Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bingham v Bevan [2023] NSWCA 86 Hearing dates: 24 April 2023 Date of orders: 5 May 2023 Decision date: 05 May 2023 Before: Meagher JA at [1];
White JA at [2];
Basten AJA at [3]Decision: (1) Allow the appeal and set aside the judgment delivered on 29 June 2022 in the Common Law Division and the orders entered on 12 September 2022.
(2) In place thereof:
(a) set aside the judgment entered in favour of the plaintiff on 19 February 2021; and
(b) order that the plaintiff (Christopher Bevan) pay the costs of the defendant (John David Bingham) of the proceedings on the notice of motion of 30 March 2021.
(3) 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.
(4) Order that the respondent pay the appellant’s costs of the proceedings in this Court.
Catchwords: COSTS – assessment – jurisdiction of costs assessor to make binding finding as to liability to pay costs – effect of finding as to breach of disclosure obligations by applicant for assessment – effect of certificate determining amount of costs payable – whether finding that costs due and payable
COSTS – disclosure obligations – costs agreements – agreement between law practices – payment contingent on solicitor being funded by client – barrister’s disclosure obligations to solicitor – barrister issued invoice for amount grossly in excess of costs estimate – contravention of disclosure obligations – costs agreement void – effect on contingent liability – statutory protection from liability for more than due under void contract – effect of s 185(2) of Legal Profession Uniform Law (NSW)
JUDGMENTS AND ORDERS – certificate of determination of costs – effect of filing of certificate and entry as judgment of court – whether taken to be a judgment of that court if no liability to pay fees –whether judgment entered irregularly, illegally or against good faith – whether judgment given in absence of a party
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 100, 101, 133
Interpretation of Legislation Act 1984 (Vic), ss 35, 36
Legal Profession Act 2004 (NSW), s 368
Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 93C
Legal Profession Uniform Law (NSW), ss 169, 171, 172, 174, 175, 178, 179, 180, 181, 182, 183, 184, 185, 199
Legal Profession Uniform General Rules 2015 (NSW), r 72A
Uniform Civil Procedure Rules 2005 (NSW), rr 36.1, 36.10, 36.15, 36.16
Cases Cited: Birketu v Castagnet [2022] NSWSC 1435
Boensch v Pascoe [2019] HCA Trans 133
Calandra v Murden [2015] NSWCA 231
Wentworth v Rogers [2002] NSWSC 709
Category: Principal judgment Parties: John David Bingham (Appellant)
Christopher Bevan (Respondent)Representation: Counsel:
Solicitors:
D Robinson SC / M Hazan (Appellant)
M Cashion SC / I Sethi (Respondent)
Bicknell…
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- AGLC
- Bingham v Bevan [2023] NSWCA 86
- Case
- [2023] NSWCA 86
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. These included the extent of a barrister's disclosure obligations to a solicitor, particularly when issuing an invoice for an amount significantly exceeding a prior costs estimate. The court also had to consider the consequences of a contravention of these disclosure obligations, specifically whether it rendered the costs agreement void and what effect this had on any contingent liability. Furthermore, the court examined the application of statutory protections from liability for amounts exceeding what would be due under a void contract, referencing s 185(2) of the Legal Profession Uniform Law (NSW). Finally, the court considered the validity of a certificate of determination of costs and whether it could be entered as a judgment of the court if entered irregularly, illegally, or against good faith, or in the absence of a party.
The court reasoned that the barrister's failure to provide adequate disclosure, particularly by issuing an invoice that grossly exceeded the costs estimate, constituted a contravention of his disclosure obligations. This contravention rendered the costs agreement void. The court found that the statutory protection under s 185(2) of the Legal Profession Uniform Law (NSW) applied, meaning the solicitor was not liable for more than was due under the void contract. Consequently, the certificate of determination of costs, which had been entered as a judgment, was found to have been entered irregularly and against good faith. The appeal was allowed, the judgment and orders of the lower court were set aside, and orders were made for the respondent to pay the appellant's costs of the proceedings in the Court of Appeal and to reimburse the appellant for moneys paid under a garnishee order.
Orders
Orders of the court
(1) Allow the appeal and set aside the judgment delivered on 29 June 2022 in the Common Law Division and the orders entered on 12 September 2022.
(2) In place thereof:
(a) set aside the judgment entered in favour of the plaintiff on 19 February 2021; and
(b) order that the plaintiff (Christopher Bevan) pay the costs of the defendant (John David Bingham) of the proceedings on the notice of motion of 30 March 2021.
(3) 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.
(4) Order that the respondent pay the appellant’s costs of the proceedings in this Court.
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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