Levy v Bablis

[2011] NSWCA 411

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Levy v Bablis [2011] NSWCA 411

Hearing dates:

12 December 2011

Decision date:

12 December 2011

Before:

Giles JA

Decision:

I order that the appellant provide security for the costs of the respondent in the sum of $125,000 in the manner following. The security is to be paid into court or such other manner as the Registrar may direct on application to abide the further order of the Court. $30,000 is to be paid into court in the first instance. Forthwith upon the disposal of the respondent's application strikeout application pursuant to the notice of motion filed on 17 November 2011 the balance of $95,000 is to be paid. The appeal is stayed pending payment into court of the first amount of $30,000, and in the event that the disposal of the respondent's dismissal application is such that the appeal continues is thereafter to be stayed pending payment of the remaining $95,000. I adjourn the dismissal application pursuant to the said notice of motion to 30 January 2012 before the Registrar.

[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 Court146s 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:

APPEAL - security for costs - unresolved application for summary dismissal - impecunious appellant - weak appeal - other costs unpaid - non-compliance with directions - special circumstances (UCPR 51.50) - not shown appeal would be stultified - security ordered - initial amount pending resolution of summary dismissal application - further amount thereafter.

Cases Cited:

Hastings v Hastings [2009] NSWCA 294;
Piras v Egan [2007] NSWCA 26.

Category:

Procedural and other rulings

Parties:

Julian Emanuel Levy - Appellant
Peter Bablis - Respondent

Representation:

P Menzies QC & B Nolan - Appellant/Respondent on motion
M Condon - Respondent/Applicant on motion
McLachlan Thorpe Partners - Appellant
Minter Ellison - Repondent

File Number(s):

2006/260173

 Decision under appeal 

Citation:

Levy v Bablis [2011] NSWSC 461

Date of Decision:

2011-05-19 00:00:00

Before:

Slattery J

File Number(s):

2006/260173

Judgment

1. HIS HONOUR: This is an application by the respondent, the defendant at trial, for an order that the appeal be dismissed pursuant to Pt 13 r 1 of the UCPR and, depending upon what happens to that application, for an order that the appellant provide security for the costs of the appeal.

1. The appellant brought proceedings against the respondent on a claim in debt, for breach of fiduciary duty and for misleading conduct. Essentially he alleged that he had "invested" about $1,000,000 in a socalled private placement to which he was introduced by or through the respondent. The money was lost.

1. The trial took about sixteen days with extensive factual dispute. The trial judge…