Levy v Bablis

[2012] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Levy v Bablis [2012] NSWCA 77

Hearing dates:

28 February 2012; 2 April 2012

Decision date:

05 April 2012

Before:

Young JA

Decision:

Dismiss notice of motion 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.]

Legislation Cited:

Supreme Court Act 1970, ss 26, 75A
Uniform Civil Procedure Rules 2005, Pt 51.58

Cases Cited:

Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065
Programmed Solutions Pty Ltd v Dectar Pty Ltd [2007] QCA 385
Republic of Kazakhstan v Istil Group Inc [2006] 1 WLR 596
Streetscape Projects (Australia) Pty Ltd v The City of Sydney [2012] NSWCA 63

Category:

Interlocutory applications

Parties:

Julian Emmanuel Levy (Appellant)
Peter Bablis (Respondent)

Representation:

Counsel:

P Menzies QC and B K Nolan (Appellant)
M Condon (Respondent)
Solicitors:

Tsolakis Solicitors (Appellant)
Minter Ellison (Respondent)

File Number(s):

CA 2006/260173

Judgment

1. HIS HONOUR: This is a notice of motion seeking variation of one of my orders made 28 February 2012 and seeking to relieve the appellant from providing further security for costs.

1. The appeal is from a judgment of Slattery J delivered on 19 May 2011: [2011] NSWSC 461. That judgment concerned an "investment" made by the appellant of $1,000,000 which was lost. The appellant alleged breach of fiduciary duty and misleading and deceptive conduct against the respondent and a company, United Producers and Associates Pty Ltd (referred to as UPA). UPA was a company controlled by a Mr O'Dowd.

1. There seems little doubt that UPA and/or O'Dowd lost the appellant's money. The respondent was involved in securing the making of the "investment". However, after a 17 day hearing concluding in April 2010, the primary judge found that the respondent was a mere conduit and not liable to the appellant.

1. The appellant lodged an appeal. The sole ground was that fresh evidence should be considered which would reverse the crucial finding of fact made by the primary judge.

1. The respondent sought to have the appeal dismissed or, as a lesser alternative, sought security for costs.

1. This application was decided by Giles JA on 12 December 2011: [2011] NSWCA 411. His Honour ruled that the application for dismissal was premature, but that security for costs should be granted. It is convenient to set out the vital parts of the judgment:

[9] The appellant is impecunious. There is evidence that he has not paid an amount of costs ordered in favour of a third party in the course of the trial, and that monies are outstanding to the solicitors acting for him at trial. Mere impecuniosity will ordinarily not constitute special circumstances…