GALEA v NEW SOUTH WALES EGG CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SAMUELS JA 16 December 1988 [1988] NSWCA 47 Samuels JA. This is a Notice of Motion in which the claimant, Mr Paul Galea, seeks orders staying execution upon orders made by Needham J on 9 February and 19 August this year, and restraining the sequestrators appointed under the Writ of Sequestration issued by Cohen J in April of this year from selling and otherwise dealing with the real and personal property of the claimant. The dispute between Mr Galea and the New South Wales Egg Corporation arises out of provisions of the Egg Industry Act 1983 which the Corporation has sought to uphold, and the validity and the legal effect of which Mr Galea disputes. The matter, which came before Needham J in February, involved a conflict between them, that is Mr Galea and the Corporation, concerning the effect of the Act in which it was alleged that Mr Galea had been committing various breaches of that provision. Needham J gave reasons on 3 February and stood the matter over to 9 February; and it is evident from the material before the court that he gave theclaimant every reasonable opportunity to apply then for a stay of execution of the orders which he pronounced. No such application was made. Included in Needham J's orders was a reference to the Master to assess damages, if any, which the Corporation had suffered, in consequence of the breaches of the Act which the learned judge had found that Mr Galea had committed. Thereafter Mr Galea failed to obey the orders which Needham J had made and an application came before Cohen J on 18 April this year, seeking that Mr Galea be dealt with for contempt. Cohen J found the contempt proved, imposed a fine and ordered a writ of sequestration to issue but to lie in the office for a period. Ultimately, since the fines were not paid, the writ of sequestration issued and in May of this year the sequestrators were appointed. No appeal has ever been filed against the orders of Cohen J, nor has any application been made to stay the execution of those orders or the execution of the writ. There was also an application before Bryson J made by the Corporation for possession of Mr Galea's farm. That order was made. There was no appeal against that. On 18 August of this year the Master certified a very substantial sum of damages as being payable by Mr Galea to the Corporation, and on 19 August Needham J made the appropriate orders. In September an appeal was filed against those orders, ie the orders of 19 August. An application for a stay was made to thiscourt, which came before the President on 26 September. The stay sought was of execution upon the judgment for damages entered on 19 August. By consent various orders were made. One of them was indeed the stay of that execution and par 6 of the short minutes notes that the stay of execution of the judgment for damages is not 'to include any action arising out of the judgment of Needham J on 9 February 1988 and 2 UNREPORTED JUDGMENTS presently being taken by sequestrators to recover fines presently outstanding and payable by the appellant.' That is, of course, a reference to the action in respect of which the notice of motion now before me has been filed. The argument in support of the notice of motion is, in short, that the sequestrators who are in possession are seeking to realise assets in order to liquidate fines imposed for failure to comply with orders which, it will be submitted on Mr Galea's behalf, were void. They were void because they were made in support of provisions of an Act which is, as counsel says, ultra vires, or in support of sections which are ultra vires of an Act which may be, in other respects, within power. I do not take into account any question of whether or not that appeal or the application for leave to appeal is likely to succeed. On the material before me it is quite plain that there has been not only a delay by the claimant, but a total failure to act at various times and in respect of various situations. Had appropriate action been taken it may be — because of course, stays sought might have been refused — that he would not have been in the situation in which he now findshimself. Whatever may happen in the appeal an order of the court, an order of a court of unlimited jurisdiction such as the Supreme Court of this State, will stand until it is set aside. It may be that an appreciation of that principle played some part in the reasoning which apparently dictated the failure to act by an appeal against the orders of Cohen J. However that may be I do not think that any of the authorities to which reference has been made, and, in particular, the case which normally governs us now in these matters, namely Alexander & Ors v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 requires me to direct a stay in the circumstances which I have outlined. The stay sought, if I may emphasise it, is against the actions of sequestrators appointed pursuant to a finding of contempt against which an appeal has never been filed, and following an application to the court to stay execution on other orders, but specifically accepting the consequences of the finding of contempt. In those circumstances I do not think that the claimant has made out a case for either of the material orders in the notice of motion and I order that the notice of motion be dismissed with costs. Orders accordingly.