Bingham v Bevan

Case [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…

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Bingham v Bevan [2023] NSWCA 186
Case
[2023] NSWCA 186
Decision Date

CaseChat Overview and Summary

In *Bingham v Bevan*, the applicant sought a stay of orders made by the Court of Appeal on 5 May 2023, pending an application for special leave to appeal to the High Court of Australia. The respondent opposed the stay.

The Court of Appeal was required to determine whether to grant a stay of its previous orders. This involved considering whether there were exceptional circumstances, whether the applicant had substantial prospects of obtaining special leave to appeal to the High Court, and whether there was a risk of the subject matter of the appeal being lost if the stay was not granted. The Court also had to consider the balance of convenience.

Griffiths AJA found that there were no exceptional circumstances warranting a stay, nor were there substantial prospects of special leave being granted by the High Court. Furthermore, the Court was not satisfied that there was any risk of the subject matter of the appeal being lost. Consequently, the Court dismissed the notice of motion for a stay.

However, the Court ordered that the notice of motion be dismissed on the condition that the respondent gave an undertaking to the Court, through senior counsel, not to take any steps to enforce specific orders pending the final determination of proceedings in the High Court. The applicant was ordered to pay the respondent's costs of the notice of motion.

Orders

Orders of the court

(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.

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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