Bingham v Bevan

[2023] NSWCA 186

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bingham v Bevan [2023] NSWCA 186

Hearing dates:

3 August 2023

Date of orders:

3 August 2023

Decision date:

03 August 2023

Before:

Griffiths AJA

Decision:

(1) On the giving of an undertaking to the Court through his senior counsel that the respondent to the notice of motion will not take any steps to enforce orders 2(b) and 4 of the orders made on 5 May 2023 pending the final determination of the proceedings in the High Court, the notice of motion filed on 2 June 2023 be dismissed.

(2) The applicant on the notice of motion pay the respondent’s costs of the notice of motion.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Stay of orders – Stay pending application for special leave to appeal to High Court – No exceptional circumstances – No substantial prospects of leave being granted – No risk of losing subject matter of appeal – Balance of convenience - Stay not granted

Legislation Cited:

Legal Profession Uniform General Rules 2015 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Legal Profession Uniform Law 2014 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89

Bingham v Bevan [2022] NSWCA 248

Bingham v Bevan [2023] NSWCA 86

Calandra v Murden [2015] NSWCA 231

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1

Category:

Procedural rulings

Parties:

John David Bingham (Appellant)
Christopher John Bevan (Respondent/Applicant on motion)

Representation:

Counsel:

D Robinson SC/M Hazan (Appellant)
P Herzfeld SC/I Sethi (Respondent/Applicant on motion)

Solicitors:

Bicknell & Monteith (Appellant)
Breene & Breene (Respondent/Applicant on motion)

File Number(s):

2022/275823

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Court of Appeal

Citation:

[2023] NSWCA 86

Date of Decision:

5 May 2023

Before:

Meagher JA, White JA, Basten AJA

File Number(s):

2022/275823

ex tempore JUDGMENT (revised)

1. By a notice of motion filed on 2 June 2023, the respondent in the appeal proceedings seeks, inter alia, an order staying the enforcement of certain orders made by this Court on 5 May 2023. The stay is sought pending the final determination of the respondent’s application for special leave to appeal in the High Court (filed on 30 May 2023) and, if special leave is granted, final determination of that appeal.

2. The orders the subject of the stay relate to the payment of certain costs by the respondent (orders 2(b) and 4) and an order that the respondent pay to the appellant the amount of $136,525.95 by way of reimbursement of moneys paid to the respondent pursuant to a garnishee order (order 3).

3. The appellant has indicated that it is not his intention to have his costs assessed for the purposes of orders 2(b) and 4 until the proceedings in the High Court have concluded. He opposes a stay…