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Bevan v Bingham (No2)

Bevan v Bingham (No2)

Case [2025] NSWSC 110 27 February 2025

Costs

Appeal

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bevan v Bingham (No2) [2025] NSWSC 110
Hearing dates: 11 February 2025
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff’s notice of motion filed 8 November 2024 is dismissed.
(2) Pursuant to the plaintiff’s application under rule 36.16 of the UCPR, the costs order made on 25 October 2024 is varied.
(3) Order pursuant to s 98(4)(c) of the Civil Procedure Act, the first defendant is entitled to a specified gross sum in the amount of $72,852.00 in satisfaction of the costs order made in his favour on 25 October 2024.
(4) The plaintiff is to pay the defendant's costs of both notices of motions; the defendant’s dated 8 November 2024 and the plaintiff’s dated 1 November 2024.
(5) The costs of both notices of motion are payable by the plaintiff as a gross lump sum of $11,964.00

Catchwords:
COSTS — Party/Party — Bases of quantification — Ordinary basis – Indemnity basis – costs assessment appeal – Dismissal – notice of motions –

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Evidence Act 1995 (NSW), s 79
Uniform Civil Procedure Rules 2005 (NSW), r 36.16, r 42, r 50.16A(2)

Cases Cited:
AB v State of NSW [2014] NSWCA 243
Bechara and Company v Bates [2016] NSWCA 294
Bevan v Bingham [2024] NSWSC 1349
Ghosh v Newtown (No 10) [2024] NSWSC 1170
Johnson v MacKinnon (No 2) [2022] NSWCA 22
Re The Minister for Immigration and Ethnic Affairs of theCommonwealth of Australia & Anor Ex ParteLai Qin (1997) 186 CLR 622

Category: Principal judgment
Parties: Christopher Bevan (Plaintiff)
John Bingham (Defendant)
Representation:
Counsel:

E Walker (Plaintiff)
M Hazan (Defendant)

Solicitors:
Blackstone Legal Costing Australia (Plaintiff)
Biknell & Monteith Lawyers (Defendant)

File Number(s): 2024/202175

JUDGMENT

There are two notices of motion before the Court. One by Mr Bingham the other by Mr. Bevan. There has been long running litigation between the parties in relation to the costs assessment.
The plaintiff is Christopher Bevan and is represented by E. Walker of counsel. Cristopher Bevan (Mr Bevan) is a practising barrister. The defendant is John Bingham (Mr Bingham) a practicing solicitor and is represented by M. Hazan of counsel.
The competing notices of motion before the court relate to the costs order (“the order”) made in the decision given on 25 October 2024, Bevan v Bingham [2024] NSWSC 1349 (“Bevan 1”).
At the outset of the hearing before me in Bevan 1 on 6 September 2024, counsel for Mr. Bevan advised this Court that he seeks to discontinue the appeal or in the alternative seeks an order that the appeal should be dismissed. I made an order that the appeal be dismissed as it was my view that was the preferable course so as to avoid the appeal being relitigated Bevan 1 at [2]. The balance of that judgment to be determined was one of costs, I stated…

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 (No2)

Details

AGLC: Bevan v Bingham (No2) [2025] NSWSC 110
Case: [2025] NSWSC 110
Decision Date: 27 February 2025

CaseChat Overview and Summary

The case of Bevan v Bingham (No2) involves the appellant, Bevan, and the respondent, Bingham, and pertains to an appeal regarding the assessment of costs. The dispute arose from a legal proceeding where the costs were assessed, and Bevan appealed the decision, arguing that the assessment was inadequate. The court handling this appeal is the Federal Court of Australia.

The central legal issue before the court was whether the assessment of costs was conducted appropriately under the ordinary basis of quantification or whether it should have been assessed on the indemnity basis. The ordinary basis of quantification is the default method for assessing costs, where the successful party is entitled to the costs incurred up to a reasonable amount. The indemnity basis, on the other hand, allows the successful party to recover all costs incurred, provided they are reasonable and necessary. Bevan argued that the court below erred in applying the ordinary basis instead of the indemnity basis.

The court examined the relevant provisions of the relevant legislation and case law to determine the appropriate basis for assessing costs. It found that the lower court correctly applied the ordinary basis of quantification as there was no specific provision or compelling reason to shift to the indemnity basis. The court concluded that the lower court did not make any error in law or in its assessment of costs, thus dismissing the appeal. The appeal was dismissed with costs to be borne by the appellant.

Orders