Levy v Bablis & Anor - [2009] NSWSC 768

CITATION: Levy v Bablis & Anor [2009] NSWSC 768

HEARING DATE(S): 30 July 2009

JUDGMENT DATE :
31 July 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 31 July 2009

DECISION: An order for costs in favour of the first defendant against both the plaintiff and the second defendant to be borne by them jointly and severally in respect of an application for the plaintiff to have leave to discontinue against the second defendant.

CATCHWORDS: COSTS - First defendant entitled to order for costs of a failed application for discontinuance of proceedings during hearing - whether the issue of costs should be reserved until the end of the proceedings - there is nothing in the position as between the first defendant and second defendant which requires costs to be reserved

LEGISLATION CITED: Uniform Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Sanderson v Blythe Theatre Company [1903] 2 KB 533

PARTIES: Julian Emmanuel Levy (Plaintiff)
Peter Bablis (First Defendant)
United Producers & Associates Pty Limited ACN 114 655 417

FILE NUMBER(S): SC 6289/06

COUNSEL: Mr S J Stanton (Plaintiff)
Mr M Holmes (Plaintiff)
Mr J Simpkins SC (First Defendant)
Mr M Condon (First Defendant)
Ms P McEniery (First Defendant)
Mr A Street SC (Second Defendant)
Ms D Hawkins (Second Defendant)

SOLICITORS: McLachlan Thorpe Partners (Plaintiff)
Minter Ellison (First Defendant)
Slattery Thompson (Second Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

WEDNESDAY 5 AUGUST 2009

6289/06 JULIAN EMMANUEL LEVY v PETER BABLIS AND UNITED PRODUCERS & ASSOCIATES PTY LIMITED ACN 114 655 417

JUDGMENT [Reasons for decision on Costs Judgment given 30 July 2009]

1 HIS HONOUR: In a judgment delivered 29 July 2009 I declined to grant the leave jointly sought by the plaintiff and the second defendant to permit the plaintiff to discontinue these proceedings against the second defendant. My reasons for refusing leave are published separately: [2009] NSWSC 740. On behalf of the first defendant, Mr Simpkins SC now seeks an order for costs against the plaintiff and the second defendant. Mr Simpkins submits that as the first defendant was successful in opposing the grant of leave to discontinue under r12.1 of the Uniform Civil Procedure Act 2005, there is no reason why a costs order should not be made now against both the plaintiff and the second defendant who each took an active part in promoting the application for discontinuance. Mr Street SC, on behalf of the second defendant, and Mr Stanton, on behalf of the plaintiff, oppose the making of an order for costs. I do not agree with Mr Street’s and Mr Stanton’s submissions and on 30 July 2009 I made orders for costs on the leave application against the plaintiff and the second defendant. I indicated on 30 July that I would publish reasons for my decision later. These are those reasons.

2 Mr Street’s principal argument is that I should reserve the issue of costs and not decide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Levy v Bablis & Anor

Details

AGLC: Levy v Bablis [2009] NSWSC 768
Case: [2009] NSWSC 768
Decision Date: 31 July 2009

CaseChat Overview and Summary

The case of Levy v Bablis & Anor was heard before the Supreme Court of Victoria. The plaintiff, Levy, sought to enforce a judgment against the first defendant, Bablis, and a second defendant. The primary dispute involved the enforcement of the judgment and the costs associated with a failed application by the first defendant to discontinue the proceedings. The court was required to determine whether the first defendant was entitled to an order for the costs of the failed application and whether the issue of costs should be reserved until the end of the proceedings.

The court considered the legal principles surrounding the costs of a failed application for discontinuance of proceedings. It examined the circumstances under which costs may be awarded and whether there were exceptional circumstances that warranted reserving the issue of costs until the conclusion of the proceedings. The court noted that the relationship between the first defendant and the second defendant did not necessitate reserving the issue of costs. It was held that the first defendant was entitled to an order for the costs of the failed application, and there were no grounds to reserve the issue of costs pending the outcome of the proceedings.

In reaching its decision, the court emphasised the importance of ensuring that costs are awarded fairly and justly in the context of the proceedings. It found that there were no exceptional circumstances that would justify deferring the issue of costs until the end of the proceedings. Therefore, the court ruled that the first defendant was entitled to an order for the costs of the failed application for discontinuance. The court did not reserve the issue of costs for a later stage in the proceedings.

The final orders of the court were that the first defendant, Bablis, was entitled to an order for the costs of the failed application for discontinuance. The issue of costs was not reserved pending the outcome of the proceedings, and the first defendant was to be compensated for the costs incurred in relation to the failed application.

Orders