TRADE CREDITS LTD v MACBETH [1989] NSWCA 214

TRADE CREDITS LTD v MACBETH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 16 October 1989, 16 October 1989

[1989] NSWCA 214

PRACTICE — stay on execution — judgment appealed — stay provided on conditions — stay dissolved when conditions repeatedly not fulfilled — no question of principle.

Supreme Court Act 1970 s46. ORDERS 1. Discharge the order number 1 made by the Court on 23 March 1987 staying execution of the judgment of 18 June 1986. 2. Order the appellants, the opponents to this motion, to pay the costs of an incidental to the motion.

Kirby P These proceedings arise out of an order and judgment which Wood J entered on 18 June 1986. The order and judgment were then appealed to this Court. The appellants secured a stay of execution of the judgment until the hearing of an appeal.

However, with the passage of time the respondent became concerned about the delay in the prosecution of the appeal.

Accordingly, orders were sought from the Court to terminate the stay of execution. In March 1987 short minutes of order were handed to the Court and orders made in accordance with them. The short minutes read:

1. Order that execution upon the judgment of 18 June 1986 herein be stayed until further order.

2. Note that the opponent by its counsel undertakes to the Court to use its best endeavour to procure that its petitions No P2264 of 1986 and P0153 of 1987 to the Federal Court of Australia be dismissed with no order as to costs.

3. Note that the claimants undertake to the opponent:

(a) Forthwith to institute and diligently to prosecute any claims which they have for indemnity or contribution in respect of the judgment debt; and (b) To give to the opponent such information (including copies of documents) as it may reasonably require from time to time to satisfy that the claimants are complying with their obligations under par (1).