion was granted, setting aside the contested paragraphs, with terms including payment of prior costs and an expedited timetable for the proceeding.