Levy v Bablis

Case [2012] NSWCA 128

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Levy v Bablis [2012] NSWCA 128
Hearing dates:30 April 2012
Decision date: 08 May 2012
Before: Whealy JA at [1]; Meagher JA at [2]; Barrett JA at [3]
Decision:

1. Grant leave to the appellant to file the amended notice of motion handed up in Court on 30 April 2012.

2. Dismiss the amended notice of motion.

3. Fix 15 May 2012 as the date by which $95,000 is to be paid into Court pursuant to Order 2 of the orders of 28 February 2012 (as subsequently varied as to the deadline for payment) and order that that Order 2 as so varied be further varied accordingly.

4. Order that the appellant pay the respondent's costs of the amended notice of motion.

[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 - security for costs previously ordered - subsequent self-executing order of dismissal if security not provided by specified date - appellant seeks discharge of latter order and variation of security order to reduce sum - whether any change in circumstances warranting review
Legislation Cited: Civil Procedure Act 2005, ss 56 to 60
Supreme Court Act 1970, s 46(4)
Uniform Civil Procedure Rules 2005, rule 51.58
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Fletcher v Besser [2010] NSWCA 30
House v The King [1936] HCA 40; (1940) 55 CLR 499
Levy v Bablis [2011] NSWCA 411
Levy v Bablis [2012] NSWCA 77
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Patrick v Howorth [2002] NSWCA 285
Republic of Kazakhstan v Istil Group Inc [2005] EWCA Civ 1468; [2006] 1 WLR 596
Category:Interlocutory applications
Parties: Julian Emmanuel Levy - Appellant
Peter Babils - Respondent
Representation: P Menzies QC/B K Nolan - Appellant
M K Condon - Respondent
Tsolakis Solicitors - Appellant
Minter Ellison - Respondent
File Number(s):2006/00260173

Judgment

  1. WHEALY JA: I agree with Barrett JA.

  1. MEAGHER JA: I agree with Barrett JA.

  1. BARRETT JA: The Court heard on 30 April 2012 applications made by the appellant, Mr Levy, in an appeal initiated by him on 18 August 2011 from a decision of Slattery J of 19 May 2011 by which claims in the amount of $1 million brought by Mr Levy against Mr Bablis, the present respondent, were dismissed and judgment was entered for Mr Bablis.

  1. The case unsuccessfully pursued by the appellant as plaintiff at trial, stated in the broadest of terms, was that the respondent had induced him to put money into a "private…

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Levy v Bablis [2012] NSWCA 128
Case
[2012] NSWCA 128
Decision Date

CaseChat Overview and Summary

The appellant, Levy, sought to discharge a self-executing order of dismissal made by the Court of Appeal of New South Wales, which was contingent upon the failure to provide security for costs by a specified date. Levy also sought to vary the original security for costs order to reduce the sum required. The respondent was Bablis.

The primary legal issue before the Court of Appeal was whether there had been a sufficient change in circumstances since the original security for costs order was made to warrant a review and variation of that order, and consequently, the discharge of the self-executing dismissal order.

The Court of Appeal reasoned that the appellant had not demonstrated any material change in circumstances that would justify varying the original order for security for costs. The Court noted that the appellant's application was essentially a request to re-argue the original application for security, which had already been determined. The Court applied the principle that a party seeking to set aside or vary a judgment or order must demonstrate a significant change in circumstances or that the original order was made in error. In this instance, no such grounds were established.

Consequently, the Court of Appeal dismissed the appellant's amended notice of motion. However, it varied the original order by fixing a new date, 15 May 2012, by which the appellant was to pay $95,000 into Court as security for costs. The appellant was ordered to pay the respondent's costs of the amended notice of motion.

Orders

Orders of the court

1. Grant leave to the appellant to file the amended notice of motion handed up in Court on 30 April 2012.

2. Dismiss the amended notice of motion.

3. Fix 15 May 2012 as the date by which $95,000 is to be paid into Court pursuant to Order 2 of the orders of 28 February 2012 (as subsequently varied as to the deadline for payment) and order that that Order 2 as so varied be further varied accordingly.

4. Order that the appellant pay the respondent's costs of the amended notice of motion.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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