AZRIEL v SFHIR SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA 11 August 1997 [1997] NSWCA 35 Cole JA. This is an application brought by Mr Azriel, who appeared in person, seeking a review of the decision of Registrar Jupp delivered on 14 July 1997. Registrar Jupp had before him two notices of motion. One was a notice of motion brought by the first respondent, the opponent in these proceedings, seeking a release of the sum of $ 2,500 which, pursuant to a previous order of this court, the applicant, Mr Azriel, had been obliged to pay into court as security for costs after an appeal. The order directing payment of that sum by way of security was pursuant toan application brought in that respect which was heard by Mr Justice Handley and was dated 26 July 1993. Subsequently, the appeal in respect of which the security for costs had been ordered was heard by the Court of Appeal on 28 March 1996. The court dismissed the appeal and ordered that Mr Azriel pay the costs of that appeal. The notice of motion seeking release of that sum to the respondent, Mr Sfhir, was filed on 23 June 1997 and it provoked a contrary notice of motion filed by Mr Azriel, seeking that there be a stay of the judgment which ordered payment of costs. The form of order sought in the notice of motion filed by Mr Azriel sought the following orders: Stay of judgment to the plaintiff for the sum of $ 2,500 held by this honourable court as appealing for security for costs. Mr Azriel has apparently filed a notice of motion in the High Court seeking leave to appeal from the decision of this Court delivered on 26 March 1996. It is said that the application for special leave to appeal will be heard in November 1997. The principal contention advanced by Mr Azriel before the Registrar and before me was that in the circumstance that the application for leave to appeal before the High Court will be heard perhaps in November 1997, then it was premature for the Registrar to make an order releasing the $ 2,500 held in Court as security to the respondent, Mr Sfhir. The Registrar in his judgment noted that the costs in the Court of Appeal awarded against Mr Azriel had been assessed at $ 2,886 and accordingly the security of $ 2,500 which was sought to be released would not quite meet that order for costs. The Registrar posed for himself the question whether there was any utility in his declining to make the order sought by Mr Sfhir in the circumstance that there was pending an appeal to the High Court. I have read the decision of the Registrar. In circumstances where this Court made an order in March 1996 granting an order for costs against Mr Azriel which has subsequently been assessed at $ 2,886, it seems to me to be not unreasonable for the beneficiary of that order to seek to have paid to him the sum of $ 2,500 in part payment of that costs order. The Registrar noted that there was no evidence that in the event of the application for leave to appeal being granted and 2 UNREPORTED JUDGMENTS in the subsequent event of the appeal to the High Court being successful, and the order for costs thus being reversed, there was no evidence that Mr Sfhir would be unable to repay that sum. The Registrar had a discretion to exercise whether or not he would order the payment out of the security for costs. In my judgment no error has been shown in the exercise of that discretion. Some sixteen or seventeen months have now passed since the order of this Court awarding costs was made and it seems to me not unreasonablethat the beneficiary of that order should have the costs which were ordered previously to paid into court. That is particularly so in circumstances where there was no evidence that there was any hardship to Mr Azriel in the making of such an order, nor was there any evidence that in the event of those orders being reversed, the respondent, Mr Sfhir, would be unable to repay that sum. In those circumstances, I do not detect an error in the judgment of the Registrar and I decline to disturb the orders which the Registrar made. As I have declined to interfere with the order of the Registrar, the notice of motion filed in court by Mr Azriel on 17 July 1997 will be dismissed and I order that Mr Azriel pay the first respondent's, Mr Sfhir's, costs of that notice of motion. Orders accordingly.