Dourado v. Dourado Matr. Cause 8-D-70; 12/9/70; Georges, C. J.

Dourado v. Dourado Matr. Cause 8-D-70; 12/9/70; Georges, C. J.

This was an application by the respondent in matrimonial proceedings for the stay of an ex-parte injunction made on 24^th August 1970 by which he was ordered t leave the flat which was the matrimonial home and not to enter it nor to molest the petitioner his wife, in the use and occupation of it.  The basic objection the grant of this application was that it had been made ex-parte that there were no circumstances of irreparable loss or irreversible prejudice which necessitated an ex-parte application. For the petitioner it was contended that there was no jurisdiction in this Court to stay an order for injunction once granted.

            Held: (1) “There is undoubtedly power to vary, discharge or rescind any such order. In my view the power to discharge must include the power to suspend. Rescission need not be perpetual, it could be for a period and I am satisfied this Court could suspend the order for an injunction until the inter parties hearing of the application. The exercise of this power would be discretionary.” (2) “I have looked at the authority quoted on the hearing of the ex-parte application – Silverstone v. Silverstone [1953] 1 All E.R. 556. it would appear that the curt does have jurisdiction make an  ex-parte injunction in a situation where there was a dispute as to who should be the occupant of the matrimonial home pending the determination of the petition. That case was somewhat different from this, in that at the time of the filing of the application both husband and wife were in actual occupation of the house and the question was who was to be kept out pending the hearing  of he petition. Mr. Balsara has pointed out, and I agree with that the English matrimonial rules govern us here in these matters. I would myself have preferred, had this application been made to me, to have adjourned it for a short period in order to enable the respondent be present and be heard before issuing the injunction. But I am not satisfied that there is any good reason in this case to discharge the order which has been made by the learned judge.” (3) “Accordingly the order for stay will not be granted.”