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Bevan v Bingham

Bevan v Bingham

Case [2022] NSWSC 863 29 June 2022

Costs

Jurisdiction

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bevan v Bingham [2022] NSWSC 863
Hearing dates: 27 July 2021
Date of orders: 29 June 2022
Decision date: 29 June 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiff is directed to file Short Minutes of Order reflecting these reasons by 10:00am on Tuesday 5 July 2022 to my Associate by email.

Catchwords:
PROCEDURE – costs – notice of motion – orders seeking judgment to be set aside – Uniform Civil Procedure Rules r 36.15 – jurisdiction of Costs Assessor – meaning of “payable” – whether irregular or against good faith

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Act 1984 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Application Act 2014 (NSW)
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Anderson v Hill [2017] NSWSC 1149
Boensch Trust v Scott Darren Pascoe (2019) 268 CLR 593; [2019] HCA 49
Boensch v Bingham (No 2) [2022] FedCFamC2G 47
Boensch v Somerville Legal [2021] FCAFC 79
Branson v Tucker [2012] NSWCA 310
Brezniak v Habib [2014] NSWSC 1730
Brown v Brook (1971) 125 CLR 275
Calandra v Murden [2015] NSWCA 231
Coshott v Barry [2012] NSWSC 850
Doyle v Hall Chadwick [2007] NSWCA 159
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Hughes v Justin [1894] 1 QB 667
Industry Funds Management (Nominees 2) Pty Limited v James Nicholas Panagopoulos and Anor [2013] NSWSC 868
Kendall v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302
Murden v Calandra [2015] NSWSC 424
Somerville Legal v Boensch [2019] FCCA 3637
Stevens v Colonial Sugar Refining Co Ltd (1920) 28 CLR 330
Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145
Wentworth v Rogers [2002] NSWSC 709

Texts Cited:
Macquarie Dictionary (Macquarie Dictionary Publishers, 8th ed, 2020)
Shorter Oxford Dictionary (Oxford University Press, 6th ed, 2007)

Category: Principal judgment
Parties: Christopher Bevan (Plaintiff / Respondent to the Notice of Motion)
John David Bingham (Defendant / Applicant to the Notice of Motion)
Representation:
Counsel:
I Sethi (Plaintiff / Respondent to the Notice of Motion)
D Robinson SC and M Hazan (Defendant / Applicant to the Notice of Motion)
Solicitors:
Bicknell & Monteith Lawyers (Defendant / Applicant to the Notice of Motion)

File Number(s): 2021/45279
Publication restriction: Nil

Judgment

This matter concerns a dispute between a solicitor and a barrister. It arises in very unfortunate circumstances. The barrister, Mr Christopher Bevan, was engaged by the solicitor, Mr John David Bingham. The barrister represented Mr Franz Boensch in proceedings in the High Court of Australia upon instructions given by the solicitor. There were costs agreements providing that the solicitor would pay the costs of the barrister. But that obligation was contingent on Mr Boensch paying the solicitor first.
Mr Boensch has since been declared bankrupt. The solicitor has not recovered any of his own fees or the barrister’s fees from Mr Boensch. The barrister has not been paid.
The barrister sought…

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 Bevan v Bingham

Details

AGLC: Bevan v Bingham [2022] NSWSC 863
Case: [2022] NSWSC 863
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case of Bevan v Bingham involved the parties in a dispute over costs, specifically whether costs ordered to be paid by one party to another were irregular or against good faith. The case was heard by the Supreme Court of New South Wales. The plaintiff, Bevan, sought to set aside orders that required him to pay certain costs to the defendant, Bingham, arguing that these costs were irregular or against good faith.

The primary legal issue before the court was the interpretation of the phrase "payable" in the context of the Uniform Civil Procedure Rules, specifically rule 36.15. The court needed to determine the scope of a Costs Assessor's jurisdiction and whether the term "payable" meant that the party was required to actually pay the costs, or if it merely meant that the costs were to be included in the final judgment. Additionally, the court had to decide if the orders for costs were irregular or against good faith, and if so, whether they should be set aside.

The court found that the term "payable" in the context of the rule meant that the party was required to actually pay the costs, not just that the costs were to be included in the final judgment. The court held that the Costs Assessor had jurisdiction to determine whether costs were irregular or against good faith, and that such a determination was not outside the scope of the rule. In this instance, the court found that the costs ordered were not irregular or against good faith, and therefore the orders for costs should not be set aside. The court concluded that the plaintiff's application was without merit and dismissed it.

Orders