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 1THE 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. 2Initially 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. 3The 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 they have not been assessed or agreed, the respondent maintains that the costs of the appeal that he is entitled to recover will be far greater than $125,000. An affidavit of his solicitor establishes that he has incurred costs in excess of $300,000 in responding to the appeal. 4The appellant submits that the security should be released and paid to him. He says that whilst a material consideration which led to the making of the order for security was the "likely weakness of the appeal", by the conclusion of argument "the appeal was not shown to be hopeless, unreasonable or of an harassing nature". In those circumstances, the appellant submits that the order for security has achieved its end which was the "proper prosecution of the appeal". For that reason it ought now be discharged and the funds paid to him. 5This argument ignores the fundamental purpose for the making of an order for security for costs. That purpose is to protect a respondent from the injustice which would be occasioned by the inability of the party from whom security is sought to satisfy an order for costs. It does so by providing the party seeking security with access to a fund or other means from which it may satisfy its recoverable costs in the event that it is successful in the proceedings. 6In this appeal the appellant has been unsuccessful. The order for security was made on the basis that the appellant would be unable to meet any costs order from his own resources. It is not suggested that the appellant's financial position has changed since the order was made. To release the security to the appellant would defeat the purpose for which the order was made. 7The only question which remains is whether an order for release of the funds should be made now or only when the quantum of the costs payable has been assessed or agreed. Ordinarily security would not be released to the party in whose favour it was given until the quantum of costs has been determined, so as not to put the party providing the security at any risk of not being able to recover any balance in that party's favour. However, here the appellant has not opposed the making of the order on the basis that the amount of the security exceeds or is likely to exceed the quantum of the respondent's recoverable party and party costs. Furthermore, the evidence establishes that the amount of the security is approximately 40 per cent of the total costs incurred in an appeal which occupied four hearing days and was preceded by four contested interlocutory applications. That being the position, there is no good reason shown or relied upon as to why the order sought should not be made. 8Accordingly, the Court orders that the amount of $125,000 paid into Court by the appellant by way of security for costs be paid to the respondent. 9The appellant also seeks an order that a confidentiality order made with respect to an exhibit in the appeal be discharged. That exhibit is the Settlement Deed, admitted as Exhibit F, which was subject to a confidentiality order restricting access to it to the parties and their legal representatives for the purpose of use only in the proceedings (Tcpt 29/05/12 pp 48, 50-51). In the Court's view that discharging order should not be made. The Settlement Deed records the basis upon which unrelated proceedings commenced in the Supreme Court were settled between a number of parties. Those parties included the respondent, as well as other persons. They did not include the appellant. By the Deed the parties expressly agreed to keep its terms confidential. The parties to the Deed, who include a firm of solicitors against whom allegations of "inappropriate" conduct were made, have not been notified of this application or had an opportunity to be heard as to its outcome. In circumstances where the appeal has been determined and access to the document was only given for the purpose of use in the proceedings, no good reason is advanced as to why the order should be discharged. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2013