Levy v Bablis (No 2) - [2013] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Levy v Bablis (No 2) [2013] NSWCA 100
Hearing dates: On the papers
Decision date: 03 May 2013
Before: Beazley P at [1];
Macfarlan JA at [1];
Meagher JA at [1]
Decision:
(1) Order that the amount of $125,000 paid into Court by the appellant, as security for costs, be paid to the respondent.
(2) Appellant's application to discharge confidentiality order, in respect of Exhibit F in the appeal, refused.
(3) Order the appellant pay the respondent's costs of the applications dealt with by this judgment.
[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: COSTS - security for costs - $125,000 provided by appellant as security for costs of appeal - appellant unsuccessful - ordered to pay respondent's costs - costs not yet assessed or agreed - appellant seeks release of security to him - respondent seeks payment of security to him - respondent's incurred costs exceed $300,000 - fundamental purpose of security to protect respondent from inability of appellant to satisfy order for costs - appellant not contend amount of security likely to exceed recoverable costs - order security be released to respondent
Category: Costs
Parties: Julian Emmanuel Levy (Appellant)
Peter Bablis (Respondent)
Representation: Counsel:
P Menzies QC, B K Nolan (Appellant)
M Condon SC (Respondent)
Solicitors:
Tsolakis Solicitors (Appellant)
Minter Ellison (Respondent)

File Number(s): 2006/260173
Decision under appeal

Citation:

Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461

Date of Decision:

2011-05-19 00:00:00

Before:

Slattery J

File Number(s):

2006/260173

Judgment

THE COURT: The Court delivered judgment in this appeal on 25 February 2013. The appellant was ordered to pay the respondent's costs of the appeal, including the costs of the application to adduce further evidence. There remains to be determined the respondent's application for an order that there be paid to him the sum of $125,000 provided by the appellant by way of security for costs. That security was paid into Court.

Initially the appellant opposed the making of that order on the basis that the time for making an application to the High Court for special leave to appeal had not expired. That time has now expired and no such application has been made. By further written submissions, the appellant continues to oppose the making of the order and argues that the security should be released to him.

The respondent submits that there is no reason why the sum of $125,000 should not be paid to him on account of the recoverable costs which he has incurred in the appeal. He has obtained an order for the payment of those costs. Whilst…

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 (No 2)

Details

AGLC: Levy v Bablis (No 2) [2013] NSWCA 100
Case: [2013] NSWCA 100
Decision Date: 03 May 2013

CaseChat Overview and Summary

In *Levy v Bablis (No 2)*, the appellant sought the release of $125,000 paid into court as security for the costs of an appeal, following their unsuccessful outcome. The respondent, whose incurred costs exceeded $300,000, sought payment of this security to satisfy their entitlement to costs. The appeal was heard by Beazley P, Macfarlan and Meagher JJA.

The central legal issue before the court was whether the security for costs should be released to the unsuccessful appellant or paid to the respondent to meet their costs. The court was required to consider the fundamental purpose of security for costs in the context of an unsuccessful appeal and the respective claims of the parties.

The court reasoned that the fundamental purpose of security for costs is to protect a respondent from the inability of an appellant to satisfy an order for costs. Given that the appellant did not contend that the amount of security was likely to exceed the recoverable costs, the court found no impediment to ordering the release of the security to the respondent. Accordingly, the court ordered that the $125,000 paid into court by the appellant as security for costs be paid to the respondent. The appellant's application to discharge a confidentiality order in respect of an exhibit was refused, and the appellant was ordered to pay the respondent's costs of these applications.

Orders

Orders of the court

(1) Order that the amount of $125,000 paid into Court by the appellant, as security for costs, be paid to the respondent.

(2) Appellant's application to discharge confidentiality order, in respect of Exhibit F in the appeal, refused.

(3) Order the appellant pay the respondent's costs of the applications dealt with by this judgment.

[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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Medium Neutral Citation:	Levy v Bablis (No 2) [2013] NSWCA 100
Hearing dates:	On the papers
Decision date:	03 May 2013
Before:	Beazley P at [1]; Macfarlan JA at [1]; Meagher JA at [1]
Decision:	(1) Order that the amount of $125,000 paid into Court by the appellant, as security for costs, be paid to the respondent. (2) Appellant's application to discharge confidentiality order, in respect of Exhibit F in the appeal, refused. (3) Order the appellant pay the respondent's costs of the applications dealt with by this judgment. [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:	COSTS - security for costs - $125,000 provided by appellant as security for costs of appeal - appellant unsuccessful - ordered to pay respondent's costs - costs not yet assessed or agreed - appellant seeks release of security to him - respondent seeks payment of security to him - respondent's incurred costs exceed $300,000 - fundamental purpose of security to protect respondent from inability of appellant to satisfy order for costs - appellant not contend amount of security likely to exceed recoverable costs - order security be released to respondent
Category:	Costs
Parties:	Julian Emmanuel Levy (Appellant) Peter Bablis (Respondent)
Representation:	Counsel: P Menzies QC, B K Nolan (Appellant) M Condon SC (Respondent) Solicitors: Tsolakis Solicitors (Appellant) Minter Ellison (Respondent)
File Number(s):	2006/260173
Decision under appeal	Citation: Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461 Date of Decision: 2011-05-19 00:00:00 Before: Slattery J File Number(s): 2006/260173