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). Notwithstanding the undertakings which were contained in par 2, the appellants, as I shall describe them, did not institute and diligently prosecute claims which they say they had for indemnity or contribution in respect of the judgment. So much was not really contested. It is said that now, belatedly, steps are being taken to prosecute those claims. The Court has been informed that the proceedings are defended. In the premises, I would not be confident that those steps would result in the early conclusion of the proceedings. The position is thus reached, more than three years after the judgment, that the appeal against the judgment has been, by consent, dismissed. The order staying execution upon the judgment was upon a basis which has not been fulfilled. The judgment stands as a valid judgment of the Court. It is so acknowledged by the appellants. 2 UNREPORTED JUDGMENTS It is suggested that I should delay the matter for another month, or so, to permit more enthusiastic steps to be taken on the part of the appellants to prosecute their claim for contribution or indemnity. However, I am not convinced that any such order would produce a more resolute response than the orders previously made and the undertakings previously given. Upon that basis, the appeal having been dismissed, I see no reason why this Court's list should be further encumbered with the proceedings. The orders which I make are: 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. They are the orders of the Court made by me pursuant to s46 of the Supreme Court Act 1970. Counsel for Applicant: Bryson Counsel for Opponent: Carter