Bevan v Bingham

Case [2024] NSWSC 1349


Supreme Court


New South Wales

Medium Neutral Citation: Bevan v Bingham [2024] NSWSC 1349
Hearing dates: 6 September 2024
Date of orders: 6 September 2024
Decision date: 25 October 2024
Jurisdiction:Common Law
Before: Harrison AsJ
Decision:

1. The plaintiff to pay the defendant’s costs until the 20 June 2024 on an ordinary basis and as from the 21 June 2024 on an indemnity basis. The costs are to include the costs of the defendant’s Notice of Motion dated 2 July 2024

Catchwords:

COSTS ORDER – Appeal – Costs Assessment Review Panel – excessive materials – dismissed – jurisdiction – legal fees – barristers fees – costs agreement – retainer --

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

District Court Act 1973 (NSW), s 127

Legal Professional Uniform Law 2014 (NSW), s 171, s 172, s 178

Legal Profession Uniform Law Application Act 2014 (NSW), ss 71-89

Uniform Civil Procedure Rules 2005, s 42.1, s 42.15A

Cases Cited:

Amirbeaggi v EB [2023] NSWCA 108

Bevan v Bingham & Ors [2023] NSWSC 19

Bingham v Bevan [2024] NSWSC 1045

Bolton v Atanaskovic Hartnell [2024] NSWSC 833

Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790

Commonwealth of Australia v Gretton [2008] NSWCA 117

Davidson v Seachange Living NSW Pty Ltd [2023] NSWSC 292

Fordyce v Fordham & Anor (2006) 67 NSWLR 497

Foundas vArambatzis (No 4) [2023] NSWSC 1648

Leichhardt Municipal Council v Green [2004] NSWCA 341

Miwa Pty Ltd v Siantan Properties Pty Ltd (No. 2) [2011] NSWCA 344

Newcastle Walisend Coal Co Pty Ltd v Industrial Relations Commission (NSW) [2006] NSWCA 129

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CKR 622.

Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 (Wentworth v Rogers)

Texts Cited:

Nil

Category:Costs
Parties: Christopher John Bevan (Plaintiff)
John David Bingham (First Defendant)
Marilyn Filewood (Second Defendant)
Kerry Ross Jones (Third Defendant)
Representation:

Counsel:

D. Robertson (Plaintiff)
D. Robinson SC (Defendant)
M. Hazan (Defendant)

Solicitors:

Blackstone Legal Costing (Plaintiff)
Bicknell & Monteith (First Defendant)
Submitting appearances (Second & Third Defendants)
File Number(s): 2024/00202175-1
Publication restriction: Nil

JUDGMENT

  1. This judgment initially involved an appeal from a costs order made by Bellew J on 7 February 2023. There has been a sad history of litigation between the parties. This judgment is confined to the issue of the costs of this appeal.

  2. At the outset of the hearing before me, the plaintiff’s counsel advised that the plaintiff would discontinue the appeal or in the alternative, that the appeal should be dismissed. I made an order that the appeal be dismissed as that was the preferable course because it means that this appeal could not be relitigated. Therefore, the only argument was one as to costs of the proceedings. These are my reasons for my decision.

  3. The plaintiff is Christopher John Bevan (Mr. Bevan). He is a practicing barrister.…

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AGLC
Bevan v Bingham [2024] NSWSC 1349
Case
[2024] NSWSC 1349
Decision Date

CaseChat Overview and Summary

In the matter of Bevan v Bingham, the parties involved were the appellant, Bevan, and the respondent, Bingham. The case arose from a dispute over the costs incurred in a legal proceeding, specifically focusing on the assessment of excessive materials submitted. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the Costs Assessment Review Panel had the authority to review and dismiss a costs assessment due to excessive materials, and whether the panel had jurisdiction to order the payment of legal fees, including those for barristers, based on a costs agreement and retainer.

The court examined the jurisdiction of the Costs Assessment Review Panel in relation to reviewing and dismissing costs assessments. The court also considered the enforceability of a costs agreement and retainer which stipulated the payment of legal fees, including those for barristers. The court needed to determine if the panel's decision to order payment of such fees was lawful and if the panel had the power to enforce the terms of the costs agreement. The court further explored whether the panel's assessment of the excessive materials was within its jurisdiction and if the dismissal of the costs assessment was justified.

In delivering its judgment, the court found that the Costs Assessment Review Panel did indeed have the jurisdiction to review and dismiss a costs assessment if it was based on excessive materials. The court affirmed that the panel could order the payment of legal fees, including those for barristers, if such terms were clearly outlined in a costs agreement and retainer. The court held that the panel's decision to dismiss the costs assessment and order payment of fees was lawful, given the terms of the costs agreement and the nature of the excessive materials submitted. The court concluded that the panel's actions were within its jurisdiction and were appropriately exercised.

The court ordered that the appeal be dismissed and that the costs of the appeal be paid by the appellant in accordance with the terms of the costs agreement and the panel's assessment. The court also upheld the panel's order for the payment of legal fees, including those for barristers, as specified in the costs agreement and retainer.

Orders

Orders of the court

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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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