Levy v Bablis

Case [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…

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AGLC
Levy v Bablis [2011] NSWCA 411
Case
[2011] NSWCA 411
Decision Date

CaseChat Overview and Summary

The appeal concerned an application by the respondent for security for costs against an impecunious appellant. The appellant had also failed to comply with court directions and had other outstanding costs. The respondent sought security for costs under UCPR 51.50, arguing that special circumstances existed.

The primary legal issue before the court was whether to order security for costs against the appellant, and if so, in what amount and under what conditions, given the appellant's impecuniosity, non-compliance with directions, and the existence of an unresolved application for summary dismissal of the appeal. The court also had to consider whether the appeal would be stultified if security were ordered.

Giles JA reasoned that while the appellant was impecunious and had not complied with directions, these factors alone did not necessarily warrant security for costs. However, the existence of an unresolved application for summary dismissal, coupled with the appellant's impecuniosity, created a situation where the respondent should be protected. The court found that the appeal would not be stultified by ordering security. The judge applied the principles governing security for costs, particularly in circumstances where an appeal is arguably weak and there are outstanding costs.

The court ordered the appellant to provide security for the respondent's costs in the sum of $125,000. This amount was to be paid into court in stages: $30,000 initially, with the remaining $95,000 to be paid upon the disposal of the respondent's summary dismissal application. The appeal was stayed pending the payment of the initial $30,000, and further stayed pending the payment of the balance if the appeal were to continue after the dismissal application. The summary dismissal application was adjourned.

Orders

Orders of the court

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.]

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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