Levy v Bablis

[2012] NSWCA 147

Court of Appeal

New South Wales

Case Title:

Levy v Bablis

Medium Neutral Citation:

[2012] NSWCA 147

Hearing Date(s):

11 May 2012

Decision Date:

11 May 2012

Jurisdiction:

Before:

Whealy JA at [1], [17], [20], [22] and [24]; Meagher JA at [16]; Barrett JA at [2]

Decision:

Application dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - oral application for variation of earlier orders - no matter of principle

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Interlocutory applications

Parties:

Julian Emmanuel Levy - Appellant
Peter Bablis - Respondent

Representation

- Counsel:

P Menzies QC/B K Nolan - Appellant
M K Condon - Respondent

- Solicitors:

Tsolakis Solicitors - Appellant
Minter Ellison - Respondent

File number(s):

2006/00260173

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

1. WHEALY JA: The Court has considered the arguments of counsel and is in a position now to give its decision. I will ask Barrett JA to give the first judgment.

2. BARRETT JA: The appellant has brought three matters before the Court this morning.

3. First, he has made an oral application for the variation of the existing orders concerning security for costs so that the balance of security to be provided in accordance with those orders is reduced from $95,000 to $70,000.

4. Such an application could succeed (in the sense that the discretion to vary might appropriately be exercised) if some material change in circumstances were shown.

5. The only matter to which the appellant points in that respect is the fact that he has obtained a bank loan and can therefore muster more money now than previously.

6. That is not a change in circumstances in the relevant sense. Circumstances are unchanged since, on the position the appellant presents, he still cannot provide the amount required by the existing orders.

7. The second aspect that was brought before the Court this morning is a desire on the part of the appellant to agitate the question of access to documents produced on subpoena and for that purpose to have the stay flowing from the security for costs order lifted or at least sufficiently relaxed to enable that aspect to be progressed. The documents in question were produced on subpoena by McGillivrays Solicitors on 26 September 2011 and the motion seeking access was put onto a formal footing by a notice of motion filed on 6 December 2011.

8. When the question of security for costs was argued before Giles JA on 12 December 2011, the appellant was content to deal with the matter without review of these subpoenaed documents. Before Young JA on 28 February 2012, it was recognised by the appellant that security would have to be provided before the question of access to the documents produced on subpoena by McGillivrays could be progressed.

9. It was not until the tail end of the hearing on 30 April 2012 before the Court as now constituted that there was any application for a lifting or relaxation of the stay flowing from the security for costs order to allow the question of inspection of the subpoenaed documents to be progressed. The matter was raised after the Court had heard argument on the matters then before it, had retired to consider the course it would take and had returned to inform the parties that judgment would be reserved; at which time there was an extension of the deadline for the provision of security for costs to accommodate the fact that judgment was not immediately forthcoming.

10. The purpose of an order for security for costs is clear and need not be repeated. That purpose would not be served by any variation of the ordinary course of events as set down by the existing orders including the aspect of them that involves a stay of proceedings.

11. The last matter agitated this morning was the fact that, in two places in the reasons for judgment of the Court as now constituted delivered on 8 May 2012, orders of Young JA of 28 February 2012, are referred to as consent orders when, it is said, they were not consent orders. It is said that this needs to be corrected under the slip rule.

12. Counsel for the appellant took the Court to those orders on two occasions in the course of his submissions on 30 April 2012. He identified them as appearing at tab 7 of the court book he had provided. The copy of the orders at tab 7 bearing the Court's seal shows clearly that they were recorded as consent orders. To that extent, the judgment and the description in it of the orders were consistent with the orders of the Court as recorded and entered and with the material to which counsel for the appellant took the Court.

13. That notwithstanding, an inspection of the transcript before Young JA would indicate that the orders were not in the technical sense consent orders, although that transcript does show that there was no serious opposition to the relevant part, being the selfexecuting aspect.

14. In any event, the question whether the orders were or were not consent orders was not material to the decision of 8 May 2012. That decision did not involve any question of review of or challenge to the orders of 28 February 2012.

15. The Court should not grant any part of the relief sought by the appellant by means of the oral application brought before the Court today. That is the order I would make.

16. MEAGHER JA: I agree with Barrett JA and the reasons he has given.

17. WHEALY JA: I agree and I would only add this: It is my clear view that Mr Condon's client should not be put to the expense of further costly litigation when it was the manifest intention of Giles JA when the initial orders were made, and has remained a fundamental feature of any variation of those orders since that time, that security for costs should be provided before any further step be taken in the appeal. In those circumstances the stay should remain on foot until it is seen whether Mr Menzies' client has the ability to provide the security within the time permitted by this Court's order made on 8 May 2012.

18. The order of the Court therefore is that the motion be dismissed with costs.

19. MENZIES: Your Honour, the drop dead date is next Tuesday and I wish to indicate that we would seek liberty to apply then in the event of the additional funds not being raised.

20. WHEALY JA: All right. Mr Condon, you have no objection to liberty to apply being granted?

21. CONDON: No, I don't, your Honours.

22. WHEALY JA: Liberty to apply is granted.

23. MENZIES: Thank you, your Honour.

24. WHEALY JA: Yes, thank you, the Court will now adjourn.

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